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Reasonable Suspicion and the Exclusionary Rule:
I very much enjoyed reading Craig Lerner's new paper, Reasonable Suspicion and Mere Hunches, linked to earlier today by co-blogger Todd, but I think it overlooks the critical reason why courts have required objective, articulable facts to conduct a Terry stop. As I read Craig's paper, he argues that the requirement of ex ante articulable facts should be dropped, and replaced with an ex post examination of whether the officer's conduct was reasonable based on the entirety of the circumstances. The entirety of the circumstances should factor in whether the officer's behavior was effective in identifying criminal conduct: Specifically, if the police are acting on hunches but catching lots of bad guys, the courts should let them act on hunches.

  The problem with this argument, I think, is that courts regulate Terry stops almost exclusively through the exclusionary rule. This results in a selection bias problem: Of all the Terry stops that the police conduct, the ones that appear in appellate opinions are the the subset in which the stop led to an arrest and conviction. These are the cases in which the suspect was guilty, and the officer was right. Civil cases alleging improper Terry stops are theoretically possible, but almost never brought: qualified immunity makes such cases very hard to win, and damages usually are very low. (Lerner alludes to the possibility of a selection bias on page 72, but only in the course of cautioning the reader as to why we can't conclusively say that officer hunches are almost always right based on a reading of published cases.)

  My sense is that the current law of Terry stops can be explained in large part as a response to this selection bias. Judges require objective evidence rather than "mere hunches" because they realize that they only see the cases in which "mere hunches" proved correct. It's hard to craft a rule on that basis: If you as a judge or Justice only see the subset of successful stops, then you'll have no idea how to apply the law to permit stops that have a high likelihood of success but prohibit stops that have a low likelihood of success. The judges don't get to see any empirical evidence of the unsuccessful stops, as those cases don't normally lead to litigation. This context makes it quite hard for judges to perform the kind of ex post reasonableness analysis that Lerner seeks, and I think may explain why current law sticks to the requirement of objective and articulable facts ex ante. It's not an ideal solution, but it's probably better than the realistic alternatives.

  That's my tentative reaction, at least. I just skimmed the piece, so it's quite possible that I'm missing something important. And as Todd says, it's a very thought-provoking paper.

  UDPATE: I wonder what Justice Lammers thinks of Lerner's proposal.

Related Posts (on one page):

  1. Reasonable Suspicion and the Exclusionary Rule:
  2. Reasonable Suspicion and Mere Hunches:
Bruce Wilder (www):
The exclusionary rule would not be necessary, if the police were otherwise subject to effective restraint and regulation, if their violations of law were regularly and assuredly punished. Evidence obtained illegally could be cleansed by the blood of the offending officer, so to speak.

But, we regard giving effective immunity to police officers more important. The formal rules give a lot of immunity to officers, and the informal rules, even more. Local prosecutors are notoriously reluctant to prosecute police officers. The videotape exception may result in a prosecution, but even notoriety does not result in any assurance of conviction. Only the civil cases with astonishing damage involved make it thru the courts.

In these circumstances, fighting to weaken the exclusionary rule becomes part of an authoritarian political program.
10.12.2005 1:15pm
Nunzio (mail):
I think it all comes down to what kind of inference can you make on a few set of facts and should people with experience in a certain area (here the cops) be given some deference as to their inference.

This "hunch" or intuition is nothing more than an inference. But it's hard for most people to articulate why they believe what they believe b/c we don't really separate observable facts from inferences.

I always like the scene from Men in Black where Will Smith is taking the Hogan's Alley training test and he shoots the little girl. His superior asks him why he did this and he says:

"I'm thinking, y'know, eight-year-old white girl, middle of the ghetto, bunch of monsters, this time of night with quantum physics books? She about to start some shit, Zed. She's about eight years old, those books are WAY too advanced for her. If you ask me, I'd say she's up to something. And to be honest, I'd appreciate it if you eased up off my back about it."
10.12.2005 1:44pm
BruceM (mail) (www):
It's just a matter of time before the law is changed ($5 says John G. Roberts writes the 6-3 majority opinion doing so) to replace the ex ante articulable facts requirement for Terry stops with a post hoc "totality of the circumstances" test. Just like with probable cause, cops will always get on the stand and testify that "based on my training and experience, I knew so and so" so it will always seem that the totality of the circumstances justified the stop. And of course, if there were drugs found, then the cop was right (this logic becomes more pervasive in our society every day).

