American Exception

U.S. IS ALONE IN REJECTING ALL EVIDENCE IF POLICE ERR

Bradley Harrison was driving a rented Dodge Durango from Vancouver to
Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk
when a police officer pulled him over, found the drugs and arrested him.

A year and a half later, an Ontario trial judge ruled that the
officer's conduct was a "brazen and flagrant" violation of Mr.
Harrison's rights. The officer's explanation for stopping and
searching Mr. Harrison -- confusion about a license plate -- was
contrived and defied credibility, the judge said, and the search "was
certainly not reasonable."

In the United States, that would have been good news for Mr.
Harrison. Under the American legal system's exclusionary rule, the
evidence against Mr. Harrison would have been suppressed as the
result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to
exclude the evidence. Mr. Harrison was sentenced to five years in prison.

"Without minimizing the seriousness of the police officer's conduct
or in any way condoning it," the Court of Appeal for Ontario ruled in
Mr. Harrison's case in February, "the exclusion of 77 pounds of
cocaine, with a street value of several millions of dollars and the
potential to cause serious grief and misery to many, would bring the
administration of justice into greater disrepute than would its
admission." The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some
police misconduct must automatically result in the suppression of
physical evidence. The rule applies whether the misconduct is slight
or serious, and without regard to the gravity of the crime or the
power of the evidence.

"Foreign countries have flatly rejected our approach," said Craig M.
Bradley, an expert in comparative criminal law at Indiana University.
"In every other country, it's up to the trial judge to decide whether
police misconduct has risen to the level of requiring the exclusion
of evidence."

But there are signs that some justices on the United States Supreme
Court may be ready to reconsider the American version of the
exclusionary rule. Writing for the majority two years ago, Justice
Antonin Scalia said that at least some unconstitutional conduct ought
not require "resort to the massive remedy of suppressing evidence of guilt."

The court will soon have an opportunity to clarify matters. The
justices will hear arguments on Oct. 7 about whether methamphetamines
and a gun belonging to Bennie Dean Herring, of Brundidge, Ala.,
should be suppressed because the officers who conducted the search
mistakenly believed he was subject to an outstanding arrest warrant
as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals
court in Mr. Harrison's case called "the automatic exclusionary rule
familiar to American Bill of Rights jurisprudence."

Australia also uses a balancing test. It considers the seriousness of
the police misconduct, whether superiors approved or tolerated it,
the gravity of the crime and the power of the evidence. "Any
unfairness to the particular accused" in most cases, the High Court
of Australia wrote in 1995, "will be of no more than peripheral importance."

The European Court of Human Rights, a notably liberal institution,
refused in 2000 to require the suppression of illegally obtained
evidence. Using such evidence to convict a man charged with importing
heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal
defendants is routinely and automatically suppressed when police
misconduct is found. In the last week of June, for instance, courts
in Georgia, Ohio, Pennsylvania, Virginia and Washington state
suppressed evidence in cases involving drugs, guns, burglary and
child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the
decentralized nature of American law enforcement, with thousands of
local police departments around the nation, requires a more rigorous
and consistent approach to deterring misconduct. The law enforcement
systems in Canada and England, by contrast, are notably less
fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison's car in
Ontario thought the car should have had a front license plate, even
though the car was from Alberta, which does not require one. "We
respect the decision of the courts," said Sgt. Pierre Chamberland, a
spokesman for the Ontario Provincial Police, but "their criticism
alone does not by default lead to an internal complaint."

Supporters of the American practice say that only strict application
of the exclusionary rule can effectively address violations of the
Fourth Amendment, which bans unreasonable searches and seizures.

"The exclusionary rule deters police misconduct in a straightforward
and effective way," said a supporting brief filed by the National
Association of Criminal Defense Lawyers in the case the Supreme Court
will hear in October. "It reduces the value of evidence obtained as a
result of Fourth Amendment violations, and thus eliminates what would
otherwise be a powerful incentive for police to engage in such violations."

Several justices have in recent years questioned whether the rule
still makes sense in light of what they called the increased
professionalism of the police and the availability of alternative and
arguably more direct ways to punish misconduct, including internal
discipline and civil suits.

Opponents of the rule say it is indirect, incomplete and in a way
perverse. Even if it deters unlawful searches, exclusion of evidence,
for instance, offers no remedy to innocent people whose rights were
violated by unlawful searches.

