The exclusionary rule

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The exclusionary rule

Postby Thesh » Sun Jul 04, 2010 11:57 am UTC

I think the biggest problem with the justice system in the United States (and possibly elsewhere) today is the exclusionary rule. There have been many cases where murderer's were set free due to this rule; it's a bass ackwards rule. To me it basically says "This police officer violated this murderer's constitutional rights, so we should let both the murderer and officer go free." Doesn't it make more sense to prosecute the murderer for the crime he committed, and then prosecute the officer for violation of their rights? That would be way better to me, but I really think it should work like this: Officer finds something, it is evidence that he had reasonable suspicion. If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.
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Re: The exclusionary rule

Postby mmmcannibalism » Sun Jul 04, 2010 1:44 pm UTC

That would be way better to me, but I really think it should work like this: Officer finds something, it is evidence that he had reasonable suspicion. If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.


You and the concept of rights don't get along very well do you?
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Re: The exclusionary rule

Postby BlackSails » Sun Jul 04, 2010 2:56 pm UTC

mmmcannibalism wrote:
That would be way better to me, but I really think it should work like this: Officer finds something, it is evidence that he had reasonable suspicion. If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.


You and the concept of rights don't get along very well do you?


The exclusionary rule doesnt exist in other countries, and they get along just fine. (The way it works there is that the police officer is punished for an illiegal search, but any evidence he finds, if any, is still admissable)
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Re: The exclusionary rule

Postby Kaelri » Sun Jul 04, 2010 3:04 pm UTC

All rights which protect citizens from the government will result in a certain number of genuinely guilty criminals going free. That's something we have to accept. The question is whether it's better than the alternative, and in this case, I'm grateful for a strong deterrent against police or federal agents being free to break into my house, steal my stuff, and manipulate circumstantial evidence in order to manufacture a criminal case against me, without facing any serious consequences. Even if their intentions are well-placed, they know that if they violate my rights to privacy and property, their case will be dismissed. That's a good thing.
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Re: The exclusionary rule

Postby GardenGoblin » Sun Jul 04, 2010 3:06 pm UTC

Thesh wrote:Officer finds something, it is evidence that he had reasonable suspicion. If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.


Story 1:

My cousin is diabetic and if her insulin is off she looks and acts as though she was stoned/drunk. One day an officer observed her trying to start her car but having difficulty because she was considerably off. He did not smell alcohol on her and did a quick search of her purse and car to see if he could find drugs, while at the same time radioing for a paramedic because my cousin was quickly becoming unresponsive. His search did not reveal ANY evidence of illegal activity. His actions saved her life. Should he have been prosecuted for a violation of constitutional rights?

Story 2:

Several years ago I was involved in an interracial relationship. This apparently annoyed a local police officer and he decided to hassle us while we were at the park. After several minutes of him questioning why we were at the park and making it clear he had a problem with us not being with 'our own kind' was how he put it, my boyfriend and I decided to just walk away and leave. The officer told us to stay where we were and I took out my cell phone and asked for his badge number. He promptly arrested us for 'resisting arrest' and searched our belongings. In my boyfriend's backpack, he found a single joint in a ziploc bag. He found something. Does that make the way he treated us acceptable or justify the search in the first place?
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Re: The exclusionary rule

Postby Thesh » Sun Jul 04, 2010 5:07 pm UTC

GardenGoblin wrote:My cousin is diabetic and if her insulin is off she looks and acts as though she was stoned/drunk. One day an officer observed her trying to start her car but having difficulty because she was considerably off. He did not smell alcohol on her and did a quick search of her purse and car to see if he could find drugs, while at the same time radioing for a paramedic because my cousin was quickly becoming unresponsive. His search did not reveal ANY evidence of illegal activity. His actions saved her life. Should he have been prosecuted for a violation of constitutional rights?


No, I'm not saying the only way for the officer to have reasonable suspicion is to find something.

GardenGoblin wrote:Several years ago I was involved in an interracial relationship. This apparently annoyed a local police officer and he decided to hassle us while we were at the park. After several minutes of him questioning why we were at the park and making it clear he had a problem with us not being with 'our own kind' was how he put it, my boyfriend and I decided to just walk away and leave. The officer told us to stay where we were and I took out my cell phone and asked for his badge number. He promptly arrested us for 'resisting arrest' and searched our belongings. In my boyfriend's backpack, he found a single joint in a ziploc bag. He found something. Does that make the way he treated us acceptable or justify the search in the first place?


Well, in my ideal world, marijuana would be legal... But that's a cop out so, no it's not acceptable and yes he should be prosecuted given enough evidence, although I doubt you would be able to prove it. I didn't say finding something should be proof, just evidence; there is a big difference. However, what actually happened to the officer? I'm guessing nothing.
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Re: The exclusionary rule

Postby GardenGoblin » Sun Jul 04, 2010 8:08 pm UTC

Thesh wrote:No, I'm not saying the only way for the officer to have reasonable suspicion is to find something.


You said:

If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.

Thesh wrote:I didn't say finding something should be proof, just evidence; there is a big difference.


You said:

Officer finds something, it is evidence that he had reasonable suspicion.



Perhaps you should clarify this system of yours, as what you are claiming not to have said is exactly what you said.