What's amazing is that it will be the "originalist" who will be supporting this great expansion of the terry stop, a search and seizure without probable cause. I'd love for any one of them to point out to me where the phrase "reasonable suspicion" is in the Constitution. Terry v. Ohio is the single most disingenuous, result-oriented piece of judicial activism I've ever read, basically saying "yes this is a search and seizure, but the cops really need to do it for their safety and to advance law enforcement, and it's such a minimal intrusion into our rights... come on, just let them do it, it's okay." That's Terry... I don't know what judicial activism is, but admitting in an opinion that you're violating the constitution and allowing it to happen because the violation is really useful and somewhat de minimus... well that's certainly judicial activism. And creating a constitutional standard (reasonable suspicion) not found in the constitution.

What a crock.
10.12.2005 1:57pm
James Earl (mail):
Another logical problem with this basis: it is very easy to conceive of a rule whereby you would increase the probability that the people you stopped would be criminals, but that would infringe unreasonably on those who fit the terms of your rule but are not themselves criminals. For example, stopping only males between 18 and 30 in inner cities who are standing at street corners would statistically probably result in a relatively high percentage of legitimate arrests. However, this would essentially criminalize what is an intrinsically n non-criminal behavior - it seems unfair on its face to burden people with a stop if there is no basis for the assumption of suspicion.
10.12.2005 2:11pm
42USC1983 (mail):
When I read the book *Blink* I thought: "I know where this is going." Sure enough, there's already a paper on intuition in Terry stops. Of course, as Blink noted, some hunches are unreliable since they're formed by certain irrational prejudices. If a white person has a "hunch" that the black guy on the corner has a gun, is it really some sort of special knowledge, or just a white person's bigoted response to a black person?

Or, as Ken Lammers likes to note, Virginia police officers have "hunches" when they see three Hispanic males driving at night. Is there really a "hunch," or does a VA cop just assume that three Hispanic males must be up to no good? Do bunches (of minorities) lead to hunches?

Oh, and Nunzio, what you cite isn't an example of a hunch. It's an example of specific articulable facts (8-year-old girl, in ghetto, with monsters and quantum physics book) and inferences (8-year-old white girls don't go to the ghetto, and they don't hang out with monsters, and they don't read quantum physics books, therefore something is up) that would give rise to reasonable suspicion. A hunch is different. With a hunch, you don't have any articulable facts. You see something, and though you can't explain why, you just "know" something is amiss.
10.12.2005 2:11pm
JayJ:
A quick thought:

A lot of this comes down to the art of constructing a compelling narrative. For a Terry stop to be upheld, objective details ex ante must be provided to create a convincing rationale. Lerner notes in the abstract, "the legal system in practice simply rewards those officers who are able and willing to spin their behavior in a way that satisfies judges, while it penalizes those officers who are less verbally facile or who are transparent about their motivations." Is that really such a bad thing looked at normatively? To articulate an effective rationale requires paying attention to objective facts, thus substantiating "hunches." If Terry stops encourage police officers to be more adept at paying attention to details that enable the articulation of compelling narratives, isn't that in and of itself a good thing?
10.12.2005 2:27pm
Nunzio (mail):
It doesn't seem so hard to train police to articulate their hunches, especially given that many people believe they just make up acceptable "articulable facts" after the search.

The problem is we don't seem to think this way. We don't observe events linearly and then decide to make inferences. We just do it. Also, people don't tend to articulate things by breaking them down. We say someone looks suspicious or looks like they're lying. We don't really analyze it in micro-detail like Henry James.
10.12.2005 2:36pm
Justin (mail):
Nunzo, if we broke down our thought processes and our biases, we'd have to face an ugly reality of the human condition.
10.12.2005 2:56pm
GMUSL 1L (mail):
My Contracts prof. last year wouldn't stop talking about Chick Sexers.

There's no way to know how they do it, just some sort of internal hunch that's right the overwhelming majority of the time. Inarticulable, yet it works.
10.12.2005 3:03pm
carpundit (www):
Recommended related post I wrote last year (and, hey, it references Orin Kerr and Ken Lammers):

On gut feelings in policing.
10.12.2005 3:29pm
Aultimer:

These are the cases in which the suspect was guilty, and the officer was right.

The selection bias is even worse I think - Terry stop cases aren't limited to situations where the officer's reasonable suspicion was CORRECT, but to where the subject was in possession of contraband/evidence without regard to the relationship of the contraband/evidence to the crime under investigation. If you believe LEO's acutally act on hunch and later create reasonable suspicion, the selection bias would create the impression that LEO's are infallible.
10.12.2005 3:50pm
Chris24601 (mail):
"The problem with this argument, I think, is that courts regulate Terry stops almost exclusively through the exclusionary rule." I'd say that's the problem with our 4A jurisprudence in general, no? Benefits for the guilty, but none for the innocent.
10.12.2005 5:04pm
logicnazi (mail) (www):
So it seems at least plausible that one could both validate the use of intuition and hunches by LEO while not running afoul of the selection bias problem. Require some kind of record to be filled out right before a Terry stop is going to be performed and throw out any evidence which isn't accompanied by such a form. I think with some clever computer time stamping one could make it pretty tough for the police to retroactively create such a record after finding something or at least make this too hard to conduct on a regular basis.

In this way one could circumvent the selection bias problem. However, even with this done it is unclear what sort of reasonable standard could be applied. Apart from the percent of Terry stops which do lead to an arrest what coud be evidence that the officer was acting reasonably to prevent criminal behavior? If an officer is shown to be making incorrect hunches do we stop him from making any further Terry stops? Without after the fact articulatable reasons for the stop it seems pragmatically to difficult to implement any sort of rule.

Moreover, I think the society really does want more to justify a stop or search than a statistically effective hunch. Even if race is a valid statistical predictor of criminal behavior we don't want that used as a grounds for search. Unless we require after the fact articulatable justifications we can't prevent categories like race or gender from being used in the LEOs intuition. Even worse a statistical justification for hunches leaves the LEO free to use some small fraction of those hunches to get even or intimidate those he doesn't like (even more than now).
10.12.2005 5:21pm
Cold Warrior:
BruceM, you miss the point here.

Nunzio, you hit it.

Very often the facts are not "articulable." Rather, a kind of cop gestalt prevails.

The S.Ct. is heading in the right direction here, picking apart 9th Cir. border patrol stop decisions that enumerate each "articulated" factor independently and then find each one lacking.

As an attorney who has advised and worked with border officers, all I can say is this: years of experience in the job activate some kind of internal sensor when behavior reaches a certain threshhold level. I've watched a Guatemalan-born border inspector accurately separate Guatemalan border crossers from Mexicans (even those from southern Mexico) without hearing a single spoken word. I would not be able to do this; he can. He cannot describe how he does it; he just can. I've watched Puerto Rican born inspectors laugh at aliens claiming to be born in Puerto Rico. Sometimes it's a lack of knowledge about Puerto Rico, sometimes it's accent, but sometimes .... sometimes it's just that they are obviously not Puerto Rican, and he can't explain exactly how he knows this. Now, port of entry inspections are exempt from 4th Amendment requirements, but Border Patrol stops aren't. Yet the Border Patrol officers use exactly the same kind of "totality of the circumstances" thinking in deciding who to stop. Sometimes they're wrong. Occasionally certain officers slide into the abusive realm of raw profiling. But it's uncanny how often they're right.

