Supreme Court Steps Closer to Repeal of Evidence Ruling (may encourage "unlawful police conduct")

[onehandle]

Source: Washington Post

WASHINGTON — 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.

Read more: http://www.nytimes.com/2009/01/31/washington/31scotus.html

---

30 years of this or more thanks to a crooked GOP, a crooked SCOTUS decision, and Ralph Nader.

[yourout]

1. I think Reids unwillingness to fillibuster Alito is going to haunt us for decades if not longer....

As much as I hate Roberts being Chief Justice allowing Alito on the SCOTUS was unforgivable.

[kath]

33. Hey, he had to keep the powder dry, don'cha know?

[Burma Jones]

2. Good Times......

For White Upper Middle Class citizens.......

[Wizard777]

3. So Roberts wants to reward the police for recklessness and negligence,

Or as he calls it "carelessness." The police are paid professionals with Legal Obligations. Roberts should not be engaging in judicial activism to legalize acts of recklessness and negligence in the area of gathering Evidence. Especially with the ever increasing role evidence in playing in the determination of guilt or innocence. The primary and foremost concern of our Constitution is the preservation and perpetuation of freedom and liberty. Not prosecuting every infraction of the law to the Nth degree. If this were indeed the case. There would be no such thing as the Bill of Rights. It's really that simple.

[ShortnFiery]

4. Thanks Democratic Senators - for being GUTLESS and not Fillibustering "Alito"

:(

[DallasNE]

5. isolated carelessness

I've seen loopholes before but "isolated carelessness" is about the largest loophole I have ever seen.

Who determines whether something is isolated and who is able to rule on the state of mind and determine if something is carelessness or deliberate. The officer in Oakland is now saying he meant to taser the guy he shot in the back and killed. How careless of that officer. Why not remove all accountability from law enforcement and rules on admissible evidence. That right, if someone has been arrested that is good enough; lets railroad them all.

[MidwestTransplant]

8. Uh but I thought we had a search warrant. Or how about uh, I wasn't aware entrapment was illegal.

[Piewhacket]

6. :nuke:

:nuke:

Impeach Roberts, Alito, Scalia, Thomas.

[Vattel]

23. not Scalia, we need him for civil rights and to limit abuses of

executive power. (Granted, he sucked in Gore v Bush)

[alfredo]

29. But didn't he say that innocence isn't enough to stop an execution?

[Vattel]

36. what he said

is that the Constitution does not require Courts to reconsider a guilty verdict even if new evidence of innocence is discovered. i often disagree with Scalia, but only Souter and Scalia have stood up for habeas corpus and due process rights in relation to the Bush Administrations detainment of U.S. citizens such as Hamdi. And Scalia has often opposed the government in 4th amendment cases

[alfredo]

38. He is a mixed bag.

[Doctor_J]

46. BZZZZT! Thanks for playing.

We can have a justice who can protect habeus corpus and not be a partisan, anti-constitution hack. Impeach Fat Tony and Slappy and replace them with justices who believe in the rule of law. This will also send a warning to the rest of the corrupt cabal that * appoined over the last 8 years that their days as criminals in robes are numbered. I would wager that a fair number of them will resign to avoid the humiliation of impeachment. Those that don't - put them on trial.

[Doctor_J]

45. There are certainly grounds to impeach Thomas and Scalia

Thomas lied repeatedly and prodigiously at his confirmation hearing, and Scalia's comments over the years have demonstrated contempt for the constitution and the rule of law in general. I would think that his declaration that Bush v. Gore was a one-time only ruling - not for precedent - would be plenty to impeach him.

[byeya]

7. 4th Amendment

Being a retired federal law enforcement officer, I can attest to the fact that we've had 2 - 3 thousand hours of law enforcement training including hundreds of hours of constitutional law. There are few mistakes made by federal officers in this area.If there's a violation, it's a good chance it is intentional. This seems to be a final gutting of the 4th Amendment for average people while the rich still enjoy their protections.
It used to be said in class, if someone's rights are violated through intention or accident, who pays? To avoid lawsuits against law enforcement officers and their departments,the exclusionary rule was enunicated where the evidence thus gathered was excluded from trial.
This Court, having done everything it could to keep the average American out of civil court against the rich and powerful, is making a play which it hopes will be the endgame.
Scalia & Thomas had enough apparent conflict of interest in the 2000 election for the House or Senate commitee - with a spine - to open hearings on impeachment of these two.
In addition, there is nothing to stop Obama and the Democrats, except for them theirselves, in making eleven the total number of Supreme Court justices.
What's left of the Bill of Rights? Very little for wage earners and other non-rich.