[quote = "BlackSails"] The way it works there is that the police officer is punished for an illiegal search, but any evidence he finds, if any, is still admissable[/quote]

What about the times the evidence is actually tainted due to the nature of the illegal search? And what are we talking about for punishment? The usual police punishment of a couple weeks paid vacation?

No, only way it should remotely be acceptable is the same way torture should be acceptable. If the officer believes so strongly that the evidence exists and is necessary that he feels the need to ignore proper procedure to get it, then the price he pays is the loss of his job, pension and all benefits included, and no less than a year in prison served. On top of this, the officer is liable for all damages, civil and criminal, done in the process of collecting the evidence. If he commits breaking and entering to get the evidence, he is tried for this as well. Ditto for assault. He is financially culpable for all property damage. Not the department, the actual officer involved. Any officers along for the ride will be treated as accomplices under the law, exactly the same as if they were 'ordinary' citizens.
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Re: The exclusionary rule

Postby ++$_ » Sun Jul 04, 2010 8:10 pm UTC

Thesh wrote:There have been many cases where murderer's were set free due to this rule
Can you cite cases of this? I can find one -- Escobedo v. Illinois -- in which a defendant's conviction was overturned (I haven't discovered what happened after that, so he might have been convicted anyway). That's a famous case. I'm sure there are others, but not many of them.

Do you have any idea how frequently (or infrequently, rather) this happens?

Here's a paper: Nardulli, "The Societal Cost of the Exclusionary Rule: An Empirical Assessment". I quote from the abstract:
Peter F. Nardulli wrote:This article examines the costs of three exclusionary rules using data collected for 7,500 cases in a nine-county study of criminal courts in three states... In all, only 46 cases—less than 0.6% of the cases studied—were lost because of the three exclusionary rules combined, most of them involving offenses that would have incurred less than six months' imprisonment or first offenders.
Six cases out of every 1000! And, as it points out, most of them are minor offenses, because the police are much more careful in murder cases. As they should be.

Of course it would be preferable to punish the police officers for illegal searches, but in order for a police officer to be punished with criminal sanctions, the prosecutor's office has to file charges and a jury has to hear the case. It's very hard to convict police officers of anything, especially because it's usually the officer's word against yours and the jury is more likely to believe the officer regardless of who is telling the truth. Remember also that the prosecutor's office is the one who benefited from the illegal search in the first place. If the sanctions are to be civil, then the person has to hire a lawyer, which is not feasible for victims of illegal searches, who are often poor, may have lost their jobs due to being in jail, and may have just had to hire a defense attorney. Even if they can afford a lawyer, compensation is not guaranteed. Furthermore, the damages to the individual may be nominal (if a police officer searches your bag illegally and finds nothing, what are the damages? $0.25 for your time?), but the societal damages are large because of the loss of rights.
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Re: The exclusionary rule

Postby stevey_frac » Mon Jul 05, 2010 3:28 am UTC

You are operating under the assumption that if you haven't done anything wrong, you have nothing to hide.
This is erroneous. Cops can make you seem like you did do something. Even if you did not.

A good video on that particular subject is found here.
http://video.google.ca/videoplay?docid= ... 885833865#
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Re: The exclusionary rule

Postby GardenGoblin » Mon Jul 05, 2010 3:59 am UTC

stevey_frac wrote:You are operating under the assumption that if you haven't done anything wrong, you have nothing to hide.
This is erroneous. Cops can make you seem like you did do something. Even if you did not.


Additionally, there are so many obscure and in some cases contradictory laws on the books that you are probably guilty of something.
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Re: The exclusionary rule

Postby Thesh » Mon Jul 05, 2010 4:40 am UTC

GardenGoblin wrote:
Thesh wrote:No, I'm not saying the only way for the officer to have reasonable suspicion is to find something.


You said:

If the officer doesn't find anything, it is evidence that there wasn't reasonable suspicion and he should be prosecuted for violation of constitutional rights.

Thesh wrote:I didn't say finding something should be proof, just evidence; there is a big difference.


You said:

Officer finds something, it is evidence that he had reasonable suspicion.



Perhaps you should clarify this system of yours, as what you are claiming not to have said is exactly what you said.


I simply oversimplified in my first post, if you feel like getting hung up on that, fine. Even though we try and make it so, the law shouldn't be black and white in my opinion.

GardenGoblin wrote:[quote = "BlackSails"] The way it works there is that the police officer is punished for an illiegal search, but any evidence he finds, if any, is still admissable


What about the times the evidence is actually tainted due to the nature of the illegal search? [/quote]

That's for the jury to decide.

++$_ wrote:
Thesh wrote:There have been many cases where murderer's were set free due to this rule
Can you cite cases of this? I can find one -- Escobedo v. Illinois -- in which a defendant's conviction was overturned (I haven't discovered what happened after that, so he might have been convicted anyway). That's a famous case. I'm sure there are others, but not many of them.


Unfortunately, I don't have numbers. I have heard of many over the years, but don't have specifics. I imagine it is hard to get statistics on that, because it doesn't always go to court. Usually major cases don't go to trial unless there is a strong case, and when most of the evidence is found in an illegal search then the police would rather take their time to try and find better evidence than risk losing in a court of law.

stevey_frac wrote:You are operating under the assumption that if you haven't done anything wrong, you have nothing to hide.
This is erroneous. Cops can make you seem like you did do something. Even if you did not.