And the law needs to recognize the "Blink" phenomenon rather than forcing officers into "articulating" facts that will always sound hollow and self-serving when taken out of context.
10.12.2005 5:42pm
Jimbeaux (mail):

I'd love for any one of them to point out to me where the phrase "reasonable suspicion" is in the Constitution.

I'm still waiting for someone to do that with "exclusionary rule."
10.12.2005 6:04pm
42USC1983 (mail):
I'd say that's the problem with our 4A jurisprudence in general, no? Benefits for the guilty, but none for the innocent.

Actually, the exclusionary rule, which deters unconstitutional conduct, makes it less likely the innocent will be searched or have their property seized. So it does help the innocent, by ensuring you'll be less likely to face police harassment.
10.12.2005 6:10pm
Justin (mail):
Shorter Jimbeaux: I'm not denying that Constitutional rights I don't like don't exist, I'm just denying that there's any remedy.

Shorter Cold Warrior: I can't tell a wise man by the color of his skin, but I'll trust anyone who says they can.
10.12.2005 6:12pm
Justin (mail):
durrr....delete 2nd don't in 1st sentence.
10.12.2005 6:13pm
Cold Warrior:

I'm still waiting for someone to do that with "exclusionary rule."

Correct.

And I'm not aware of any historical evidence that suggests a Terry-style stop was ever considered a "search" (much less a "seizure") by the drafters of the Bill of Rights or by the American public at the time the 4th Amendment was ratified.
10.12.2005 6:14pm
Houston Lawyer:
Didn't we one have a Supreme Court standard of "I know it when I see it"? Some things defy even educated people's ability to articulate in a satisfactory manner. Think about how we can all readily identify people with Downs Syndrome or how some people have more advanced "Gaydar" than others. I say let a jury decide whether an officer had reasonable grounds.
10.12.2005 6:18pm
LINO_watcher (mail) (www):
Crime has declined steadily for what - a decade or more now? Why do the police need an expansion of powers that could likely lead to increased harassment, misconduct, fishing expeditions, and intimidation?

Houston Lawyer-

Yeah - "gaydar" is real accurate. Here's what it boils down to much of the time: for gays, anyone that they wish were gay; for women, anyone that rejects them; for men, anyone that's a threat to them.

As far as Down's Syndrome is concerned: Yes, there are some individuals that readily appear retarded. But these kinds of superficial standards have been abused before. The scene from "Life is Beautiful" comes to mind - with the Nazis bringing the skulls around and coming up with all kinds of junk science rationalizations as to why the Jewish skulls were "primitive" or "inferior". (Funny that decades of subsequent IQ testing has shown that the group they targeted have some of the highest average scores of any ethnic group.)

Our system has the potential for serious abuses of selective enforcement. The higher we set the thresholds of enforcement selection, the more free our society will be.
10.12.2005 7:17pm
Jimbeaux (mail):
Justin: I'm not against a remedy -- I just don't think you can find one in the Constitution. And I have no problem with a Legislature designing a remedy (including an exclusionary rule). Texas has done just that (well, not recently - I think it's like over 100 years old), and although I may disagree with its existence, at least it's an honest exercise in true democracy, not judicial fiat.
10.12.2005 7:19pm
RTG:
"So it does help the innocent, by ensuring you'll be less likely to face police harassment."
Only if the goal of the police is to collect evidence and not simply harass or intimidate, in which case the innocent victim is, for all practical purposes, out of luck.
10.12.2005 7:27pm
Steven:

Yet the Border Patrol officers use exactly the same kind of "totality of the circumstances" thinking in deciding who to stop. Sometimes they're wrong. Occasionally certain officers slide into the abusive realm of raw profiling. But it's uncanny how often they're right.


This is exactly the point of Orin's argument. We're talking about a judicial rule regarding stops and searches by police officers. The only ones that get to court are the ones where the officer was right and the person was convicted. So the question is how does a court determine whether an officer had probable cause? The answer can't be that the person arrested was guilty so the officer had probable cause. If it is, then there is no regulation of stops at all.
10.12.2005 7:32pm
TL:
From JayJ's above:
If Terry stops encourage police officers to be more adept at paying attention to details that enable the articulation of compelling narratives, isn't that in and of itself a good thing?

