The CCA, Judicial Activism, and Texas' Statutory Exclusionary Rule

One of my pet peeves with the Government-Always-Wins faction on the Texas Court of Criminal Appeals - which in this instance carried with it most of the rest of the court - arose in a recent ruling on the Fourth Amendment and Texas' statutory-based exclusionary rule: Bradley Ray McClintock vs. the State of Texas. To be clear, I am not a lawyer. But one needn't have earned a law degree to see that the GAW faction on the court clings to Texas statutes in the face of federal precedents whenever they're more likely to help the government, but then inexplicably grasps at federal justifications whenever they want to ignore the printed word of Texas statutes because they'd like this or that case to turn out differently (read: in favor of the government).

The ruling on Ex Parte Robbins - Texas' first-in-the-nation junk science writ - perhaps best exemplifies this trend toward using any means necessary to avoid relying on plain statutory language when the GAW faction thinks it will result in outcomes they don't like. But if you pay close attention, it happens all the time.

This outcome-oriented judging - the very definition of judicial activism - has plagued the court for years and was on full display this week. In the McClintock case, the CCA reviewed a lower appellate court ruling which held, relying on longstanding precedent, that evidence obtained without probable cause, even if a judge improperly issued a warrant, must be excluded. The CCA reversed the lower court, allowing evidence from the improper search to be used against the defendant.

Here's what you must know to fully grok this debate: Texas, in this area of the law as in much else, is different. At the federal level and in most states, the "exclusionary rule" - which allows evidence to be excluded if the state doesn't follow constitutional guidelines as articulated by the US Supreme Court - is a remedy created of, by and for judges in court rulings. It's modified by SCOTUS whenever they find it convenient, and mostly provides an excuse for federal judges to do whatever they want. Conservative critics of judicial activism have justifiably identified the federal exclusionary rule as an example of judges writing laws to empower themselves and the government instead of interpreting them to limit government power.

But in Texas, the Legislature enacted a statutory exclusionary rule in the 1920s which since then has withstood all manner of efforts to overturn it. Here, the exclusionary rule is not "judge-made law." It was written into statute by elected representatives and senators in plain language and baked into the DNA of the state's 20th century legal system.

This week, though, in McClintock, the Court of Criminal Appeals yielded state sovereignty on this question and diminished legislative authority in deference to federal judges' conception of the exclusionary rule, adding for Texas a new federal exception that has no basis in state law.

Alone in her dissent was Judge Elsa Alcala, apparently the last remaining judicial conservative on the court, if by that one means judges interpreting the words of the Legislature instead of casting about for justifications that support one's personal preferences for an outcome.

Alcala recognized that the lower court was correct in ruling that "the Texas good faith exception in Article 38.23(b) does not apply to this case." The majority opinion relied on a federal case (Davis) to apply a new, different, and more expansive definition of a good-faith exception than any Texas high court in nearly a hundred years has believed that our state statute allows.

The majority opinion (written by Judge Kevin Yeary, but joined by every other judge except David Newell, who did not participate) wondered instead whether the Legislature in 1925 might have meant by "probable cause" something "more than the common-place definition of the term," deciding that, in fact, the Lege had left sufficient leeway for the court to pretend it means whatever in Heaven's name they want it to mean in 2017. And he wanted to incorporate the broadened good-faith exception in Davis.

Alcala's complaint with Yeary and Co. was simple: "It is inappropriate to consider extra-textual sources to evaluate the meaning of the plain language in a statute that is not ambiguous." Bingo! That's certainly what the Government Always Wins faction would say if the textual argument swung their way. It's also what's been touted for five decades as the essence of conservative judicial philosophy, which the CCA majority has here abandoned.

The Court is supposed to go beyond the text of the statute for interpretation only when the language is ambiguous or would lead to absurd results, Judge Alcala observed. Citing to the Texas Constitution, she contended in contrast to the majority that, "Disallowing the results of searches of people's homes when there is no probable cause to support the search is not an absurd result, and, rather, it is the best way to ensure that people feel secure in their homes."

