The Rights of the People (27 page)

Local police in states with no exclusionary rules of their own were free to seize evidence with scant regard for individual rights. “When the exclusionary rule was not in effect in the state of Ohio, for example, the Cincinnati police force rarely applied for search warrants,” writes Timothy Lynch of the Cato Institute. “In 1958 the police obtained three warrants. In 1959 the police obtained none.”
²⁸
The same was true in New York City, where policies were abruptly changed by the Warren Court’s reversal of
Wolf
. It came in a landmark 1961 case,
Mapp v. Ohio
,
²⁹
which imposed the rule on the states.

Dollree Mapp was visited on May 23, 1957, by three Cleveland police officers who demanded that she allow them into the top-floor apartment of the two-family house where she lived with her young daughter. The cops claimed to have information that someone wanted for questioning in a bombing was hiding inside, and that papers relating to an illegal numbers game would be found. With the police at the door, Mapp consulted with her attorney by phone and then denied them permission to enter without a search warrant.

Three hours later, the three policemen, joined by four more, again knocked on the door and quickly forced it open. The Court’s majority opinion recounted the events: “Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the ‘warrant’ and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper.”

A policeman twisted her hand, handcuffed her, and forced her “upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet, and some suitcases,” the Court said. “They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child’s bedroom, the living room, the kitchen, and a dinette. The basement of the building and a trunk found therein were also searched.” When her lawyer arrived, the officers barred him from the house and would not let him talk to her.

They discovered no bomber and no gambling receipts but charged Mapp for possessing “lewd and lascivious books, pictures, and photographs.” She appealed on the grounds of the First Amendment, but it was
the Fourth that got her off, as applied through the Fourteenth Amendment’s due process clause (“… nor shall any State deprive any person of life, liberty, or property, without due process of law …”).

“There is no war between the Constitution and common sense,” the majority declared. “This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial … the right not to be convicted by use of a coerced confession.… Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effects, documents, etc.?” The vote was six to three.

“The
Mapp
case was a shock to us,” New York’s Deputy Police Commissioner Leonard Reisman told
The New York Times
in
1965
. “We had to reorganize our thinking, frankly. Before this nobody bothered to take out search warrants. Although the Constitution requires warrants in most cases, the Supreme Court had ruled that evidence obtained without a warrant—illegally, if you will—was admissible in state courts. So the feeling was, why bother? Well, once that rule was changed we knew we had better start teaching about it.”
³⁰

Since then, to a layman who knows a little of the law, the suppression of illegally seized evidence has seemed integral to criminal procedure, an invincible shield against unconstitutional behavior by law enforcement. It has ensured that illegal searches yield nothing of value to prosecutions; it has reinforced judicial oversight; it has forced many police officers on the front lines to learn the law and temper their abuses against the Constitution. Yet the rule has been under assault by some conservative legislators and judges—not libertarian conservatives, to be sure, but those in the political right’s dominant mainstream.

In 1995, soon after Republicans gained a majority in Congress, they made a failed attempt to legislate the exclusionary rule out of existence, and they succeeded for certain terrorism cases in 2006, during the waning days of their majority, prohibiting military commissions from suppressing evidence seized without a warrant, even inside the United States. This was narrowed in 2009, by the Democratic-led Congress and administration, to bar the exclusion of such evidence collected only outside the country.
³¹

Over the years, the increasingly conservative Courts of Warren Burger, William Rehnquist, and John G. Roberts, Jr., have whittled away the rule on several fronts by deciding that illegally obtained evidence can be used in grand jury questioning (1974),
³²
civil trials (1976),
³³
the cross-examination
of an accomplice testifying for the defense (1980),
³⁴
and circumstances where it would be inevitably discovered through legal means (1984).
³⁵
The Court in 1976 denied prisoners federal review after state appeals courts rejected claims that evidence was illegally seized.
³⁶
The progression of these decisions was characterized by Justice William J. Brennan, Jr., in his
Leon
dissent, as “the Court’s gradual but determined strangulation of the rule.”
³⁷

Leon’s
good-faith exception in 1984 was expanded in 1995 to include erroneous computer records. A driver whose outstanding arrest warrant had been revoked but not removed from the database was stopped and arrested, his car searched, and marijuana found. Without the arrest warrant, the arrest was illegal, and therefore so was the search, but the Court, finding that the police had relied on the computer in good faith, allowed the marijuana into evidence.
³⁸

Similarly, the Court ruled five to four in 2009 that a man erroneously arrested on a warrant that had been withdrawn but left in a computer system could still be charged for possessing a gun and methamphetamine discovered when he was frisked after being taken into custody. “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply,” wrote Chief Justice Roberts. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system” in “letting guilty and possibly dangerous defendants go free.”
³⁹
The ruling may have raised the bar for the exclusion of evidence, since defense attorneys may find it hard, in individual instances, to show “systemic error” or “reckless disregard,” a vague standard giving pro-police judges wider latitude to indulge their predilections.

Another exception, devised in 2006, released police from pausing before breaking down doors after knocking and announcing themselves. Previously, evidence could be suppressed if cops executing a warrant waited less than ten or twenty seconds, provided they faced no imminent violence. Just three years earlier, the Court had calculated the reasonable delay in a drug search as fifteen to twenty seconds so the narcotics couldn’t be flushed.
⁴⁰

That meant that in 2005, the five or six seconds that Sergeant Brennan’s crew gave Wendy before ramming her doors might have made the guns they found inadmissible had there been a trial—and had a judge
believed a defendant, rather than the police, about how little time had passed.