Good point. Ever been called on in Contracts to articulate why the sale of the home should not include the removal of the ice house under the Parol Evidence Rule? Try articulating a reasonable answer when you haven't read the case.

Perhaps the most cunning LEO's can do it. Perhaps in easy cases they can. But I do think the threat of being on the stand and having no leg on which to stand deters some of the shenanigans under the present standard.
10.12.2005 7:55pm
Justin (mail):
So Jim, what you're saying, is that if Congress arrests you for speaking in public, the Judiciary can admit that you were charged due to unconstitutional activity, but because the 1st amendment does not have a remedy, can still convict you for, say, obstruction of justice or treason, because the Constitution lacks a remedy?

Is the Constitution, which NEVER lists a remedy, enforceable at all? It seems to me what you are arguing is simply that Marbury v Madison had it wrong.
10.12.2005 9:32pm
ScottB:
I am an undercover police officer in a major city. My job is to find gang members with guns and arrest them. After about 200 guns arrests, I can tell you that my opinion is that, at least for me, there is no such thing as acting on a "hunch." There is only a failure to articulate specific, albeit subtle, facts that lead a police officer to the conclusion that he should detain someone.

Unlike most of my co-workers, I studied an academic subject in college (math and physics) and I'm confortable writing and explaining myself. This is not a skill that all police officers have. I had one gun arrest in which I spent a page and a half in the police report, single spaced, typed, explaining all the facts which justified a Terry search. The rest of the report was several more pages. Most police officers aren't going to do this, and many aren't capable of doing it very well.

Lawyers and judges, on the other hand, have been trained in this exact skill, and may forget that not everyone has been through hours of law school lectures or exposure to the Socratic method.

I have also read police reports in which the officer failed to justify the Terry stop on paper, but talking to the officer later and getting the full story, found that a Terry stop was justified. Obviously I hate it when a guilty guy goes free, but I really can't complain too much if the police officer fails to articulate himself. I would not trust someone who could not explain why he took certain actions. Providing that explanation is a basic function of my job. Otherwise, there is no real accountability.
10.13.2005 2:58am
Pete Guither (mail) (www):
I didn't find the paper very well reasoned or written. When he talks about McFadden he goes out of his way to note that without McFadden's hunch, the case wouldn't have happened, as if this proves that hunches should be the standard. And yet, McFadden's hunch merely caused him to watch the men closer -- it was AFTER he followed them and noted many specific things that the Terry search occurred. Lerner mixes up the notion of using hunches as a reason to be alert with needing more than a hunch to have reason to stop someone.

I was bothered by the tone in the abstract. The end essentially argued that the current system simply requires all police to lie (and claim something other than a hunch) in order to get convictions. That's offensive.

Also, the notion of comparing a doctor's use of hunches in treating patients with a policeman's use of hunches in stopping people is silly. A doctor may have a hunch as to why you hurt and then order tests to verify for the possibilities. But you have gone to the doctor for this specific service -- they are not going up to people on the street and forcing tests on them. Naturally there should be a higher standard for police.

Lerner is also openly hostile in multiple places to the judgment of judges and wants us to believe that police will effectively police themselves. He doesn't worry about whether individual officers are abusing their use of "hunch," and seems to think we shouldn't either.

There are moments of adequacy in this paper, but there's way too much wrong with it to give it much more than a glance.
10.13.2005 3:52am
David Berke:
Cold Warrior,

I saw that you said: "I'm not aware of any historical evidence that suggests a Terry-style stop was ever considered a "search" (much less a "seizure") by the drafters of the Bill of Rights or by the American public at the time the 4th Amendment was ratified."