A good video on that particular subject is found here.
http://video.google.ca/videoplay?docid= ... 885833865#


Who is saying that?
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Re: The exclusionary rule

Postby stevey_frac » Mon Jul 05, 2010 2:23 pm UTC

thresh wrote:
stevey_frac wrote:You are operating under the assumption that if you haven't done anything wrong, you have nothing to hide.
This is erroneous. Cops can make you seem like you did do something. Even if you did not.

A good video on that particular subject is found here.
http://video.google.ca/videoplay?docid= ... 885833865#


Who is saying that?


You are effectively saying that as an innocent person, you will only be inconvenienced by an illegal search. And that the only people that can be assisted in any real way is those persons who are guilty of crime. I assure you everyone has possession of things which could make them look guilty of something.

I own hydroponic equipment. I grow lettuce, and tomatoes in the winter. For something fun to do, plus it's cool watching plants grow without soil. But you think a cop is going to look at that and think that i'm growing anything other then pot? Do you think he's going to believe that I just grow vegetables? Like, who in their right mind grows vegetables indoors? Now, because I neither smoke, nor sell pot to anyone, no one has any legal reason to search my home, as such, the cops will never know about my hydroponic equipment, and I won't have be involved in any kind of legal battle to defend my owning of completely legal apparatus.

Cops can find contradictions in just about anything. It's kinda like staring at static. After a while, you will see patterns in random noise. That's why there is a need to protect regular citizens from the law.
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Re: The exclusionary rule

Postby Thesh » Mon Jul 05, 2010 6:03 pm UTC

stevey_frac wrote:
You are effectively saying that as an innocent person, you will only be inconvenienced by an illegal search. And that the only people that can be assisted in any real way is those persons who are guilty of crime. I assure you everyone has possession of things which could make them look guilty of something.


Actually, I am saying that officers should be prosecuted for illegal search and seizure, instead of getting anywhere from no punishment to a slap on the wrist.

stevey_frac wrote:I own hydroponic equipment. I grow lettuce, and tomatoes in the winter. For something fun to do, plus it's cool watching plants grow without soil. But you think a cop is going to look at that and think that i'm growing anything other then pot? Do you think he's going to believe that I just grow vegetables? Like, who in their right mind grows vegetables indoors? Now, because I neither smoke, nor sell pot to anyone, no one has any legal reason to search my home, as such, the cops will never know about my hydroponic equipment, and I won't have be involved in any kind of legal battle to defend my owning of completely legal apparatus.

Cops can find contradictions in just about anything. It's kinda like staring at static. After a while, you will see patterns in random noise. That's why there is a need to protect regular citizens from the law.


And I don't think that is enough to be reasonable suspicion; if an officer did search your home without your permission and a warrant, I am saying he should be prosecuted.
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Re: The exclusionary rule

Postby stevey_frac » Mon Jul 05, 2010 6:12 pm UTC

Thesh wrote:
Actually, I am saying that officers should be prosecuted for illegal search and seizure, instead of getting anywhere from no punishment to a slap on the wrist.



Thesh wrote: Doesn't it make more sense to prosecute the murderer for the crime he committed, and then prosecute the officer for violation of their rights?


I was responding to this. If a search is conducted illegally, then the evidence collected must be thrown out. Otherwise it sets up a situation where a cop could make some sort of a deal with the DA prior to committing an illegal search, then have victim of the illegal search be prosecuted anyways.

There is no law that says that someone who committed a crime MUST be prosecuted.
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Re: The exclusionary rule

Postby Thesh » Mon Jul 05, 2010 6:40 pm UTC

stevey_frac wrote:
Thesh wrote:
Actually, I am saying that officers should be prosecuted for illegal search and seizure, instead of getting anywhere from no punishment to a slap on the wrist.



Thesh wrote: Doesn't it make more sense to prosecute the murderer for the crime he committed, and then prosecute the officer for violation of their rights?


I was responding to this. If a search is conducted illegally, then the evidence collected must be thrown out. Otherwise it sets up a situation where a cop could make some sort of a deal with the DA prior to committing an illegal search, then have victim of the illegal search be prosecuted anyways.

There is no law that says that someone who committed a crime MUST be prosecuted.


That still makes no sense in regards to your previous post. Also, it's the plaintiff who presses charges in this situation, not the DA, and it's the judge who has final say in the sentencing, not the DA.
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Re: The exclusionary rule

Postby stevey_frac » Mon Jul 05, 2010 7:15 pm UTC

Let me try to sum this up.

Granting the right to make illegal searches admissible in court is a bad thing

This is because cops can find contradictions in nearly anything, and you can very easily be charged and prosecuted for something you are innocent of, and for which the cops had no legal way to obtain evidence against you, and indeed for which you may be uninvolved in other then coincidence.

Thus, even the innocent need to be protected from illegal search and seizure, even if that means extending that right to the guilty.

And the DA is still the one doing the prosecuting yes? And can choose not to prosecute? Thus, the cops could work with the DA to avoid having any charges against them stick.
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Re: The exclusionary rule

Postby GardenGoblin » Mon Jul 05, 2010 8:47 pm UTC

Thesh wrote:I simply oversimplified in my first post, if you feel like getting hung up on that, fine. Even though we try and make it so, the law shouldn't be black and white in my opinion.


