Wednesday, December 1, 2010

To suppress or not to suppress? Fourth Amendment takes center stage

By Professor Laurie Levenson

All of the cases before the U.S. Supreme Court are important, but for the 2010-2011 term, some criminal procedure cases are more important than others. The Fourth Amendment is the meat and potatoes for most criminal practitioners. This term presents two important cases regarding the exclusionary rule for Fourth Amendment violations.

The case of Davis v. United States, No. 09-11328, while addressing changes in the rules for searches incident to an arrest in an automobile, really focuses on where the Court may be headed with the exclusionary rule. Ever since Herring v. United States, 129 S.Ct. 695 (2009), many have speculated about whether the Leon good-faith exception to the exclusionary rule would expand to swallow the rule itself. Slowly but surely, the courts have created more good faith exceptions to the rule. The latest expansion of the good faith exception may come in Davis, where the United States argues that searches conducted before the Court's new ruling in Arizona v. Gant, _ U.S. _, 129 S.Ct. 1710 (2009), should not be suppressed because law enforcement was relying on prior Supreme Court precedent. (Supreme Court opinions are available online.)

Yet, while this is undoubtedly an important issue, there is more to watch in this case. In footnote 33 of the amicus brief recently filed by Wayne County, Mich., law enforcement is once again pushing to reduce all exclusionary rule decisions to a question of whether law enforcement's conduct was "deliberate, reckless, or grossly negligent." Law enforcement has not been shy in suggesting that the Court push this agenda. As they put it, "there is no time like the present." Davis could end up being a blockbuster case, depending upon how narrowly or broadly the Court applies the exclusionary rule. The Court may continue to chip away at the exclusionary rule, or bust it wide open once and for all, and let individual judges in each case balance whether the law enforcement officers in question could and needed to be deterred.

But, that is not all. The Supreme Court has yet another case waiting in the wings, Tolentino v. New York, No. 09-11556, that will examine the "fruit of the poisonous tree" doctrine under the exclusionary rule. Jose Tolentino was unlawfully stopped for playing music too loudly. Police learned his name, ran a DMV check, and discovered that his license had been suspended. He was then arrested for driving without a license. The New York court refused to suppress the evidence because it held that the exclusionary rule does not apply to a person's identity. The majority rejected the dissent's argument that refusing to apply the exclusionary rule will "give law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records."

There is a good chance this term that the Court will reshape the Fourth Amendment by expanding the good-faith exception and contracting the fruit-of-the-poisonous tree doctrine. At least for drivers confronted by law enforcement, the protections of the Fourth Amendment may soon be getting thinner and thinner.

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