Exclusionary RuleExclusionary Rule&&

ReasonablenessReasonableness

Mapp v. OhioMapp v. OhioTerry v. OhioTerry v. OhioUnited States v. LeonUnited States v. LeonNew Jersey v. NovembrinoNew Jersey v. NovembrinoTennessee v. GarnerTennessee v. Garner

Weeks v. United StatesWeeks v. United States 232 U.S. 383 (1914) 232 U.S. 383 (1914)

SCOTUS first declared Exclusionary Rule in Federal SCOTUS first declared Exclusionary Rule in Federal cases in Federal courts.cases in Federal courts.

Wolf v. People of State of ColoradoWolf v. People of State of Colorado 338 U.S.25 (1949) 338 U.S.25 (1949)

denied the application of Exclusionary Rule in State denied the application of Exclusionary Rule in State

cases in State courtscases in State courts..

Mapp v. OhioMapp v. Ohio 367 U.S. 643 (1961)367 U.S. 643 (1961)

SCOTUS overruled Wolf, and held that Exclusionary SCOTUS overruled Wolf, and held that Exclusionary Rule is applicable in State cases in State courtsRule is applicable in State cases in State courts

Terry v. OhioTerry v. Ohio 392 U.S. 1 (1968)392 U.S. 1 (1968)

HoldingHolding When a police officer has reason to believe that he is When a police officer has reason to believe that he is

dealing with armed and dangerous individual, dealing with armed and dangerous individual, regardless of whether he has probable cause to regardless of whether he has probable cause to arrest,arrest, he may make he may make reasonable search for weaponsreasonable search for weapons, , even though he is not absolutely certain that even though he is not absolutely certain that individual is armed.individual is armed.

Stop & FriskStop & Frisk Stop = accosting individual and restraining his Stop = accosting individual and restraining his

freedom to walk awayfreedom to walk away Frisk = careful exploration of outer surfaces of Frisk = careful exploration of outer surfaces of

person’s clothing in attempt to find weapon person’s clothing in attempt to find weapon

Reasoning = BalancingReasoning = Balancing

The Court considered “proper balance” in The Court considered “proper balance” in “the myriad daily situations in which “the myriad daily situations in which policemen and citizens confront each policemen and citizens confront each other on the street”.other on the street”.

= balance between the governmental interest and = balance between the governmental interest and the constitutionally protected interests of the private the constitutionally protected interests of the private citizencitizen..

Individual Interest Individual Interest Even a limited search of the outer clothing for Even a limited search of the outer clothing for

weapons constitutes weapons constitutes a severe intrusion upon a severe intrusion upon personal securitypersonal security..

It must surely be an annoying, frightening, and It must surely be an annoying, frightening, and perhaps perhaps humiliating experiencehumiliating experience..

Effective Crime Prevention and DetectionEffective Crime Prevention and Detection Immediate interest of the police officer in taking Immediate interest of the police officer in taking

steps to assure himself that the person with steps to assure himself that the person with whom he is dealing is not armed.whom he is dealing is not armed.

Governmental Interest Governmental Interest

StatisticsStatistics The number of law enforcement officer killed in The number of law enforcement officer killed in

the line of duty in USthe line of duty in US 1960 – 1966 3351960 – 1966 335 1966 571966 57 55 = died from gunshot wound55 = died from gunshot wound 44 = inflicted by handguns easily secreted44 = inflicted by handguns easily secreted 2 = perpetrated by knives 2 = perpetrated by knives AAssaults on police officersssaults on police officers = = 23,85123,851 ( (19661966)) IInjuries to the policeman njuries to the policeman = = 9,1139,113

Virtually all of these deaths and a substantial portion Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.of the injuries are inflicted with guns and knives.

United States v. Leon United States v. Leon 468 U.S.897 (1984)468 U.S.897 (1984)

SCOTUS adopted “good faith exception” to the SCOTUS adopted “good faith exception” to the Exclusionary Rule.Exclusionary Rule.

Good Faith ExceptionGood Faith Exception

Fourth Amendment Exclusionary Rule should not be applied Fourth Amendment Exclusionary Rule should not be applied so as to bar the use of evidence obtained by officers acting in so as to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a magistrate but reasonable reliance on a search warrant issued by a magistrate but ultimately found to be invalid.ultimately found to be invalid.

This issue must be This issue must be resolved by weighing the resolved by weighing the social social costs and benefitscosts and benefits of preventing the use of preventing the use of inherently trustworthy tangible evidenceof inherently trustworthy tangible evidence..

““Cost” of ExclusionCost” of Exclusion

It would unacceptably impede the truth-finding It would unacceptably impede the truth-finding functions of judge and jury by excluding functions of judge and jury by excluding reliable physical evidence.reliable physical evidence.