In the political realm, you hear conservatives complain bitterly about the federal, judge-made exclusionary rule. In some quarters, the issue has reached nearly Culture-War status. But at the Court of Criminal Appeals, the Government Always Wins faction loves the federal Exclusionary Rule, adopting every exception from it that they could remotely justify under Texas' more strict statutory language. The problem is, this most recent exception can't be squared with the text of the statute. You have to pretend that a case where the court already ruled probable cause did not exist can satisfy the requirements of a standard which mandates that it does. The black and white words on the page don't afford Texas state judges the wiggle room that federal judges have luxuriously allowed themselves.

Judge Alcala is fighting the good fight and at least demonstrating - if alone, and embattled - what it means for a state judge in Texas in the 21st century to retain a commitment to federalism, textualism, and to reject judicial activism. To her mind, "this Court has already held that there was no probable cause in this case under a correct application of the law in existence at the time of the search. In the absence of a warrant based on probable cause, the plain language of the statute precludes any consideration of whether the officer acted in good faith reliance on the warrant." It's that simple. But then you look at the outcome of the case, and obviously it is not.

Using similar methods under leadership of the Government Always Wins faction, the CCA over the years has muddied the waters surrounding Texas' statutory exclusionary rule to an enormous degree, allowing the ever-changing judge-created federal version to usurp our legislatively crafted one. Sadly, we just saw a 7-1 affirmation on the Court that this ignominious trend of judicial activism will continue forward into the future. And the only judge who seems committed to countering it has said she'll leave when her term ends in 2018.

Rick Perry, drones and an odd endorsement of the exclusionary rule

Regular readers are aware that Grits thought HB 912, known as Texas' "drone bill," contained too many practical flaws for me to support. But the bill did place significant restrictions on use of drones by law enforcement, which is far and away the most significant aspect of the legislation. So, when can law enforcement - or people under contract with or acting on the direction or authority of law enforcement - utilize drones under HB 912? Here are the circumstance under which Texas law enforcement can use aerial drones beginning September 1st.

• Pursuant to a valid search warrant,
• In immediate pursuit of a fugitive felon,
• To document a felony crime scene,
• To document crime scenes involving human fatalities, fatal motor vehicle accidents, and any motor vehicle accident on a state highway or federal interstate,
• To search for a missing person,
• When conducting a "high-risk tactical operation that poses a threat to human life,"
• Surveying the scene of a catastrophe for purposes of determining whether an emergency should be declared,
• To preserve public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency,
• Within 25 miles of the Mexican border, and
• With consent of the property owner.

The Department of Public Safety has been charged with developing administrative rules for use of drones by law enforcement based on the strictures in the bill.  Bizarrely, in an era when tuff-on-crime demagogues have spent decades eviscerating the exclusionary rule, the drone bill contains the most extreme version of one your correspondent has ever seen a legislative body endorse in my lifetime. Under the statute, video collected by law enforcement outside the above circumstances (or even drone video taken by civilians in violation of the statute):

(1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2) is not subject to disclosure, inspection, or copying under the Public Information Act; and
(3) is not subject to discovery, subpoena, or other means of legal compulsion for its release.

Unless it falls under one of the listed exceptions (which admittedly are myriad), the only thing drone video can be used for in court will be to prove up Class C misdemeanor charges of improper drone use. That's true even if the video happened to capture images of a murder, rape or kidnapping.

Honestly, I thought that'd be a deal killer. It's flat out stunning that Gov. Rick Perry endorsed such a sweeping exclusionary rule when, in the past, he's threatened to veto legislation (e.g., Texas' eyewitness ID legislation from 2011) if the exclusionary rule was applied. One imagines this was a one-off and not an indicator the Governor has now embraced the exclusionary rule as a valid means to regulate illicit law enforcement behavior. We can hope, though.

Grits doesn't expect ever to see a single prosecution under the criminal portion of the drone statute, nor do I anticipate anyone will successfully sue over tort violations in the bill (the amounts are too small to make it worth an attorney's while). In the end, restrictions on police and exclusion of video evidence in the courts will be the biggest effect of this odd piece of legislation.

More Kafka than Orwell: Police databases and negligent error

This morning, I read an excellent law-review article (no, not entirely an oxymoron) from Erin Murphy at NYU titled "Databases, Doctrine, and Constitutional Criminal Procedure," found via CrimProf Blog, related to a subject that comes up now and again on Grits: The way databases and their usually unintentional inaccuracies can create constitutional liberty violations for which the US Supreme Court in Herring v. United States (2009) ruled the exclusionary rule inapplicable. In Herring, the court held that "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply."

In that case, the defendant was arrested because of an error in a police database, and a search incident to arrest yielded drugs and a gun, which the Supreme Court said should not be excluded from evidence. Murphy's piece offers one of the best big-picture analyses on the implications of that decision vis a vis computer databases that this writer has seen, though it should be said the Texas Court of Criminal Appeals already had created the same exception to our statutory exclusionary rule years before. Anyway, suffice it to say the same issues arise in Texas state and federal law.

Murphy emphasizes a point I think very few people, even (perhaps especially) those working in the system, ever consider: Eighteenth-century constitutional restrictions in the Bill of Rights which are supposed to regulate modern police conduct were written decades before the first professional police department was ever created, even in London, much less the United States, and use of modern databases in law enforcement has transformed the profession in radical ways just since the turn of the 21st century. Here's a bit of a lengthy excerpt providing some of that little-discussed history:

The criminal justice system's reliance on databases is both old and new. As many know, the formal, organized, public police first emerged as a concept around 1829, when Robert Peel organized the London bobbies. The first detective unit in the United States was formed shortly after in 1846 in Boston, at a time when tracking down criminals largely remained a private sector gig. Dominated by companies such as the (in)famous Pinkertons, the unit's work consisted largely of pounding the pavement (and suspects). Indeed, many of the modem tools of detecting -- "[s]ophisticated criminal investigation techniques-well-organized crime records systems, fingerprints, crime labs -- did not appear until the twentieth century." Even Alphonse Bertillion's pioneer anthropometrical system of identification in the late 1800s depended largely upon manual recording and comparison of measurements.

The first primitive databases emerged around the same time, at the turn of the century. For instance, as early as 1919, the California State Bureau of Identification introduced a punch-card system for storing and retrieving modus operandi information. But perhaps the watershed moment of government databasing occurred in the early 1930s, around the time that J. Edgar Hoover opened the Federal Bureau of Investigation's first criminal evidence laboratory, which included fingerprint processing capacities, hair, blood, and firearm analysis. As part of the new emphasis on forensic science, FBI implemented its first fingerprint database-a card sorter that capitalized on the technology created to tabulate the census and that led to the formation of IBM."

Just a little over a decade later, the development of the mainframe computer in 1946 and the replacement of punch cards with magnetic tape significantly advanced databasing possibilities,'  but it remained a largely primitive technology. By as late as 1984, the federal fingerprint database the most advanced forensic database available-still depended primarily on manual recording and retrieval. At best, it served as an efficient means of organizing cards for retrieval, rather than for generating leads or links. Linking two fingerprints required manual comparison of an unknown scene sample with, for instance, the 23 million criminal cards on file with the FBI.'

The 1980s, however, initiated a period of rapid change. Personal computers became commonly available. Law enforcement began to recognize and harness the potential of electronic storage and retrieval. And then, remarkably, the Internet was born. Connectivity became possible in ways previously unimagined, and storage capacity reached new heights. The foundations for the modem criminal justice databases had been set.

The first truly modern, searchable databases, says Murphy, most prominently the one for fingerprints (AFIS), didn't appear till 1999, but they've quickly proliferated. These databases have transformed law enforcement, Murphy argues. Instead of developing suspicion, then using data held by law-enforcement to confirm, today suspicion is often developed based on the databases themselves, whether or not the information is accurate.

Why might that be a concern? Writes Murphy: "The true risk is a leaping-to-conclusions, or confirmation bias. It is the fear that the individual will be sucked into a morass of suspicion from which escape is arduous or impossible - Kafka's The Trial, not Orwell's Big Brother." You can't cross-examine a database and often the information they contain comes from many different, frequently untraceable sources that may not be correct or complete.

In Texas this is a particularly salient issue because many jurisdictions have a bad habit of reporting arrests to the statewide data system but fail to report the outcome of the cases. So if someone is arrested and charged with a crime but charges are later dismissed, the dismissal doesn't always make it into the system. The Governor's office recently threatened to withhold federal grant money from counties that don't quickly improve their data entry rates for dispositions in older cases.

