In another example of being boiled slowly, and thus not feeling the change, in today's New York Times comes
this articledescribing a new case accepted for certiorari:
Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.
The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.
In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.
He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.
There was no dispute that Mr. Herring’s arrest lacked probable cause, and that both the arrest and the search were therefore unconstitutional. But the 11th Circuit, citing the Supreme Court’s most recent discussion of the exclusionary rule, in a case from 2006, said suppression of reliable evidence placed a heavy toll on the criminal justice system and should be used as a last resort.
Also, last week, during an interview with the BBC, Justice Scalia said that "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."
At the time, I wondered what the implications of this statement were to Scalia's view of interrogations of U.S. citizens. For example, if the ticking time bomb scenario prompted him to believe that "sticking something under the fingernail" were permissible, what does he also believe about a suspect being interrogated during an "exigent circumstances" scenario?
Is it "absurd" to think that Scalia wouldn't apply the same logic?
The Times article also hints about the possibility that exclusion will be, well, excluded, as a remedy next term:
Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.”
In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.