My hometown rag and the New York Times both ran scary stories this weekend about the results of decades of attempts to chip away at the 4th amendment. The Times ran a piece on Saturday about the impact of the most recent Supreme Court rulings on the so-called 'exclusionary rule'. This is the rule of evidence that prohibits information and materials obtained by police behaving badly from being used against criminal defendants. Most recently the SC's 5-4 decision in Herring v. US, which found that evidence obtained through police "carelessness" need not be suppressed. At first glance, this may seem like imminently practical way to deal with the frustrating "off on a technicality" cases, but as Adam Liptak, writing for the points out when the decision is read broadly it can lead to some really scary abuses, to whit:
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.
So, basically, law enforcement can lie to maintain a warrant and then keep whatever they find as a result of the search.
The logic behind rolling back or limiting the exclusionary rule is that law enforcement has become increasingly professional so that the police in effect police themselves and that criminal cases should not suffer because of accidental error. The problem that the Washington Post Magazine's cover article illustrates is that is not necessarily true. A SWAT team broke down Cheye and Trinity Calvo's door and slaughtered their two mild mannered black labs while executing a warrant. There was ample evidence that the mayor and his wife were not a pair of drug dealers and that it was pretty clear they had nothing to do with the box of dope dropped on their doorstep. Despite the fact the police appeared to have done zero research on their targets and executed a standard warrant in a no knock fashion with a heavily armed paramilitary squad had the police found anything incriminating it may well have been ruled admissible in court. The scariest part is that we know and care about this case because the Calvos are innocent, educated, and connected. Most often the victims of egregious abuses like these are not all, if any, of those things, but that we have allowed the war on drugs to extend this far impacts us all.
If you don't have time for the article...
a summary of the Herring case and the exclusionary rule:
and a video link to the Calvo story:
a summary of the Herring case and the exclusionary rule:
and a video link to the Calvo story:
