Posted on 01/15/2009 4:00:19 PM PST by Coleus
COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don't pay taxes. If the IRS finds out, you explain: "I forgot." Then, if that's not enough, you say, "Well, excuuuse me!" This approach was offered in jest, but these days it's looking pretty promising. Treasury Secretary nominee Timothy Geithner seems to be pulling it off in the tax arena even as I write this, and now the Supreme Court, in its just-released decision in Herring v. United States, has ruled that simple negligence by police - in arresting a man based on a warrant that had been withdrawn, but left in the computer by mistake - isn't enough to justify excluding the evidence found during that arrest.
Being a "public servant," apparently, means being free to make the kind of mistakes that the rest of us aren't allowed. Admittedly, the facts in this case aren't that appealing. Bennie Dean Herring, a man with prior felony convictions, went to retrieve an impounded truck. Looking for a reason to arrest him, a police officer asked if there were any warrants outstanding. The computer showed a warrant from a neighboring county. Herring was arrested and found to be in possession of a pistol (illegal, as he had a prior felony) and methamphetamine. Moments later, the clerk called to say that the warrant had been withdrawn, but by then the search and the arrest had been made. According to Chief Justice John Roberts, writing for the majority, "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply."
(Excerpt) Read more at nypost.com ...
So what incentive to they have for making sure their systems are current? Just leave a bunch of bogus data in there and they can go anywhere they want.
Kind of like being partly pregnant?
“A pattern of isolated incidents.”
Seems to me that the entire ruling turns on the incoherent phrase "negligence attenuated from the search."
Does anyone know what the heck that means?
>> So what incentive to they have for making sure their systems are current? Just leave a bunch of bogus data in there and they can go anywhere they want. <<
False arrest would certainly seem to be something which would leave the police open to civil suits. The cops who conducted the search were acting in good faith when they found serious evidence of a crime. Does it make any sense that the cops should now be obliged to pretend that the crime did not happen?
When police violate civil rights, the “fruits of the poison tree” are suppressed because the desire to gain those poison fruits would motivate police to violate civil rights. But the test has always been that the police had been acting on good faith. In this case, the court found no evidence of bad faith. So why should justice be denied?
I guess its official now. Police cannot make mistakes. Not that they aren’t allowed to, but that nothing they do is a mistake.
“So why should justice be denied?’
There is little in our legal system that resembles justice.
When a receiving device is removed from the source of a signal, the signal becomes weaker. This is called “attenuation.” I believe what the court is trying to say is that those who performed the search are so far removed from those who were negligent that it isn’t possible to lump them together as a culpable party.
Simple negligence, as opposed to a deliberate failure; negligence not compounded by potentially questionable motives.
“Simple negligence, as opposed to a deliberate failure; negligence not compounded by potentially questionable motives.”
So now I’m sure all those police chiefs will get right on updating those warrants.
>> There is little in our legal system that resembles justice. <<
So because things are bad, you figure that its fine to make them worse?
>> So now I’m sure all those police chiefs will get right on updating those warrants. <<
Nothing in this ruling says that there can be no legal correction for negligence leading to a false arrest. But let’s leave it to civil suits, rather than letting a dangerous criminal loose, shall we?
“So because things are bad, you figure that its fine to make them worse?”
Worse? How could it be worse? We have sitting Congressman who were caught with $90,000 cash in their freezer on FBI tapes accepting bribes two years ago. We have Senators who were steering govt contracts to their hubby. We have the debacle in Mn.
We have nearly 2% of our population in prison, the most of any modern country. Over 50% of them are there for drug offenses.
Our police are given incentives to confiscate personal property without any proof that its drug related.
And now police departments are rewarded when they are incompetent.
How exactly can this decision make the system better?
I agree with this. If the cops break the law, put them in jail, but don’t punish the citizenry for the cops mistake.
The policy of letting perps go without punishing the police, only punishes the populace. Never made sense to me.
If you can search people knowingly based on incorrect information, what about manufactured information to allow the search?
And Justice Roberts was supposed to be a signicant voice of conservatism how?? This is starting to sound like he has drunk the Washington kool-aid.
“what about manufactured information to allow the search?”
It used to be the majority of people did the right thing because it was the right thing. Sure there were exceptions but outside of Chicago you knew cops would do the right thing.
Now you only have rights if you have money and a good lawyer.
A previous article explained that a warrant had been entered into the computer. It was eventually withdrawn but not taken out of the database. Cop looks to see if the guy had a warrant and, yes, he did.
The explanation was that as it was not the arresting (searching) officer's mistake, and he could not have known that there was a mistake in the computer, that the items were seized legally.
Who knew the information in the computer was incorrect?
How do you respond to barn yard trial lawyers trying to make apple & orange comparisons of government officials? Finance Know-It-All Geithner’s tax procarastination speaks to evasion a bit differently from that of the ditz $12/hr dispatch clerk lording over the release of a felon with a gun does to being an airhead who will never get a treasury nomination. Glenn Harlan Reynolds overweighted name swamped his ability to see the difference between the intentional & negligence.