The above history, writes Murphy, makes "two points abundantly clear: first, that there are an enormous number of databases in the criminal justice system, and second, that the database, as it exists today, has really only been around for ten or so years. Any person who has witnessed the past fifteen years of technological advancement knows, without reading a law review article, that online databases have transformed modem life. Yet surprisingly few changes have occurred in actual constitutional doctrine in response to widespread databasing."

Databases don't just record information like putting them in a file drawer but instead transform it, she argues:

the import and the impact of a database occurs less with regard to the moment of the information's acquisition than with all the moments that then may follow. Indeed, acquisition may not represent any kind of threat to individual liberty or privacy at all. Recall the criminal records database at issue in Reporters Committee [an early SCOTUS database-related case] - there, the Court acknowledged that the true significance of the database was not its contents, which were all technically a matter of public record, but the act of compiling and rendering that information accessible in a particular way.

For the most part, though, says Murphy, US courts have not applied or created constitutional doctrines to regulate law enforcement database use, but instead most cases focus on statutory interpretation in narrow, individual cases. Murphy argues that databases, by their nature, require structural instead of individualized, case-by-case oversight:

it is arguably impossible to regulate databases substantively - to truly inquire whether a particular series of tests or entries or searches were accurate, fair, and correct. But it is much easier to impose procedural requirements upon databases-to inquire into the existence and thoroughness of protocols for those processes and to presume inadequate or defective any database system maintained without them. Certain structural devices are demonstrably effective in minimizing mistakes, and with greater attention, others would be uncovered. A constitutional doctrine that looks for the signs of good management-think scrutiny of policies for access controls, or regular audits, or blind tests-is far more likely to improve database deployments in society than one that attempts to determine whether a database has failed or not in a case-specific context.

In her view:

regulation of databases require constitutional criminal procedure to focus less upon deliberate or intentional abuses of power than upon unintentional omissions, or mere benign neglect. There is always the risk that a malfeasant actor will corrupt or exploit a database system, to be sure. But constitutional regulation of databases aimed at ferreting out intentional harms will be very thin indeed; it is far easier to do harm, and far greater harm can be done, through mere benign neglect of database systems than through intentional manipulation.

The split among the Justices in Herring starkly illustrate this distinction. The majority viewed the sole purpose of the exclusionary rule to be deterrence and concluded that applying the rule yielded little deterrent benefit with regard to a negligent recordkeeping error. In contrast, Justice Ginsburg in dissent argued that more than marginal deterrence was possible, in the specific context of database entry, even when the complained of error constituted mere negligence in care.

If the exclusionary rule won't apply to negligent database errors, then there needs to be some other deterrent. Historically, civil liability is the other, obvious legal recourse, but police officers are immune from liability for most negligent, on the job errors. Otherwise, the only other option (and an entirely unsatisfying one) is a special-interest driven patchwork of database-by-database restrictions in statutes or agency rules created over time, which is precisely what we have now.

A more profound understanding of how databases are transforming law enforcement will inevitably require similarly transformative constitutional doctrines that the courts have so far refused to articulate, argues Murphy:

rather than follow an industrial age model reliant upon physical acquisition, constitutional doctrine would transition to an information age approach based on knowledge, creation, and dissemination. Such attentiveness would offer more effective safeguards around the creation and utilization of databases, and be responsive to concerns about insufficient auditing structures and function creep. Viewed as living, evolving organisms rather than as static repositories of discrete bits of information, the lawfulness and constitutionality of a database would more closely correspond to its actual use and deployment.

Grits wanted to raise these questions in some depth because, since federal and state courts have punted on the issues, governance of law-enforcement databases for the time being now falls almost exclusively to the states, or to the agencies operating the databases when the states eschew that responsibility. So it'd be appropriate, at this point, to see statutory regulation of law enforcement databases step up over the next few years to fill in the vacuum, probably driven both by episodic scandal and growing demands by the public for protection of electronic privacy. Murphy has performed a mitzvah by outlining the complexities of the problem and articulating underlying principles, if not specific details, for potential reforms.

RELATED: Database errors and the consequences of qualified immunity.

