Posted on 02/15/2009 9:01:55 AM PST by zeugma
Earlier this month, the Supreme Court ruled that evidence gathered as a result of errors in a police database is admissible in court. Their narrow decision is wrong, and will only ensure that police databases remain error-filled in the future.
The specifics of the case are simple. A computer database said there was a felony arrest warrant pending for Bennie Herring when there actually wasn't. When the police came to arrest him, they searched his home and found illegal drugs and a gun. The Supreme Court was asked to rule whether the police had the right to arrest him for possessing those items, even though there was no legal basis for the search and arrest in the first place.
What's at issue here is the exclusionary rule, which basically says that unconstitutionally or illegally collected evidence is inadmissible in court. It might seem like a technicality, but excluding what is called "the fruit of the poisonous tree" is a security system designed to protect us all from police abuse.
We have a number of rules limiting what the police can do: rules governing arrest, search, interrogation, detention, prosecution, and so on. And one of the ways we ensure that the police follow these rules is by forbidding the police to receive any benefit from breaking them. In fact, we design the system so that the police actually harm their own interests by breaking them, because all evidence that stems from breaking the rules is inadmissible.
And that's what the exclusionary rule does. If the police search your home without a warrant and find drugs, they can't arrest you for possession. Since the police have better things to do than waste their time, they have an incentive to get a warrant.
The Herring case is more complicated, because the police thought they did have a warrant. The error was not a police error, but a database error. And, in fact, Judge Roberts wrote for the majority: "The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level."
Unfortunately, Roberts is wrong. Government databases are filled with errors. People often can't see data about themselves, and have no way to correct the errors if they do learn of any. And more and more databases are trying to exempt themselves from the Privacy Act of 1974, and specifically the provisions that require data accuracy. The legal argument for excluding this evidence was best made by an amicus curiae brief filed by the Electronic Privacy Information Center, but in short, the court should exclude the evidence because it's the only way to ensure police database accuracy.
We are protected from becoming a police state by limits on police power and authority. This is not a trade-off we make lightly: we deliberately hamper law enforcement's ability to do its job because we recognize that these limits make us safer. Without the exclusionary rule, your only remedy against an illegal search is to bring legal action against the police -- and that can be very difficult. We, the people, would rather have you go free than motivate the police to ignore the rules that limit their power.
By not applying the exclusionary rule in the Herring case, the Supreme Court missed an important opportunity to motivate the police to purge errors from their databases. Constitutional lawyers have written many articles about this ruling, but the most interesting idea comes from George Washington University professor Daniel J. Solove, who proposes this compromise: "If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors."
Increasingly, we are being judged by the trail of data we leave behind us. Increasingly, data accuracy is vital to our personal safety and security. And if errors made by police databases aren't held to the same legal standard as errors made by policemen, then more and more innocent Americans will find themselves the victims of incorrect data.
http://www.nytimes.com/2009/01/15/washington/...
http://www.supremecourtus.gov/opinions/08pdf/07-513.pdf
http://epic.org/privacy/herring
Government database errors:
http://www.usdoj.gov/oig/reports/INS/e9708/index.htm
http://www.usdoj.gov/oig/reports/INS/e0206/index.htm
http://www.usdoj.gov/oig/reports/INS/e0301/final.pdf
http://www.gao.gov/new.items/d05813.pdf
http://www.usdoj.gov/oig/reports/FBI/a0527/final.pdf
http://www.ssa.gov/oig/ADOBEPDF/A-08-06-26100.pdf
EPIC amicus curiae brief:
http://epic.org/privacy/herring/07-513tsac_epic.pdf
Other commentary on this ruling:
http://www.concurringopinions.com/archives/2009/01/...
http://www.scotusblog.com/wp/...
http://volokh.com/posts/1231961926.shtml
http://alicublog.blogspot.com/2009/01/...
Me on our trail of data:
http://www.schneier.com/essay-219.html
More on the assault on the exclusionary rule.
http://www.nytimes.com/2009/01/31/washington/...
