The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

Introduction: The United States Exclusionary Rule

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

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The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

Contemporary constitutional provisions integrated oftentimes explicit boundaries or restrictions on the investigatory power of the police. These constitutional stipulations typically suppleMent guarantees aimed at ensuring fAir standards in the criminal process for those detained or charged with a crime (1) Most of these docuMents echo themes first articulated in the United States ' Bill of Rights (2) and centuries later reiterated in the Universal Declaration of Human Rights (3)

These recent global developments are not surprising. The potential for tyranny is constant, even in modern societies. Throughout history, oppressive regimes have used their unlimited police powers to search the homes of politicalopponents, to detain dissidents without trial, to conduct "show trials" for political purposes, or to subject opponents to torture or other extreme forms of punishment. Limitless police powers take the greatest toll on society's most vulnerable members: the young, the homeless, the poor, racial or ethnic minorities, and political dissidents. It must be recognized, however, that in modern society, crime is one of the greatest threats to individual safety. If a society is so crime ridden that its members live in a perpetual state of fear, the niceties of constitutional liberty may seem unimportant to the populace. Fear of crime and criminals provokes a demand for government action. These two competing concerns are the beds surrounding the idea of the Exclusionary Rule. It all begins whenthe police excesses yield inculpatory evidence against a criminal accused. When evidence has been obtained in contravention of the Constitution, two opposing concerns meet: society's interest in seeing that persons guilty of crime are detected, prosecuted, convicted and punished, and a concurrent societal interest in safeguarding individual liberties against unlawful or leave police conduct. (Dawson, The Exclusion of Unlawfully Obtained Evidence.)

In the United States, these differing principles are presently resolved in favor of individual liberty, through the use of the exclusionary rule.(EN6) This rule, created my case-law, is anything but "resolved." Since its creation, the rule has led to extensive litigation and a never-ending flow of academic commentary. The debatesurrounding the issue has continued unabated in the United States for almost one hundred years.

The following dissertation will provide an in-depth look into the mandatory or automatic exclusionary rule doctrine of the United States. The following piece will present a detailed elucidation of the exclusionary rule as it stands today, as well as the history leading up to its inception together with the underlying reasons for its formulation. Furthermore, the benefits and detriments of the doctrine will be discussed, providing the views of both the proponents and opponents of the rule as well as an inquiry into the question of whether or not this Exclusionary Rule is really doing the Job it was intended to do, specifically to deter future illegal police conduct. An investigation intothe question of whether or not there needs to be other underlying policy reasons, aside from the deterrence of police misconduct rationale, for the application of the Exclusionary Rule, will also be conducted.

The piece will further explore beyond the borders of the United States and into Canada to observe how the idea of suppressing evidence obtained in violation of the individual's rights is applied abroad. The piece will discuss differences in the application of the mandatory exclusionary rule in the United States and the exclusionary rule in Canada to be discretionary and will compare and contrast policy reasons underlying their respective application of evidence suppression rules.

The dissertation will argue for the codification of the current mandatory or automaticexclusionary rule doctrine of the United States to a discretionary exclusionary doctrine which is currently applied in Canada. Such an amendment will endow the United States with benefits far beyond the ones the current exclusionary rule provides, such as bequeathing remedies to individuals whose rights have been violated as well as appropriate penalties for the ByRef conduct of the police.

The definition of the United States mandatory exclusionary rule

In order to deeply delve in to the critique of the Exclusionary Rule, it is vital to understand its definition, characteristics, and circumstances in which it is applied. In legal proceedings, the exclusionary rule prohibits the use of any evidence obtained in contravention of the U.S. Constitution. The rule is invokedwhen government authorities seize evidence in violation of the Fourth Amendment's prohibition against unlawful searches and seizures. Evidence may be illegally obtained when government officials do not have a warrant to search an individual ' s premises or the warrant is defective. Law enforcement officers may also lack sufficient probable cause to arrest a person. In addition, the courts will automatically invoke the exclusionary rule when they find a violation of an individual's Fifth Amendment right against self-incrimination or a violation of a defendant's Sixth Amendment right to counsel. Courts often refer to evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment as "tainted" or "the fruit of a poisonous tree." A criminal defendant who claims an unreasonable searchand seizure is usually allowed to make the claims in a suppression hearing that is conducted before the trial. At this hearing the judge must determine what evidence will be suppressed, or excluded from trial.

