By Mark David Blum, Esq.

Sometimes I just hate my job. In the span of a week, I had to tell one client that either he went to trial or volunteered to go to state prison for five years. I had to tell another client that the District Attorney wants to break up their family with three children for five years; actually force a living happily ever after couple that they can have no contact for five years. I also had to tell yet another client that he is looking at the very real prospect of going to prison for 21 years.

Nobody likes to be the bearer of bad news. Sometimes the news I must share can be downright ugly. Yet it is my duty and obligation to convey the information and be honest about prospects and the situational downside. A client must have all the information to make an informed consent on substantive issues.

Then I read in the news about a case (Herring v. United States) decided 5-4 by the United States Supreme Court which purportedly stripped away the exclusionary rule as a remedy for bad police searches. If true, I shared the fears best expressed in the New York Times about the risk to the rights of citizens to be free from unreasonable searches and seizures.

Chief Justice Roberts writing for the majority framed the issue thusly: “The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.”

Back in 1961, in the case of Mapp v. Ohio, the United States Supreme Court created the so-called exclusionary rule. By rationale and operation and in sum, the rule is that the only way to prevent illegal searches or seizures was to take away the incentive; namely to deprive prosecutors of a reward for the wrongful actions of police. It was a means by which the Courts held the Executive Branch in check for violating the rights of American citizens. If the evidence seized is shown to be by an illegal search, it cannot be used against the defendant. Over the years, a myriad of exceptions were created to the original Mapp rule as the philosophy of the Supreme Court shifted from the Warren Court through the Rehnquist Court to the Roberts Court.. But as a rule, the exclusionary rule allegedly still thrives.

On January 14, 2009, the Court said even though the search was illegal, the evidence should not be excluded from trial. On its’ face the Court seems to have made a seismic shift from defacto and automatic suppression to some other standard that recognizes that under certain circumstances, illegally obtained evidence can be used against a defendant.

I am not convinced that the Court really went as far askew as do its’ detractors. At law there is what is known as the fellow officer rule, which gives a shield of some immunity to an officer who relies on information given him by another officer; even if the first officer was in the wrong. We cannot fault an officer for relying on what he can reasonably believe is valid information for acting thereon. In the facts before the Court, we would shield the officer for making the arrest because of the fellow officer rule. If we then see the matter as being a justifiable arrest, then the search that was incident to the arrest goes along with the justified arrest. Police are, within reason, allowed to search a suspect without warrant upon arrest. Overall I find the Court’s analysis to not have strayed too far from the norm other than they seem to want to start using a balancing test; the innocence of the officer balanced against the threat to society and then decide whether to admit. By implication, the dirtier the search the more likelihood of suppression but it is not required. If read narrowly, then only when the officer’s action is innocent is there no automatic exclusion. Applied broadly, the door may be open for a great balancing act.

I am not sure how I feel about the decision. The exclusionary rule is the only safeguard in place to take away the incentive for police to cross the line. Without it, some argue, police are more likely to tell the truth. Many argue that the rule itself causes more police to lie to cover up mistakes in their searches. To me, anything that keeps police as honest reporters of the facts, no matter where they lead, is primary. The Supreme Court did not leave me completely without protection or remedy. The Justices just said that when the illegal search was entirely innocent, that automatic suppression is not always the appropriate remedy.

Bloviating about the destructive power of Herring v. U.S. is however the wrong approach to the case. As a defense attorney, I feel confident that the Courts still recognize the exclusionary rule as a viable tool to take action against wrongdoers. There was no reason for the media to jump out there crying “fire” and forcing me to take notice.

So the whole week has been professional chaos. Make no mistake, however … I love what I do. In many ways I consider it to be the Lord’s work. There are very few things in life you can do standing up that are more enjoyable than litigation. In fact I got a rare treat recently being retained at the 11th hour to pinch hit in a criminal case far away from here. It has all the joys of litigation with little of the headaches and delays. Get dressed Mark, you are going to battle. If they could all be this way, I would be a happy man. Alas, but there are those who will continue to grind out the paperwork and try to keep me from destiny.

So while at times I hate what I do, I still find greater joy and take greater peace in doing what I do than in not doing it at all. Somebody has to stand that wall and keep the State honest. Herring v. U.S. is but one reason.