[Jefferson23]

11. Thanks for your post, very interesting to hear an opinion based on your experience

Welcome to DU as well!

[byeya]

16. Thank you; you are very kind

An officer may well know better - Hell the officer knows better, but pressure, as we've seen for the past 8 years, may force an officer to choose between his career and livelihood and doing the right thing. No one should be in that position especially when the stakes are so high for innocent people.
This must not be allowed to stand. Police don't want it; only power mad politicos do; those who misuse their positions of public trust for ideological reasons or greed..
The system heretofore provided checks and balances; it no longer does.
We need to help Pres. Obama fix it.

[Piewhacket]

22. Righto..

Good to see (former) law enforcement in support of civil rights.
I know of no reason EVERY law enforcement officer shouldn't be in zealous
support of civil rights, for who whould know better how important these are?

Alas, we know that this is not entirely the case and that some, even many, are not
supporters of what is viewed as 'legal technicalities' which obstruct law enforcement.
Instead officers are actually taught that zeal in catching the "bad guys", even
excessive zeal, is more important, and that the technicalities are merely to be
tricked around with the aid of judicial cover. Some don't buy the premise, but
some do, and some just go along.

We have just seen this insane philosophy played out in the foreign policy of the US as
executed by George Bush. It works not at all. As for Iraq, there will be violent push back.

For is no secret that these 'mistakes' are (quite often) intentional, and that the courts
fully aid and abet the constitutional violations by bad faith judicial 'determinations'
that the conduct was nonetheless in 'good faith'.

Yet the consequences of these decisions go far beyond some minor 'exclusionary'
rule and form also the basis for immunizing conduct such as a blatant and
intentional murder. This is exactly the reason for the imposition of these
'prophylactic' rules in the first place.

There is, of course, the means of redress this by state and federal statute.
Unfortunately the states have relied on the constitutional protections and
now each must individually rebalance rights. Federal statutes must be rebalanced
but they only apply to federal prosecutions. Yet a better answer is that these
laws should be part of the constitution and seriously treated.

But now the practical answer is to remove Roberts, Alito, Scalia, Thomas while we can
and before further damage. Purely political, nothing personal.

Well, ok, maybe its also somewhat personal since these little pricks have
punched me and my friends in the nose and we are not going to f** move on and forget it.
But other than that, it purely political, not personal.

Impeach Roberts, Alito, Scalia, Thomas. Just do it.

[byeya]

25. Hello. I read you post 2ce and I agree with all

you say. As long ago as the 1960s, the FBI instructors were bad mouthing some constitutional liberties and most officers took it in as received wisdom.
Obama simply cannot get us off the hook without removing senior law enforcement managers whether or not they are protected civil servants. The Bush administration didn't care, they were ruthless, and we fought them, but the maze through which an employee has to go to get his or her job back takes so long, the progressive officials were de facto removed.
I like that: Nothing personal, it's political but you're history.

[Piewhacket]

28. Welcome to DU. I read your post twice and also agree with you.

So now we are two, friend.
You stand facing east, I will face west,
whoever first runs out of foe will turn to help the other.

Welcome to DU. This is a progressive site, and while
you may not agree with everything here, I can testify
that some dissent, respectfully and intelligently offered,
appears to be allowed. Good posting!

[byeya]

30. Thank you.

I started a union for coworkers, jumped through all the hoops and had the FLRA take it from us and we spent 7 years paying off the legal fees accumlated in organizing and appealing the intitial FLRA ruling. I was president and/or executive director for many years and kept politics out of the organization. I was asked to stay on after retirement but I got out after 10 years because I felt I was losing touch with the day to day operations of the agency, which by the way, led the federal sector in officers killed or injured by assault per officer based on a 5 year DOJ study.
One issue we faced everyday, that's not discussed much, is how the Bush administration starved certain law enforcement agencies for officers even post 9/11, making the agencies less effective and the officers less safe. Central offices, with higher graded seat warmers, were scarcely affected.
.
I will try and post on things I may know about in a civil manner and keep still about things I don't know about. I like the site which my daughter suggested to me.