This automatic exclusionary rule has 3 elements. First, there must be an illegal action by a police officer, or by someone acting as no agent of the police. Second, there must be evidence secured. The third element states that "there must be a casual connection between the illegal action and the evidence secured. If the defense believes such an offense has taken place, the defense lawyer may file a motion to suppress the evidence. It is then up to the prosecutor to prove by a preponderance of the evidence that the evidence was collected without ByRef the defendant's Fourthamendment rights. If the prosecution fails to prove this case, the evidence will automatically be suppressed from the case-in-chief, and absolutely no consideration will be given to the probative news value of that evidence, even if it may be the only evidence out there. With time, the courts, after realizing the broad scope of this mandatory rule, began to narrow its application. There are now three exceptions to the exclusionary rule. In these cases, while the situation meets the three elements needed to trigger the exclusionary rule, the evidence will be allowed anyway. The first exception is the Independent Source Doctrine. This exception was created in the Supreme Court case of Segura and the Colon v. u.s. in 1984. In this situation, evidence is seized in two different physicalways. One of them is illegal, but the second seizure of the same evidence is legal. For example, if one were to photo-copy financial records without a warrant of someone suspected of embezzlement, but then later returned with a warrant and copied the information, that evidence would be allowed. The second exception is the Inevitable Discovery Doctrine. The case that added this exception was Nix vs. Williams, in 1984. This exception states that the evidence is seized in two different ways, but only one being physical. The evidence is secured physically by illegal means, but there is also a hypothetical seizure of the evidence that would not have been illegal. For example, if a dead body was buried, and the police violated a defendant's rights in order to force him to tell where the bodywas, this would be the illegal physical seizure. However, if there was a search for the body in progress that would have eventually crossed the area where the body was to be found, this would be the hypothetical seizure. The prosecution must prove by a preponderance of the evidence that the evidence would have been located by this hypothetical means had it not been sized illegally. The third and final exception is that of Good Faith, which was added in the Supreme Court cases of U.S. vs. Leon and Mass. vs. Sheppard, both in 1984. In this case, a police officer receives a warrant from a magistrate and acts on it to seize evidence. However, there may have been an error in allowing the police officer to have the warrants. Since the point of the exclusionary rule is to deterpolice misconduct, and there would have been no misconduct by a police officer, the evidence would not be suppressed.

History of the rule

Between 1791 and 1914, the constitutionally guaranteed right of all citizens to be secure against unreasonable searches and seizures remained virtually a-enforced by American courts. The Fourth Amendment had the words that warned the government not to engage in unreasonable searches and seizures, but lacked any means to restrain government officials from ByRef-> citizens ' Fourth Amendment rights. Not until 1914 in Weeks v. United States, [FN4] did the U.S. Supreme Court recognize that if evidence can be illegally obtained "and used in evidence against a citizen accused of an offense, the protection of the FourthAmendment ... is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. " [] Thus, the United States faced the problem that, while the Fourth Amendment protection against unreasonable searches guaranteed and seizures, the judicial system, as the primary protector of constitutional rights, did nothing to deter or punish unreasonable searches and seizures. To give value to the Fourth Amendment protection against unreasonable searches and seizures, the U.S. Supreme Court, in Weeks, held that the Federal government and its agencies could not use illegally obtained evidence against the accused at trial. In other words, the Court established an exclusionary rule that illegally obtained evidence is inadmissible at trialand applied it only to the Federal courts. [FN6] The Court propounded two central rationales for its adoption of the Exclusionary Rule. First, there was the need to protect citizens ' Fourth Amendment rights by deterring government conduct that violated those rights. [FN7] Second, there was the need to preserve the integrity of the judicial system by refusing to sanction illegal police conduct: "To sanction such proceedings [where illegally obtained evidence is admitted] would be to affirm by judicial decision to manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." [FN8] While Weeks represented a significant development in enforcing Fourth Amendment rights, its limitation tofederal courts greatly restricted the Rule's ability to enforce those rights.

