Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights by Erwin Chemerinsky

Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights by Erwin Chemerinsky

Author:Erwin Chemerinsky [Chemerinsky, Erwin]
Language: eng
Format: epub
Tags: law, Discrimination, history, African American & Black, government, Federal, Judicial Power
ISBN: 9781631496523
Google: qwwDEAAAQBAJ
Publisher: Liveright Publishing
Published: 2021-08-24T23:38:05.379520+00:00


THE BURGER COURT created another important exception to the exclusionary rule by allowing the admission of evidence if the police reasonably relied on an invalid warrant to conduct a search or seizure. United States v. Leon, the key case, was very controversial when it was decided in 1984. For the first time ever, the Court recognized a good faith exception to the exclusionary rule and paved the way for a much broader exception later. Ultimately the fundamental disagreement in Leon between the majority and the dissent was over the desirability of having an exclusionary rule in the first place.6

In 1981 in Burbank, California, police got a search warrant from a judge based on an affidavit from a police officer; unknown to them, the affidavit was based on an unreliable informant. Relying on the warrant, the police searched a house and found drugs. A court later found that the affidavit had been insufficient to provide probable cause for a warrant; the judge said that there just hadn’t been enough evidence to allow the police to search. That the search violated the Fourth Amendment was undisputed—it had been done without probable cause. But the Supreme Court ruled that the evidence was nonetheless admissible at trial.

Justice White, who had dissented in so many Warren Court decisions protecting those accused of crimes, wrote the majority opinion and expressed great skepticism about the desirability of the exclusionary rule. After twenty years on the Court, he was now part of the conservative majority. The exclusionary rule was not part of the Fourth Amendment, he noted; nothing in the amendment’s language required or even suggested this remedy. The application of the exclusionary rule, he wrote, should be determined “by weighing the costs and benefits of preventing the use in the prosecution’s case in chief of inherently trustworthy tangible evidence.”7

Justice White stressed the “substantial social costs exacted by the exclusionary rule.” The rule impedes “the truth-finding functions of judge and jury,” he lamented, and means that “some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.”8 The costs of the exclusionary rule, balanced against its benefits, he wrote, justify a good faith exception. Compared to the “substantial costs of exclusion,” he saw only “marginal or nonexistent benefits [from] suppressing evidence.”9

Justice White’s reasoning was an argument, not for creating a narrow exception to the exclusionary rule, but for eliminating it altogether. He was explicit that convicting people, even on the basis of illegally obtained evidence, is more important than enforcing Fourth Amendment protections.

Justice Brennan dissented, powerfully declaring, “In case after case, I have witnessed the Court’s gradual but determined strangulation of the [exclusionary] rule. It now appears that the Court’s victory over the Fourth Amendment is complete.”10 Brennan saw this case as the “pièce de resistance” of the Burger Court’s fifteen-year assault on the exclusionary rule. Having dissented in case after case, his frustration with the decisions was clearly apparent. If the application of the exclusionary rule depended on the Supreme Court



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