Some guilty defendants may go free or Some guilty defendants may go free or receive reduced sentences as a result of receive reduced sentences as a result of favorable plea bargains.favorable plea bargains.

ResearchResearchNon-prosecution/Non-conviction because of exclusionary ruleNon-prosecution/Non-conviction because of exclusionary rule

0.6% 0.6% - - 2.35% 2.35% (of individuals arrested for felonies)(of individuals arrested for felonies) 2.8% - 7.1%2.8% - 7.1% (of individuals arrested on felony drug charges)(of individuals arrested on felony drug charges)

* minimum and maximum percentages in plural available research* minimum and maximum percentages in plural available research

RRelease because of illegal searches or seizureselease because of illegal searches or seizures ((California;California; of of all felony arresteesall felony arrestees))

1.4% 1.4% ((screening by police and prosecutionscreening by police and prosecution))

0.9% 0.9% (released(released at the preliminary hearing or after trial at the preliminary hearing or after trial))

0.5% 0.5% (reversals on appeal)(reversals on appeal)

Thomas Davies, A Hard Look at What We Know (and Still Need to Learn) Thomas Davies, A Hard Look at What We Know (and Still Need to Learn) About Costs of the Exclusionary RuleAbout Costs of the Exclusionary Rule

How much cost is acceptable?How much cost is acceptable?

Researchers have concluded from these small Researchers have concluded from these small percentagespercentages that the impact of the exclusionary that the impact of the exclusionary rule is rule is insubstantialinsubstantial..

BUT BUT the small percentages with which they deal the small percentages with which they deal mask a large mask a large ABSOLUTE NUMBERABSOLUTE NUMBER of felons of felons who are releasedwho are released because of Exclusionary Rule.because of Exclusionary Rule.

Benefits of ExclusionBenefits of Exclusion

Purpose of the Exclusionary Rule = discouraging Purpose of the Exclusionary Rule = discouraging lawless police conductlawless police conduct

However, it cannot work as deterrence on However, it cannot work as deterrence on issuing judge or magistrate.issuing judge or magistrate.

Penalizing the officer for the magistrate’s error, Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute rather than his own, cannot logically contribute to the deterrence of Fourth Amendment to the deterrence of Fourth Amendment violations.violations.

= NO (or LITTLE) deterrence effect = NO (or LITTLE) deterrence effect

ConclusionConclusion

““The The marginal or nonexistent benefitsmarginal or nonexistent benefits produced by suppressing evidence produced by suppressing evidence obtained in objectively reasonable reliance obtained in objectively reasonable reliance on a search warrant cannot justify the on a search warrant cannot justify the substantial costssubstantial costs of exclusion”. of exclusion”.

State of New Jersey v. Novembrino State of New Jersey v. Novembrino 105 N.J. 95 (1987)105 N.J. 95 (1987)

NJ Supreme Court rejected to adopt NJ Supreme Court rejected to adopt Leon’s Good Faith ExceptionLeon’s Good Faith Exception

The Court initially decided that the search warrant in The Court initially decided that the search warrant in this case was issued without probable cause and this case was issued without probable cause and therefore it was invalid.therefore it was invalid.

Then, it continued to consider whether New Jersey Then, it continued to consider whether New Jersey Constitution permits the good-faith modification of Constitution permits the good-faith modification of exclusionary rule set forth in Leon. exclusionary rule set forth in Leon.

Cost-Benefit Analysis in NJCost-Benefit Analysis in NJ

Deterrence can be expected even in good Deterrence can be expected even in good faith casesfaith cases It deters future inadequate presentations or It deters future inadequate presentations or

magistrate shopping.magistrate shopping. It encourages officers to scrutinize more It encourages officers to scrutinize more

closely the form of the warrant and to point closely the form of the warrant and to point out suspected judicial errors.out suspected judicial errors.

It has created incentives for the agency to It has created incentives for the agency to ensure that its officers follow the dictates of ensure that its officers follow the dictates of the Constitution.the Constitution.

The cost described in Leon is doubtful.The cost described in Leon is doubtful. Statistical studies (national basis) suggests Statistical studies (national basis) suggests

that the costs are minimal. (J. Brennan’s that the costs are minimal. (J. Brennan’s dissenting opinion in Leon) dissenting opinion in Leon)

Only 0.4% of all cases dropped by federal Only 0.4% of all cases dropped by federal prosecutors were declined because of illegal prosecutors were declined because of illegal search problem.search problem.

The Court ignores The Court ignores the distinction of the the distinction of the narrower category of casesnarrower category of cases where police have where police have made objectively reasonable mistakes, and made objectively reasonable mistakes, and mistakenly weighs mistakenly weighs the aggregated costs of the aggregated costs of exclusion in all cases.exclusion in all cases.