The Fourth Amendment speaks of searches and seizures. A Terry stop has elements of both. The burden is accordingly on those who wish to demonstrate that it is not a search or seizure.
10.13.2005 4:06am
Simon Spero (mail):
I think Orin nails the key problem (selection bias) in his original message. There's selection bias inherent in the general lack of incentives to report unsuccessful terryfications.
What if, if when officers were wrong, they were required to issue , tickets to the subjects entitling them to a small fixed amount of compensation from the department? I can see how that system might be gamed (e.g. delibarately trying to look suspicious when innocent/ trying to look like you're trying to look suspicious when you're guilty), but I think this is managable.

This is so obvious that I expect it's been tried somewhere; what was the perverse incentive I missed?
10.13.2005 10:06am
Bruce Hayden (mail) (www):
Simon Spero

One problem with your suggestion I think is that the cost to different people is quite different. For example, if you offered $25 for each stop that didn't result in anything, it would be great for the unemployed guy. And, indeed, he might start acting suspicious just to get stopped. But for Bill Gates, it wouldn't be worth his while to cash the check.

Maybe though a nonconstant, maybe even nonlinear reward. For example, 1/10,000 (1%%) of you net worth with a floor of $20. Well, $10, because we don't want the domestically challenged to be able to drink off of it every night. And I might increase the percentage at the bottom end to 1/1,000 (10%% or 0.1%) if for no other reason than the police are more likely to pull over someone on the bottom than the top of the income hierarchy. And, it has to be income reported to the IRS.

Well, actually not. I am thinking here of drug lords, some of whom make huge amounts of money tax free. If this were reported to the IRS with an indication of what it was for, then they will either underclaim or open themselves to audit.
10.13.2005 10:49am
Cold Warrior:
David Berke says:

The Fourth Amendment speaks of searches and seizures. A Terry stop has elements of both. The burden is accordingly on those who wish to demonstrate that it is not a search or seizure.

Evidence that the drafters and/or the ratifiers ever conceived of a Terry-type stop as a "seizure?"
10.13.2005 11:10am
Cold Warrior:
Steven said:

This is exactly the point of Orin's argument. We're talking about a judicial rule regarding stops and searches by police officers. The only ones that get to court are the ones where the officer was right and the person was convicted. So the question is how does a court determine whether an officer had probable cause? The answer can't be that the person arrested was guilty so the officer had probable cause. If it is, then there is no regulation of stops at all.

You are correct: this is Orin's point.

But it shows a complete failure of imagination to say that because only those "officer was right in retrospect" reach the court we have no way of knowing how often the officer was "wrong in retrospect."

We can, and do:

-- Put the officer under oath and ask him: how long have you been doing this? In the Border Patrol example: what percentage of your roving patrol stops result in finding illegal immigrants?

-- Put the officer's supervisor on the stand and ask him: any prior complaints? Any record of discipline? Any formal review procedure? Are officers rewarded for stops that result in drug busts but not disciplined for an unusual number of stops that don't result in busts?

In other words, we'll figure out these facts the in ordinary manner. But, you say, the officers may lie under oath? Well, so might the defendants.

At any rate, it is incorrect to say that the court only becomes aware of successful Terry stops. If the officer answers truthfully -- e.g., that about a third of his stops result in busts -- then the court is aware of both sides of the equation.
10.13.2005 11:57am
Jimbeaux (mail):
Justin: Although I know some persons (even today) can reasonably criticize Marbury, I personally don't feel like fighting that battle (much as I see no real need to refight the exclusionary rule battle -- I mean Weeks came out in, what, 1914?).

Having said that, I think there is a difference between trying to fashion a remedy for police misconduct and defending someone from prosecution under a facially unconstitutional statute. The way it used to be done was to challenge the indictment on the basis that it doesn't state a lawful offense -- essentially a jurisdictional claim. That's a legal remedy, not strictly a constitutional one. Similar to challenging an indictment because it contains an allegation that isn't actually a crime. In other words, the constitution may trump a legislature's attempt to criminalize certain conduct.
10.13.2005 12:30pm
Chris24601 (mail):
Me earlier:

I'd say that's the problem with our 4A jurisprudence in general, no? Benefits for the guilty, but none for the innocent.