Schneier: SCOTUS missed chance to motivate police to purge harmful database errors

Eliminating the exclusionary rule has been a lifelong goal of Chief Justice John Roberts, the New York Times reported this week, and with last month's Herring decision, he came achingly close to finally achieving that goal. (See a more detailed discussion of the Times piece at Simple Justice.)

But renowned security expert Bruce Schneier (rhymes with "wire") says the exclusionary rule is a "is a security system designed to protect us all from police abuse." In particular, he disapproves of SCOTUS disallowing exclusion of evidence based on unintentional errors in security databases, a topic which happens to coincide with Schneier's cybersecurity specialty. He writes:

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. ...

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.

See related Grits posts:

• Police testilying, post-Herring
• Herring, civil liability, and Texas' exclusionary rule
• Without the exclusionary rule, negligent police are just 'wild and crazy guys'
• Exclusionary rule takes a gut shot

Police "testilying," post-Herring

Citing recent cases of police "testilying" in Boston and New York, Amir Efrati at the Wall Street Journal examined this week whether the exclusionary rule encourages police to lie on the stand, and what to do about it ("Legal system struggles with how to react when police officers lie," Jan. 29):

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases. ...

Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

Naturally, as you might expect, that is not a consensus opinion:

Police officers don't necessarily agree, says Eugene O'Donnell, a former police officer and prosecutor who teaches law and police studies in New York. "Perjury is endemic in the court system, but officers lie less than defendants do because generally they aren't heavily invested in the outcome of the cases," he says.

Somehow, though, I find little comfort in the assertion that "officers lie less than defendants do"! One would also expect them to commit "less" burglaries than defendants, but if police are committing any it's a serious problem. While it's certainly true that police "generally" aren't as heavily invested as defendants, in serious cases some of them are. There's little doubt in my mind that most police officers have too much integrity to lie intentionally on the stand, but it only takes a few bad apples to spoil a barrel.

Plus, when testilying goes unchecked, police see that their peers are able to get away with such behavior and are more likely to engage in it in routine settings. Sometimes police lying involves colllusion by overzealous prosecutors:

In Boston, a federal judge last week ruled that a police officer there falsely testified at a pretrial hearing in a gun-possession case about the circumstances of the defendant's arrest. The judge, Mark Wolf, is considering sanctions against the prosecutor for not immediately disclosing that the officer's testimony contradicted what he told prosecutors beforehand.

Efrati identifies the motive for police testilying as getting around the exclusionary rule, and discusses a fascinating study following the rule's implementation at the state level almost 50 years ago:

Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant.

Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

SCOTUS recently began the process of scaling back the exclusionary rule, notes Efrati, allowing illegally gathered evidence to come into court if police say the error was made in good faith:

This month's Supreme Court decision added an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched. Police officers had mistakenly thought he was subject to an arrest warrant.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

So for the Roberts court, illegal evidence and testilying are concerns to be weighed against "letting guilty and possibly dangerous defendants go free" - in other words, apparently tolerable under some circumstances.

Personally, I disagree with Efrati that limiting the exclusionary rule might reduce "testilying." To me, it looks like Roberts' decision in Herring makes testilying more likely, not less, because officers will now concoct stories to pretend that intentional violations were innocent errors; at least, that's the door Justice Roberts opened for them.

Such rulings leave the system with very few remaining tools to hold police accountable for violating constitutional rights. The exclusionary rule may be a flawed remedy, but in the modern American legal system it's virtually the only means available to counteract police illegally seizing evidence. Activist judges have whittled away civil liability for police and prosecutors to the point where it's either nonexistent or virtually meaningless.

After Texas' most high-profile example of "testilying" in the Tulia drug sting case, legislation was filed to require corroboration for police officer testimony in undercover drug stings. Police unions fought the idea like they were defending the Alamo, and the bill was scaled back to only require corroboration for undercover drug informants - a significant step forward, but hardly a remedy for police testilying.

As SCOTUS seems bent on creating loopholes in the exclusionary rule that encourage police to lie, what possible preventive or punitive measures might help identify or elmiminate testilying? And which branch of government should we be looking to to address the problem?

Via TDCAA.

Herring, civil liability, and Texas' exclusionary rule

Smart folks are still trying to work out whether the Herring case decided last week by the US Supreme Court narrowing the exclusionary rule is a big deal or a little one, and several good blog posts by attorneys have helped me think about the issue more concretely.

Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.

Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.

So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.

Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.

So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.

Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."

To this, Instapundit Glenn Reynolds replied with a comment that almost precisely reflects my own view:

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.

If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.

Without exclusionary rule, negligent police are just 'wild and crazy guys'

I'd expressed concern that the new SCOTUS precedent from the Herring case decided this week - which says that the exclusionary rule does not apply to negligent errors by the police - will make the problem of rights violations based on database errors even harder to solve. TChris at TalkLeft agreed, declaring "The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests."

But the discussion from news reports and the legal blogosphere makes me think the implications of Herring are a lot broader than that. Tom Goldstein at SCOTUSBlog predicts that "we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century." That's because:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct. ...

Previously, the Court had applied the good faith exception only to non-police conduct.

In the dissent, Justice Ginsburg said the ruling violates a "foundational premise of tort law":

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.

One wonders whether the majority's idea that liability doesn't deter negligence will wind its way into SCOTUS' civil rulings on non-law enforcement topics - it's a pretty radical revision of a fundamental legal principle. But as troublesome as that sounds, Goldstein says Ginsburg actually understates the significance of the ruling:

the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

Scott Greenfield calls negligence the "new loophole" in the Fourth Amendment, while an Indiana University law prof quoted in the New York Times agreed the the ruling has broader implications, declaring, “'It may well be ... that courts will take this as a green light to ignore police negligence all over the place.'” At Lawyers Guns and Money, Scott Lemieux also predicts the ruling will be applied broadly:

while I'm not without a certain sympathy for the idea that it's appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug possession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state's side. There's no serious weighing of costs and benefits being done here at all.

Doug Weathers, a lawyer-blogger out of Fort Worth, questions whether the ruling promotes negligent policing:

The Supreme Court majority apparently believed that this situation called for a new extension of the good faith exception to include that negligent errors by the police generally do not trigger the exclusionary rule. The Court made much of the "innocent" conduct of the police, however, does this new exception deter police from wrongful conduct to get at evidence or encourage? Rather than encourage professionalism and competence in law enforcement, the ruling today says do your job with negligence if need be because we the Supreme Court have your back. Better for the government to prevail in a single drug case than to protect citizens with a 4th Amendment that punishes the police for their own negligence. The whole thing smells fishy to me.

Robert Guest thinks the search in Herring should have been voided even under the new majority ruling, reasonably asking, "If a recalled warrant is still in the system after 5 months, isn't that evidence of 'reckless disregard' or 'systemic error'?"

Without the exclusionary rule, one wonders what, if any, checks remain on negligent actions by police? Justice Ginsburg's dissent says there are none, because:

Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” .... Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry.

I'd have to agree that without "civil liability," "criminal prosecutions" or "administrative sanctions," I can't see a single, meaningful restraint remaining on negligent police conduct. If the exclusionary rule will not apply in such cases, what if any means are left to deter negligent behavior?

Given that SCOTUS just turned the exclusionary rule into a full-blown joke, Instapundit Glenn Reynolds offered an especially apropos analogy writing about the case in the New York Post:

COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don't pay taxes. If the IRS finds out, you explain: "I forgot." Then, if that's not enough, you say, "Well, excuuuse me!"

Those negligent police officers are certainly wild and crazy guys!

Exclusionary rule takes a gut shot

Before I had a chance to post on a SCOTUS decision issued today (see the New York Times coverage) that eliminates the exclusionary rule when civil liberties are violated accidentally because of database errors, Texas State Trooper Association attorney Don Dickson left a comment on a related Grits post that essentially sums up my concerns:

by a 5-4 vote, the SCOTUS ruled today that an erroneous crime record - in this case, a warrant which had been recalled but still showed up on someone's records - was not sufficient to trigger the exclusionary rule after a search incident to arrest on that warrant revealed that the subject, a convicted felon, was carrying a firearm and drugs.

I have mixed feelings about the ruling. On the one hand, I feel that the exclusionary rule is an indispensable protection of our civil liberties, and I don't like to see it chipped away.

On the other hand, it's hard to argue with the Chief Justice's statement to the effect that "probable" cause is not metaphysically certain cause. As long as the officer believes in good faith that there is a valid warrant for someone's arrest, then I agree with the Chief Justice that he has "probable cause" to effect the arrest, which in turn triggers the right to search the subject incident to that arrest.