Here's another recent court case involving the exclusionary rule, and a thoughtful analysis by Orin Kerr.
http://www.ajc.com/services/content/metro/dekalb/...
http://volokh.com/posts/1233720663.shtml
This essay originally appeared on the Wall Street Journal website:
http://online.wsj.com/article/SB123301316511017419.html
What Roberts knew, and your funny little friend didn't, is that the public record was a JUDICIAL RECORD, and even if such records are wrong, they are right.
If those records had been simply "government", meaning Executive Branch records, the judges would have viewed them differently. Since they are the Judiciary's own records, your comments are worthless.
Of course, judges can't make mistakes. At least in the eyes of other judges. That would disrupt our whole system of so called justice.
Yup. I wound up on a government database a few years ago, and as a result got pulled aside every time I entered the country. Never did find out much because about the third or fourth entry I was finally removed from the database by a trio of immigration officers (it took all three), but I did learn that the fellow they sought had a similar name and the same birthdate. Clearly I didn't look at all like him, though.
I'm just glad that hassle is over.
The decision is that the courts continue to want the police to believe that when they see an arrest warrant outstanding that there is, in fact, an arrest warrant outstanding.
To have the police question every listed arrest warrant they come across in the course of their work would lead to rather chaotic conditions in the courts ~ in fact, all those inquiries would probably collapse the courts and leave the judges in the position of contantly answering police questions rather than sending marijuana users to jail eh.
I know you guys who worry incessantly about having your stash discovered would just as soon do without courts, but the rest of us disagree.
The problems I see here are related to the scope of the warrant. That is, warrants are supposed to be written defining the nature of the search. There should be no example of a “search until you find something illegal” warrant.
While this is not directly related to this particular warrant, it devolves from previously bad court decisions that permitted more blanket-type warrants.
Until that time, for example, if a warrant was issued based on probable cause that someone had stolen a horse, the police could enter a house looking for a horse, or horse theft related evidence. If they found something else clearly illegal, like marijuana or a sawed off shotgun, they could confiscate it, but not arrest for it.
So that being said, if the warrant specified that guns and drugs were suspected, then it should be valid if either of those things are found, even if the basic document is in error. However, if they were not specified, they should only be confiscated.
The issue isn’t whether or not the police believe the courts, but whether or not the government (which includes the courts) has any incentive to maintain accurate records, or has any incentive to attempt to “game the system” by exploiting any loopholes in the rules designed to protectt the rights of individuals.
The only protection the police need from inaccurate court records is immunity from any prosecution or other punishment when they rely on official court documents. As long as they have that, the arguments in favor of the Exclusionary Rule, if they’re valid at all, by logical necessity apply with full force to all branches of government.
the public record was a JUDICIAL RECORD, and even if such records are wrong, they are right.
This makes no sense whatsoever.
If those records had been simply "government", meaning Executive Branch records, the judges would have viewed them differently. Since they are the Judiciary's own records, your comments are worthless.
Neither does this. We don't have separate governments. The executive, judicial, and legislative are three branches of the same government.
I've looked a bit and have yet to find any repercussions for the folks who are charged with maintaining the database in question. Apparently, no one in government cares if the data they depend upon is accurate or not, because no one pays a penalty if it is not, especially in light of this ruling.
Lord Ancton was wrong, it is not power that corrupts, it is power without accountability that corrupts. We, the people grant tremendous power to government, but it must be tempered with accountability, or there are no restraints upon it.
With this ruling, there is zero incentive to anyone to make sure the data in their databases is accurate, because now there are no repercussions for faulty data.There must be a price to pay for innacurate information, or it will only become more common because there is no incentive to fixing it.
The concept of the "the fruit of the poisonous tree" has a long history in this country, and it is being whittled away by the courts because we can't seem to be bothered with maintaining even the slightest safeguards for our liberty, especially in the name of the war on drugs.
