Justice Cardozo made that observation in response to the newly crafted "ExclusionaryRule". In basic terms, if the cops violate the fourth amendment in the search and seizure of evidence, then the evidence cannot be used in the trial. It is a judicially created rule to provide a remedy for a constitutional violation. It punishes the cops and the prosecution and it can and has resulted in very guilty people going free. Is it just and effective?...You be the judge.
Clearly, with no sanction against illegal police conduct, there would be little incentive for a few cops to follow the constitution. Many years ago, the application of the fourth amendments prohibition against unreasonable searches and seizures was a bit broad in application. If a person was arrested in their home, the cops could search the entire place. Searches without search warrants were done all the time and it seemed to be OK with the courts.
In 1914 the Weeks case forbid the admission into trial any evidence taken or seized by federal officers in violation of the fourth amendment. This federal rule of procedure applied only to federal officers and federal prosecutions for many years. The state cops and prosecutors were able to continue and use illegally taken evidence in trial and, while a violation of the constitution, the evidence was still used in the trial.
In 1961 in the famous case of Mapp v. Ohio the Exclusionary Rule was finally applied to the states, and now any evidence taken in violation of the fourth amendment was not available for use in court...period...."But Wait, There's More!!!"
Almost immediately, the courts started carving out exceptions.The most notable in 1984 was United States v Leon where the court said the rule should not apply to a search warrant served by the cops in objective good faith in its legality, but where the judge that issued it made a mistake.
There are others developed over the years and it reminds me of the judicial tinkering performed in the Miranda decision, and the list of rulings carving out exceptions to that artificial rule. You see, neither the Exclusionary Rule or the rules set out in the Miranda case are really constitutional in origin. There is nothing in the fourth amendment which commands the exclusion of evidence seized in violation of it. Indeed, some may argue the implicit right to privacy contained in the fourth amendment is little help in justifying the exclusionary rule. Why should evidence of probative value, relevant to the issue, with sufficient reliability be excluded from the trial?. Why should it matter how the cops got it. How the evidence was obtained has no impact on the final element of justice in a particular trial. Why should a guilty person go free because the jury did not know of the evidence because it was excluded?. Is the Exclusionary Rule in the best interest of the administration of justice?.....Is it fair?.....Should the criminal go free because the constable blundered?.....
Those who argue in support of this artificial rule state that suing the cops and their bosses does not provide a sufficient deterrent. Well, maybe....And in the past, before 42 U.S.C 1983 damage claims were hard to prove. But now, this federal statute allows suits where a persons rights are violated and who among us has not heard of multi million dollar awards against police agencies.
Does the exclusionary rule deter bad police conduct.....Maybe, maybe not... I think today's cops are more afraid of being sued than they are of their case being thrown out of court. Cases come and go, but each cop only has one home and one retirement and they don't like to bet them to put some dirt ball away.
You decide......does it do the job in keeping the cops in check?..or, does it simply result in some crooks going free when the evidence is excluded..... "Film at 11"
Monday, August 31, 2009
Thursday, August 20, 2009
The Fourth Amendment
Cops and criminal lawyers find themselves in the fourth amendment area on almost a daily basis. The press likes to talk about it, and civil libertarians potificate about the protections it provides. In deed, nothing is really more important to the liberties we enjoy as the protections provided in this amendment to the constitution.
The fourth amendment protects us against unreasonable searches and seizures. It provides that a person shall be secure in their person, houses, papers and effects against unreasonable searches and seizures. Big sentence but it only protects the four areas listed. What it does not do is protect citizens or non citizens in foreign countries. A famous case where several DEA agents went into Mexico and, without a warrant, searched a dope suspects house by breaking in and searching was upheld and the evidence admitted at the persons trial. But, it does protect foreign nationals within the country whether or not they are here legally or a citizen of this country.
