Imagine you are sitting in your living room in pajamas enjoying a cup of coffee. The morning news is on, the open windows let in the fresh morning air and the morning light. Your dog is sleeping peacefully at your feet. Suddenly the police break down your door. Several of them are pointing guns at you and your dog. Your dog is barking wildly, you instinctively reach out to protect your dog. An officer shouts “put your hands up”! You hesitate out of confusion then you hear shouting from multiple directions. Suddenly your body is slammed to the ground. You taste blood and feel the pain of the impact. The police roughly toss your dog in the bathroom and shut the door. They filter through your things leaving some of your personal things damaged and thrown about like garbage.
The police find nothing illegal in your house. They leave without apology. On the one hand, you feel lucky because you and your dog survived the experience. On the other hand, you feel betrayed and victimized. Your home has been invaded, you are afraid and confused, you are embarrassed, you are concerned for your dog and you are injured. You lost respect and trust for the police who are supposed to be protecting you.
Since the inception of the United States the home has been considered a special place. It is a sanctuary where we have a private life free from governmental interference. The framers recognized that human dignity and ideals associated with freedom and democracy require our laws to enforce the sanctuary and privacy of our homes. They also recognized the basic right of people to be free from unreasonable interference from the government of our persons, our daily lives, and activities.
The framers put these ideas in our laws and specifically the Fourth Amendment of the U.S. Constitution. The U.S. Constitution Fourth Amendment reads; “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment establishes that the police cannot invade your privacy and your sanctuary without sufficient cause. Usually, they need a warrant which is a document signed by a Judge or Magistrate. The Judge or Magistrate signs warrants if, after reading the police sworn statement, they think there is probable cause to believe there will be evidence of criminal activity.
The nuances in determining when rights are violated have been the subject of analysis and decisions by our courts throughout the history of the United States. The Supreme Court makes decisions that explain, expand, or restrict these rights. The rulings of the Court provide important information to the police. The rulings tell the police what is expected of them and as a result, the rules of the court set standards for police conduct.
The recent evolution of the Court's rules has eroded the rights of citizens while giving police the message that the scrutiny of their actions is relaxed. Among the many factors that influence police behavior, the court's decisions on search and seizure law are among the most important. If police know expectations of their performance are lower, their performance will be lower.
One of the cases in history of decisions on this issue involved a young woman named Dollree Mapp. Ms. Mapp was a black woman born in 1923 in Forest, Mississippi. In 1957, she lived in Cleveland, Ohio in a duplex rental with her young daughter. It was in 1957 that the trajectory of Ms. Mapp’s life changed so that her name is forever connected to a Supreme Court Decision and litigation that followed and continues to this day.
In Cleveland, in May of 1957, there was a bombing at the home of Don King, a suspected racketeer and boxing promoter. King would later promote Muhammad Ali, among others. The police heard the suspect to the bombing, Virgil Ogletree, was hiding in Ms. Mapp’s home. Multiple officers from the Cleveland Bureau of Special Investigation surrounded the residence of Ms. Mapp. Ms. Mapp was not one to be intimidated by the police and she refused to let police in without a warrant.
Ms. Mapp later testified that police returned, and one police officer flashed a piece of paper in front of her claiming it was a warrant, but she thought the paper was blank. She grabbed it from the officer and put it down her shirt. The officer grabbed that piece of paper back from Ms. Mapp. The police found Ogletree but did not like Ms. Mapp’s “attitude”. Police searched the home without an actual warrant and found various items, some that violated the era’s pornography laws. Ms. Mapp was convicted and later appealed her conviction to the U.S. Supreme Court. Her attorney argued that the court should have suppressed evidence obtained without a warrant. This argument was based upon a rule called the exclusionary rule. The exclusionary rule is a court made rule that means police cannot use illegally obtained evidence. The exclusionary rule has significant value in deterring police misconduct.
The Supreme Court issued the ruling in Mapp v. Ohio in 1961. Ms. Mapp’s case before the Supreme Court became a landmark case in recognizing that the exclusionary rule applied to the states in addition to the federal government. After the Mapp decision if you were charged with a crime that violated your state law and the police obtained the evidence illegally, your attorney could ask the court to order the evidence cannot be shown to the jury. If the court granted the request, the evidenced would not be used against you at trial.
The exclusionary rule as applied to federal crimes was created nearly fifty years before the Mapp case when Fremont Weeks appealed his conviction to the Supreme Court. In that case, Weeks was convicted of a federal crime of transporting lottery tickets through the mail. The police, as in Mapp, searched Mr. Weeks' home without a warrant and used the evidence found in the home against Mr. Weeks.
