- The Washington Times - Sunday, October 5, 2008


There is a growing public awareness that the war on terror has also become a war on the civil liberties of Americans, that we are trading privacy for the illusion of security and will soon have neither. The assault on our rights that began more than 20 years ago with the war on drugs has mushroomed in the last few years.

Now there is a threat to one of the last remaining bulwarks against governmental intrusions into our lives: the exclusionary rule, which provides that evidence illegally seized by the police cannot be used as evidence in court. The simple fact is that the exclusionary rule is vital to the preservation of our liberties and must be maintained.

The Supreme Court on Tuesday will consider the case of Herring v. Bennie Herring based on a computer entry that showed an outstanding warrant for him, even though the warrant had been withdrawn five months earlier. He was then prosecuted for the drugs and gun found during the arrest.

Although the trial judge and the federal appeals court both found the arrest illegal and that the sheriff’s department was negligent in not maintaining accurate records, they allowed the government to use the evidence, concluding the officers acted in good faith and that the exclusionary rule should not apply.

Critics of the rule have made the same arguments for decades: It does not protect innocent people; there are civil and administrative remedies available for those whose rights are violated; other countries do not employ the rule; and a “blunder” by the police should not cause a criminal to go free. None of these arguments can survive the test of actual experience.

It is true that the exclusionary rule does not provide any remedy for an innocent person who has been the victim of an unreasonable search; an innocent person has no remedy but a civil suit. Filing a lawsuit, however, will not help anyone who possessed something illegal. Jurors have no sympathy for such people and will not award them compensation. Administrative remedies exist only in theory. Police departments do not discipline their own for illegal searches that uncover illegal contraband.

Most perplexing is the argument that we should abandon the exclusionary rule because it is not endorsed by other democracies, as such an argument does not seem to be applied in any other area. Almost every other democracy in the world has abolished capital punishment. Yet no critics of the exclusionary rule have called for an end to the death penalty on the grounds that all our allies have eliminated it. Why should we accept moral instruction from other countries on the exclusionary rule when we do not do so on capital punishment?

Critics of the exclusionary rule fail to acknowledge it has been substantially narrowed in recent decades. Though the rule originally applied to all illegal searches, the Supreme Court decided 25 years ago that, with rare exceptions, it does not apply in cases where the police obtained a search warrant. That decision greatly reduced the number of cases where the rule is applied.

The contention that we should not allow a blunder by the police to confer a benefit on a criminal defendant would be reasonable only if most illegal searches are the result of good-faith mistakes. The sad fact is, however, that the vast majority of illegal searches are the result of deliberate misconduct by the police.

Political commentators and law professors who have never been in a courtroom except to defend their own traffic tickets may not understand that fact, but every practicing criminal defense lawyer knows it to be true. The rule provides the only legal brake on police misconduct. Without its sanctions, the Constitution’s guarantee against unreasonable searches would be empty.

Finally, the critics fail to address one of the most important reasons the rule was adopted in the first place: to preserve the integrity of our court system. The Supreme Court explained its necessity more than 40 years ago: “If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself; it invites anarchy.” The rule “gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.” To forget that teaching is to abandon all that is best and brightest about our system of government.

Washington, D.C., with 26 years of trial experience.

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