"The Criminal Goes Free Because The Constable Blundered"

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"