NYT on the American Approach to Evidence Suppression

Adam Liptak of the New York Times has an interesting piece today comparing the American approach to evidence suppression to that of other countries.  He writes:

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.”

That Scalia quote comes from the case of Hudson v. Michigan, which held that it was not necessary to suppress evidence for a violation of the rule requiring officers to "knock and announce" their presence when serving a search warrant.

While the U.S. does suppress evidence for Fourth Amendment violations, it's worth remembering that there is a long string of Supreme Court cases, stemming specifically from the drug war, finding that no Fourth Amendment violation occurs in a variety of drug policing situations. See, for example, Hudson v. Michigan,  United States v. Place, Minnesota v. Carter, Florida v. Riley, California v. Ciraolo, etc. Each of these Supreme Court opinions holds that the Fourth Amendment does not apply in various situations, and the result is that the Fourth Amendment coverage is a little bit less expansive than it might seem.

Finally, it also has to be pointed out that the published court cases in which evidence gets suppressed are the exception, not the rule. At the trial level, as anybody who practices criminal defense can document, judges are not exactly eager to uphold suppression motions, and will absolutely err on the side of the state rather than let a defendant walk, even in situations where the violation seems pretty obvious.

Related Posts:

Two Americas, Revisited: Perpetual Surveillance As "Reasonable" Police Activity 11/18/07

U.S. v. Goddard: Janice Rogers Brown on Terry Stops, Race and Crime 6/22/07

Comments

[John King]

While all you say is true, some state statutes and constitutions offer more protection, and still provide a suppression remedy for knock-and-announce violations. If you give me an e-mail address, I will send you a brief we just filed in Texas on the issue. Tex. Rule of Criminal Procedure 38.23 says that a violation of the federal constitution may still lead to suppression. We'll see.