The Exclusionary Rule

I understand and support the way the New Jersey Supreme Court ruled. I don’t understand why the writer finds the ruling controversial. 

Another 4th Amendment debate this time over your cars high beams.  This case, out of New Jersey, was a looser from the get go, probably should not have been filed and the appeal after trial was just throwing good money after bad. There is absolutely no search and seizure controversy here and the appeal was a PR exercise to show that the District Attorney is tough on guns. 

I know, I keep saying you have to show your work before you can state your conclusions and then I get it backasswards. Here’s what happened a Sheriff’s Deputy is parked on the side of the road waiting for a wrecker.  It is 3 am, I am guessing that there is a city ordinance against parking on the street between the hours of 2 am and 5 am.  It makes no sense but there it is.

I don’t know but I am guessing,  that rather than have every patrol officer impounding vehicles, that the task is delegated to one or two officers.  This is what is known as a “shit detail”.  The one or two officers do it not out of charity to the fellow officers but because they probably pissed off their sergeant. Having worked details such as this, good will towards men and the milk of human kindness are not flowing within the confines of that patrol car.

The Deputy sees a car traveling down the street with its high beams on. Perfectly allowable if you are not facing opposing traffic or following traffic within X feet. I am guessing that the patrol car was not blacked out, it was immediately recognizable for what it was.  But it was parked. The suspect has no obligation to dim his headlights and didn’t.  This doesn’t even rise to the level of “contempt of cop”.

The writer makes reference to the “fruit of the poisonous tree” that is the causative link, the culprit is the Exclusionary Rule first imposed on local law enforcement back in 1961 in the case Mapp V Ohio.  As a side note the Supreme Court first brought up the concept of the exclusionary rule in 1865. The court warned law enforcement that they had better clean up their act or the court would. Every twenty years after that succeeding courts issued the same warning.  Justice Cardozo’s famous quote “The criminal is to go free because the constable has blundered.” (People v. Defore, 242 N.Y. 13) was in regards to the Exclusionary Rule. In 1961 when the Warren Court said, “Hold my beer and watch this!” Okay, I’m paraphrasing again but the result was Mapp V Ohio.

What does the exclusionary rule do?  If a defendant can show that evidence obtained by the police was obtained as the result of an unreasonable search, then they don’t get to use that evidence.  The “Fruit of the poisonous tree” carries that taint out.

Applied to this case, the driver did not commit any type of traffic violation and therefore the officer was not justified in stopping him.  But the officer did, once the officer made the stop, he smelled marijuana. The officer had no right to be where he was, talking to the driver, therefore, the state could not use the odor of marijuana to justify the search of the vehicle and passenger.  Because the officer had no business stopping the driver, he had no business stopping the passenger.  The resulting search of the vehicle turns up a large capacity magazine, a stolen gun, prohibited ammunition, and the underlying firearms charges.  None of this would have been discovered but for the initial unreasonable stop which led to the unreasonable search.  The District Attorney can proceed with his case as long as he doesn’t mention, marijuana, a pistol, large capacity magazines, ammunition, or stolen property.

There is nothing new in this decision it would have been decided the same way in 1961.

What is new is the willingness of the District Attorney’s Office to pursue this case.  To me this represents a “bad faith prosecution” akin to the old cop saying,”you may beat the rap, but you won’t beat the ride.” Somebody is out an easy $50,000 for defense attorney fees covering both the trial and appeal. That is a substantial penalty just to prove what the District Attorney already knew.