Pubdate: Sat, 19 Jul 2008
Source: New York Times (NY)
Page: 1, Section A, Front Page
Copyright: 2008 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

American Exception

U.S. IS ALONE IN REJECTING ALL EVIDENCE IF POLICE ERR

Bradley Harrison was driving a rented Dodge Durango from Vancouver to 
Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk 
when a police officer pulled him over, found the drugs and arrested him.

A year and a half later, an Ontario trial judge ruled that the 
officer's conduct was a "brazen and flagrant" violation of Mr. 
Harrison's rights. The officer's explanation for stopping and 
searching Mr. Harrison -- confusion about a license plate -- was 
contrived and defied credibility, the judge said, and the search "was 
certainly not reasonable."

In the United States, that would have been good news for Mr. 
Harrison. Under the American legal system's exclusionary rule, the 
evidence against Mr. Harrison would have been suppressed as the 
result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to 
exclude the evidence. Mr. Harrison was sentenced to five years in prison.

"Without minimizing the seriousness of the police officer's conduct 
or in any way condoning it," the Court of Appeal for Ontario ruled in 
Mr. Harrison's case in February, "the exclusion of 77 pounds of 
cocaine, with a street value of several millions of dollars and the 
potential to cause serious grief and misery to many, would bring the 
administration of justice into greater disrepute than would its 
admission." The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some 
police misconduct must automatically result in the suppression of 
physical evidence. The rule applies whether the misconduct is slight 
or serious, and without regard to the gravity of the crime or the 
power of the evidence.

"Foreign countries have flatly rejected our approach," said Craig M. 
Bradley, an expert in comparative criminal law at Indiana University. 
"In every other country, it's up to the trial judge to decide whether 
police misconduct has risen to the level of requiring the exclusion 
of evidence."

But there are signs that some justices on the United States Supreme 
Court may be ready to reconsider the American version of the 
exclusionary rule. Writing for the majority two years ago, Justice 
Antonin Scalia said that at least some unconstitutional conduct ought 
not require "resort to the massive remedy of suppressing evidence of guilt."

The court will soon have an opportunity to clarify matters. The 
justices will hear arguments on Oct. 7 about whether methamphetamines 
and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., 
should be suppressed because the officers who conducted the search 
mistakenly believed he was subject to an outstanding arrest warrant 
as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals 
court in Mr. Harrison's case called "the automatic exclusionary rule 
familiar to American Bill of Rights jurisprudence."

Australia also uses a balancing test. It considers the seriousness of 
the police misconduct, whether superiors approved or tolerated it, 
the gravity of the crime and the power of the evidence. "Any 
unfairness to the particular accused" in most cases, the High Court 
of Australia wrote in 1995, "will be of no more than peripheral importance."

The European Court of Human Rights, a notably liberal institution, 
refused in 2000 to require the suppression of illegally obtained 
evidence. Using such evidence to convict a man charged with importing 
heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal 
defendants is routinely and automatically suppressed when police 
misconduct is found. In the last week of June, for instance, courts 
in Georgia, Ohio, Pennsylvania, Virginia and Washington state 
suppressed evidence in cases involving drugs, guns, burglary and 
child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the 
decentralized nature of American law enforcement, with thousands of 
local police departments around the nation, requires a more rigorous 
and consistent approach to deterring misconduct. The law enforcement 
systems in Canada and England, by contrast, are notably less 
fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison's car in 
Ontario thought the car should have had a front license plate, even 
though the car was from Alberta, which does not require one. "We 
respect the decision of the courts," said Sgt. Pierre Chamberland, a 
spokesman for the Ontario Provincial Police, but "their criticism 
alone does not by default lead to an internal complaint."

Supporters of the American practice say that only strict application 
of the exclusionary rule can effectively address violations of the 
Fourth Amendment, which bans unreasonable searches and seizures.

"The exclusionary rule deters police misconduct in a straightforward 
and effective way," said a supporting brief filed by the National 
Association of Criminal Defense Lawyers in the case the Supreme Court 
will hear in October. "It reduces the value of evidence obtained as a 
result of Fourth Amendment violations, and thus eliminates what would 
otherwise be a powerful incentive for police to engage in such violations."

Several justices have in recent years questioned whether the rule 
still makes sense in light of what they called the increased 
professionalism of the police and the availability of alternative and 
arguably more direct ways to punish misconduct, including internal 
discipline and civil suits.

Opponents of the rule say it is indirect, incomplete and in a way 
perverse. Even if it deters unlawful searches, exclusion of evidence, 
for instance, offers no remedy to innocent people whose rights were 
violated by unlawful searches.