The above is known as the "reasonableness clause" Now, as you might guess, each word within this clause has developed distinct legal meanings. What is a "house"? What constitutes a "seizure"? and, What is a "search"? If the conduct by the government does not fall within the legal meaning of the act or conduct, then the amendment does not apply. Further, if any of the conduct protected by the fourth amendment is performed by someone not connected to the government, then the protections of the amendment do not apply. So, your local security guard for Walmart can violate your fourth amendment rights, perform a search which if done by the police would be a violation, and then turn what he finds over to the cops and you will next see the evidence in court!. Now, that said, if the cops put him up to it or he is in any way an "agent" of the government, then his search would be just as much a violation as if performed by the cops.
Now the fourth amendment has what is known as the "warrant clause" This states "No warrant shall issue but upon probable cause, supported by oath or affirmation.
And then there is the "Particularly Clause, which states " particularly describing the places to be searched and the things to be seized".
But you might notice there is nothing in the fourth amendment which actually requires a search warrant. It only protects against "unreasonable" searches and seizures. While a number of supreme court cases have either said or implied that searches without a search warrant are presumptively unreasonable, that is a product of court decisions, not from the wording of the clause. legal writers have suggested that a so called "reasonable search" is not just one sanctioned by a warrant, but can include other types of searches without warrants. While the supreme court has yet to actually rule whether a search warrant is always required for the reasonableness standard to apply, they have carved out so many exceptions to the search warrant requirement, one could argue that a search warrant is not required to search most things. I will touch on these exceptions in the future and you may agree.
And, more to follow on the whole issue of the fourth amendment and its application to state officers. Remember, the Bill of Rights initially only applied to federal officers and courts and the states were free to fashion any rules or no rules. This led to the so called "silver platter" doctrine where state officers would dirty search a crook, and then turn the evidence over to the feds on a "silver platter" to now be used in a federal trial. The supreme court dealt with this in an interesting way and also came up with a penalty for violations which to this day, remains controversial. Stay tuned.
The fourth amendment protects us against unreasonable searches and seizures. It provides that a person shall be secure in their person, houses, papers and effects against unreasonable searches and seizures. Big sentence but it only protects the four areas listed. What it does not do is protect citizens or non citizens in foreign countries. A famous case where several DEA agents went into Mexico and, without a warrant, searched a dope suspects house by breaking in and searching was upheld and the evidence admitted at the persons trial. But, it does protect foreign nationals within the country whether or not they are here legally or a citizen of this country.
The above is known as the "reasonableness clause" Now, as you might guess, each word within this clause has developed distinct legal meanings. What is a "house"? What constitutes a "seizure"? and, What is a "search"? If the conduct by the government does not fall within the legal meaning of the act or conduct, then the amendment does not apply. Further, if any of the conduct protected by the fourth amendment is performed by someone not connected to the government, then the protections of the amendment do not apply. So, your local security guard for Walmart can violate your fourth amendment rights, perform a search which if done by the police would be a violation, and then turn what he finds over to the cops and you will next see the evidence in court!. Now, that said, if the cops put him up to it or he is in any way an "agent" of the government, then his search would be just as much a violation as if performed by the cops.
Now the fourth amendment has what is known as the "warrant clause" This states "No warrant shall issue but upon probable cause, supported by oath or affirmation.
And then there is the "Particularly Clause, which states " particularly describing the places to be searched and the things to be seized".
But you might notice there is nothing in the fourth amendment which actually requires a search warrant. It only protects against "unreasonable" searches and seizures. While a number of supreme court cases have either said or implied that searches without a search warrant are presumptively unreasonable, that is a product of court decisions, not from the wording of the clause. legal writers have suggested that a so called "reasonable search" is not just one sanctioned by a warrant, but can include other types of searches without warrants. While the supreme court has yet to actually rule whether a search warrant is always required for the reasonableness standard to apply, they have carved out so many exceptions to the search warrant requirement, one could argue that a search warrant is not required to search most things. I will touch on these exceptions in the future and you may agree.
And, more to follow on the whole issue of the fourth amendment and its application to state officers. Remember, the Bill of Rights initially only applied to federal officers and courts and the states were free to fashion any rules or no rules. This led to the so called "silver platter" doctrine where state officers would dirty search a crook, and then turn the evidence over to the feds on a "silver platter" to now be used in a federal trial. The supreme court dealt with this in an interesting way and also came up with a penalty for violations which to this day, remains controversial. Stay tuned.
