Thursday, January 15, 2009

Bye Bye Fourth Amendment To The Constitution

Death Of The Exclusionary Rule


The Cool Justice Report
Jan. 15, 2009

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

The Fourth Amendment to the United States Constitution provides: "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." Part of the Bill of Rights, it had been historically applicable only to limit federal law enforcement.

In 1961 the Supreme Court decided Mapp v. Ohio, applying the tenets of the Bill of Rights to state action, using the Due Process Clause of the Fourteenth Amendment. As Chief Justice Warren Burger presided over a liberal Supreme Court, an array of cases issued that greatly expanded the rights of an accused in search and seizure situations. Of particular concern to law enforcement was the rise of the Exclusionary Rule, a rule meant to deter illegal police conduct.

The rule mandated exclusion from evidence of items seized in illegal searches, creating a major legal loophole. Defendants found with contraband seized without the requisite warrant or probable cause mandated by the Fourth Amendment received a "Get Out Of Jail Free Card." Despite clear factual guilt, the violation of constitutional rights provided a major defense weapon.

The rule was expanded to confessions obtained in violation of the Fifth Amendment right to silence and the Sixth Amendment right to counsel. Drug cases were dismissed, and murder cases were lost when the illegally seized weapon was excluded, or a lawyerless confession was suppressed.

At its core, the rule was meant to deter illegal police conduct by punishing law enforcement with the loss of valuable evidence. The rule applied to whatever was seized as a direct consequence of the constitutional violations by police. The catch phrase was, "the fruit of the poisonous tree." Anything that flowed from the illegality was excluded as such.

Over the next 40 years the changing face of the Supreme Court brought opportunities to limit the wholesale exclusion of evidence on the happening of a constitutional violation. Slowly, the rule became compacted.

A "Good Faith" exception was created, upholding searches by officers who operated under a good faith belief that that a warrant was valid, despite a later ruling by a court that the warrant lacked probable cause. The strict interpretations of what constituted "probable cause" were loosened when the court ruled that a warrant was to be judged on a broader, "totality of the circumstances" standard.

This week the court dealt a near death blow to the rule in Herring v. U.S., holding that, "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply."

Police arrested Herring on a warrant from another county and seized drugs and a gun. It was later learned that the warrant had been withdrawn, and the seizure was deemed illegal.

The lower courts denied exclusion. Ultimately, the U.S. Supreme Court determined that the violation was the result of negligence and not intentional police conduct: "To trigger the exclusionary rule, 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."

No longer will proof of a constitutional infirmity with a search mandate the loss of evidence. Police and prosecutors are hailing the ruling as a major blow to criminals who hide behind the Constitutional rights meant to protect well-meaning citizens.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website,

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    Judy Aron said...

    Andy - Should it surprise anyone? A lot of the Constitution is being ignored. Heck, we have Obama about to assume office despite any real evidence of his "natural birth" qualification. We have taxpayer money being thrown around to private industry (and government taking stake in private companies) without any authority by the Constitution to do so - and we have virtually lost 4th amendment rights - habeus corpus and freedom of speech. The judges don't even follow the law in the courts. Posse Comitatus is also out the window. We have a private bank dictating our money and economy when we have full right from our Constitution to coin our own.

    It's pretty disheartening to see our republic dying. Can't blame it on any particular party either - both are to blame (big time). Our elected officials and the judges are not doing their jobs and they are all violating their oaths of office as far as I am concerned. Watch for the draft to be established again. Every calamity will be a new reason to seize more of our rights away from us. Well, at least I can tell my grandchildren how the United States used to be. I am glad my parents aren't around to see this mess. Any bets on what year our sovereignty goes down a rat hole?

    Carol Novack said...

    This is not that far off from the so-called "good faith" exception to the warrant rule. The Fourth Amendment's been whittled to near extinction over the years. But what would one accept with this Supreme Court?

    When I was practicing in NYC in the 1990's, the alarmingly vast number of judges I argued before rubber stamped the prosecutors where Fourth Amendment issues (and most others) were concerned. And get this- from my recollection, NYS hadn't adopted the "good faith" exception.

    Hey hey, what of the FISA Amendment Obama voted for? A further denunciation of Fourth Amendment principles.