conservative lunatic fringe?

So you're saying this won't/can't happen based on another error? Even if it isn't a minority?

i can't wait to read radley balko's response to this one.

Of course not. But this is not the same as cops who intentionally went into a computer system, front dated an expired warrant, and then went ahead a searched a guy's home. I think the opinion (and I'm assuming that you read it) is pretty clear in drawing a distinction between the scenario that played out here and intent.

I assume that people's opinions would change if, instead of drugs, they found a couple of loaded illegal semi-automatic guns and other ammo with a note plotting out how the guy intended to kill a bunch of kids at a nearby daycare.

Can police officers confiscate contraband when its discovery is the result of an illegal search?

How tough would it be to just "reactivate" an expired warrant?

It's a matter of typing it up on a computer and getting a judge to sign off. But there's a difference between a search warrant and a warrant for someone's arrest (which was the case here).

This is just the beginning of the article but this seems to be a very odd way for government to react to a court ruling. Is this normal in the US? It seem slike a very confrontational approach but it could just be the way it's being described and reported.

http://www.msnbc.msn.com/id/28681850

WASHINGTON - It was no accident that the first piece of major legislation the House of Representatives passed last week was a rebuke of one of the two justices President George W. Bush put on the Supreme Court, Samuel Alito.

To open the new Congress, the House passed a bill which seeks to undo the 2007 Supreme Court Ledbetter decision which Alito wrote.

I won't speak on whether it's "normal", but to me it speaks on how the checks and balances should work on non-constitutional legislation. A bill is interpreted by the courts that is unsatisfactory to the legislators--thus they make new law to account for the interpretation.

as discussed on the previous page:

http://www.nytimes.com/2009/01/31/washi ... l?_r=1&hp=

Justices Step Closer to Repeal of Evidence Ruling

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

This pretty much sums up how I feel. The exclusionary rule has always seemed like a kind of tit-for-tat, two wrongs kind of measure. One that does very little to promote actual justice being served.

Tit for tat? What the fuck are you talking about? Are you sure you know what tit for tat means? Tit for tat means that you do something for me, and I do something for you. The exclusionary rule means that if a cop violates your rights, he can't use any evidence he finds as a result of that violation in court. The exclusionary rule is our number one way of keeping the police honest.

What the fuck are you talking about? Tit for tat is equivalent retaliation. That is exactly what the exclusionary rule does. The police do something wrong, so the court does something else wrong to equal it out. Tit for tat. I don't see how that isn't a perfectly legitimate usage of the term.

But whatever, the point is that the exclusionary rule operates against justice being served. Yes, police should be honest and ethical. Yes, people's rights should not be violated. Yes, police should be held accountable if they break the rules. I agree with all of those things. But I do not agree with a rule that punishes everyone else by excluding otherwise legitimate evidence from a case. In a criminal proceeding, all available evidence should be brought forward. How is it helping our justice system to exclude evidence to punish sloppy police officers? How is it helping us determine who is guilty and who is innocent?

I agree that it may be our number one way of keeping the police honest. I think we should find a different number one way that doesn't compromise cases against potential criminals, criminals who if found innocent due to excluded evidence would be back out on the street to commit further crimes.

And I would appreciate it if you dropped the hostile tone. I haven't done shit to you. I think my argument is well-defined enough that you can argue against it without telling me I don't know what I'm talking about.

Sorry, your post didn't make any sense to me, and I get defensive when someone talks about removing civil right protections.



The exclusionary rule is what protects your fourth amendment right. It's irrelevant to whether it serves justice or not. Everyone has a right to be free from unreasonable search and seizure. You could serve justice on a lot of pot dealers if cops could just go down the street and look into everyone's basement.

If you want all available evidence brought up at trial, why not jam a microchip up the ass of all Americans and just play it back at trial?

I guess the way I see it is that you can have both. A fair trial and 4th amendment rights. I see the exclusionary rule as upholding one at the expense of the other. I would like to see a system that punishes cops who do violate those rights, yet at the same time ensures a fair trial by using all evidence.

You punish the police involved in a rights violation, thus protecting the right. At the same time, you uphold the right of the prosecutor to bring forth all evidence, enabling a fair trial. I don't think cops would go around wrongfully searching places to bust petty drug users when doing so would carry serious implications for their career and expose them to criminal charges of their own.

It helps to keep cops honest if they know they'll be ruining a case if they go against the books, though. This is why everyone should watch The Wire. Police work is messy business.

I feel as though 42% of your posts now mention the Wire, or something you learned from the Wire.


I, for one, approve.

I'll try to get it to 50% by the end of the next fiscal year.

But if a suspect isn't protected from unConstitutional searches, then there is no such thing as a fair trial.



I don't think it punishes the police to make it clear that they must protect a suspect's rights or lose all evidenced found in violation of that suspect's right. You're considering a trial fair only if all the evidence in existence is presented. I consider a trial fair if the rights of the accused are upheld. There's no "fair" for the prosecution. They represent the government, those in power, those with the ability to conduct an unfair trial. It's the exact reason we have a Bill of Rights. It's the exact reason that America exists.

i have to agree with B