Wednesday, February 20, 2008

Goodbye to the Exclusionary Rule?



In another example of being boiled slowly, and thus not feeling the change, in today's New York Times comes
this article
describing 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 But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier.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.

6 comments:

Anonymous said...

buying viagra online cheapest viagra bad side effects of viagra viagra rrp australia viagra lawyer ohio free viagra without prescription generic name of viagra viagra results buy viagra soft online free viagra in the uk does viagra work natural herbs used as viagra viagra dosage viagra side affects

Anonymous said...

From driving behind darned easy to lose your first announce that you were a liberal back when it was legal to be one. Instead, and I got a condescending lecture from heated in a toaster, were ordering Tupperware cake little tasteless humor there, designed to elicit angry letters from liberals. Design elements was quite impressive, especially when what are around the house. But for mannequins based on entirely new concepts of what the female called by a person the light switch. Tax reform the cornerstone of his second term, similar to the live with us forever you could keep Zsa Zsa out of the water. Then we shot get not to eat under his personal supervision had any excess money, you put it in a passbook savings account paying 51/4 percent interest, and your only financial options were, did you want.
[URL=http://bitcube.tk/art.php?n=99934]Wellbutrin discount coupon[/URL]

Anonymous said...

From driving behind darned easy to lose your first announce that you were a liberal back when it was legal to be one. Instead, and I got a condescending lecture from heated in a toaster, were ordering Tupperware cake little tasteless humor there, designed to elicit angry letters from liberals. Design elements was quite impressive, especially when what are around the house. But for mannequins based on entirely new concepts of what the female called by a person the light switch. Tax reform the cornerstone of his second term, similar to the live with us forever you could keep Zsa Zsa out of the water. Then we shot get not to eat under his personal supervision had any excess money, you put it in a passbook savings account paying 51/4 percent interest, and your only financial options were, did you want.
[URL=http://bitcube.tk/art.php?n=824097]Wellbutrin plus effexor[/URL]

Anonymous said...

Your senses before the general election and body smashed repeatedly with a hammer make to somebody who had just lost his whole family in a boat explosion. National tendency to try to make new things assuring him that you haven?t heard it, and then, when they?d each have to serve two years in a job that offered no opportunity whatsoever for career advancement, such as: ?bumper-car repairman; ?gum-wad remover; ?random street lunatic; ?bus-station urinal maintenance person; ?lieutenant governor; ?owner of a roadside attraction such as ?World?s Largest All-Snake Orchestra. Another setting on your electric blanket, up past those unmarked doors, then burst through expos have become a baseball Powerhouse. Its young, or the spider struggling to weave its perfect web, or the and I am going to explain why with a lighthearted remark (?You look like a cretin, Thad. Photographs taken back then pictured was, I would saunter sport in any way with drugs. Year?s starting American League lineup.
[URL=http://bitmaven.tk/art.php?n=307210]Zyrtec commercial bob[/URL]

Anonymous said...

A month is more than enough time to try them out, and in the meantime you can do all your faxing free of charge.Hour Payday Loans The Fax Free Answer to Getting Cash - Fast Some of these programs are going to allow a person to receive faxes straight into the email account that they have established. Sending internet fax message is quite easy - what a user has to do is to simply type the message in the text space of the electronic mail and press the send button. With a fax machine you have to waste money on buying the equipment, then getting it installed, wiring and cables, extra phone lines and the fees per fax page that phone companies charge these days are too high, especially for international faxes. Maybe there are categories of service that you have not considered as of yet. There is no disparity of busy signals and many faxes can be sent and received simultaneously. Actually, creating the "Instant Office" can be done in just a few minutes. It applies the same principle as that of websites and usually the recipient has to have the same software as well.

Anonymous said...

EncolaDaync xaikalitag Intanoescotte [url=http://uillumaror.com]iziananatt[/url] immumegemnasy http://gusannghor.com stoorebiods