Please clarify then. How would you like this system to actually work?

Theshn wrote:That's for the jury to decide.


Juries are easily manipulated, which is why this rule exists. But let me provide a hypothetical based on a true story:

The people who lived next to me had a drug lab. They got busted. A police officer, with no reasonable suspicion and without my consent, entered my backyard to 'look around'. I confronted him and asked him to leave or show a warrant, he screamed at and threatened me, and a sheriff intervened on my behalf (after another neigbhor who was related to her somehow made the request) and made him leave. This ends the true story portion.

Let us assume, for this hypothetical, that my neighbors, being morons devoid of decency, had chosen to hide some of their drugs on my property. Let us also assume, for this hypothetical, that the sheriff had been sick that day. Now, we have a police officer with no respect for my rights who gets off on intimidating young girls and who is already annoyed at me for daring to question his almighty badge. In this illegal search, he finds the drugs that my neighbors stashed.

How exactly do you think these drugs will be presented to the jury? Were it not for the defense of the exclusionary evidence rule, I would probably do jail time, my family would certainly have had the house and probably the car 'confiscated', so on, so forth.

Want to know the saddest part of the above situation? Guess who reported the existence of the drug lab after learning the neighbors were making meth and dealing it in the neighborhood? Yeah... well, that lesson got learned.

Thesh wrote:Unfortunately, I don't have numbers. I have heard of many over the years, but don't have specifics. I imagine it is hard to get statistics on that, because it doesn't always go to court.


Court statistics are among the easiest statistics to find. There are people who make hobbies and livings out of collecting court statistics. If this was a common enough occurrence to merit concern, the statistics would be trumpeted to the fair reaches.

Thesh wrote:Who is saying that?


You are, actually. This is why you do not speak to the cops, and why you NEVER consent to a search. They WILL find something, especially if they know they will lose their jobs if they don't. Meaning, if they don't find it, they will put it there. And on that, there are plenty of cases to be cited. Look up Kathryn Johnston for a horrific example. Other names are William Bennet, Jason Stetser, James Culp. Specific agencies, such as internal affairs, supposedly have dealing with this issue being one of their major duties.

Thesh wrote:That still makes no sense in regards to your previous post. Also, it's the plaintiff who presses charges in this situation, not the DA, and it's the judge who has final say in the sentencing, not the DA.


Okay, I know that court TV shows are rarely accurate in how they depict legal proceedings, but they do get some basic facts straight. With that in mind, would you please do me the favor of watching an episode or three of Law & Order to help with your understanding of the role the DA plays? Alternately, would you please let us know what country you live in so those of us assuming it is the US can correct our misinterpretations of your claims?
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Re: The exclusionary rule

Postby LaserGuy » Mon Jul 05, 2010 11:22 pm UTC

Thesh wrote:That still makes no sense in regards to your previous post. Also, it's the plaintiff who presses charges in this situation, not the DA, and it's the judge who has final say in the sentencing, not the DA.


The plaintiff only pursues the case in civil court. In criminal court, the DA presses charges only if they feel they have a case.

The DA is also, at least indirectly, responsible for sentencing, since a huge proportion of cases end in the DA making a "deal" with the defence where, in exchange for a guilt plea, the DA and defence agree to an acceptable/reduced sentence or charge. This, to my mind, is a huge problem in the American system, since it short circuits peoples' right to a fair trial or defence. Innocent people can easily be coerced into pleading guilty if the reward/risk ratio of going to trial is bad enough. Like, plead guilty and take time served; go to trial and face a life sentence, sort of thing.
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Re: The exclusionary rule

Postby TheAmazingRando » Tue Jul 06, 2010 7:42 pm UTC

Thesh, you start out by claiming that the exclusionary rule is the biggest problem with the justice system today. Yet, you can't provide any citations that this is actually a common occurrence, and the statistics you've been shown seem to state otherwise. Have you actually done any research, or are you just getting outraged about injustice that you assume exists?
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Re: The exclusionary rule

Postby Arrian » Wed Jul 07, 2010 2:49 am UTC

Thesh wrote:That still makes no sense in regards to your previous post. Also, it's the plaintiff who presses charges in this situation, not the DA, and it's the judge who has final say in the sentencing, not the DA.

(emphasis mine)

Want to try that one again?

First, and most importantly, the Fourth Amendment protects against _unreasonable_ search and seizure. Finding evidence of a crime does not make the search reasonable, reasonableness has to be determined ex ante, that is, _before_ conducting the search. If I am behaving legally, there is no reasonable reason to search my belongings; Whether or not I am actually carrying contraband is irrelevant.

The exclusionary rule is important because it changes the calculus on the government's part with regards to searching. Without the exclusionary rule, the idea that "it's always easier to ask forgiveness than permission" is dominant. Police will be more likely to violate your privacy if they feel that the likely payoffs justify the potential costs. Police have a much greater chance of avoiding legal consequences for their actions than normal citizens, they are more familiar with the law, the people administering the law, and there is a culture of trusting or even actively protecting police officers from scrutiny. (See the earlier thread about it being a felony to videotape a cop on the street.) Not all of these are bad, mind you, some are simply a natural extension of the job they do. On top of that, under your suggestion it would be the citizen's responsibility to hold the police officer accountable and press charges after an unreasonable search, significantly lowering the chance of it even being investigated. (Hell, aren't the majority of rapes and domestic assaults unreported? How do you think something like unreasonable searches would fare where the victim is unlikely to even know he was a victim?)

