Fourth Amendment is being eroded, slowly

Editor’s Note: Some readers may be aware that Steve Bergstein, one of my oldest and dearest friends in the world, is an attorney who writes a civil rights diary that we publish, called Psychsound. We will be posting more of his work from that project on this page. Here, he comments about one of the most important issues in consitutional law, what police can and cannot use as evidence. You may not think this applies to you because after all, why would the cops be gathering evidence in your house? But by the time you or someone you love needs this kind of information, it’s too late. Your best option is to stay informed, and know the issues as they develop. –efc

By STEVE BERGSTEIN | Psychsound from Planet Waves

A seismic shift is slowly taking place in American constitutional law. The modern Supreme Court, stacked with Republican appointees, is little by little doing away with a time-honored principle that was intended to keep the police honest: the exclusionary rule.

The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures, and it also requires that the police obtain a warrant before they can search your home or other private spaces. The question is how do we enforce the Fourth Amendment? Of course, you can train the police to respect the Fourth Amendment, but what if they get their hands of evidence that can be used against you in court, and the evidence was obtained without a warrant? Then what?

It was this scenario which gave rise to the exclusionary rule, which holds that evidence which the police had no right to obtain cannot be used against you in court. Even if the evidence would give the police a slam-dunk case in court. The exclusionary rule ensures that the police will get it right before evidence goes before a jury. If the evidence was obtained illegally, i.e., without a warrant, the judge throws it out before trial. That means there may not be a trial, without the evidence. For decades, the courts decided that it was better that guilty people go free rather than allow the police to get used to scheming to find evidence without probable cause, which is necessary to secure a warrant. The benefits of the exclusionary rule include the understanding that the police will not rummage through your stuff or invade your privacy without good reason. Ask anyone who had an unpleasant encounter with the police without doing anything wrong how important it is to ensure that the police have probable cause and a warrant before poking through your stuff.

The Court’s Chief Justice is John Roberts, who as a young lawyer in the 1980’s suggested doing away with the exclusionary rule. According to the New York Times, a recent Supreme Court case, Herring v. United States, is another step in the slow process of erasing the exclusionary rule. In that case, the Court said that evidence obtained as a result of the police’s erroneous belief that someone had an outstanding warrant against them did not have to be thrown out pursuant to the exclusionary rule. The outdated warrant was still in a police computer. Someone screwed up. The Times reported a few weeks ago:

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 Supreme Court is moving in the direction that would allow the police to get away with obtaining evidence in violation of the rules so long as the police misconduct is not too serious. Minor errors — such as computer screw-ups — are not enough to invoke the exclusionary rule.

This issue first surfaced a few years ago, when the court signaled that it might erase the exclusionary rule, conservative Justice Antonin Scalia wrote that “much had changed since the Mapp decision in 1961 [which held that state and local police officers must adhere to the exclusionary rule]. 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.”

The Herring decision a few weeks ago which further eroded the exclusionary rule was decided 5-4, with the Court’s reliable conservatives siding with the police. For at least the next four years, while Obama is president, no conservatives will be appointed to the court. But the Supreme Court does have a rock solid conservative majority. Five justices can do away with the exclusionary rule once and for all before Obama can start balancing out the court. That cannot happen unless people retire, and there is no way of knowing when that will happen, as Supreme Court justices like to hang around on the court for decades.

Most people are not constitutional scholars and would therefore not know what the exclusionary rule is. But they would also assume that the police have to follow the rules like everyone else. There is no perfect way to enforce the Fourth Amendment. What is bothersome is that no politician or judge will be taken to the woodshed for coming down harder against criminal defendants and advocating the end of the exclusionary rule. Conservatives call the exclusionary rule a “technicality” that allows the guilty to walk free. I prefer to call it constitutional dur process. We can go round and round on this. Imagine if we lived in a society where issues like this were debated all the time.