In issuing the decision in the Weeks case, Justice William R. Day wrote;
“The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority .... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures ... should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such rights.”
The exclusionary rule was also applied to cases where evidence was gained as “fruit of the poisonous tree” meaning the evidence was only obtained because of an initial illegal act of the police. In Silverthorne Lumber Co. v. United States, the court decided that the copies made of illegally seized tax books could not be used as it was fruit of the poisonous tree or in other words were it not for the illegal seizure the copies never would have been held by police so they could not use it.
The exclusionary rule was developed in Mapp, Weeks, Silverthorne, and others, as a deterrent and as a remedy for the person whose rights were violated. The logic is that if police know that violating Constitutional Rights will lead to a criminal not being prosecuted, they will follow the rules.
The importance of the police and the rule of law in our society cannot be disregarded. Without rule of law, we would live in anarchy. At the same time, when law enforcement does not follow the law, it is not hyperbolic to conclude the foundations of our society are at risk.
Police break the rules by acts that range from searching homes or persons without cause and lying, to planting evidence to murder by excessive force. The lie of a police officer can send an innocent person to prison. When police use brutality in their work, they take people's lives.
When lies and brutality are rampant the people push back. In our time, we are witnessing this as a reaction to police misconduct that caused the deaths of George Floyd and Breonna Taylor among so many others. When police violate rules, break laws, and abuse their power they lose legitimacy.
There are many reasons why police make bad decisions. Among those reasons is the knowledge that they can convict people even if evidence is obtained illegally. If they bust into 10 homes without just cause and find illegal activity in some and still get convictions, they will continue to bust into homes without just cause. If police get convictions, support for a job well done, promotions and pay raises despite obtaining evidence illegally, what reason do they have to follow the law?
Police lose incentive to follow the law because the courts permit cases to go forward and evidence to be presented obtained by illegal means, by means that violated the rights of citizens. They get their convictions, they get their promotions, their pay raises not just despite their illegal actions but because of their illegal actions.
For law and order to function for all citizens, it is incumbent upon the judiciary to honor decisions in cases like Mapp, Weeks, and Silverthorne. The judiciary should hold fast to the principle that unlawful police behavior must lead to the exclusion of evidence.
What the citizens of our country should aspire to is a system of law enforcement that is based on honesty and integrity. Police must understand and know that if they act against the law and rights of citizens, they will not succeed. They must know that their success in fighting crime and success in their career is based on honesty and integrity and if they fail in those areas they will fail in their goals.
Unfortunately, cases that followed Mapp and Weeks weakened and undermined the effectiveness of the exclusionary rule. In United States v Leon, the Supreme Court decided that if a warrant were issued that should not have been, but police rely upon it in good faith, the evidence should not be suppressed. This became known as the “good faith exception” to the exclusionary rule.
The dissent, as written by Justice Brennan, argued that evidence seized in violation of the constitution should be suppressed even if officers acted on a reasonable mistake. "Indeed, the Court's ‘reasonable mistake’ exception to the exclusionary rule will tend to put a premium on police ignorance of the law."
Justice Brennan was correct that when a warrant is authorized that should not be authorized then the resulting search violates constitutional rights. The police and judge that issued that warrant should not be rewarded with a conviction for their mistakes that violate citizen rights.
It is easy for someone to claim they did not understand but we as citizens are expected to understand. Ignorance of the law is not a defense in criminal cases, and most citizens do not study the law. Police do study the law and should be held to a much higher standard. We should expect police training to educate them as to the status of the law and if they violate it, their ignorance should not be an excuse.
The good faith exception expanded from Leon. Permitting, for example, evidence obtained in violation of Constitutional rights to be used in criminal cases where the police employees failed to properly maintain an arrest warrant database. In Herring v, The United States, the database showed that there was an active warrant for Mr. Herring but, in fact, there was not an active warrant for him.
Herring was arrested without an actual warrant and without probable cause. In writing the Court’s opinion, Justice Roberts wrote, “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.”
Justice Ginsberg did not agree. In her dissent provided numerous examples as to why there would be no redress for violation of Fourth Amendment rights based on the majority ruling. In her dissent, Justice Ginsberg wrote, “beyond doubt, a main objective of the rule is to deter—to compel respect for the constitutional guarantee in the only effectively available way—by removing the incentive to disregard it.”
