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Monday, July 18, 2016

Decentralizing the Exclusionary Rule

One strand of my research in the last few years has focused on exploring what I see as a federalism component of the Fourth Amendment.  In The Contingent Fourth Amendment, 64 Emory L.J. 1229 (2015), I looked at the law of search and seizure from 1765 to 1795, with particular focus on the Justice of the Peace manuals used at the time, and what the Anti-Federalists said and wrote about search and seizure during the ratification period.  I concluded that the best way of viewing the Reasonableness Clause of the Fourth Amendment was as a constraint that federal officers follow state law when searching and seizing.  In a piece I am currently finishing up, “The Local-Control Model of the Fourth Amendment,” http://ssrn.com/abstract=2721014, I provide more evidence in support of that claim and I contrast this “local-control model” to the two dominant models of viewing the Fourth Amendment, the “warrant model” and the “reasonableness model.”  And in “Decentralizing Fourth Amendment Search Doctrine,” which I just began in earnest, I am exploring the claim that the “what is a search” question should be decentralized so that the answer might differ by State, or even by locality.

Something I so far have not looked at, but hope to in the coming years, is the exclusionary rule, and how a decentralized approach to the rule might make sense.

That’s why I was intrigued when listening to the oral argument in Utah v. Strieff.  Early on, Justices Sotomayor and Kagan express a concern that when a high percentage of people have outstanding warrants, the police might have every incentive to conduct illegal stops if – as the Court ultimately ruled – the evidence found as a result of the ensuing arrest is not generally subject to the exclusionary rule.  But, of course, the percentage of residents with outstanding warrants is going to vary widely from place to place.  As Justice Sotomayor put it:  “[I]f you have a town like Ferguson [Missouri], where 80 percent of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID . . . .”  Justice Kagan almost immediately followed up with

if you're policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to . . . make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search. * * *  [I]t does change your incentives quite dramatically, it seems to me, if you're policing a community where there is some significant percentage of people who have arrest warrants.

So that led me to wonder why we think about the exclusionary rule in gross, rather than at the retail level.  The Court has posited that the only justification for the exclusionary rule is the deterrence of police misconduct.  The Court has also said that whether the rule deters police misconduct must be evaluated on a context-by-context basis.  Excluding evidence from anything but a criminal trial, the Court has told us, is not worth the price we pay in the currency of lost evidence.  Fair enough.  The deterrent value of excluding evidence is also not worth the cost where the arresting officer reasonably relied on an invalid warrant, an unconstitutional statute, an erroneous report of the existence of an outstanding warrant, or binding case law that was later reversed.  Again, fair enough.  But if we are going to apply the exclusionary rule in such a context-sensitive way, why not also vary it by locality?  If the figures set forth by Justice Sotomayor are accurate, the incentives for police in some communities are going to be very different than in other communities.  The entire concept of deterrence hinges on a prediction based on empirical evidence about how people will act under certain conditions.  If one of the variables that might change the prediction is the locality, because of the percentage of people who are subject to outstanding warrants, then it seems to me that if the defendant shows that this percentage is high, the prediction about police behavior ought to change accordingly

Indeed, the majority opinion in Strieff seems to leave open the possibility of a more localized application of the exclusionary rule.  The Court acknowledged the argument that a large number of outstanding warrants within a local population might motivate the police to conduct illegal stops in the hopes of hitting upon a person with such a warrant.  It did not outright reject this argument; it wrote simply that this was not a problem in the locality where the stop took place:

Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.

(citations omitted) (emphasis added).  Thus, the Court folded the perverse incentives argument into the third Brown factor, the purpose and flagrancy of the police misconduct.  My argument is somewhat different.  The Court seems to be willing to take into account idiosyncratic characteristics of the locality but only to the extent that they might produce flagrant, systemic flouting of the Fourth Amendment.  My approach would not require evidence of misconduct that stark, which might be nigh impossible for a defendant to produce.  I would simply allow local judges to take into account local conditions in determining what the likely incentives are for police within those localities.  If the community has a very high number of people with outstanding warrants, the incentive is there for police to take advantage of that, regardless of whether there is hard proof that they do so on a systemic basis.  One can presume that, as rational actors, at least some police will do so.  The exclusionary rule should be applied to counteract that incentive.

Posted by Michael J.Z. Mannheimer on July 18, 2016 at 05:56 PM in Constitutional thoughts | Permalink

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