Because of this, without the exclusionary rule there is a much higher incentive for police officers to search unreasonably. They will most likely get away with it (even with the exclusionary rule they get away with it a lot) if it doesn't turn up anything and they will get a conviction if they luck out. The incentives against searching unreasonably are very weak. Furthermore, the likelihood of them finding some indicator of illegal activity is high, there are simply so many laws that you're almost guaranteed to break some inadvertently. For example, you likely have the makings for a homemade bomb if you clean your house, or in Ohio it's illegal to undress in front of a picture of an unrelated person of the opposite gender. Think a cop won't arrest you for lewdness because you have a picture of your girlfriend on the nightstand? Watch the linked video again and ask yourself what you would do if it came down to losing your job or arresting someone for a crime they probably won't be charged with? After all, if evidence of a crime is all that is needed to validate a search, the crime does not need to be prosecuted to make the search reasonable, just enough evidence found to make an arrest. And being arrested is not costless for the person who got nabbed, even if they win the case or aren't even prosecuted.

With the exclusionary rule, however, the incentives change. The officer isn't punished for making a judgment call because he won't be prosecuted for searching and finding nothing, but the incentive to search indiscriminately is gone because nothing good will come of it. Furthermore, the way the law currently stands, reasonable is left up to the police officer's discretion and police are given wide discretion. If they can't convince a judge that they didn't have reason to search, they well and truly were out trolling for a reason to put someone in jail. Cops trying to put people in jail just because they think that person should be in jail is a Very Bad Thing, even if it turns out that some of those people really should have been put in jail ex post.

Finally, I've been waiting for a thread to use this quote I found on a gun site, it went something like: "The founders felt it was important for individuals to be able to defend themselves from government, that's why they gave us the Fourth, Fifth, Sixth, Seventh and Eighth Amendments. They understood that would result in some criminals going free, so they gave us the Second Amendment to defend ourselves."
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Re: The exclusionary rule

Postby qetzal » Wed Jul 07, 2010 3:15 am UTC

TheAmazingRando wrote:Thesh, you start out by claiming that the exclusionary rule is the biggest problem with the justice system today. Yet, you can't provide any citations that this is actually a common occurrence, and the statistics you've been shown seem to state otherwise. Have you actually done any research, or are you just getting outraged about injustice that you assume exists?


As Thesh already suggested, the statistics are probably of questionable value. In order for a case to show up as an 'actual occurrence' it would have to involve something like a) an illegal search, b) that the DA decided to prosecute anyway, c) that was thrown out by the judge due to the illegal search, and d) that was nevertheless a clear case of guilt. But suppose that DAs generally refuse to prosecute cases involving questionable searches (which seems reasonable). Such cases would probably be difficult or impossible to count accurately, but could still be a relatively common occurrence.

I don't necessarily think that's the case, and I tend to think the exclusionary rule is probably a good thing. But it's worth considering that the negative effects may be more pervasive than statistics may suggest. Besides, what about all the countries that supposedly don't have an exclusionary rule? Is there any evidence that they suffer disproportionately from the kinds of injustices the rule is supposed to prevent?
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Re: The exclusionary rule

Postby ianf » Wed Jul 07, 2010 11:53 am UTC

GardenGoblin wrote:But let me provide a hypothetical based on a true story:

The people who lived next to me had a drug lab. They got busted. A police officer, with no reasonable suspicion and without my consent, entered my backyard to 'look around'. I confronted him and asked him to leave or show a warrant, he screamed at and threatened me, and a sheriff intervened on my behalf (after another neigbhor who was related to her somehow made the request) and made him leave. This ends the true story portion.

Let us assume, for this hypothetical, that my neighbors, being morons devoid of decency, had chosen to hide some of their drugs on my property. Let us also assume, for this hypothetical, that the sheriff had been sick that day. Now, we have a police officer with no respect for my rights who gets off on intimidating young girls and who is already annoyed at me for daring to question his almighty badge. In this illegal search, he finds the drugs that my neighbors stashed.

How exactly do you think these drugs will be presented to the jury? Were it not for the defense of the exclusionary evidence rule, I would probably do jail time, my family would certainly have had the house and probably the car 'confiscated', so on, so forth.


The problem here is that you are combining two different problems. The real reason that you would have gone to jail in this example is that someone planted evidence on you. Suppose that instead of searching illegally, the police had been given permission to search your garden and had found this planted evidence. I assume that you would not have been happy going to jail even though the search this time was legal.

So, the real problem here is the planted evidence and not the legality of the search. As such, your example is not really an argument against illegal searches (it is an argument against being framed for crimes you didn't commit).
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Re: The exclusionary rule

Postby GardenGoblin » Wed Jul 07, 2010 9:12 pm UTC

ianf wrote: Suppose that instead of searching illegally, the police had been given permission to search your garden and had found this planted evidence.