42USC1983:

Actually, the exclusionary rule, which deters unconstitutional conduct, makes it less likely the innocent will be searched or have their property seized. So it does help the innocent, by ensuring you'll be less likely to face police harassment.


Fair enough. But the innocent people who are actually subject to unconstitutional searches have to meet the QI hurdle, which the guilty do not. That's always seemed backwards to me.
10.13.2005 1:36pm
David Berke:
Cold Warrior,

Objection, non-responsive.
10.13.2005 5:52pm
BruceM (mail) (www):
Jimbeaux, without the exclusionary rule the 4th amendment is absolutely meaningless. The only other alternative would be to punish police officers who violate a person's rights with the same punishment the person is given due to the introduction of the evidence the police officer illegally seized. So, if a police officer conducts an unreasonable search on D's house and tuns up a murder weapon, and D is convicted of murder and sentenced to death, the officer would be sentenced to death as well; his sentence is bound to the defendant's.

I'd have no problem with that. In fact, not only would it result in police officers respecting our rights far more than the exclusionary rule does, it would get corrupt cops off the streets and into prison where they belong. It might also cause the legislature to reduce sentences across the board to more reasonable, less cruel durations.

But without this option or the exclusionary rule we have, the 4th Amendment would mean nothing. Not that it has much meaning these days with the exclusionary rule as there are ten thousand exceptions to its application.
10.13.2005 7:58pm
Jimbeaux (mail):
Um. . . I thought I said earlier I had no interest in refighting the exclusionary rule war. I've made peace with it, and yes I understand the rationale behind it, and yes in many ways it makes sense. I only wanted to point out that it isn't constitutionally prescribed, and that a Legislature could enact such a rule if it wanted to (as happened in my state many years ago).

However, and let me be as polite as possible, what in the holy freakin' name of God are you talking about? The death penalty because an officer made a bad guess about whether a particular search was "unreasonable"? I mean, even without the exceptions you bemoan, I'm not sure any cop is THAT SURE about what's reasonable and what isn't so that he should risk his life. Unless your goal is to have zero law enforcement (because that would be the obvious effect -- no one would ever investigate crimes because of the decent odds that he would end up serving the same sentence as the defendant). Unless you were joking. But I certainly didn't get a sarcasm signal.


But without this option or the exclusionary rule we have, the 4th Amendment would mean nothing.


Oh, my. Since no other country (that would actually disapprove of police misconduct) has the wide-ranging exclusionary rule that the U.S. does, I'm not convinced by the breadth of your statement. Again, I'm not naive --the systems in countries like the United Kingdom, Japan, Canada, etc., aren't perfect. But there are costs and benefits to either having the rule or getting rid of it. I don't want to get rid of it (it keeps me employed), but I'm not gonna pretend that the exclusionary rule is the thin line that divides a happy land of green fields from a fascistic nightmare.
10.14.2005 2:28am
Byomtov (mail):
Cold Warrior,

You seem to think that these stops are OK as long as the individual officer maintains a certain batting average. Else what is the relevance of asking about percentages?

So you would allow some officers, but not others, to make them?
10.14.2005 1:13pm
BruceM (mail) (www):
I believe the framers had every intention of applying the exclusionary rule. A more direct way of saying it would be that the right to not have evidence taken in violation of your rights used against you is a right retained by the people. As we all know, just because a right is not enumerated does not mean it doesn't exist.

My proposal of tying an officer's fate to the fate of the criminal defendant his illegally-seized evidence is being used against was an example of the only viable alternative to the exclusionary rule.
10.14.2005 6:38pm
Jimbeaux (mail):

the right to not have evidence taken in violation of your rights used against you is a right retained by the people.

BWAHAHAHAHAH!
Why not? Just like that right to free beer and Mexican hookers that the dirty gummint keeps trying to deny me. Haven't they ever heard of the Tenth Amendment?

the only viable alternative to the exclusionary rule

Viable, hmm? Not arresting people or investigating crimes would probably work as well. Just a thought.
10.15.2005 4:27pm
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10.25.2005 7:13am