Later, in 2011, the Court upheld the conviction of Willie Davis. During a traffic stop Mr. Davis (a passenger) was arrested for giving a false name and was placed in handcuffs away from the vehicle. Mr. Davis was charged after police discovered a revolver in the search of his vehicle. While an appeal was pending for Mr. Davis, the Supreme Court issued a ruling in Arizona vs Gant and held the following: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Given the facts of the case of Mr. Davis, applying the rule in Gant, the search of the vehicle was unconstitutional. The court in Davis determined that since Gant was decided after Davis was arrested, that police officer relied on prior law and because of that good faith reliance, the rulings of the lower court were valid, and the evidence would not be suppressed. The conviction was affirmed.
In his dissent Justice Breyer wrote, “The Court goes on, however, to decide how Gant’s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search violated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is because the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. Leaving Davis with a right but not a remedy, the Court “keeps the word of promise to our ear” but “breaks it to our hope.””
When he wrote, “The Court keeps the promise to our ear but breaks it to your hope,” Justice Breyer meant that the promise of our country of our right to remain free from unreasonable search and seizure becomes meaningless for the future, for our hope, if the Court can find an act by the police illegal but not suppress the evidence. There is no remedy, there is no consequence for this action. The promise of the Constitution is broken.
The ongoing assault on the exclusionary rule and concerns about the erosion of
Fourth Amendment rights was further addressed by Justice Breyer in his written dissent in the Davis case: “The Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized . . . unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ Today’s decision will doubtless accelerate this trend. Any such change (which may already be underway) would affect not “an exceedingly small set of cases, but a very large number of cases, potentially many thousands each year. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures. ”In many circumstances, there is but one alternative to the rule of exclusion. That is no sanction at all. It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.”
The theme as expressed by the justices in dissenting opinions is constant, if the court does not insist on a remedy for Constitutional violations of the police, there is no remedy and the Constitutional rule created to prevent abuse of power becomes meaningless.
As Mr. Justice Holmes wrote in his Olmstead dissent, "It is also desirable that the Government should not itself foster and pay for other crimes when they are the means by which the evidence is to be obtained.... I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for the fruits. We have to choose, and for my part I think it is less evil that some criminals should escape than the - Government should play an ignoble part.”
The bottom line is that part of the United States Constitution is the Fourth Amendment. The Fourth Amendment was designed to prevent the government from unreasonable intrusions on the freedom and privacy of individuals. Its purpose was to limit the power of the government, to maintain privacy and freedom of citizens.
The only way to enforce the Fourth Amendment is for the courts to protect the rights of the accused by excluding evidence police obtain that violates this amendment. By doing so the police are on notice that they are expected to respect the rights of the people.
Expecting the police to follow the rules; it seems so basic and simplistic to write, but it will lead the police following the rules.
The Pygmalion effect (also called the Rosenthal effect) is a psychological phenomenon where high expectations lead to improved performance in a given area. The phenomenon was named the Rosenthal effect after Robert Rosenthal, a psychologist that conducted a study on teachers’ expectations of students. It is also called the Pygmalion effect, named after a legendary mythical Greek figure whose love for his sculpture caused it to come to life.
The Pygmalion effect has been applied to other areas of life where expectations are measured such as employees. In an article written in 2003 Sterling Livingstone explores this phenomenon for the Harvard Business Review. By way of analogy, he provides a concrete simplistic explanation from literature.
In George Bernard Shaw’s Pygmalion, Eliza Doolittle explains:
“You see, really and truly, apart from the things anyone can pick up (the dressing and the proper way of speaking, and so on), the difference between a lady and a flower girl is not how she behaves but how she’s treated. I shall always be a flower girl to Professor Higgins because he always treats me as a flower girl and always will; but I know I can be a lady to you because you always treat me as a lady and always will.”
While the courts are not the official employers or supervisors of police, they do play a supervisory role in police adherence to Constitutional Law. It is the courts that ultimately determine what police behavior violates the Constitution. From their decisions the expectations are set.
Defense attorneys, like myself, can provide many examples of police illegal action that was not only permitted but was sanctioned. After all, in not tossing out the evidence, the courts are often ensuring a conviction. In not tossing out the evidence, the courts are giving the officer a win, success in their role as an officer and success as an officer who broke the law.
Officers are trained as to the exceptions and expectations of the court. They learn about things like the good faith exception and how that might apply to their work. The focus of their training should be on how to comply with the Constitution in an honest and honorable way.
If Officers were trained to adhere to the law would Briana Taylor still be alive? George Floyd? Does it matter that the police are granted exceptions over and over for their bad behavior? The answer to all those questions is ‘yes’.
If police are held to a higher standard, then their behavior will change. They must understand that if they violate individual rights there will be consequences. The courts are the primary vehicle to hold them to a higher standard. The development of exception after exception gives police not just a pass for illegal behavior but gives them success. The pass the courts give police for illegal behavior are ingredients in the recipe of police misconduct and abuses that we live with today.