Saturday, August 15, 2009
Vehicle Searches Incident To Arrest
Hey, you can't search my car, you don't have a search warrant!"
That statement is being said to some cop somewhere in this country as you are reading this. While it is likely some people who are contacted by the police have more experience with the law than the cop who contacted them, their criminal record hardly makes them lawyers. The basic rule is that all searches require a search warrant....except for the almost countless exceptions. Many years ago now, the U.S. Supreme Court decided that a search of a motor vehicle made by officers after a person was arrested while an occupant of the vehicle was one of these exceptions. You see, the justification is and was that the person under arrest might break free and obtain a weapon from the vehicle. The search of the passenger compartment was allowed incident to an arrest for the safety of the officers.
The cops could look anywhere in the passenger compartment that was big enough to put some type of weapon. If they found an illegal weapon, they could take it and it could be used as evidence against the bad guy. If in the course of "patting down" the passenger compartment they find evidence of crime, fruit of a crime, or contraband.......THEN they can search the entire vehicle, trunk, engine, inside the tires, headliner, everywhere for other evidence. It's called the automobile exception (to the search warrant requirement)
The legal theory for the exception to the search warrant requirement for vehicles is simply the vehicle has wheels and might leave!...That simple.
This year, however, the supreme court threw a curve. The legal theory allowing officers to search a passenger compartment of a car when an occupant was arrested was so broad that it allowed this search even though the person arrested was in handcuffs, and in the back seat of a patrol car across the street!. This year, the court narrowed up this rule and limited the vehicle pat down to only those occasions where the person was still unrestrained and in the area of the vehicle. So everywhere, officers who want to look through a car for weapons have to come up with safe ways to keep Mr. Badguy around them while they search. Now, if they find some of the above items, like dope, then Mr. Badguy is now going to be arrested for the dope too and since the dope allows a full vehicle search, then it does not matter where the crook is when that search is done.
So, if you get stopped by the police and arrested for some old traffic warrant or something, please don't be one of those who yell at the cops that they can't search your car because they don't have a warrant........they don't need one!
That statement is being said to some cop somewhere in this country as you are reading this. While it is likely some people who are contacted by the police have more experience with the law than the cop who contacted them, their criminal record hardly makes them lawyers. The basic rule is that all searches require a search warrant....except for the almost countless exceptions. Many years ago now, the U.S. Supreme Court decided that a search of a motor vehicle made by officers after a person was arrested while an occupant of the vehicle was one of these exceptions. You see, the justification is and was that the person under arrest might break free and obtain a weapon from the vehicle. The search of the passenger compartment was allowed incident to an arrest for the safety of the officers.
The cops could look anywhere in the passenger compartment that was big enough to put some type of weapon. If they found an illegal weapon, they could take it and it could be used as evidence against the bad guy. If in the course of "patting down" the passenger compartment they find evidence of crime, fruit of a crime, or contraband.......THEN they can search the entire vehicle, trunk, engine, inside the tires, headliner, everywhere for other evidence. It's called the automobile exception (to the search warrant requirement)
The legal theory for the exception to the search warrant requirement for vehicles is simply the vehicle has wheels and might leave!...That simple.
This year, however, the supreme court threw a curve. The legal theory allowing officers to search a passenger compartment of a car when an occupant was arrested was so broad that it allowed this search even though the person arrested was in handcuffs, and in the back seat of a patrol car across the street!. This year, the court narrowed up this rule and limited the vehicle pat down to only those occasions where the person was still unrestrained and in the area of the vehicle. So everywhere, officers who want to look through a car for weapons have to come up with safe ways to keep Mr. Badguy around them while they search. Now, if they find some of the above items, like dope, then Mr. Badguy is now going to be arrested for the dope too and since the dope allows a full vehicle search, then it does not matter where the crook is when that search is done.
So, if you get stopped by the police and arrested for some old traffic warrant or something, please don't be one of those who yell at the cops that they can't search your car because they don't have a warrant........they don't need one!