But in a state in which one out of every nine people has an outstanding warrant, and in a state with a demonstrated history of doing such a poor job of keeping accurate crime records, you'd have to say that in Texas at least, the exclusionary rule has just taken a shot to the gut. And the state has been given no inducement to clean up its act.

MORE: See a New York Post column from Instapundit Glenn Reynolds criticizing the SCOTUS decision, declaring, "Being a 'public servant,' apparently, means being free to make the kind of mistakes that the rest of us aren't allowed. "

Suggestive ID practices hard to exclude in court

Houston criminal defense lawyer and blogger John T. Floyd has an excellent piece up on DNA exonerations and eyewitness identification in which he lays out in detail the almost impossible burden of proof required in Texas to exclude eyewitness identifications based on suggestive photo lineups.

Confession Suppression: Why we need the exclusionary rule

Defense attorney Katherine Scardino, blogging over at Women In Crime Ink, says a Texas death row inmate "hit the jackpot" when a federal judge granted a new trial because of police misconduct. Writes Scardino, the defendant:

is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Scardino asks two questions in light of this story, though I could certainly think of many more:

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

For myself, I'd answer "Yes" and "Yes." As long as we're going to have the death penalty, I don't think a scoundrel who enlists a hit man is less culpable than the person who pulled the trigger himself. But I definitely agree that the confession obtained through subterfuge should be thrown out, and doing so would require giving both men a new trial.

It's not for the guilty but the innocent that such protections are in place: false or coerced confessions are too common to allow police to break the rules without consequence. There are also practical reasons to follow the rules. Police officers who lied to Guidry wound up blowing their case and costing taxpayers hundreds of thousands of not millions of dollars.

Equally culpable, Scardino notes in response to a commenter, is the judge who failed to grant a Motion to Suppress.

An anonymous commenter replied to Scardino that "Somehow I can't find compassion for someone too stupid to keep his mouth shut." But it's easy to say you have no compassion for someone you believe is guilty - much more difficult in instances where we know the accused was innocent. I'd defy anybody to read the terrible story of Christopher Ochoa and Richard Danziger and tell me they feel no compassion, particularly for Mr. Danziger.

Police interrogtion is a guilt presumptive and coercive process, and as a result, false confessions happen more frequently than most people realize. In Austin's infamous Yogurt Shop murders, more than 50 different suspects confessed to the crime!

It's hard to believe Houston police thought it was okay to lie to somebody about their lawyer's advice in order to interrogate them alone after they'd requested counsel. Harder still to believe the prosecutor in the case - former GOP District Attorney candidate Kelly Siegler - convinced a judge to allow the confession, anyway.

And there's the rub: The system is broken - its checks and balances frequently don't work. There are simply no meaningful oversight mechanisms to prevent or punish misconduct by state actors. Will those officers face discipline or prosecution for violating these guys' civil rights? No. Will the judge be held accountable by the Commission no Judicial Conduct? Hell no. For that matter, why didn't the Court of Appeals or the CCA step in to fix this obvious error before the federal courts ever saw this case?

This is why, despite many sound arguments against the exclusionary rule (which allows a judge to exclude evidence from trial if it was obtained in violation of a defendant's constitutional rights), as long as alternative accountability mechanisms fail so obviously and continuously, I think getting rid of it would be a disaster.

The cost and embarrassment of mistrial are virtually the only meaningful consequences restraining state actors. If police departments don't hold cops accountable for violating someone's civil rights, and judges allow such abuse without fear of professional consequence, there's nothing left but the exclusionary rule to prevent the justice system's wholesale corruption.

UPDATE/CORRECTION: According to Houston attorney Mark Bennett, Scardino:

has it wrong. The decision didn't hinge on the police misconduct in obtaining Guidry's confession; the Fifth Circuit opinion doesn't even mention misconduct.

This is a pre-Crawford Confrontation-Clause case. Even if Guidry's confession had been legally obtained, it would have been inadmissible in Fratta's trial, as Judge Harmon and the Fifth Circuit held Prystash's confession was.

Bennett adds some chiding comments and further explanation at his blog Defending People.