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  • exclusionary rule,police misconduct,

    whats going on with supreme court regarding this surpressing evidence obtained by police misconduct or the other way around? im a bit confused with it. supreme court judge Stephen Breyer said its like a computer virus running loose in 4th amendment. please explain exactly what exclusionary rule mean in layman term. i know cops are not lawyers and many dont like lawyers but lately i ve seen some around here wannabe lawyering.we dont need that crap.
    break censorship chains

  • #2
    Originally posted by pfchell View Post
    whats going on with supreme court regarding this surpressing evidence obtained by police misconduct or the other way around? im a bit confused with it. supreme court judge Stephen Breyer said its like a computer virus running loose in 4th amendment. please explain exactly what exclusionary rule mean in layman term. i know cops are not lawyers and many dont like lawyers but lately i ve seen some around here wannabe lawyering.we dont need that crap.
    It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

    The moral of the story. Conduct good searches and you won't have to worry about this.

    Sincerely,

    wannabee lawyer


    "Jerry, just remember, it’s not a lie if you believe it". George Constanza.

    Comment


    • #3
      Originally posted by Ex Army MP View Post
      It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

      The moral of the story. Conduct good searches and you won't have to worry about this.

      Sincerely,

      wannabee lawyer
      That's about as good a reply as you'll ever get on this subject. I'm not even a "wannabe" laywer.

      Comment


      • #4
        The courts have decided that the police need to follow certain rules in order to protect the rights of the citizens. However, we can't have people arguing with officers in the street over what is and isn't legal. Nor can we provide a judge to ride with every officer and double check everything. So the courts chose to create the "exclusionary rule". This rule states that any evidence, physical or otherwise, which is obtained by illegal means is not admissible in court. It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.

        For example, let's say I were to do a legal search on a person and find drugs but then I questioned them illegally and gained a confession also. At the court hearing the confession would not be allowed to be brought up in court. It would be like it didn't even happen. The drugs, however, which I obtained legally would be presented at trial as evidence. That is how the court has set it up to ensure people follow the orders of the police AND have their rights protected.

        That is the "exclusionary rule" in a nutshell. Of course there are many caveats and exceptions like "inevitable discovery" which was brought up earlier. But this is a simple web forum not a law class or police academy.

        Comment


        • #5
          Originally posted by candidateyellow View Post
          The courts have decided that the police need to follow certain rules in order to protect the rights of the citizens. However, we can't have people arguing with officers in the street over what is and isn't legal. Nor can we provide a judge to ride with every officer and double check everything. So the courts chose to create the "exclusionary rule". This rule states that any evidence, physical or otherwise, which is obtained by illegal means is not admissible in court. It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.

          For example, let's say I were to do a legal search on a person and find drugs but then I questioned them illegally and gained a confession also. At the court hearing the confession would not be allowed to be brought up in court. It would be like it didn't even happen. The drugs, however, which I obtained legally would be presented at trial as evidence. That is how the court has set it up to ensure people follow the orders of the police AND have their rights protected.

          That is the "exclusionary rule" in a nutshell. Of course there are many caveats and exceptions like "inevitable discovery" which was brought up earlier. But this is a simple web forum not a law class or police academy.
          Good call.

          Another caveat. An illegal search that turns up contraband results in an arrest lacking probable cause. However, if a perp knew this and decided to resist that arrest, he can be found guilty of the resisting, even if the underlying evidence is excluded.

          Yesterday I had a bail hearing where a guy tossed something over a fence( turned out to be MJ) and a cop saw him but couldn't tell exactly what it was. Cop says to the guy" stop, you're under arrest" and the guy runs and is later apprehended. The judge asked me what he was being arrested for and I responded that the cop believed he saw a baggie of some sort but that it really didn't matter in the long run, especially if I dismissed the NJ for a plea to the resisting. You simply cannot resist arrest.

          Of course he agreed.


          "Jerry, just remember, it’s not a lie if you believe it". George Constanza.

          Comment


          • #6
            Originally posted by Ex Army MP View Post
            Good call.

            Another caveat. An illegal search that turns up contraband results in an arrest lacking probable cause. However, if a perp knew this and decided to resist that arrest, he can be found guilty of the resisting, even if the underlying evidence is excluded.

            Yesterday I had a bail hearing where a guy tossed something over a fence( turned out to be MJ) and a cop saw him but couldn't tell exactly what it was. Cop says to the guy" stop, you're under arrest" and the guy runs and is later apprehended. The judge asked me what he was being arrested for and I responded that the cop believed he saw a baggie of some sort but that it really didn't matter in the long run, especially if I dismissed the NJ for a plea to the resisting. You simply cannot resist arrest.

            Of course he agreed.
            There must be more to this story... I can't just point my finger at someone here and say their under arrest. I have to have a reason to arrest them. Maybe littering? You can't resist arrest, but it has to be a legal arrest.
            Or did I miss something?
            Quote of the week: "I was going how fast? And that's a school zone?"