“We have nearly 2% of our population in prison, the most of any modern country. Over 50% of them are there for drug offenses.”
We don’t have nearly 6 million in prison and the percentage in for drug crimes I believe is less than 25% when you combine state and federal prisons. It’s over 50% in federal prisons and about 20% in state prisons, and of course the vast majority of inmates are in state prisons rather than federal prisons. I think we have a total of about 2.3 million behind bars, around 1.6 million (from memory) are in prisons and the rest in jails.
It is true though that we do have the world’s highest incarceration rate though and more people behind bars than any other country in the world. Our incarceration rate is several times what it was at any time before 1979 or so when incarceration rates started taking off. What we’ve done the last few decades was a radical departure from anything we had ever done before, entirely unprecedented. The only countries with incarceration rates anywhere close to ours now are countries like Russia. Most countries in what we would refer to as the “free world” have less than half our incarceration rate, considerably less than half. We’re locking up well over 700 per 100,000 of our population while places like the U.K. are locking up 140 some odd people per 100,000. Our incarceration rate is actually several times that of most most western nations. So I’m not really disagreeing with what you were saying except that your numbers were way off.
Oh, I think we probably do have close to 2% of our population under supervision of some sort, meaning in prisons or jails or on probation or parole. It’s late and I don’t feel like doing research but you can find all the U.S. statistics here: http://www.albany.edu/sourcebook/
It does actually punish the police. They can't stand it when they go to all the trouble to make an arrest only to have the case thrown out. That does encourage them to follow the rules. It probably encourages some to say they followed the rules even if they didn't though too.
I've been a lawyer for a long time. I've prosecuted and defended more cases than I can count. In real life, not many people are “let off on technicalities.” Most all suppression motions fail. Judges tend to be prosecutors in black robes and they'll bend over backwards to rule that a search was valid. The cops really have to screw up bad before evidence will be suppressed.
And on this case, I don't know anything about it but what I gleaned from a quick scan of this one article, but at first glance it seems like the Supreme Court may have made the right decision here. If the officer thinks he has a good reason to bust someone and he finds some contraband while making that arrest, he should be able to seize it. He should be able to charge the person with it too, even if it turns out that the information he was going on in good faith was false. How is the officer to know that a warrant is no good or has been pulled if the dispatcher is telling him there is an active warrant? I don't know all the facts, but it seems like the officer was doing what he was supposed to do. What good are we accomplishing by suppressing this evidence? Encouraging the police to have only perfect records in their computer systems? If we hold the screw ups in the government to that kind of standard we are in big trouble. They're the government, and those who would be updating these records are mostly a bunch of low paid government workers who often unfortunately aren't the sharpest people you'll meet. It sounds like all this was was an honest mistake and the officer acted in good faith. I'm a defense attorney. I don't have the prosecutor mentality, but if I were the judge in this case my inclination would be to let this evidence in.
>> Worse? How could it be worse? <<
Don’t let customs hit you on your ass on the way out of America.
don’t let harsh reality of our police state hit you right between the eyes.
Thanks for the explanation, but I think the phrase “negligence attenuated from the search” (used by Roberts) is not an actual coherent phrase derived from the English language.
You could just as easily dream up some random impenetrable legalism such as “negligence unabated by the inspection” and it would make equally little sense.
“Negligence attenuated from the search” means precisely nothing in the English language.
>>“A pattern of isolated incidents.”
On that note, here’s a more serious aspect of that, when it comes to our police.
Overkill: The Rise of Paramilitary Police Raids in America
http://www.cato.org/pub_display.php?pub_id=6476
The map that is linked-to on that page is currently having “issues”. It’s a really interesting thing to ponder.
buh bye.
bye bye to you too, have a great abuse of power life.
Let me clarify. Person A is a serial rapist and is finally caught. However, the damning evidence is thrown out as a punishment to the police having invalid cause to search his car. Person A goes on to rape 30 more women and the policeman involved is "punished" having his arrest thrown out and maybe a letter of reprimand. What should have happened is that perp A should have gone to jail, thus protecting his future victims, and the matter of the search should have been handled as a completely separate matter. Allowing person A to get off for crimes against person B, because of something person C did makes absolutely no sense. I'm a strong believer that the law should serve justice and never itself.
I've been a lawyer for a long time. I've prosecuted and defended more cases than I can count. In real life, not many people are “let off on technicalities.” Most all suppression motions fail. Judges tend to be prosecutors in black robes and they'll bend over backwards to rule that a search was valid. The cops really have to screw up bad before evidence will be suppressed.
Again, if Barney finds a bag of human heads in the trunk during an unwarranted search, I don't care if the police broke every rule, the perp shouldn't walk. If the cop is fired from his job for bad police work or even prosecuted for a crime, so be it. But how is allowing the mass murderer to walk somehow serving the greater good? Its not. Its been long established that if a burglar uncovers evidence and calls the cops that the evidence is admissable. We don't consider that to be condoning burglary.
It sounds like we're in general agreement. I obviously don't have the inciteful experience that you do concerning the law, but I do have a keen sense of justice. I think that handling police misdeeds as separate matters would be the way to go.
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