Four decades later, in Mapp v. Ohio, [FN9] three police officers invaded Dollree Mapp's home. The officers knocked on her door and demanded entry. They suspected that someone they wanted to question was hiding inside. Mapp consulted her lawyer and refused to admit the officers. Later that day, four or more officers arrived at the home, which was still under surveillance by the original officers. The officers then finally and forcibly entered Mapp's home. About that time, Mapp's lawyer arrived at the home but was not permitted to see his client or to enter her house. Confronting the officers in her home, Mapp demanded to see their search warrant. After Mapp grabbed the purported warrants and placed it in herbosom, the officers forcibly recovered it from her. Mapp's arms were grabbed, twisted, forced into handcuffs, and she was dragged to her bedroom where she was forced to remain. The officers searched the enTire floor, including Mapp's bedroom and the basement of her home. The officers found "obscene materials and she was convicted of possession. Whether the officers had secured a warrant to search Mapp's home was subject to "considerable doubt," and no such warrant was produced at any subsequent legal proceeding. [FN10] Given the particularly egregious nature of the police misconduct, the Supreme Court felt compelled to bestow teeth to the Fourth Amendment by making the Exclusionary Rule, first enunciated in Weeks, applicable to the states.

In holding theExclusionary Rule applicable to both state and federal courts, the Mapp Court decided to close the courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. " [FN11] As in Weeks, the Mapp Court reiterated that without the Exclusionary Rule, the use of illegally obtained evidence to convict criminal defendants "tends to destroy the enTire system of constitutional restraints on which the liberties of the people rest." [FN12]

Mapp reiterated the dual rationales enunciated in Weeks: protection of citizens ' Fourth Amendment rights, and preservation of judicial integrity. [FN13] These dual rationales actually comprise only onejustification behind The Exclusionary Rule: the recognition that allowing unrestricted use of illegally obtained evidence will not discourage violation of the constitutionally protected right.

Competing Concerns regarding the Exclusionary Rule in the United States

The Exclusionary Rule is certainly one of those controversial doctrines that caries with it its own share of proponents as well as detractors. When evidence has been obtained in contravention of the Constitution, the two opposing concerns meet: society's interest in seeing that persons guilty of crime are detected, prosecuted, convicted and punished, and a concurrent societal interest in safeguarding individual liberties against unlawful or leave police conduct. [Metal]. In the United States, these differingprinciples are presently resolved in favor of individual liberty, through the use of the exclusionary rule. [FN6] But the status of the American exclusionary rule is anything but "resolved." Since its creation, the rule has led to extensive litigation and a never-ending flow of academic commentary. The debate surrounding the issue has continued unabated in the United States for almost one hundred years.

As aforementioned, generally, two opposing viewpoints have emerged from all the debate concerning the exclusionary rule. There are those who want to abolish the exclusionary rule and those who wish to retain it. The critics of the rule are evidently using more concerned with the idea of ensuring that the guilty are punished and kept in prisons than the view of making sure theconstitutional rights and liberties of the people are kept intact. The proponents, contrary to the critics, are obviously more interested in making sure that the liberties of the people are protected, even though that may come at a price of letting the guilty go free. Opponents of the exclusionary rule argue that this extreme remedy is not required by the Constitution. They claim the rule is merely created judicially fashioned to protect constitutional rights by deterring future police illegality. Critics complain that the exclusionary rule is not an effective deterrent and Informazioni a huge toll in lost convictions. According to critics, the rule's costs outweigh its negligible benefits. Therefore, it is invariably argued, the exclusionary rule should be replaced with some more effectiveand less costly alternative remedy.