This isn't a hypothetical. This is an impossible. The only way he would have legally been able to search is by having justifiable grounds, such as reasonable suspicion, plain sight, or a warrant. He would not have been given permission. The only way he would have been able to search is to learn that the drugs had been stashed there by the neighbors, or by finding some sort of reasonable and legal grounds to present as reason to believe we had the drugs. Thus, no, there is no 'combining problems'.
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Re: The exclusionary rule

Postby ++$_ » Wed Jul 07, 2010 9:26 pm UTC

qetzal wrote:As Thesh already suggested, the statistics are probably of questionable value. In order for a case to show up as an 'actual occurrence' it would have to involve something like a) an illegal search, b) that the DA decided to prosecute anyway, c) that was thrown out by the judge due to the illegal search, and d) that was nevertheless a clear case of guilt. But suppose that DAs generally refuse to prosecute cases involving questionable searches (which seems reasonable). Such cases would probably be difficult or impossible to count accurately, but could still be a relatively common occurrence.
According to the article I cited above, a 1977 report said that only 0.4% of cases dropped by federal prosecutors were dropped primarily because of search and seizure problems. They also found that in cases brought to trial, evidence was excluded in 1.3% of the cases, and 50% resulted in convictions anyway. So in fact, the worst the exclusionary rule could have done was resulted in 0.65% of cases shifting from a verdict of guilt to a verdict of innocence. That includes cases that were dropped by the prosecutor before being put before a judge.

A set of data from California, in 1982, shows that 2.4% of dropped cases (amounting to 0.8% of all arrests) were dropped by prosecutors due to search and seizure problems. These were disproportionately cases for possession or sale of drugs, in the sense that 2.4% of all DRUG arrests were dropped due to search and seizure problems, compared to 0.3% of non-drug arrests.

All of this means that there are not zillions of cases being dropped by prosecutors for search-and-seizure-related reasons.

For more evidence on this point, again from the same paper, the study proper covered three states: Illinois, Michigan, and Pennsylvania. In Illinois, the prosecutors almost never screened out cases for any reason. Furthermore, in preliminary hearings, motions to suppress evidence occurred only 0.4% of the time. In Michigan, there was no data available, but the authors interviewed prosecutors who said that it was rare for cases to be screened out by prosecutors. In Pennsylvania, the police have the power to file charges, so the prosecutors don't screen anything out at all. The authors conclude: "while it is possible that a small number of illegally obtained evidence cases were screened out by prosecutors or in preliminary hearings in lower courts, it is unlikely that they would have any substantial effect on the analysis that follows."
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Re: The exclusionary rule

Postby sardia » Thu Jul 08, 2010 5:09 am UTC

Something is bothering me. Why is everyone using the term "reasonable suspicion"? Shouldn't the term be probable cause? There's a big difference between reasonable suspicion and probable cause, but I don't remember the exact definitions.
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Re: The exclusionary rule

Postby ianf » Thu Jul 08, 2010 11:34 am UTC

GardenGoblin wrote:
ianf wrote: Suppose that instead of searching illegally, the police had been given permission to search your garden and had found this planted evidence.


This isn't a hypothetical. This is an impossible. The only way he would have legally been able to search is by having justifiable grounds, such as reasonable suspicion, plain sight, or a warrant. He would not have been given permission. The only way he would have been able to search is to learn that the drugs had been stashed there by the neighbors, or by finding some sort of reasonable and legal grounds to present as reason to believe we had the drugs. Thus, no, there is no 'combining problems'.


Okay, perhaps I confused the issue by extending your hypothetical situation (your hypothetical house, your rules). To strip it back to its most basic, your position (as I understand it is): Illegal search is bad because the cops may find evidence which was planted on me.

I said that illegal search and planted evidence were two separate issues. To expand on that, it doesn't matter if the search is legal or not, so long as I can prove that the evidence was planted. Conversely, if I am convicted due to planted evidence, it is no comfort to me to know that the planted evidence was uncovered legally.

Now I admit that it might be easier to prove the illegal search rather than the planted evidence, which may be useful from a "not going to jail" point of view, but that still doesn't mean the two are related. We don't prevent people from being wrongly convicted based on planted evidence by making evidence gained by illegal searches inadmissible. All we do is prevent people from being wrongly convicted in that intersection of planted evidence and illegal searches.
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Re: The exclusionary rule

Postby BlackSails » Thu Jul 08, 2010 12:18 pm UTC

++$_ wrote:
qetzal wrote:As Thesh already suggested, the statistics are probably of questionable value. In order for a case to show up as an 'actual occurrence' it would have to involve something like a) an illegal search, b) that the DA decided to prosecute anyway, c) that was thrown out by the judge due to the illegal search, and d) that was nevertheless a clear case of guilt. But suppose that DAs generally refuse to prosecute cases involving questionable searches (which seems reasonable). Such cases would probably be difficult or impossible to count accurately, but could still be a relatively common occurrence.
According to the article I cited above, a 1977 report said that only 0.4% of cases dropped by federal prosecutors were dropped primarily because of search and seizure problems. They also found that in cases brought to trial, evidence was excluded in 1.3% of the cases, and 50% resulted in convictions anyway. So in fact, the worst the exclusionary rule could have done was resulted in 0.65% of cases shifting from a verdict of guilt to a verdict of innocence. That includes cases that were dropped by the prosecutor before being put before a judge.

