Kalish: The Exclusionary Rule

Jul 15, 2016

In June, the Supreme Court decided Utah v. Strieff, a case that questioned whether evidence found after an unconstitutional search could still be admitted in court. The case briefly made news, due to a powerful dissent from Justice Sotomayor, but then dropped off the radar as the Court released its affirmative action and abortion decisions.

But, as communities across the country are discussing the tension between law enforcement and communities of color, it’s important to understand the Strieff decision and its implications for policing – even here in Vermont.

The case involved the “exclusionary rule,” which, simply put, says that if evidence in a criminal case is gained from an unconstitutional search, it can’t be used in court. The doctrine developed in the ‘60s in response to unconstitutional police behavior. The idea was to take away the incentive to violate people’s rights. As Justice Sotomayor said, “[w]hen courts admit only lawfully obtained evidence, they encourage ‘those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.’”

But there are some exceptions and that’s what this case was about. Police stopped Strieff unconstitutionally, but the Court said the evidence became admissible when the officers found an outstanding warrant for a traffic violation. The problem is, Justice Sotomayor noted, that “[t]he States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority appear to be for minor offenses.” So the odds of finding an outstanding warrant for something aren’t that bad. And if finding one lets you bypass an unconstitutional search or seizure... well, there’s that incentive to violate people’s rights again.

In short, the Court’s ruling in Strieff couldn’t be more ill-timed.

Bennington police were just sued by a Brooklyn man whose drug conviction was overturned due to an unconstitutional stop based on racial profiling.

Rutland recently paid $975,000 to settle a discrimination lawsuit filed by a former officer which included, among other things, egregious acts of racial profiling. And the Grand Isle Sheriff’s department just paid $30,000 to settle another discrimination case.

The good news is that the Vermont Criminal Justice Training Council just passed a new policy on fair and unbiased policing, which will become a standard throughout the state. But, in an atmosphere already fraught with racial tension, we need to work together as a nation to better understand implicit bias and stop racial profiling, not create new legal exceptions that make it more tempting.