In stark contrast, proponents of the exclusionary rule insist that it is mandated by the Constitution and serves as an effective deterrent. They argue that those who criticize its deterrent value fail to recognize that the rule is necessary to preserve judicial integrity and compensated individual victims of police illegality. Proponents complain that the rule's detractors mask to dissatisfaction with substantive constitutional guarantees, under an attack on the exclusionary remedy. If law enforcement obeys the constitutional rules, as they should, then there would be no illegally obtained evidence to be excluded. According to proponents, this remedy is matchless. No other device is equally capable of safeguarding the Constitution's guarantees in acriminal context.

The debate surrounding the exclusionary rule has been ongoing in the United States since the Weeks decision. Arguably, the historical debate is capable of being encapsulated into seven general criticisms and responses:

1) Criticism--The criminal is to go free because the constable has blundered. [FN123]

Response--Criminals do not go free because the constable blundered, but rather because official compliance with the requirements of the Fourth Amendment makes it more difficult to catch criminals. It is not the exclusionary rule but the Fourth Amendment which imposes a cost in lost convictions. [FN124]

2) Criticism--The exclusionary rule serves to handcuff the police in their legitimate and important effort to enforce the criminal law.[FN125]

Response--It is the constitutional exclusionary rule not the sanction, which imposes limits on the operation of the police. If the police abide by the Constitution, there would be no evidence to exclude. The exclusionary rule, by definition, operates only after "evidence has been obtained and flaunts before us the costs we must pay for constitutional safeguards. [FN126]

3) Criticism--The exclusionary rule does not provide a remedy for innocent persons who are the victims of leave conduct. The rule exclusively serves to benefit the guilty. [FN127]

Response--The Fourth Amendment protects everyone against unreasonable searches and seizures. The exclusionary rule inures to the benefit of all by decreasing the likelihood that anyone,"innocent" or "guilty," will be subjected to an leave search or seizure. In this fashion, individual liberty is benefited on a general level by the rule.

Criticism--Suppression motions, in which defendants seek the benefit of the exclusionary rule, unnecessarily shift the focus of the trial away from the defendants ' guilt or innocence. These hearings are costly and distract judges from other important matters. Finally, the court is not the proper forum to discipline police officers leave for their activities.

Response--Courts should be preoccupied with the manner in which evidence has been obtained, otherwise the Constitution's guarantees would be rendered meaningless. It is the courts that must assume the role of being the final arbiters ofindividual rights. Absent such judicial scrutiny, constitutional violations would go unnoticed. Similarly, without continual judicial review, the Constitution's guarantees would remain unarticulated and rarely defined. The Constitution would only be expounded on rare actions for assault, trespass and false imprisonment (novel), and prosecutions for resisting arrest or legislative seat of the police in the execution of their duty. [FN130]

6) Criticism--The exclusionary rule confers a disproportionate benefit on a defendant. A relatively minor violation of the Constitution results in the exclusion of evidence and necessitates that a guilty defendant go free. This windfall is contrary to the idea of proportionality that is essential to the concept of justice.

Response--This criticism is onlysignificant if one conceives the purpose of the rule to be compensation of the individual victim. [FN132] If the compensation rationale is used, however, the criticism remains inaccurate. A number of exceptions to the exclusionary rule have been created to ensure that all that is excluded is the evidence the police would not have found had they abided by the Constitution. The exclusionary rule does not confirm immunity on a defendant against future prosecution; it simply restores him to the position he would have occupied had his constitutional rights not been violated.

Criticism--The exclusionary rule in the United States is anomalous; other democratic nations do not employ an exclusionary rule and they are arguably as free as the United States. [FN134]

Response--The UnitedStates is not alone in employing an exclusionary rule; a number of nations use exclusion of evidence as a means to safeguard individual rights. For instance, England, Scotland, Ireland, Australia, New Zealand, Canada, Germany and France all have some form of an exclusionary rule.