A set of data from California, in 1982, shows that 2.4% of dropped cases (amounting to 0.8% of all arrests) were dropped by prosecutors due to search and seizure problems. These were disproportionately cases for possession or sale of drugs, in the sense that 2.4% of all DRUG arrests were dropped due to search and seizure problems, compared to 0.3% of non-drug arrests.

All of this means that there are not zillions of cases being dropped by prosecutors for search-and-seizure-related reasons.

For more evidence on this point, again from the same paper, the study proper covered three states: Illinois, Michigan, and Pennsylvania. In Illinois, the prosecutors almost never screened out cases for any reason. Furthermore, in preliminary hearings, motions to suppress evidence occurred only 0.4% of the time. In Michigan, there was no data available, but the authors interviewed prosecutors who said that it was rare for cases to be screened out by prosecutors. In Pennsylvania, the police have the power to file charges, so the prosecutors don't screen anything out at all. The authors conclude: "while it is possible that a small number of illegally obtained evidence cases were screened out by prosecutors or in preliminary hearings in lower courts, it is unlikely that they would have any substantial effect on the analysis that follows."


The statistics do not include cases for which the prosecutor chose to never file charges because he had no legally obtained evidence.
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Re: The exclusionary rule

Postby Levelheaded » Thu Jul 08, 2010 1:44 pm UTC

GardenGoblin wrote:No, only way it should remotely be acceptable is the same way torture should be acceptable. If the officer believes so strongly that the evidence exists and is necessary that he feels the need to ignore proper procedure to get it, then the price he pays is the loss of his job, pension and all benefits included, and no less than a year in prison served. On top of this, the officer is liable for all damages, civil and criminal, done in the process of collecting the evidence. If he commits breaking and entering to get the evidence, he is tried for this as well. Ditto for assault. He is financially culpable for all property damage. Not the department, the actual officer involved. Any officers along for the ride will be treated as accomplices under the law, exactly the same as if they were 'ordinary' citizens.


It seems to me that an officer who is so positive that an individual is guilty that he / she ignores proper procedure, knowingly risking their career and freedom, would also be the type of person likely to fabricate evidence if he doesn't find anything because they 'know' that person is guilty and must be punished.

That doesn't sound like a good precedent - by that line of thinking, if the cop is that sure, why don't we just skip the trial and send the person straight to jail?

I'll agree that police are people with training and experience and that their hunches are often right. However, an officer should objectively serve and protect the public and enforce the law - not serve their own hunches. If there is no probable cause (I hate the term 'reasonable suspicion' - there is either cause to search or not) then the officer shouldn't be able to search for admissable evidence.

In a life or death situation (the diabetes example above) the officer can still save a person, they just can't also go fishing. There are already plenty of exceptions in the police officer's favor - like the plain sight exception. That's one of several reasons that a cop shows up almost every time an ambulance is dispatched; most people let them in their home along with the paramedics.

Back to the original issue though...by ignoring the law and searching a person against their rights, a police officer is a vigilante. They are worse than a normal person, because as a police officer they are entrusted with extra rights to do their duty. For example, if I'm (illegally) attacked by a normal vigilante, I have the right to defend myself. If I physically defend myself against an illegal arrest, I still resisted arrest and assaulted a police officer and will be charged.
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Re: The exclusionary rule

Postby JBJ » Thu Jul 08, 2010 2:43 pm UTC

sardia wrote:Something is bothering me. Why is everyone using the term "reasonable suspicion"? Shouldn't the term be probable cause? There's a big difference between reasonable suspicion and probable cause, but I don't remember the exact definitions.

Reasonable suspicion = approach and identify
Probable cause = arrest, search and seizure

Reasonable suspicion is used for temporarily detaining a person or initiating an investigation. The police must be able to explain exactly why they stop you and what action or circumstance led them to believe that a crime had been or was about to be committed. Police are permitted to compel identification, check for existing warrants, and request permission for a search. Refusal of a request to search does not constitute probable cause.

Probable cause is used for arrest and search/seizure, and must be based on evidence, affidavit, or direct observation of criminal activity. Police are not required to get permission for a search under probable cause.

In terms of the topic, probable cause would be the preferred term. Reasonable suspicion often leads to probable cause, based on information police get during an investigation, but suspicion on its own is never enough to permit a search.
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Re: The exclusionary rule

Postby GardenGoblin » Thu Jul 08, 2010 8:15 pm UTC

ianf wrote: Illegal search is bad because the cops may find evidence which was planted on me.


No, an example I gave of one of the many reasons illegal searches are bad is that the cops may find evidence that has nothing to do with me, and a cop already inclined towards an illegal search is not going to process that evidence in an unbiased manner. I gave other examples as well, earlier.

Here is yet another one.

There is a murder. It's possible I committed it, but there is not yet any reasonable evidence pointed towards me or even any justifiable reason to believe I committed it. But the cop assumes anyone who is an atheist has no moral character, therefore I am a likely suspect. He can't get a warrant with that though, so he just breaks into my house to look for any evidence he can find. He finds absolutely nothing that would suggest I committed this murder. He does however, find a marijuana plant on my bookshelf. As it happens, I have several of the ingredients for making meth laying around too. And, wouldn't you know it, in my photo album there is a picture of my kid in the bathtub. So now he can turn his personal and unjustifiable vendetta into drug and child pornography charges, and start throwing them at me to see how many stick. And even if none do, just having the charges laid against me AND the time and money I have to spend fighting these charges have quite possibly ruined my life.