More important, as Justice Robert H. Jackson wrote in 1954, the 
exclusionary rule "deprives society of its remedy against one 
lawbreaker because he has been pursued by another." Or, in Judge 
Benjamin Cardozo's famous mocking formulation in a 1926 decision for 
New York's highest court rejecting the rule: "The criminal is to go 
free because the constable has blundered."

That reasoning continues to resonate with some experts.

"Lots of scholars argue that the mandatory exclusionary rule ought to 
be re-examined," said David A. Sklansky, a law professor at the 
University of California, Berkeley. "Those scholars are not all on 
the right of the political spectrum." Professor Sklansky said he 
believed that the rule's benefits continued to outweigh its costs.

Most specialists continue to support the rule, said Orin S. Kerr, a 
law professor at George Washington University. "The U.S. experience 
is a consequence of history," Professor Kerr said. "It's a response 
to the police not following the law in the absence of this remedy."

The idea that exclusion is the proper response to police misconduct 
is of relatively recent vintage.

"Supporters of the exclusionary rule cannot point to a single major 
statement from the Founding -- or even the antebellum or 
Reconstruction eras -- supporting Fourth Amendment exclusion of 
evidence in a criminal trial," Akhil Reed Amar, a law professor at 
Yale, wrote in The Harvard Law Review in 1994.

According to Professor Amar, the framers of the Fourth Amendment 
assumed that the right it guaranteed would be enforced through civil 
lawsuits, not exclusion. "Both before and after the Revolution," he 
wrote, "the civil trespass action tried to a jury flourished as the 
obvious remedy against haughty customs officers, tax collectors, 
constables, marshals and the like."

These days, law professors and defense lawyers say, civil suits are 
less likely to be effective. Criminals whose rights have been 
violated are not attractive plaintiffs, and they may not have the 
resources to litigate, particularly from behind bars. Civil suits 
must, moreover, overcome various legal doctrines limiting the 
liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly 
obtained evidence in 1914 -- but only in federal cases.

For many decades afterward, the Supreme Court refused to apply the 
principle to states, saying they could choose the appropriate remedy 
for police misconduct -- including civil suits and criminal 
prosecutions -- and were not required to suppress evidence. In a 1949 
decision, the court justified that position in part with a rationale 
now disfavored in some circles: a survey of foreign law.

"Of 10 jurisdictions within the United Kingdom and the British 
commonwealth of nations," Justice Felix Frankfurter wrote for the 
majority, "none has held evidence obtained by illegal search and 
seizure inadmissible." The right to be free of arbitrary police 
intrusion is fundamental, Justice Frankfurter wrote, but the legal 
remedy for the violation of that right can vary.

It was not until 1961 that the Warren Court, in one of its signature 
decisions, concluded in Mapp v. Ohio that only the mandatory 
suppression of evidence could adequately address wrongdoing by the 
police in all cases, state and federal.

Seven Cleveland police officers had broken into and searched Dollree 
Mapp's home without producing a warrant, manhandling her and 
rummaging through her personal papers. Though the Ohio Supreme Court 
concluded that the search had been unlawful, it affirmed Ms. Mapp's 
conviction on obscenity charges based on materials the police found 
in her home.

That was too much for a majority of the Supreme Court to stomach. 
"The state, by admitting evidence unlawfully seized, serves to 
encourage disobedience to the federal Constitution which it is bound 
to uphold," Justice Tom C. Clark wrote for the court. Only the 
exclusion of evidence could do the job, he said; other remedies had 
proved "worthless and futile."

The Supreme Court has in recent years whittled away at the 
exclusionary rule by limiting its applicability and creating 
exceptions to it. Chief Justice John G. Roberts Jr. and Justice 
Scalia, neither of whom is enamored with citing foreign law, each 
noted in recent decisions that the American approach in this area is 
unique and has been universally rejected elsewhere.

In a third decision two years ago, Hudson v. Michigan, Justice Scalia 
seemed to say that the exclusionary rule had outlived its original 
purpose. The case involved a conceded violation of a rule requiring 
police executing a search warrant to knock and announce themselves.

Much had changed since the exclusionary rule was applied to states in 
1961, Justice Scalia wrote. Police departments had become more 
professional, he said, and various kinds of civil suits against 
officials and the government had become available. "As far as we 
know," Justice Scalia wrote for the court, "civil liability is an 
effective deterrent."

Justice Stephen G. Breyer, writing for the four dissenters, said that 
exclusion remains the best and most reliable deterrent. He added that 
the logic of the majority's objections was not limited to "knock and 
announce" violations but was "an argument against the Fourth 
Amendment's exclusionary principle itself." 
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