[Piewhacket]

43. I think you will find folks here...

hold the 'rule of law' in high regard. They also regard it as having
been largely abandoned during the last 8 years and are looking for some
change and some accountability for past abuses.

Go slow on disclosing your background. Most posters are anonymous
here, and that is for sensible reasons.
Folks will learn of you through your perspective on issues, and that will
take some time. If you have not participated in discussion groups before
just be a little patient, the forum will reveal itself as you go.

Since you have disclosed you are former LE, that is fine, there are other LE
here but you may also find that some here may be inclined to be unsympathetic
or hostile to police in certain threads (ie concerning police misconduct).
It is in those circumstances you may find your mettle, communication,
and diplomacy skills tested. Nonetheless, your perspective can help
people understand the issues better, should you choose to join in.

I , of course, reserve the right to kick u ass (within forum rules) at
any time on any issue, and possibly for no good reason at all!
I might even (gasp) agree from time to time. What was I thinking?
Anyway, its never personal, part of the forum.

Enjoy DU!

[1monster]

26. I taught a class on The Bill of Rights for eighth graders just yesterday.

The Fourth Amendment is already gutted in practice.

There were three students in one class of sixteen students (many of their fellow classmates were on a field trip) who had been in cars that had been stopped by law enforcement officers for one reason or another.

In each case, when the officers asked to search the car, the driver said no. And in each case, the officers demanded that the occupants get out of the car and seached it anyway. (In one case, the 18 year old driver was forcibly removed from the car.)

The students all said the LEOs had no probable cause and found nothing.

I asked the students if they reported the incidents and they all said no. They didn't think that anyone would believe them and they were afraid of reprisals.

If everyone is too afraid or too busy or too something or other to fight this kind of practice, then the use of illegal seaches will continue and will grow to affect everyone, not just those under 25 or of a different (profilable) race or creed.

[vadawg]

40. ill try to clear this one up, there wasnt many details

If i pull a vehicle over, i talk to the driver, i may ask to search the vehicle, you say no. At this point i have a decision to make, do i have probable cause for the stop, lets say yes. Do i think something isnt right and i am able to articulate this, lets say yes. Then i am going to search the driver, passengers and the wingspan of the the same for my safety, obtain verifiable IDs etc. Okay heres what your young divers think was an illegal search, but all very legal and done everyday. In the end if i have any concerns for my safety i am going to cuff and search.

[1monster]

44. What constittues probable casue? The refusal to let you search the car?

These kids were issued no warning and no tickets... They don't know why they were stopped have no understanding of why the police officers wanted to search their cars. The police officers found nothing.

What constitutes probable cause?

I can understand if you smelled marijuana, saw a baggie with something that looked like oregano, saw a roach, hemostats, a crack pipe or other questionalble items in sight. But if your only probable cause is two or three teenagers in a car driving down a road, then you have no probable cause.

A sheriff's deputy boxed me in one evening last month for the suspicious activity of picking my stepson up from work. I stopped the car in the fire lane, he got in, and I paused just long enough for him to fasten his seat belt. While he was fastening his belt, the deputy, who had been stopped in the cross walk just behind me pulled up and boxed me in.

I rolled down my window and he rolled down his passenger side window and just stared at me.

I'd seen deputies pulling people over for no discernable reasons in three different parking lots as they were leaving several times before in the previous two weeks and I failed to see what possible reason he had to block me in.

He just sat there staring.

I told him in an annoyed voice that I was just picking up my stepson from work. He continued to stare at me and said nothing.

So I drove off.

What was his cause for stopping me?

No, he didn't ask to seach my car and if he had, I would have told him to get a warrant. I have nothing illegal or even questionable in my car, and I know my rights.

If you believe you have probable cause, you had better be able to tell me what it is, or you will find yourself on the wrong end of a law suit.

I'm a cop's daughter, and lived next door to the local sheriff for sixteen years (he was a terrific neighbor, and a decent sheriff especially for this area, but I had seen people who had been roughed up by his deputies). I can't say I've ever been impressed with the attitude of law enforcement officials. They are too damned willing to dispense with our Constitutional rights.