SURVEY on Suppression Motion SURVEY on Suppression Motion (performed by Administrative Office of the Courts, NJ)(performed by Administrative Office of the Courts, NJ)

(1) in 10 counties during 6 months(1) in 10 counties during 6 months

540 / 1082 motions have been resolved.540 / 1082 motions have been resolved.

38 / 540 = Granted38 / 540 = Granted

All involved All involved warrantlesswarrantless search. search.

(2) in 5 counties during 12 months(2) in 5 counties during 12 months Only 1Only 1 of 44 motions granted involved a search warrant of 44 motions granted involved a search warrant

defective for lack of p/cdefective for lack of p/c..

ConclusionConclusion

Currently in New Jersey the grant of motions to suppress Currently in New Jersey the grant of motions to suppress evidence obtained evidence obtained pursuant to defective search warrantspursuant to defective search warrants is is relatively uncommon and apparentlyrelatively uncommon and apparently poses poses no significant no significant obstacleobstacle to law-enforcement efforts. to law-enforcement efforts.

Tennessee v. Garner Tennessee v. Garner 471 U.S. 1 (1985)471 U.S. 1 (1985)

SCOTUS held;SCOTUS held;

1.1. apprehension by use of deadly force is a apprehension by use of deadly force is a seizure subject to the Fourth Amendment’s seizure subject to the Fourth Amendment’s reasonableness requirementreasonableness requirement; and; and

2.2. deadly force may be used only when it is deadly force may be used only when it is necessary to prevent the escape and the officer necessary to prevent the escape and the officer has probable cause to believe that the suspect has probable cause to believe that the suspect poses a significant threat of death or serious poses a significant threat of death or serious physical injury to the officer or others.physical injury to the officer or others.

• Court’s Analysis = Balancing InterestsCourt’s Analysis = Balancing Interests

Governmental Interest = Effective law enforcementGovernmental Interest = Effective law enforcement

Fleeing Felon Rule (Common Law Tradition)Fleeing Felon Rule (Common Law Tradition)

Overall violence will be reduced by Overall violence will be reduced by encouraging the encouraging the peaceful submission of suspectspeaceful submission of suspects who know that they who know that they may be shot if they flee. may be shot if they flee.

Effectiveness in making arrestsEffectiveness in making arrests requires the resort to requires the resort to deadly force, or at least the meaningful threat thereof.deadly force, or at least the meaningful threat thereof.

Evidence against This ArgumentEvidence against This Argument1.1. A majority of police departments in this country have A majority of police departments in this country have

forbidden the use of deadly force against nonviolent forbidden the use of deadly force against nonviolent suspectssuspects

2.2. Almost all crimes formerly punishable by death no Almost all crimes formerly punishable by death no longer are or can be. longer are or can be.

3.3. The common law rule developed at a time when The common law rule developed at a time when weapons were rudimentary.weapons were rudimentary.

States’ Position in Use of Deadly ForceStates’ Position in Use of Deadly Force Codified Common Law Rule 19 statesCodified Common Law Rule 19 states Retained Common Law Rule (No Statute) 4 statesRetained Common Law Rule (No Statute) 4 states Adopted Model Penal Code provision 2 statesAdopted Model Penal Code provision 2 states Limited to Narrower Cases 18 statesLimited to Narrower Cases 18 states Prohibit Use of Deadly Force 2 states Prohibit Use of Deadly Force 2 states

The The long-term movementlong-term movement has been away from has been away from the rule that deadly force may be used against the rule that deadly force may be used against any fleeing felon, and that remains the rule in any fleeing felon, and that remains the rule in less than half the statesless than half the states. .

The Policies adopted by the police departmentsThe Policies adopted by the police departments Overwhelmingly, these are more restrictive that the Overwhelmingly, these are more restrictive that the

common-law rule.common-law rule.

Boston Police Department Study (1974)Boston Police Department Study (1974) The police department regulations in a majority of the The police department regulations in a majority of the

large cities of the US allowed the firing of a weapon large cities of the US allowed the firing of a weapon only when a felon presented a threat of death or only when a felon presented a threat of death or serious bodily harm.serious bodily harm.

K. Matulia, A Balance of Forces (1982)K. Matulia, A Balance of Forces (1982) Of departmental and municipal policies;Of departmental and municipal policies;

• 7.5% explicitly permits the deadly force7.5% explicitly permits the deadly force• 86.8% explicitly forbids86.8% explicitly forbids

ConclusionConclusion

There has been no suggestion that crime There has been no suggestion that crime has worsened in any way in jurisdictions has worsened in any way in jurisdictions that have adopted, by legislation or that have adopted, by legislation or departmental policy, rules similar to that departmental policy, rules similar to that announced today.announced today.