Problems with the United States mandatory exclusionary rule

Looking at the above arguments, it is clear that the opponents and proponents are completely at opposite sides of the spectrum in deciding an issue which appears to have two possible conclusions: a) to continue maintaining the current exclusionary rule of the United States or b) to abolish it altogether. However, careful consideration and research into this particular sphere can lead one to ask the question of whether or not there is a thirdalternatives, one which would sit between automatic exclusion and admissibility of evidence. Perhaps this third approach would alleviate some of the competing concerns regarding the exclusionary rule currently implemented in the United States. However, prior to making an endeavor to formulate this third possible choice, it is vital to point out some of the quandaries with the current mandatory exclusionary rule.

The mandatory aspect is problematic

As stated above, the United States exclusionary rule is one of mandatory or automatic exclusion. This means that, even highly probative news evidence will be suppressed if the police seize it illegally. Proponents of an exclusionary rule must concede that the costs of such a rule occasionally seem too harsh. If a defendant charged withmurder is released because a relatively minor and unintended violation of his rights disclosed essential evidence, then it is difficult to deny that the rule occasionally Informazioni too high a price. The problem with the American exclusionary rule is that it is unable to effectively cope with such exceptional cases. Generally, the rule demands that evidence be excluded regardless of society's competing interest in not having a dangerous criminal released back into the community. This is a major problem.

The mandatory exclusionary rule does not do its Job

What is the ob of the exclusionary rule? What was the chief purpose for its establishment in the United States? Mapp reiterated the dual rationales enunciated in Weeks: protection of citizens ' Fourth Amendment rights, andpreservation of judicial integrity. [FN13] These dual rationales actually comprise only one justification behind The Exclusionary Rule: the recognition that allowing unrestricted use of illegally obtained evidence will not discourage violation of the constitutionally protected right. It is evident that the true aim of the Exclusionary Rule is to deter future police violation of constitutionally protected rights. Specifically, excluding evidence illegally obtained will chasten the government official to the extent that he or she will not engage in similar conduct in the future. It is implicit that if the offending government official would not be deterred from future illegality, then application of the Rule would be inappropriate. Indeed, in a series of cases after Mapp, theSupreme Court > held the Rule's application inappropriate where the exclusion would not deter future Fourth Amendment violations. In United States v. Calandra, [FN14] the Court declined to allow grand jury witnesses to refuse to answer questions based upon evidence illegally seized because the "incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best." [FN15] In United States v. Janis, [FN16] the Court permitted the use of evidence seized illegally by state officials in federal civil proceedings because the illegal conduct was not likely to be deterred by exclusion in that setting. [FN17] The Court cited two factors which made exclusion unnecessary * 49in the Janis homes. [FN18] First, sincethe evidence was suppressed in the state criminal trial, the officer had already been "punished" for ByRef the Fourth Amendment. [Fn 19] Second, since the evidence was also excludable at the federal criminal trial, the enTire criminal enforcement process, which was the concern and duty of these officers, would be frustrated by the exclusion of the evidence in both proceedings. [FN20] Thus, the Exclusionary Rule accomplished its intended goal of deterrence in the criminal courts, and any further possible deterrent effect that exclusion from federal civil proceedings might cause would be outweighed by the societal costs imposed by the exclusion. [FN21] More recently, in United States v. Leon, [FN22] the Court found the Rule's application inapplicable when police officersreasonably relied on a search warrant. [FN23] Since the constitutional error in Leon was made by the magistrate in approving the search warrant, there was no police illegality and hence nothing to deter. [FN24] Furthermore, the Court held that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the Exclusionary Rule. [FN25] Leon is a powerful mandate holding that judges should not exclude evidence unless exclusion would deter future illegal police conduct.

Therefore, it is beyond dispute that the Exclusionary Rule, and the focus of modern Supreme Court opinions construing the Exclusionary Rule is the preservation of ourconstitutional rights through the deterrence of future police misconduct that violates those rights.

So is the exclusionary rule really deterring leave police seizure of evidence? For the Exclusionary Rule to deter future police misconduct, the exclusion of the evidence must be communicated to the offending officer, the officer must learn why it was excluded, and he or she must be provided with some incentive to improve his or her future performances. * 55 Absent these steps, is there motivation for a police officer to conform his or her conduct to the dictates of the Fourth Amendment?

