Exclusionary Rule & Reasonableness

1. Exclusionary Rule&Reasonableness Mapp v. Ohio Terry v. Ohio United States v. Leon New Jersey v. Novembrino Tennessee v. Garner

2. Weeks v. United States 232 U.S. 383 (1914) • SCOTUS first declared Exclusionary Rule in Federal cases in Federal courts. Wolf v. People of State of Colorado 338 U.S.25 (1949) • denied the application of Exclusionary Rule in State cases in State courts. Mapp v. Ohio367 U.S. 643 (1961) • SCOTUS overruled Wolf, and held that Exclusionary Rule is applicable in State cases in State courts

3. Terry v. Ohio392 U.S. 1 (1968) • Holding • When a police officer has reason to believe that he is dealing with armed and dangerous individual, regardless of whether he has probable cause to arrest, he may make reasonable search for weapons, even though he is not absolutely certain that individual is armed. • Stop & Frisk • Stop = accosting individual and restraining his freedom to walk away • Frisk = careful exploration of outer surfaces of person’s clothing in attempt to find weapon

4. Reasoning = Balancing • The Court considered “proper balance” in “the myriad daily situations in which policemen and citizens confront each other on the street”. = balance between the governmental interest and the constitutionally protected interests of the private citizen.

5. Individual Interest • Even a limited search of the outer clothing for weapons constitutes a severe intrusion upon personal security. • It must surely be an annoying, frightening, and perhaps humiliating experience. Governmental Interest • Effective Crime Prevention and Detection • Immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed.

6. Statistics • The number of law enforcement officer killed in the line of duty in US 1960 – 1966 335 1966 57 55 = died from gunshot wound 44 = inflicted by handguns easily secreted 2 = perpetrated by knives • Assaults on police officers = 23,851 (1966) • Injuries to the policeman = 9,113 • Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

7. United States v. Leon 468 U.S.897 (1984) • SCOTUS adopted “good faith exception” to the Exclusionary Rule. • Good Faith Exception Fourth Amendment Exclusionary Rule should not be applied so as to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a magistrate but ultimately found to be invalid. • This issue must be resolved by weighing the social costs and benefits of preventing the use of inherently trustworthy tangible evidence.

8. “Cost” of Exclusion • It would unacceptably impede the truth-finding functions of judge and jury by excluding reliable physical evidence. • Some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.

9. Research Non-prosecution/Non-conviction because of exclusionary rule 0.6% - 2.35% (of individuals arrested for felonies) 2.8% - 7.1%(of individuals arrested on felony drug charges) * minimum and maximum percentages in plural available research Release because of illegal searches or seizures (California; of all felony arrestees) 1.4% (screening by police and prosecution) 0.9% (released at the preliminary hearing or after trial) 0.5% (reversals on appeal) Thomas Davies, A Hard Look at What We Know (and Still Need to Learn) About Costs of the Exclusionary Rule

10. How much cost is acceptable? • Researchers have concluded from these small percentages that the impact of the exclusionary rule is insubstantial. • BUT the small percentages with which they deal mask a large ABSOLUTE NUMBER of felons who are releasedbecause of Exclusionary Rule.

11. Benefits of Exclusion • Purpose of the Exclusionary Rule = discouraging lawless police conduct • However, it cannot work as deterrence on issuing judge or magistrate. • Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. = NO (or LITTLE) deterrence effect

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

13. State of New Jersey v. Novembrino 105 N.J. 95 (1987) • NJ Supreme Court rejected to adopt Leon’s Good Faith Exception • The Court initially decided that the search warrant in this case was issued without probable cause and therefore it was invalid. • Then, it continued to consider whether New Jersey Constitution permits the good-faith modification of exclusionary rule set forth in Leon.

14. Cost-Benefit Analysis in NJ • Deterrence can be expected even in good faith cases • It deters future inadequate presentations or magistrate shopping. • It encourages officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. • It has created incentives for the agency to ensure that its officers follow the dictates of the Constitution.

15. The cost described in Leon is doubtful. • Statistical studies (national basis) suggests that the costs are minimal. (J. Brennan’s dissenting opinion in Leon) • Only 0.4% of all cases dropped by federal prosecutors were declined because of illegal search problem. • The Court ignores the distinction of the narrower category of cases where police have made objectively reasonable mistakes, and mistakenly weighs the aggregated costs of exclusion in all cases.

16. SURVEY on Suppression Motion (performed by Administrative Office of the Courts, NJ) (1) in 10 counties during 6 months 540 / 1082 motions have been resolved. 38 / 540 = Granted All involved warrantless search. (2) in 5 counties during 12 months Only 1 of 44 motions granted involved a search warrant defective for lack of p/c. Conclusion Currently in New Jersey the grant of motions to suppress evidence obtained pursuant to defective search warrants is relatively uncommon and apparentlyposes no significant obstacle to law-enforcement efforts.

17. Tennessee v. Garner 471 U.S. 1 (1985) • SCOTUS held; • apprehension by use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement; and • deadly force may be used only when it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. • Court’s Analysis = Balancing Interests

18. Governmental Interest = Effective law enforcement Fleeing Felon Rule (Common Law Tradition) • Overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. • Effectiveness in making arrests requires the resort to deadly force, or at least the meaningful threat thereof. • Evidence against This Argument • A majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects • Almost all crimes formerly punishable by death no longer are or can be. • The common law rule developed at a time when weapons were rudimentary.

19. States’ Position in Use of Deadly Force • Codified Common Law Rule 19 states • Retained Common Law Rule (No Statute) 4 states • Adopted Model Penal Code provision 2 states • Limited to Narrower Cases 18 states • Prohibit Use of Deadly Force 2 states • The long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the states.

20. The Policies adopted by the police departments • Overwhelmingly, these are more restrictive that the common-law rule. • Boston Police Department Study (1974) • The police department regulations in a majority of the large cities of the US allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. • K. Matulia, A Balance of Forces (1982) • Of departmental and municipal policies; • 7.5% explicitly permits the deadly force • 86.8% explicitly forbids

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