The Exclusionary Rule – Half a Loaf Leaves Us Starving

In 1949 the Supreme Court of the United States announced what has become known as the “Exclusionary Rule.”  The Rule says that when police perform a search or seizure later determined by a court to be illegal, any evidence discovered as a result of that search or seizure is suppressed, or not allowed to be used as evidence in a trial.  The Rule extends to evidence discovered as a result of the illegal evidence, such as when an address book is illegally seized the contents cannot be used to find additional evidence against the owner of the address book.  This is commonly known as the Fruit of the Poisonous Tree Doctrine.

Prior to the Exclusionary Rule, the victim of an illegal search or seizure could sue the offending officer in civil court.  This was not effective because those found with something illegal do not make very sympathetic plaintiffs, and trying to put a dollar figure on damages for violating Constitutional rights is very difficult.  The Supreme Court recognized this when they created a new remedy for illegal searches and seizures – the Exclusionary Rule.

The Rule, as far as it goes, is good.  It is supposed to keep police honest in their search tactics because if they cross the legal line, all their efforts are wasted.  But does it.

There are two glaring problems with the Rule.  First, it does not stop police from crossing the line, and second it does not protect the innocent.

Those who know me or who have visited my website know that I am a retired police officer with many years spent in major crimes investigation.  I have performed thousands of searches.  I have obtained hundreds of warrants.  I know where the grey areas are.  The grey area exists when an officer does not think he has enough information to get a warrant or does not think the suspected crime is worth the time and effort to get a warrant.  He then reverts to the police saying that “there is no such thing as an illegal search, just suppressible evidence.”  This statement may seem odd to some, but to an officer who knows that he faces no legal consequences (to himself personally) the only risk is having evidence suppressed.

Let me explain further.  Many years ago when I was taking a beginning class in homicide investigation, a very experienced homicide investigator taught that we should gather all the evidence we could, in the best way we could, then leave it to the lawyers to figure out what was admissible.  This seemed like good advice – if you didn’t have the evidence in the first place, it could never be ruled admissible.  But think of the consequences of this advice.  I was being told not to worry about the legality of the search; I was being told not to worry too much about where the legal line was.  Why?  Because there were no personal consequences to me for crossing it.

More than police having little regard for the legality of their actions, what about all the illegal searches that turn up no evidence, suppressible or not?  What about the police illegally searching your car and finding nothing?  Where are the restraints there?  What are the consequences to police?  There is no chance for a civil suit to succeed and very little chance that a complaint to the police agency will go farther than a first line supervisor blowing off any complaint.

If you or I did what the police do with impunity, we would be arrested and prosecuted.  If I went into your house looking for drugs, I would be charged with burglary.  If the police go into your house without a warrant looking for drugs, the drugs – if any are found – get suppressed.  If none are found, the police attitude is “oh well.”  Why do the police get a pass?

The Exclusionary Rule is not enough.  Yes, illegally obtained evidence should be suppressed.  However, there should be some consequences to the police officer for performing an illegal search, whether evidence is found or not.  Historically, search warrants were a time-consuming thing to get.  It would literally take hours to type an affidavit and warrant, drive to meet a judge, have the judge consider the circumstances, perhaps revise the affidavit, have the judge sign the warrant, then drive back to the location of the search.  Today, officers get warrants in minutes, either through fax or even by a recorded telephone conversation with a judge.

Why then shouldn’t officers be getting pre-approval for even routine searches as a way to protect our right to be free from “unreasonable searches and seizures.”  Why shouldn’t officers who refuse to have a neutral judge determine before a search whether probable cause exists be subject to the same laws and consequences as the rest of us?  Why should police be able to root through our things for no reason, not find anything, and just walk away?

Why not prosecute police officers for searching without probable cause, just like you or I would be prosecuted?  Why not put a statutory value on our Constitutionally protected rights – a civil punishment for police officers violating our rights?

We give immunity to judges for their actions.  We give immunity to prosecutors for their actions.  With nothing beyond the Exclusionary Rule to protect us, we are giving de facto immunity to police also.  Where is the accountability for government and its agents when our Constitutional rights are violated?

Some will read this and think me radical.  I think a government whose actors do not face the same consequences for their actions as those governed is abusive and on the way to being totalitarian.  It’s not King George, it is King Government with a million princes.  We fought a revolution against one, and we are just rolling over for the other.