What the Supreme Court took away from us

By David Feige

'SO THAT'S IT?" My young African American client was shaking his head in disbelief, a look of expectant perplexity warming his face.

"Yep," I smiled, giving him a quick embrace, "Case dismissed."

"Cool," he said, shaking his head just a little bit.

This exchange took place some years ago in a fluorescent-lighted hallway just outside the subterranean courtroom of Judge Robert Cohen in the Bronx. The judge had just ruled that because the police illegally searched a bag inside the trunk of my client's car, the gun they found there would not be admitted into evidence. And so, there, outside Cohen's courtroom, I was saying goodbye to a client who no longer faced the specter of a prison term.

Such an outcome, though depicted regularly on "Law & Order," is actually uncommon. And from now on, there'll be even fewer.

In a complicated and contentious 5-4 decision last week, the U.S. Supreme Court ruled in Hudson vs. Michigan that even though the police had manifestly violated the long-established "knock and announce" rule when they ran into Booker Hudson's Detroit home, the evidence they illegally obtained (drugs and a firearm) could still be used against Hudson in his trial.

In his decision for the sharply divided court, Justice Antonin Scalia ruled that despite the "knock and announce" rule's long and storied history, improvements in police training and the possibility of civil lawsuits would sufficiently deter police misconduct, making the social costs of excluding the evidence outweigh the deterrent value of the sanction.

As Justice Stephen Breyer's dissent suggests, last week's ruling is itself a significant departure from traditional 4th Amendment jurisprudence. But though the Hudson decision is deeply alarming for what it says, it is even more so for what it presages: a direct attack on the entire remedy of suppression.

There is a certain majesty to the "exclusionary rule" -- the notion that the proper remedy for a procedural error is to preclude the use of tainted evidence, even if that means that a manifestly guilty person will go free. It evinces a particularly American faith in the value of process, an acute sensitivity to the importance of fairness and to the value of strict limits on how government may invade a citizen's private space.

A fixture of the U.S. legal landscape for nearly a century (the principle was first annunciated in the 1914 decision Weeks vs. United States), the exclusionary rule has been astonishingly effective at curbing precisely the kinds of police corner-cutting and abuses the 4th and 5th amendments were designed to target. Ironically, unlike tougher laws or longer sentences -- highly popular sanctions that are generally ineffective at deterring crime -- the threat of evidence-suppression actually has the deterrent effect it is designed to have.

But for all its efficaciousness and precedential heft, the exclusionary rule also has been the constant target of attacks from conservatives and is almost single-handedly responsible for popularizing the fiction that criminal cases are regularly dismissed on "technicalities." The reality is quite different.

As "tough on crime" rhetoric has come to a boil over the last two decades, and an ever-expanding number of column inches and talk-show rants have been directed at judges who impose light sentences or question police behavior, it has become less likely that even courageous judges would be willing to endure the public censure by actually applying the exclusionary rule.

For all its traditional centrality and high-minded value, the exclusionary rule these days is honored mainly in the breach. In an informal poll of several public defenders, most could count on one hand the number of times they've won suppression motions that have resulted in dismissal.

The fact that the exclusionary rule has been virtually dead for years may come as a surprise to those who don't see the daily grind of cases being processed through the system. But most insiders will concede that with sky-high arrest rates and a tidal wave of mostly petty prosecutions, there is rarely enough time for public defenders to even challenge an unlawful search, much less conduct a hearing, cross-examine the police officers and actually procure a ruling to suppress evidence. And that is too bad.

Police officers, genuine in their desire to see the guilty convicted, are generally careful not to break the rules when they believe that a judge might be watching. But remove the threat of judicial oversight and no one should be surprised when irremediable complaints of patently illegal searches and corrupt police behavior begin to skyrocket.

It may well be that putting to rest the barely breathing carcass of the exclusionary rule will finally require us to confront the consequences of allowing American law enforcement to police the public without any meaningful deterrent. As it continues to remove the constraints on police power, the Supreme Court will eventually force us to directly consider the depth of our commitment to the individual liberties that are enshrined in our Constitution.

David Feige was a public defender in the Bronx and is the author of "Indefensible: One Lawyer's Journey into the Inferno of American Justice," published last month by Little, Brown & Co.

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