But in 2006 the rules were changed by the Supreme Court in
Hudson v. Michigan
. Detroit police had waited three to five seconds before entering through Booker T. Hudson, Jr.’s unlocked door. They found a gun and drugs. The Michigan Supreme Court had already decided in earlier cases that a violation of the “knock-and-announce” rule should not result in suppression, and now a newly constituted Supreme Court, with Sandra Day O’Connor replaced by Samuel A. Alito, Jr., agreed five to four.
⁴¹

“The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one,” Justice Antonin Scalia conceded as he wrote for the majority. The doctrine is encoded in a federal law that specifies no timetable,
⁴²
he noted, and he listed the rule’s several justifications: to avoid provoking violence by a surprised citizen, to minimize property damage, and to preserve privacy and dignity.

But the connection between the method of entry and the discovery of evidence was too attenuated to support exclusion, Scalia reasoned. Criminals would go free or “officers would be inclined to wait longer than the law requires—producing preventable violence against officers in some cases, and the destruction of evidence in many others.”

If the police crash in too soon, then, the appropriate remedy would be not the suppression of evidence but rather, in Scalia’s view, civil lawsuits by aggrieved citizens against the offending officers, an option expanded since
Mapp
in 1961 by court decisions, public-interest law firms, and federal civil rights statutes.
⁴³
Where he thought victims would get the money to hire lawyers for such a long shot he did not say; the government is not obligated to pay poor people for attorneys in civil suits, only in criminal cases. The dissenters found nothing persuasive in Scalia’s approach, noting that he had “failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation.”

I called Sergeant Brennan to ask how he thought the ruling would play on the street. “The decision is great, because we don’t have to count,” he remarked. “Some judges would say you should wait fifteen to twenty seconds, others would say less,” so it was hard to know. “The good thing is we’re not on a time frame anymore. It makes our job easier.”

It may also reduce the temptation to lie. He remembered once hearing an officer testify that he had stood in front of a door waiting for twenty-five seconds, and Brennan’s silent, sardonic reaction was, “Yeah, right.”
When you’ve shouted and knocked and stood there thinking there might be somebody inside with a gun, “that’s a very long time,” he said.

Still, “We’d rather knock on the door and yell, ‘Police!’ If the guy is sitting watching television and playing with his gun, which is not unlikely, we’d rather have him hide the gun. If we just ram that door and knock it down without making a sound [first], he might shoot.” So the police were now freed to march to their own cadence, just a few beats longer than unannounced shock and considerably more rapid than the slower tempo previously prescribed.

And what about Scalia’s point that citizens could sue? It would have no effect, Brennan said dismissively. “Everything we do on the street is a potential civil suit. We have so many people making things up.” If Justice Scalia honestly believed that lawsuits would be a deterrent, it seemed, the distance between his desk and Sergeant Brennan’s, a mile or so away, was a chasm.

Coleen Rowley developed a different view as an agent and legal adviser with the FBI.
⁴⁴
“Civil liability has a much greater effect on law enforcement officers than the exclusionary rule,” she countered. She and her colleagues took the suppression of evidence with a shrug, she said. “OK, you lost a case. It hurts your feelings, it hurts your pride. But it ain’t like being civilly liable,” when you couldn’t count on the Department of Justice to defend you. “If you did something and all of a sudden the media viewpoint swung the other way, DOJ would be very tempted to go the other way: ‘Let’s just let this guy shoulder this on his own. He’s been a bad agent to begin with.’

“We all had malpractice insurance,” she continued. “A couple of hundred dollars a year, and it protects you up to $1 million. You’re almost paying it for nothing, because they also have a lot of small print: They won’t defend you if you’re outside the realm of employment, blah, blah, blah. Civil liability has a pretty good chilling effect. Exclusion of evidence is a very indirect thing.”

Characterizing the exclusionary rule as a deterrent, not a constitutional mandate, makes it easier to undermine. Judges who can’t stand throwing away incriminating evidence love to find reasons that the rule doesn’t deter, deters this when it should deter that, or deters what it shouldn’t deter at all. The Supreme Court made the distinction explicit in 1974, declaring in
United States v. Calandra
, “The rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect rather than a personal constitutional right of the party aggrieved.”
⁴⁵

Once defined as a remedy and not a right, the suppression of evidence is conveniently reduced to part of a legal superstructure that can be remodeled or torn down. Were it a constitutional pillar as well, then it would stand impervious to the shifting winds of pragmatism. A core principle, unlike a practice, cannot be carved, divided, diluted, adjusted, and ultimately obliterated by Congress and the courts. It cannot be evaluated opportunistically. It is subject to constitutional analysis, not sociological research, and cannot be made victim to the kind of empirical appraisal that the exclusionary rule has suffered.

But the line of cases since
Calandra
has indulged in a brand of pinched micro-logic in which the Court manipulates the exclusionary rule as if it were a mechanism of personnel management. So in
Leon
, the majority decided that the rule was aimed at cops, not judges, and therefore wouldn’t deter cops who were imbued with “good faith” in the warrant they managed to obtain without showing probable cause. In
Arizona v. Evans
, the Court decided that suppressing evidence wouldn’t deter cops because a police database was at fault. And what, then, is to deter those who create and operate the expanding, intrusive databases?