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Upon a careful reading of Amendment IV, it seems that probable cause has to do with obtaining a warrant, nor searching private property without a warrant. I know that the Supreme Court has issued decisions that have eroded Amendment IV in the past and will probably continue to erode it in the future.

That doesn't make it right or Constitutional. It will change again in the near or probably far future, I'm sure.

[happyslug]

48. See my comments on Terry v Ohio below, it permits such searches

Terry permits searches for "Weapons", another exception relates to how mobile is a car compare to a house. Under both exceptions to the Fourth Amendment a search of a car is permitted with less then probable cause.

Michigan vs Long (1983), the case that extended Terry to automobiles:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=463&page=1032

This has been expanded in 2004 to include demands for your name when such request for name is set by State law:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-5554

[happyslug]

47. And such searches are PERMITTED under Terry v Ohio since 1968

Terry v Ohio is considered the FIRST attack on the Fourth Amendment. The "Liberal" Warren court ruled that it was constitutional for a Police Officer to search someone he was suspected of having a weapon (For WEAPONS ONLY) without probable cause, AND if during that search an illegal item was found (In the case of Terry v Ohio it was a pistol), whatever is found, is NOT excluded under the exclusionary rule for that second search had probable cause based on what was felt during the Terry Search (and this can extend to drugs, if during the legal Terry Search probable cause is established for a further search for other illegal items, such as drugs).

Terry v Ohio (1968):
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=392&invol=1

Mapp vs Ohio (1961):
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=367&invol=643

Notice within seven years, the exclusionary rule was already being restricted. Terry cases have been a constant headache ever since Terry was decided. If an office feels something in a pocket during the legal Terry Search BUT does NOT feel like a weapon, but was is felt reaches to the level of Probable cause, then such evidence is NOT excluded under the Exclusionary rule. Remember the purpose of the Terry Search which is to permit Police Officers to protect themselves in case the person their are talking to has a weapon can MAY use it on the officer. If the officer finds something else during the search AND that raises to the level of probable cause, then the evidence is perfectly constitutional to use in any subsequent court action. This has included feeling a bag filled with items that felt like Marijuana, burglary tools (Always a good one, for most such tools tend to be heavy and hard to distinguished until removed from the pocket they are in, and once out are clearly burglary tools) drugs (If in a bag, consisted with drugs). Terry has long expanded to the contents of a car you are in (Which is one of the reason Police do NOT want you to leave your car when stopped, you staying in your car gives them the right to look for "Weapons" in your car. If you should exit the car, you are violating an order from a police officer (This will probably be dismissed but is used as a threat if you bring any action against the Police Officer).

Terry is a good rule, but is easy to abuse. Police need to be able to make sure the person they are talking with is unarmed (if the officer feels the person will use the weapon against the officer). The problem has been Police use Terry Searches as a way to get around probable cause. Terry should NOT be used that way, but it is. I fear that any further restriction on the exclusionary Rule will lead to similar abuse. Maybe the European Solution is the better solution, permit evidence gathered in violation of the Fourth amendment be permitted into court, but also permit people whose rights are violated, even if later convicted on that evidence, sue the officer who violated the fourth amendment (including bringing criminal action against the Officers who committed the violation). You have to include the right to recover legal fees (for prior to Mapp this was the rule, but Judges and Juries were reluctant to award REAL damages let alone punitive damages) AND a tripe rule just to make sure the person's whose rights were violated can pay their attorney and other cost involved in bringing the lawsuit. In Mapp the Supreme Court held out this possibility (as it had in prior cases going back to 1914 when it first imposed the Exclusionary Rule on the Federal Government but NOT the states). No state has ever tried to adopt the rule, for Police Officers oppose it, most local and state Police Forces prefer to lose cases then held liable for violation of people's rights. Thus we still have the exclusionary rule for neither Congress nor any of the states have ever tried to adopt anything else. Terry is a big exclusion, but has been abused. Terry if restricted to cases where Police Officers have actual fear, it is NOT a problem, the problems has been Terry has been abused and it should not have been.

[aquart]

41. As a non-cop, I want to say something about the carefulness of professionals.

My mom and sister spotted a burglar coming out of a neighbor's house. And trailed him to his house. (Long story.) Cops were in and out of Mom's house all day and night, asking them to repeat the story. It wasn't till midnight that the police were finally able to fulfill the legal requirements for a line up and my mother and sister got to identify the very local thief who had been specializing in Asian families.

