Dear Congress:
I am writing this letter to convince you that the exclusionary rule needs to be repealed. The personal rights of the Fourth Amendment can still be respected without enforcing the exclusionary rule, by redefining, and adhering to “probable cause”. Thus, illegally obtained evidence should be allowed in a trial if the evidence clearly proves a suspect’s guilt. As an alternative to the exclusionary rule, statutes should be enforced upon unruly law enforcement officers who knowingly violate a person’s rights, as described in the Fourth Amendment of the Bill of Rights.
The Fourth Amendment ensures “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized”. Obviously this amendment was designed for regular, law-abiding citizens, and not for the protection of criminals. The problem with the way it was written is that there is no clear language describing what action should be taken in the event that an illegal search and/or seizure has taken place. The courts need to be proactive in reprimanding unacceptable behavior from law enforcement, instead of enforcing a rule that potentially lets criminals run free more than it prevents illegal searches and seizures. The constitution provides citizens the right to not be subjected to illegal searches, that law enforcement must have a warranted probable cause. Punishing law enforcement by letting a criminal go because of compromised evidence is also punishing the community, while protecting the criminal. There is something wrong with this system.
If an officer acts on suspicion and searches a home without a warrant, and if that officer finds the murder weapon of a high-profile homicide; then that evidence should be admissible in court. Of course, the officer should also face an internal investigation and punishment as necessary for illegally searching someone’s home; but, that punishment should be separate from the punishment of the criminal. Just because the officer did not have a warrant does not make the evidence any less incriminating, or the criminal any less guilty. Police should be granted some sort of exception for illegal searches that turn up evidence. The offending officers should receive a suspension, without pay, to discourage continued illegal practices. If an illegal search produces no substantial evidence, then the offending officers should be fired. If a suspect is guilty, if there is evidence to be found, the police need to play by the book and get a warrant with specific details of what is to be searched and seized.
In Weeks v. U.S. (232 U.S. 383), the defendant was victim of illegal search and seizure; agreeably, the police violated his Fourth Amendment rights. With the evidence, as was proved during the trial, however, the defendant was found guilty. The defendant broke the law, but so did the police; so both should be punished. Instead, the court decided that, as punishment to the officers, the illegally obtained evidence should not have been allowed as evidence in the trial. Thus, in 1914, the exclusionary rule was born. Maybe the police should have returned all the confiscated items to the defendant, but also have a legal search and seizure warrant waiting to reclaim the evidence. Instead, in 1961, “the exclusionary rule was extended to apply to state and local police” in Mapp v. Ohio (Neubauer, 2001, p. 65). There may not be a very large percentage of criminals who are set free because of the exclusionary rule, “less than one out of 100 police arrests are declined for prosecution”; but even one out of 100 is still one too many (Neubauer, 2001, p. 66). It is true that the court should not overlook any type of illegal activity, including activity by the police; but they should not overlook one for another. Both parties should be prosecuted, police and criminal.
The exclusionary rule allows for a criminal to successfully commit a crime without punishment if evidence used was obtained illegally. This is not justice. Justice should be reasonable, as it was in Maryland v. Wilson (No. 95-1268). When state trooper David Hughes pulled over a speeding vehicle, he ordered the nervous-looking passenger out of the car. When the passenger exited the vehicle “a quantity of crack cocaine fell to the ground” (1997). The defendant tried to have evidence against him dismissed by claiming his Fourth Amendment rights were violated with illegal seizure. The Supreme Court upheld the rule of Pennsylvania v. Mimms, wherein it states “that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well” (1997). The defendant in Weeks vs. U.S. was getting arrested anyway, they would have got a search warrant, and they should have got a search warrant. They could have waited, or maybe the court could have been reasonable and allowed the evidence anyway. The officers and marshal who conducted the illegal search and seizure should also have been punished, but not by freeing the criminal.
Instead of enforcing the exclusionary rule, the courts should allow law enforcement agencies to deal with renegade officers through Internal Affairs. Citizens who are victim of illegal search and seizure have their right to file a civil suit against the offending officers, or against the law enforcement agency. If the persons who file suit “are often disreputable persons toward whom juries are unsympathetic”, well, then that is the way it is (FindLaw, 2008). I would like to believe that a jury of peers would be more sympathetic to an innocent victim whose rights were trampled by law enforcement, than to a repeat offender who is trying to take advantage of the system; and also be able to differentiate between the two.
The exclusionary rule protects criminals, and punishes law enforcement while also punishing the citizens of the United States. It is possible to repeal the rule and still uphold the Constitution, protecting the rights of the people, and ensuring proper justice against law-breaking police officers and law enforcement officials. I appreciate Congress taking notice of this very important matter; and I look forward to the future abolishment of the exclusionary rule.
Sincerely,
Senator Jaimie Nutt (Tee Hee)
Non Partisan, California
References
FindLaw (2008). Enforcing the fourth amendment: The exclusionary rule. U.S.
Constitution: Fourth Amendment. Retrieved from Web site on October 20, 2008
http://caselaw.lp.findlaw.com/data/constitution/amendment04/06.html
Mapp v Ohio (1961). 367 U.S. 643. Retrieved from Web site on October, 20, 2008
http://laws.findlaw.com/us/367/643.htm
Maryland v. Wilson (1997). U.S. Supreme Court No. 95-1268. Retrieved from Web site
On October, 20, 2008 http://laws.findlaw.com/us/000/95-1268.html
Neubauer, D (2001). Debating crime: Rhetoric and reality. Belmont, CA:
Wadsworth/Thomson Learning.
Weeks v. U.S. (1914). 232 U.S. 383. Retrieved from Web site on October, 20, 2008
http://laws.findlaw.com/us/232/383.html
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