April 28, 2009

The Life… and Potential Demise of the Exclusionary Rule

Fourth Amendment not faring well in the Roberts Court

In the past I’ve shared thoughts regarding the Savana Redding Fourth Amendment case [HERE] and [HERE], and more recently [HERE]. Six long years after young Redding was strip-searched and humiliated by Safford, Arizona school officials, the Roberts Court finally heard arguments in her case.

Questions raised by this case are many

Is a minor child, a student in a public school, protected by the 4A?

If so and school officials are shown to have violated her 4A protection, are they individually or collectively liable?

Would any evidence produced from such a search be admissible, or would it be excluded?

Under the precedent afforded by the Exclusionary Rule, would the case be reversed?

The Exclusionary Rule was established in the 1914 case of Weeks v. United States, where evidence used to convict was thrown out because a federal agent failed to obtain a warrant prior to entering the home of Freemont Weeks in a search for an illegal gambling operation. Six years later, in Silverthorne Lumber Co. v. United States, SCOTUS established a precedent known as the Fruit of the Poisonous Tree, the logic of which says that if the source of the evidence (an illegal search) is tainted, then anything gained is tainted as well.

Therefore, if the Court rules that Redding was protected under the 4A, then any evidence they might have found in her clothing (they found none) could be excluded.

... or maybe not.

The Exclusionary Rule has been under attack since its inception. Neither the Weeks nor Silverthorne decisions were unanimous, and in Silverthorne Chief Justice Edward Douglass White strongly dissented. The rule has endured numerous tests since, but since 1980, the assault has gained momentum.

Reagan Revolution and a Test of our Constitution

The first sustained assaults came following the 1980 inauguration of Ronald Reagan, with Attorney General Edwin Meese leading the charge. Two current Justices, Samuel Alito and Chief Justice John Roberts, both served under Meese, and both worked to overturn the rule. Roberts authored a 1983 memo, titled “The Campaign to Amend or Abolish the Exclusionary Rule.” Justice Alito, on his application to work under Meese, wrote that his interest in law had been motivated by his disagreement with some criminal procedure decisions by the Warren Court.

We must ask, just what is the argument against the rule? Certainly not that it lacks effectiveness in securing 4A rights, for it has done an admirable job of that. Those who would abolish the rule say that when evidence is excluded, criminals go free. While this may be true to some extent, case reviews indicate it is not the problem Roberts and Alito would have us believe. Furthermore, if 4A rights had been considered prior to the illegal search, no evidence would have been found. The rule has survived thus far because it has proved essential in securing constitutional rights, protecting the amendment more than the criminal.

Momentum Building

Roberts and Alito are undeterred, and they are joined by Clarence Thomas and Antonin Scalia in the effort to abolish the rule. All that is required is one more vote. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer have historically supported the rule. Anthony Kennedy walks the line and could go either way on most cases, but on a question of precedent he is more likely to let it stand.

So how does poor Savana fare with all this? Not well, it seems. Savana got her day in court and tested the validity of policies allowing the school district to humiliate her on scant evidence, but when her case came before SCOTUS, the tone of questioning did not sound favorable. Even Souter and Breyer sounded like doubting Thomas. If this had happened to an adult, the decision would be a resounding thumbs down, but we won’t know if minor children will be extended the same rights until late in June when the Court hands down a decision.



Peter said...

I didn't hear the tone of questioning during oral argument for the Redding case, but as far as your general thesis of progressive attacks on the exclusionary rule generally, how does the decision last week in Arizona v. Gant affect your analysis? Not only did the Court suppress evidence gathered during a vehicle search incident to arrest on a traffic stop, but both Justices Scalia and Thomas voted with the majority to apply the rule, and Breyer was in the minority. (The split was still 5-4, but a very different 5-4 than we've seen in the past.)

Mule Breath said...

Credit for the Gant ruling goes to the Arizona Supreme Court. The flawed reasoning of the Belton automobile exception; that so long as law enforcement could claim probable cause (and what cop wouldn’t?) that an automobile contained evidence, the “inherent mobility” of an automobile justified a warrantless search, has been debated for some time. The Arizona court found this silly, and I’m actually quite glad (and surprised) to see SCOTUS agree with them.

The reasoning for the exception was flimsy at best. The fact that Thomas and Scalia voted with the majority, but Breyer and Kennedy did not, is indeed mysterious. In Gant the court recognized that law enforcement could have obtained a warrant, but bowed to expediency. Lazy cops is not a good reason to chink constitutional armor. I would have expected Breyer at least to go with the majority.

The Redding case contains some similar elements as those used to debate Gant. Once Savana was safely detained in the vice-principal’s office, how was she a danger to others? Why did school officials not contact the parents to obtain permission prior to the search? Or even the police?