Deterrence from wrongful conduct will only occur if notice of that conduct is effectively communicated to the wrongdoer. However, despite this apparent common sense notion, theExclusionary Rule contains no provision for any police "education." Indeed, whether the police officer who has violated a defendant's constitutional rights will ever learn that he or she has committed such a violation is, at best, uncertain. [FN48] For example, the most direct educational effect will be felt by those officers who attend the suppression hearing (perhaps because they must present evidence of their conduct) and actually hear the court's ruling on the motion. Even then, the basis of the ruling may not be clear to the officer, or she may feel that the result was the product of a misguided or even ill-conceived system, rather than the result of her misconduct. In any case, the offending officer often does not attend the suppression hearing, so no direct lesson ispossible. Whether the police officer is made aware of his or her misconduct will then depend upon how effectively the prosecutor or police supervisors communicate with the involved officers. Thus any educational effect of the Exclusionary Rule is unpredictable and often left completely to chance. [FN49]

An additional impediment to the educational aspect of deterrence of Fourth Amendment violations lies in the failure to file many potential prosecutions that result from constitutionally flawed investigations. A prosecutor, strongly believing that critical evidence is the product of illegal police activity, is not likely to even file the case. In these situations, whether the police officer learns that he or she illegally seized a piece of evidence will depend upon how well theprosecutor or police supervisor communicates with the offending officer. Again, any such communication is Mama at best.

Prior to a case even reaching a prosecutor, as the Supreme Court observed, the Exclusionary Rule "is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goals." [Use] In other words, where police invades a citizen's Fourth Amendment rights, but do not prosecute that individual, * 56 there is no outside review--such as by a prosecutor or judge--to inform the officer of the violation.

If the "educational" aspect of deterrence is too vague to reinforce the "right" and "wrong" ways toobtain evidence, among police officers, the "punitive" aspect of the Exclusionary Rule is even more questionable. This is because punishment for illegally obtaining evidence falls directly upon "the government" by forbidding the use of the illegally obtained evidence at trial. Such punishment does not fall upon the offending police officer and, subsequently, any punitive effect felt by the police officer will be fortuitous. The offending officer suffers collarbo no formal negative consequences for his or her illegal activity. To be sure, some police departments keep track of data involving illegal searches and seizures conducted by officers and may use the data in decisions concerning promotions, salary increases, and the like. In addition, officers who are found to have violated a defendant'sconstitutional rights, and who are aware of this finding, may feel responsible for a failed prosecution, and may suffer from loss of stature in the eyes of their colleagues. But because the punitive effect of the Exclusionary Rule reaches the offending officers only indirectly, if at all, it seriously compromises the ability to deter police misconduct. A police officer who has violated a defendant's rights is not held personally accountable for that violation. In fact, empirical studies support the view that the Rule has a minimal effect on the police officers ' on-the-street behavior. This is the ironic effect of the American Exclusionary Rule: In essence, the present rule lacks the power to deter, even though deterrence is the primary objective cited by the Supreme Court for implementing and then retaining the Exclusionary Rule. [FN51]

Deterrence as sole purpose and exceptions are signs of backtracking

As stated above, American courts, in their effort to limit the broad application of the exclusionary rule, have focused on deterrence as the rule's sole justification. The emphasis on deterrence, however, has posed an impediment to alleviating the most troublesome aspect of the rule's operation. If deterrence is the exclusionary rule's only purpose, then dangerous criminals must go free, even if a constitutional violation was relatively minor or technical. This reasoning ignores the harmful effect that exclusion may occasionally have on the integrity of the courts. In a free society it is essential that the court command respect withinthe community, otherwise it will not be long before the authority of the court is diminished and the rule of law is threatened. Should this occur, the collective freedom of everyone within a society would be markedly diminished.

The other difficulty with the contemporary United States position is the judiciary's effort to scale back the rule's operation through the use of exceptions. These exceptions, as stated above, are rules which state that even when constitutional rights of the accused are violated in the obtainment of the evidence, they will still not be suppressed if one of the exceptions, such as the good faith exceptions applies.

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1