My View: Court opens door for police misconduct

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on March 04, 2009 at 3:31 PM, updated March 04, 2009 at 3:32 PM

The Supreme Court recently handed down a decision that seems on the surface to be narrow, but the road it is traveling is extremely scary.

Herring v. U.S. deals with the exclusionary rule: When courts find police misconduct in a situation, the evidence police found must be suppressed or thrown out. In Herring, the Supreme Court held that evidence found as a result of unlawful police conduct was not required to be suppressed.

What is scary is that Chief Justice Roberts is following Justice Scalia, who wrote the majority opinion in Hudson v. Michigan last year, and seems to be taking us backwards in constitutional law and individual protection, ignoring close to 100 years of precedent and changing the law to follow Scalia's and the conservative wing's own ideology.

The court, in the 1914 case of Weeks v. U.S., held that when police commit errors or misconduct, any evidence found pursuant thereto must be suppressed. This was followed in 1961 in Map v. Ohio, which held any evidence obtained by searches and seizures in violation of the Constitution is inadmissible in the state court.

In Hudson, Scalia's decision last year -- where judges cannot suppress evidence found in a search if there is a violation of the Fourth Amendment requirement that police knock, announce their presence and wait a reasonable time before entering a private residence -- attempts to eradicate the individual's rights against police misconduct.

Recently, the New York Times took a look at these decisions and indicated that Scalia's decision in Hudson cited the work of University of Nebraska criminal justice professor Samuel Walker to support his point, indicating there is no longer a need for the exclusionary rule because of increased police professionalism.

However, Walker indicated that police do better work as a consequence of the exclusionary rule rather than as a reason to do away with it. The exclusionary rule forces the police to act professionally and to punish them when they commit misconduct.

Thus, the exclusionary rule keeps police in check and acts as a "Sword of Damocles" over their head: If police commit errors, intentionally or unintentionally, they -- not the individual -- would suffer the consequences.

Scalia wants to do away with the exclusionary rule, saying it is unjustified and that there are other remedies. For individuals whose rights have been trampled upon, there are no other remedies available. The majority cites the possibility that an individual can sue in civil court. However, this does not take into consideration the claim of governmental immunity nor does it bode true with any statistics, as shown by the dissenting opinions in both Hudson and Herring.

If the government wants to incarcerate an individual, it should do so with legally admissible evidence and not be afraid of the mistakes. If the government makes a mistake, it, and not the individual, should be held accountable and suffer from its own mistakes.

When police violate the law, and when courts allow them to do so, then we are truly on the verge of a police state. When the police can trample the rights of an individual with impunity and without consequences, then we are not on the verge, but in point of fact, in a police state. Police make mistakes, both intentionally and innocently, but the police must be held accountable.

Who among us is willing to go to jail for 20 years because the police were allowed, even encouraged, to be sloppy, negligent or just plain intentionally wrong? The exclusionary rule keeps the police and the government both professional and honest. Without it, there are no real consequences for police misconduct and no one to check the checkers.

The public, the individual and the courts must be ever-vigilant to keep police and the government doing their jobs and to do them right. Scalia's indication that the remedy could be a civil suit against the individual officers does not make sense, as that would not deter police from making errors, either intentionally or negligently. We must keep this country from being a police state or to allow police officers to run with impunity and to trample the rights of the individual.

This is a government by the people, for the people and of the people, not a government that dictates and uses police officers to tell us what to do or when to do it.

James F. Piazza is a defense attorney. He lives in Saginaw Township.