            Comment


            • #7
              New York Times article on exclusionary rule

              Supreme Court Steps Closer to Repeal of Evidence Ruling

              By ADAM LIPTAK
              Published: January 30, 2009

              WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

              The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

              This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

              The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

              Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

              Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

              “With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

              The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

              The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

              The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

              Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

              In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “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.”

              That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

              The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

              But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

              A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

              In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

              This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

              “This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

              Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

              On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule.

              Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

              “Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

              David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

              Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

              Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

              Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

              In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

              Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

              Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

              Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

              Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

              But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

              Defenders of the exclusionary rule breathed a sigh of relief in November

              “From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

              For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

              At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”
              Facts do not cease to exist because they are ignored. -- Aldous Huxley
              Two things are infinite: the universe and human stupidity. -- Albert Einstein

              Comment


              • #8
                Originally posted by 10-74 S8 View Post
                There must be more to this story... I can't just point my finger at someone here and say their under arrest. I have to have a reason to arrest them. Maybe littering? You can't resist arrest, but it has to be a legal arrest.
                Or did I miss something?
                Actually, you don't have to have a reason to arrest for someone for them resist arrest. Of course the fact that an arrest lacked probable cause might influence a jury to vote not guilty on the resisting.

                Anyway, I gave the short version. He threw something in a plastic baggie, consistant with packaging of CDS, over a fence, was told to stop and that he was under arrest. Did they know for a fact it was drugs? No, but did they have PC based on the toss of it? You could argue it either way but I could care less. I'd gladly drop the MJ to avoid arguing a suppression motion for him to plead to the resisting.


                "Jerry, just remember, it’s not a lie if you believe it". George Constanza.

                Comment


                • #9
                  Originally posted by candidateyellow View Post
                  It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.
                  You forgot, "and any other evidence obtained as a result of the supressed information." For example, I arrest dude and don't read Miranda, but I interrogate him. He tells me where to find the body of the person her murdered. The statements AND the body will be supressed, unless inevitable discovery exists.

                  The problem with the "fruit of the poisonous tree" is that it throws the baby out with the bathwater. It does not take into account unintentional, or non-malicious violations. Search and seizure law is about as dynamic an aspect of law as there is. It changes constantly, and if an officer makes a good faith mistake, it is still held against him.

                  In many other countries this is NOT the case, illegally obtained evidence can be used, and the officer can be held criminally liable for their illegal actions. Good faith errors are just that.
                  "We're not in this business for the money. We're not in it for the excitement, and moments like this. Duty, honor, country, service, truth, and justice are good. But you can do that from behind a desk. In the end, you carry a gun and shield out into the field for the sole purpose of confronting the bad guys. The enemy. There is no other reason to be on the front lines." ~Nelson Demille

                  If your story involves Peanut Butter and an animal - give up now!
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                  • #10
                    I understand everything mentioned - but can someone give a good, dumbed down explanation of inevitable discovery? How can the courts say that we would have inevitably discovered something?

                    Comment


                    • #11
                      Originally posted by marcusindc View Post
                      I understand everything mentioned - but can someone give a good, dumbed down explanation of inevitable discovery? How can the courts say that we would have inevitably discovered something?
                      If the aforementioned body was located in an abandoned warehouse, that was slated for demolition, and it was standard procedure for the demolition foreman to inspect such properties before they're destroyed, then logic would dictate that the foreman would have inevitably discovered the body, thereby making the body, and any evidence it contained, legal for admission in court.
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                      • #12
                        Originally posted by cgh6366 View Post
                        You forgot, "and any other evidence obtained as a result of the supressed information."
                        Didn't forget, just didn't feel like going into it. We could talk about 4th amendment all day.

                        Comment


                        • #13
                          Couldn't it work the other way around too. Let's say an Officer conducted an illegal search and found drugs, but the guy ended up confessing to it legally. The confession could be used but the drugs couldn't?

                          Comment


                          • #14
                            Who do you put on the witness stand? Not the defendant!
                            How do you charge the case?
                            "a band is blowing Dixie double four time You feel alright when you hear the music ring"


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                            • #15
                              Originally posted by cgh6366 View Post
                              The problem with the "fruit of the poisonous tree" is that it throws the baby out with the bathwater. It does not take into account unintentional, or non-malicious violations. Search and seizure law is about as dynamic an aspect of law as there is. It changes constantly, and if an officer makes a good faith mistake, it is still held against him.

                              In many other countries this is NOT the case, illegally obtained evidence can be used, and the officer can be held criminally liable for their illegal actions. Good faith errors are just that.
                              Unintentional and non-malicious violations are still violations. Should a citizen loose their rights because an officer makes a mistake? No way, officers need to know the law and follow it. If they make mistakes, no big deal, you loose that case, learn, never make that mistake again and go on to be a better officer.

                              I'm no lib. but if officer's mistakes were over looked and citizens were not secure in their rights, would this still be America?
                              Originally posted by ISPY4U2
                              Tex, if I'm ever in the Lone Star state, which is unlikely unless I'm being held prisoner against my will by separatist extremists, remind me to buy you a beer. You make more sense every post.

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