Friday, August 7, 2009
Poor Ernesto Miranda
Poor Ernesto, hell, he never really had a chance. His mom died when he was six years old, and he committed his first felony at the ripe old age of sixteen. In March of 1963, Ernesto was arrested for rape, and had little insight his name would become know to every cop and most citizens. His case, you see, resulted in the so-called Miranda decision by the Supreme Court. And even though his case made him famous, he was later convicted again of rape in a subsequent trial. Although his statements to the police were thrown out, he was convicted anyway and sentenced to 20 to 30 years in prison.
When Ernesto got out of prison, he made a little spending money by autographing the local cops "Miranda" cards for a few dollars each. In 1976, poor Ernesto met his fate. It was in the La Amapola Bar in Phoenix, Arizona. Ernesto got into an argument with another patron and when Ernesto went to the men's room, his killer followed him in and stabbed him to death.
The cops arrived almost immediately and arrested his killer. It was then the irony became clear to all when Ernesto Miranda's killer was placed in custody for murder......... and his "Miranda rights" were read to him.
When Ernesto got out of prison, he made a little spending money by autographing the local cops "Miranda" cards for a few dollars each. In 1976, poor Ernesto met his fate. It was in the La Amapola Bar in Phoenix, Arizona. Ernesto got into an argument with another patron and when Ernesto went to the men's room, his killer followed him in and stabbed him to death.
The cops arrived almost immediately and arrested his killer. It was then the irony became clear to all when Ernesto Miranda's killer was placed in custody for murder......... and his "Miranda rights" were read to him.
It's In The Constitution So It Is The Law!!!!
The Bill of Rights......The amendments to the constitution are part of the constitution, right? Right!. So they all apply to everyone in every state, Right?.....Wrong! Or to use a term lawyers often use...."Maybe!"
You see, many of the rights contained in the first ten amendments to the constitution have never been applied to the states. The most notable is the so-called right to bear arms under the 2nd Amendment. The U.S. Supreme Court has never held the right to keep and bare arms as a fundamental right. OK, confused?....lets back up.
In the early days, there were supreme court judges who felt that all of the amendments ought to apply equally to the states and be enforced upon the states therein limiting the states power to enact rules differently. However, the majority of the justices felt the amendments should be selectively applied to the states and "only those rights held fundamental in the scheme of ordered liberty" should apply. You see, the Bill of Rights, the amendments to the constitution only apply to the federal government. And initially, only the federal courts applied them.
Over time, the court settled on the concept that the due process clause of the 14th Amendment was the vehicle used to apply any of the amendments to the states. The 2nd Amendment has never been found to be "fundamental" leaving the states to enact any laws they wish in the control of guns. In 2008 the Heller decision came as close as any case has in finding that a individual person had a right to possess a gun. Many believe this is a ruling which forces the states to adhere to the rights afforded under the 2nd Amendment. But, the Heller decision does not go far enough, in my opinion, to hold that view. While it made it clear that gun possession was a right that is individual, it also said the states can enact reasonable restrictions related to gun ownership. Heller also did not say the 2nd Amendment right to keep and bare arms was FUNDAMENTAL. In not so ruling, it is left open whether or not the 2nd Amendment is controlling.
So, ..... the bottom line is that not all so-called rights contained within the Bill of Rights applies or limits state action. Only those the Supreme Court has held to be a fundamental right. A fact many gun right proponents forget or never knew. The big ticket items like freedom of speech and the press, unreasonable search, the right to a lawyer when being questioned by the police, reasonable bail, etc. apply to all present in this country. But before you proudly proclaim a right found in the Bill of Rights as yours and the local police violated it, better check and see if it applies to state officers and to you!.....It might not
You see, many of the rights contained in the first ten amendments to the constitution have never been applied to the states. The most notable is the so-called right to bear arms under the 2nd Amendment. The U.S. Supreme Court has never held the right to keep and bare arms as a fundamental right. OK, confused?....lets back up.
In the early days, there were supreme court judges who felt that all of the amendments ought to apply equally to the states and be enforced upon the states therein limiting the states power to enact rules differently. However, the majority of the justices felt the amendments should be selectively applied to the states and "only those rights held fundamental in the scheme of ordered liberty" should apply. You see, the Bill of Rights, the amendments to the constitution only apply to the federal government. And initially, only the federal courts applied them.
