An Amendment for the Guilty?

My friends, colleagues, companions near and far, it has been too long since we’ve crossed paths here. I will spare you the boring excuses for our dereliction; suffice it to say, Sartorius Kirsch has been busy in and out of court fighting for clients, including by way of the Fourth Amendment.



We recently spent the better part of a week litigating a client’s Fourth Amendment claim and an ugly sentiment reared its head, “do only the guilty invoke the Fourth Amendment?” A disappointing number of people answer in the affirmative. It is a common misconception, but a pervasive one even among the attorneys who practice Fourth Amendment law. I write about it here because it does great damage to the sanctity of the Fourth Amendment.



The Fourth Amendment reads,



The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”



If evidence is gained in a search that violates the Fourth Amendment (we’ll discuss that later), the aggrieved person asks for the evidence to be suppressed, that is, not allowed at trial. This is known as the “exclusionary rule.” This rule goes way back, though there is debate about how far. One of the earliest American cases utilizing, though not identifying or defining, the rule is Boyd v. U.S. This is a fascinating read that illustrates how far removed government was from daily life in 1886. You might follow it up with Fisher v. U.S., to have a look at a 1976 Supreme Court that says, “never mind all that, the government is firmly in your business.”



The U.S. Supreme Court made the exclusion point more clearly in Weeks v. U.S. in 1914. The rule did not achieve mandatory status in state courts, however, until Mapp v. Ohio in 1961, in which the U.S. Supreme Court said the states had to adopt it. Mapp, by the way, is another great read, and goes into depth about why the U.S. Supreme Court applied the rule to the states. According to the courts, they do not exclude evidence as a remedy for Fourth Amendment violations, that is to say, it is not to benefit the individual whose rights were violated as a way of redressing the wrong. Modern courts consider the purpose to be, first, a disincentive to future constitutional violations and, second, to protect the integrity of the courts themselves. They apparently would find it unseemly to rule that evidence was unconstitutionally seized, and then receive the fruits of the tainted search in evidence. The first consideration has become paramount, though, and there are exceptions to the rule. State v. Cline has a good discussion of the dreadful “good faith exception,” and why the Iowa Supreme Court rejects it.




All of this is fascinating, I know, but I digress. Whether it is only the guilty that invoke the rule is a recurring question because, to be fair, a disproportionate number of unconstitutional searches turn up drug evidence, ergo, the evidence sought to be suppressed is disproportionately drugs. This apparently leads to the not-so-scholarly conclusion that only the guilty invoke the protections of the Fourth Amendment. But, does this really mean everyone who tries to suppress drug evidence actually possessed the drugs? Absolutely not, and that’s my first point. You may be trying to suppress drugs found in your trunk after your friends left their pot in your trunk after a road trip; are you guilty? Not if you didn’t know they had and left it there, but are you on the hook unless you win your suppression issue? Probably.



Point the second is brief, but clearly illustrates why there ought to be no patience for the notion that only the guilty seek to protect their rights against unreasonable searches and seizures by excluding evidence. Contraband is not all that is suppressible under the exclusionary rule. It is not a motion to suppress illegal things seized, it is a motion to suppress illegally seized things.



This is a link to the Innocence Project’s featured cases, exoneration cases in which people were convicted of, and went to prison for, crimes they did not commit. The number on that page is 353 (twenty spent time on death row), and it will increase. That means there are innocent people in prison right now. That means police seized, prosecutors offered, and courts accepted, evidence that resulted in the innocent being convicted. Don’t you think any one of those people ought to have tried to suppress unconstitutionally seized evidence? If they had, would it have made them guilty?



Please stop telling people only the guilty need to invoke the Fourth Amendment.

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