Replies

Army, lets say they did botch it. Does the cops botching it equate to these guys being innocent rather than guilty?

I would offer to you that it does not. If the cops bothced it and punishment is due, hey man, I am all for it. They should not be above the law and indeed should be held to account.

Put them in jail. Remove them from the policing authority. Fine them. A whole host of punishments are out there to deal with a cop that does something wrong. We should not be hiding truthful evidence of guilt in order for the guilty to go free. We should not do that to allow cops to go free and we should not do that to allow a civilian to go free.

How can one expect a jury (or a judge in a bench trial) to come to any kind of informed decision when they are clearly disallowed all known information? I pose that all available truth should be presented to the jury in order that they make the best decision that anyone can possibly expect them to make.

Example: Some claim the Invasion to remove Saddam was unlawful. Should all evidence against him be hidden away like it never existed? All the translations of captured documents be ignored? Surely noone will agree that they should be.

If cops know they are done being a cop if they search unreasonably then they will not do so. Simply hiding evidence in one case will not disallow them from continuing to be a cop in other cases.

Our law may have worked in the past but today it only works to see the guilty go free and we should adjust it so that stops happening.

The law doesn't have to be this way. The Constitution doesn't require that evidence be tossed if there is a Fourth Amendment violation. I think the reason that's the remedy in most instances is that they want to discourage police from violating constitutional rights, but they don't want to discourage them from doing their jobs. If police were facing jail time or being fired for a bad search, they're going to be far more timid in performing their jobs. Having evidence tossed because an officer didn't follow the rules is an embarrassment to them, but not that big of a deal unless it happens all the time. Police officers tend to be well trained on 4th Amendment issues, but it's not all black and white. They're all going to make mistakes. There has to be some type of significant consequences for violating constitutional rights or police will do it anyway, but it can't be so hard on an officer that it will discourage him from doing his job because he's afraid he might mess up an end up in jail or end up without a paycheck to feed his family.

The good thing is that in real life evidence is rarely excluded. In real life probably one motion to suppress evidence is granted out of a hundred filed, and none are filed in most cases. We always hear about these cases where evidence is thrown out though. They make the news. Cases where the motions are denied rarely ever make the news unless it is a high profile case. Every once in a while there will be some murder or other serious case that gets thrown out because of a bad search. That's rare, but it is bad when it happens. But for dime a dozen drug cases like the one that is the subject of this article, they'll just nail those losers next time they catch them, and odds are there will be a next time. They'll be watched like hawks. Snitches will be sent to make buys from these guys. If this bust didn't scare them enough to make them quit what they were doing, they'll get their's in the end. It's not that big of a deal. Drug dealers are a dime a dozen. Convicting these two guys wouldn't have made a bit of difference in the availability of drugs.

I am a criminal defense attorney and I've probably filed hundreds of motions to suppress over the years. To cover our rear ends we pretty much have to do it whenever there is a possible suppression issue. Very few that I have filed have actually been granted, and in some cases where they have been granted there was still enough evidence for a conviction so the cases weren't tossed. To tell you the truth, I wouldn't exactly be elated to see one of these granted and a case dismissed in a case where my client was some kind of hardcore criminal who needed to be locked up for the safety of us all. So far that hasn't happened to me. Usually it's just happened in stupid little drug cases. I'm not bothered by those because the whole thing seems so pointless to me anyway. We lock people up left and right and it has no appreciable effect on the availability of drugs or the percentage of users. If a hardcore type gets off on a "technicality," he'll just get stuck harder the next time he gets caught. If basically good guy does something stupid and gets caught, the whole ordeal he goes through prior to getting his case dismissed might very well scare him straight.

I had one thrown out a few months ago, not on a motion to suppress, but because of a speedy trial violation. My client was actually a pretty nice guy who had just done something stupid. He was a nurse with a clean record who got mixed up in something with his career criminal uncle who had raised him most of his life. They got caught on the interstate transporting a few pounds of pot. I'm not sure what possessed this guy to do what he did, but he sure was in a world of hurt after he got caught. For almost two years he was anticipating having to go to prison. He was going to spend a couple of years in the pen and lose his nursing license, after being the only person in his family to get so far in school and actually make something out of himself. He was terrified, ashamed, and very angry with himself for being so stupid. The first thing he said when I told him his case was being dismissed was "Praise God!" He knew someone upstairs was looking out for him, and I honestly doubt he'll ever do anything like what he did again. Last I heard he was in night classes trying to move up from being an LPN to a registered nurse. Good for him. Good for us. Had he have gone to prison and lost his license he probably would have just ended up a career criminal like his uncle and his brothers. In the grand scheme of things, while his case being dismissed may seem like a failure of the system to some, society will probably benefit more from this guy getting off on a technicality than if he had have gone to prison.

Sometimes though it would be a pretty darned bad thing for someone to get off because a motion to suppress is granted. Every once in a while some sexual predator or serial murderer or something will get off and commit more horrible crimes. That rarely ever happens, but it's really bad when it does happen. Maybe a better remedy in cases like these where law enforcement don't follow the rules would be to do something like impose hefty fine on the law enforcement agency employing the offending officer(s), with the a small part of the fine going to the defendant whose rights were violated and the rest going to supplement budgets of local public defenders. I know our public defender office could sure use the money, and our local law enforcement tend to have pretty healthy amount of cash on hand most of the time from asset forfeitures. If the department was fined rather than the officer the officer wouldn't have such a disincentive to get out there and make arrests as he would if he was facing jail time or loss of his job or pay if he screwed up and violated some Constitutional right, but he'd still want to be careful because his superiors wouldn't put up with him causing them to have to pay to many fines out of their budgets.

The only problem with this is that if the fines aren't high enough police will just look at them as a cost of doing business and even break the rules on purpose sometimes knowing they'll get called on it if they want to get someone bad enough, but if the fines are too high they might cripple a law enforcement agency. Maybe the best thing to do is do like we do and say that if they want to use a piece of evidence they have to play by the rules when they obtain that evidence. Or, we could keep things like they are for most cases, but allow for hefty fines instead of suppression as a remedy in certain serious types of cases like murders or child molestations.