Over time, the court settled on the concept that the due process clause of the 14th Amendment was the vehicle used to apply any of the amendments to the states. The 2nd Amendment has never been found to be "fundamental" leaving the states to enact any laws they wish in the control of guns. In 2008 the Heller decision came as close as any case has in finding that a individual person had a right to possess a gun. Many believe this is a ruling which forces the states to adhere to the rights afforded under the 2nd Amendment. But, the Heller decision does not go far enough, in my opinion, to hold that view. While it made it clear that gun possession was a right that is individual, it also said the states can enact reasonable restrictions related to gun ownership. Heller also did not say the 2nd Amendment right to keep and bare arms was FUNDAMENTAL. In not so ruling, it is left open whether or not the 2nd Amendment is controlling.
So, ..... the bottom line is that not all so-called rights contained within the Bill of Rights applies or limits state action. Only those the Supreme Court has held to be a fundamental right. A fact many gun right proponents forget or never knew. The big ticket items like freedom of speech and the press, unreasonable search, the right to a lawyer when being questioned by the police, reasonable bail, etc. apply to all present in this country. But before you proudly proclaim a right found in the Bill of Rights as yours and the local police violated it, better check and see if it applies to state officers and to you!.....It might not
Thursday, August 6, 2009
Miranda
No supreme court decision has caused the level of misunderstanding, conflicting interpretations, and misapplication than Miranda v. Arizona. In its basic form, the decision held a person in police custody must be read a statement advising the person they don't have to talk to the police, and they can have a lawyer before and during any questioning by the police. Seems simple enough, don't you think?
But, wait!....Now we have to discuss what is "questioning"?, and What is "custody"? And, is the questioning being done by "police"?
In Miranda, the court said the rights Miranda protected were constitutionally protected rights....but, the court referred to that decisions and its application as a protective measure only, and the failure to advise a person of their so-called Miranda rights was not a constitutional deprivation.
In the 1970's, the California Supreme Court ruled that Miranda applies anytime the "focus" of a criminal investigation identified a suspect. "Custody" was unimportant. I recall in those days reading the Miranda admonition to people over the phone!
One can write a book (and many have) about the Miranda decision. For this post, suffice to say Miranda only applies to custodial interrogation. A person does not have to be told they are under arrest to have Miranda apply. A person can be in "Miranda custody" long before that because of the circumstances of their contact with the police. The police do not have to read someone their rights under Miranda when they are arrested. They only have to if they ask questions designed to elicit an incriminating response. Booking questions like a persons address, emergency contact numbers don't apply. I don't care what you see on "COPS".
Does a simple failure to read someone their rights under Miranda constitute a constitutional deprivation? ........Maybe! and Maybe not!. The Supreme court has been all over the place on this and the issue is not settled. Anyway, more later on poor Mr. Miranda.
But, wait!....Now we have to discuss what is "questioning"?, and What is "custody"? And, is the questioning being done by "police"?
In Miranda, the court said the rights Miranda protected were constitutionally protected rights....but, the court referred to that decisions and its application as a protective measure only, and the failure to advise a person of their so-called Miranda rights was not a constitutional deprivation.
In the 1970's, the California Supreme Court ruled that Miranda applies anytime the "focus" of a criminal investigation identified a suspect. "Custody" was unimportant. I recall in those days reading the Miranda admonition to people over the phone!
One can write a book (and many have) about the Miranda decision. For this post, suffice to say Miranda only applies to custodial interrogation. A person does not have to be told they are under arrest to have Miranda apply. A person can be in "Miranda custody" long before that because of the circumstances of their contact with the police. The police do not have to read someone their rights under Miranda when they are arrested. They only have to if they ask questions designed to elicit an incriminating response. Booking questions like a persons address, emergency contact numbers don't apply. I don't care what you see on "COPS".
Does a simple failure to read someone their rights under Miranda constitute a constitutional deprivation? ........Maybe! and Maybe not!. The Supreme court has been all over the place on this and the issue is not settled. Anyway, more later on poor Mr. Miranda.
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