So, figure out how to penalize the courts.
Easy. Exclude any evidence obtained via 'poisoned fruit'.
That only harms the people, not the courts. Certainly you have some imagination in this ~ like maybe take a judge out and skin him alive or something.
I thought this had to be accomplished without a visit to Home Depot.
Surely the courts have some interest in Justice. The idea behind the founding of this country is that of a social compact and a limited government of specified and carefully deliniated powers . That is why we have checks and balances at every level of government, and checks and balances against co-equal levels of government as well. You people who cheer on the establish of an ever greater police state have no concept whatsoever of the consequences of your desire for absolute and unfettered control over the lives of the citizens of this country.
We delegate police powers to the state, with limitations on that power. Part of those limitations are specified in the 1st ten amendments to the Constitution, commonly and mistakenly referred to as the Bill of Rights. Actually, if you look at the list, it is actually a Bill of Limitations on the power of government.
Such concepts as the "poisoned fruit" mentioned previously is a part of those limitations that has evolved over time by people thankfully more aware of what freedom is, than you or your ilk. Disallowing evidence because the government acted in an illegal or unjust manner in obtaining it does not harm people. It protects them. This is obviously a concept at odds with your desire for a more powerful state unrestrained by such legal niceties. The chains of the Constitution and evolved Common Law are barely adequate to restrain the leviathan that government in this country has become, yet you cheer it on every time it breaks another link.
Note that you are the one suggesting that judges be skinned alive. That seems to me to be a strange remedy for a situation where the error was on the part of some clerk who entered wrong data into a computer system, or failed to delete it when it became stale and inacurate. I believe my solution of having the government pay for its error is apropos to the situation, though I'd probably also hit them with monetary penalties to be deducted from their budget and paid to those harmed by their apparent disregard of the importance of not swearing falsely against a citizen, which is essentially the result of their bad data in this case.
You might want to take some time away from Free Republic and examine John Locke'sSecond Treatise of Government, as well as Frederic Bastiat's The Law. Perhaps then a study of the writings of the enlightened fellows who founded this nation would bring you to a better understanding of the difference between freedom, and a police state.
Let's say the records show there's an outstanding felony warrant on a guy so you go pick him up. Later, it's shown there's no warrant ~ just an error of some kind ~ maybe an "old warrent" that was served but they didn't clear the record.
So, to "fix" the problem ~ failure of the trial court judge to direct the clerk of the court to report to the police that the warrant had been served, executed and the perp was in the custody of the court ~ the police are directed to inquire of the courts (in the aggregate) "Hey, any of you guys processed this guy yet?".
That would be for every single warrant.
I doubt there'd be any time left to hold court ~ just answer those police inquiries.
I know the dopers don't care ~ they'd just as soon there was no law and order. Of course that would lead instantly to the development of an ad hoc "police state", but they don't care.
The solution here is to let events process themselves as they normally do.
Sorry, I fail to see the burden on the system. If the government is going to attempt to enforce millions of laws, the system is going to be under stress. That's where modern technology can assist. In this case, they determined after they'd arrested him that the warrant was invalid. At that point he should have been released. The continued prosecution of him after they'd discovered that the warrant was invalid is where the problem lies in this case (that's not even considering the insanity of our drug laws).
It seems to me that the system wants it both ways. They want to claim we're a nation of laws, yet when they run afoul of them, they say "hey, no harm!" Arresting someone without a valid warrant or probable cause is false imprisonment. The problem is, with this latest ruling, they now have zero incentive for making sure they have accurate records. The exclusionary rule is a stick to that is there because we know that unchecked power will be abused. It would seem the supreme court has decided that avoiding inconvieniencing police is a higher priority than our protections under law.
That is where our main disagreement is here. History bears out the fact that power unrestrained is power abused. We have to have some kind of leverage to work against the tendency of power to expand. I'm willing to let some criminals walk in order that we might all be more free.
I’m very interested in not letting the druggies take over our system as they have so many others.
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