Everything was done with by the book precision. The cops were pleased with the ladies in my family, and we were very pleased to watch them work with such deliberate care.

[defendandprotect]

9. Roberts is a perversion of the word "justice" -- we need to be recalling these r-w fanatics . . .

Let's face it, the GOP has been working on dismantling any semblance of justice for

decades --- Ollie North was working on overturning the Constitution ---

Couldn't this also lead us to permitting "tortured" testimony to be permitted

down the line --??

[Jefferson23]

10. Roberts is Mr. Unitary Executive Theory, his positions are frightening,

even more frightening is how long he will hold his seat on the Court.

[Thothmes]

37. No provision in the Constitution of the United States

to recall a sitting justice of the court.

[defendandprotect]

42. Ok . . . impeach . . .

[w4rma]

12. And now that psycho is a Supreme Court judge for life. (nt)

[Hawkeye-X]

18. And yet he's still impeachable.

I don't like "for life" for justices. 1 term of 10 years for each justice.

Impeach the fuckers.

[Politicalboi]

13. In other words

They could plant evidence on you and later say they were careless and forgot about it so now here it is.

[Metta]

14. Roberts and Alito should be removed for lying to Congress.

Happy karma.

[byeya]

17. Thomas & Scalia

The same could, should, be said of these two. Open hearings on these four!

[floridablue]

15. It was my only reason for voting for weak spine John Kerry

[RedSock]

19. your swipe at nader has no basis in fact

he is not a member of the supreme court
he did not stop the vote count in florida
he did not give piss-poor legal advice to al gore

if gore had received more votes -- inded, if he had run an intelligent campaign -- bush simply would have cheated a bit more to win.

plain and simple.

[rpannier]

35. You mean like...

Had he done more in West Virginia, a state that voted to re-elect it's Democratic Senator by a margin of about 50%
That elected a Democrat as Governor
Voted a majority of Dems to the HOR and both Houses of its Legislature

I've often asked people about that -- the response is tepid at best.

He won West Virginia he would have won the White House

[Old Codger]

20. The only Way

That would be at all acceptable would be with the added wording that made it plain across the board that whenever any evidence was obtained illegally that whoever did so would also be prosecuted.

[unblock]

21. the exclusionary rule is actually a GIFT to police

because logically, without the exclusionary rule, the only punishment available to improperly obtained evidence is to punish the cop, be it with professional discipline (suspension, firing, e.g.) or personal liability (civil or criminal).

[byeya]

27. The Exclusionary Rule is definately a gift to police

and their departments because it allows those public officials who have violated the rights of citizens not to be prosecuted or sued.
This Supreme Court is allowing the police and their departments to violate constitutional standards, allow the tainted evidence in court, and not be sued. Since the prosecution almost always has more resources than the accused, the USA will have a prison population greater than China and Russia combined.

[Vattel]

24. To be fair to Roberts,

what he is saying is that for the sake of convictions, he, a Justice of the Supreme Court, is willing to participate in and encourage violations of our Constitutional rights by accepting evidence seized in violation of the Fourth Amendment. Oh, wait, that doesn't sound too good.

[Zhade]

31. Holy fucking shit. Talk about opening the door to police framing people and fucking us over.

This is the kind of thing a fascist supports.

[bertman]

32. Thanks for the thread, onehandle. And thanks for your experience-based thoughts on

this critically important issue, byeya.

Onehandle, I think you're barking up the wrong tree with your comment about Nader, but I'll recommend it anyway.

[MilesColtrane]

34. "Well your honor...

...I heard what sounded like a violent domestic fight inside the domicile, so I proceeded inside to prevent what I thought was a crime in progress.

After I had kicked down the door, I realized that I was mistaken. The couple were merely watching a movie with the sound turned up.

That's when I smelled the strong odor of marijuana, and I saw a plastic bag on the coffee table that appeared to be a little over an ounce of marijuana buds."

Coming to a court room near you soon.

[depakid]

39. And the march toward official lawlessness continues

My eternal thanks to the Dems (especially Southern Dems- and those of the so called "gang of 14) who confirmed Thomas, Scalia, Roberts & Alito.

And looked the other way at illegal wiretapping.

Heck of a job!