JBJ wrote:Reasonable suspicion is used for temporarily detaining a person or initiating an investigation. The police must be able to explain exactly why they stop you and what action or circumstance led them to believe that a crime had been or was about to be committed. Police are permitted to compel identification, check for existing warrants, and request permission for a search. Refusal of a request to search does not constitute probable cause.

Probable cause is used for arrest and search/seizure, and must be based on evidence, affidavit, or direct observation of criminal activity. Police are not required to get permission for a search under probable cause.


Reasonable suspicion - Excuse me, sir, but it's 10pm at night and you are poking around the outside of this house.
Scenario 1:"Here is my ID, I live here, just looking for my cell phone that I think I dropped when I was weeding earlier" "Did you try calling it? You have a good evening now" Cop goes on his merry way.

Scenario 2: Guy cannot provide an explanation and the cop notices the guy has a knife-shaped bulge in one pocket. It's now moved to probable cause.
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Re: The exclusionary rule

Postby Chen » Fri Jul 09, 2010 11:50 am UTC

GardenGoblin wrote:Here is yet another one.

There is a murder. It's possible I committed it, but there is not yet any reasonable evidence pointed towards me or even any justifiable reason to believe I committed it. But the cop assumes anyone who is an atheist has no moral character, therefore I am a likely suspect. He can't get a warrant with that though, so he just breaks into my house to look for any evidence he can find. He finds absolutely nothing that would suggest I committed this murder. He does however, find a marijuana plant on my bookshelf. As it happens, I have several of the ingredients for making meth laying around too. And, wouldn't you know it, in my photo album there is a picture of my kid in the bathtub. So now he can turn his personal and unjustifiable vendetta into drug and child pornography charges, and start throwing them at me to see how many stick. And even if none do, just having the charges laid against me AND the time and money I have to spend fighting these charges have quite possibly ruined my life.


You realize this is not an inherent problem with illegal searches but rather an inherent problem with bad cops? A bad cop could screw you just as badly by saying he saw the Marijuana plant in plain sight and arrest you based on that.
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Re: The exclusionary rule

Postby BlackSails » Fri Jul 09, 2010 1:12 pm UTC

Under the system I suggested up above, the cop would be both criminally and civilly liable, but the evidence he found would stand.


We could also just move the standard for a warrant down to reasonable suspicion.
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Re: The exclusionary rule

Postby morriswalters » Fri Jul 09, 2010 1:40 pm UTC

If it ain't broke don't fix it. Everybody in law enforcement understands the rule. No matter how you change it somebody is gonna be unhappy or want more. Nothing I've seen here indicates there is a major problem.
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Re: The exclusionary rule

Postby LaserGuy » Fri Jul 09, 2010 3:11 pm UTC

Chen wrote:
GardenGoblin wrote:Here is yet another one.

There is a murder. It's possible I committed it, but there is not yet any reasonable evidence pointed towards me or even any justifiable reason to believe I committed it. But the cop assumes anyone who is an atheist has no moral character, therefore I am a likely suspect. He can't get a warrant with that though, so he just breaks into my house to look for any evidence he can find. He finds absolutely nothing that would suggest I committed this murder. He does however, find a marijuana plant on my bookshelf. As it happens, I have several of the ingredients for making meth laying around too. And, wouldn't you know it, in my photo album there is a picture of my kid in the bathtub. So now he can turn his personal and unjustifiable vendetta into drug and child pornography charges, and start throwing them at me to see how many stick. And even if none do, just having the charges laid against me AND the time and money I have to spend fighting these charges have quite possibly ruined my life.


You realize this is not an inherent problem with illegal searches but rather an inherent problem with bad cops? A bad cop could screw you just as badly by saying he saw the Marijuana plant in plain sight and arrest you based on that.


The law against unreasonable searches is designed to protect you against bad cops. You can't make a law saying "all police officers must have good moral character", because you can't judge, in advance what future actions that someone will take. You can make laws giving specific rules as to what police can and cannot do, and use those laws to protect people against bad cops. In the system in place, you remove the incentive, by and large, for police to violate people's rights, because in doing so, the evidence they collect gets thrown out.
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Re: The exclusionary rule

Postby GardenGoblin » Mon Jul 12, 2010 8:34 pm UTC

Chen wrote:You realize this is not an inherent problem with illegal searches but rather an inherent problem with bad cops? A bad cop could screw you just as badly by saying he saw the Marijuana plant in plain sight and arrest you based on that.


If everyone was perfect, there would be no need for the law at all.

As I pointed out earlier, this is one of MANY possible examples. Rather than write several hundred laws, why don't we stick with the one that covers several hundred possibilities?

BlackSails wrote:Under the system I suggested up above, the cop would be both criminally and civilly liable, but the evidence he found would stand.

We could also just move the standard for a warrant down to reasonable suspicion.


Detail out a workable system for this idea.

Make sure it answers the question of 'if the evidence was obtained illegally, how can we be certain it's valid'. Make sure your answer deals with the 'reasonable doubt' ideal.

Also, please provide a workable standard for the word 'reasonable' to meet when applied that keeps in mind there will be absolutely no check and balance to the system to otherwise prevent a bad cop from using his/her new found power to harass.
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