More important, as Justice Robert H. Jackson wrote in 1954, the
exclusionary rule "deprives society of its remedy against one
lawbreaker because he has been pursued by another." Or, in Judge
Benjamin Cardozo's famous mocking formulation in a 1926 decision for
New York's highest court rejecting the rule: "The criminal is to go
free because the constable has blundered."

That reasoning continues to resonate with some experts.

"Lots of scholars argue that the mandatory exclusionary rule ought to
be re-examined," said David A. Sklansky, a law professor at the
University of California, Berkeley. "Those scholars are not all on
the right of the political spectrum." Professor Sklansky said he
believed that the rule's benefits continued to outweigh its costs.

Most specialists continue to support the rule, said Orin S. Kerr, a
law professor at George Washington University. "The U.S. experience
is a consequence of history," Professor Kerr said. "It's a response
to the police not following the law in the absence of this remedy."

The idea that exclusion is the proper response to police misconduct
is of relatively recent vintage.

"Supporters of the exclusionary rule cannot point to a single major
statement from the Founding -- or even the antebellum or
Reconstruction eras -- supporting Fourth Amendment exclusion of
evidence in a criminal trial," Akhil Reed Amar, a law professor at
Yale, wrote in The Harvard Law Review in 1994.

According to Professor Amar, the framers of the Fourth Amendment
assumed that the right it guaranteed would be enforced through civil
lawsuits, not exclusion. "Both before and after the Revolution," he
wrote, "the civil trespass action tried to a jury flourished as the
obvious remedy against haughty customs officers, tax collectors,
constables, marshals and the like."

These days, law professors and defense lawyers say, civil suits are
less likely to be effective. Criminals whose rights have been
violated are not attractive plaintiffs, and they may not have the
resources to litigate, particularly from behind bars. Civil suits
must, moreover, overcome various legal doctrines limiting the
liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly
obtained evidence in 1914 -- but only in federal cases.

For many decades afterward, the Supreme Court refused to apply the
principle to states, saying they could choose the appropriate remedy
for police misconduct -- including civil suits and criminal
prosecutions -- and were not required to suppress evidence. In a 1949
decision, the court justified that position in part with a rationale
now disfavored in some circles: a survey of foreign law.

"Of 10 jurisdictions within the United Kingdom and the British
commonwealth of nations," Justice Felix Frankfurter wrote for the
majority, "none has held evidence obtained by illegal search and
seizure inadmissible." The right to be free of arbitrary police
intrusion is fundamental, Justice Frankfurter wrote, but the legal
remedy for the violation of that right can vary.

It was not until 1961 that the Warren Court, in one of its signature
decisions, concluded in Mapp v. Ohio that only the mandatory
suppression of evidence could adequately address wrongdoing by the
police in all cases, state and federal.

Seven Cleveland police officers had broken into and searched Dollree
Mapp's home without producing a warrant, manhandling her and
rummaging through her personal papers. Though the Ohio Supreme Court
concluded that the search had been unlawful, it affirmed Ms. Mapp's
conviction on obscenity charges based on materials the police found
in her home.

That was too much for a majority of the Supreme Court to stomach.
"The state, by admitting evidence unlawfully seized, serves to
encourage disobedience to the federal Constitution which it is bound
to uphold," Justice Tom C. Clark wrote for the court. Only the
exclusion of evidence could do the job, he said; other remedies had
proved "worthless and futile."

The Supreme Court has in recent years whittled away at the
exclusionary rule by limiting its applicability and creating
exceptions to it. Chief Justice John G. Roberts Jr. and Justice
Scalia, neither of whom is enamored with citing foreign law, each
noted in recent decisions that the American approach in this area is
unique and has been universally rejected elsewhere.

In a third decision two years ago, Hudson v. Michigan, Justice Scalia
seemed to say that the exclusionary rule had outlived its original
purpose. The case involved a conceded violation of a rule requiring
police executing a search warrant to knock and announce themselves.

Much had changed since the exclusionary rule was applied to states in
1961, Justice Scalia wrote. Police departments had become more
professional, he said, and various kinds of civil suits against
officials and the government had become available. "As far as we
know," Justice Scalia wrote for the court, "civil liability is an
effective deterrent."

Justice Stephen G. Breyer, writing for the four dissenters, said that
exclusion remains the best and most reliable deterrent. He added that
the logic of the majority's objections was not limited to "knock and
announce" violations but was "an argument against the Fourth
Amendment's exclusionary principle itself."