The United States Supreme Court in on the verge of abolishing the exclusionary rule prohibiting the use of unlawfully obtained evidence against a criminal defendant. The recent case of Herring v. United States portends a court trend in favor of illegal search and seizure at the expense of the integrity of the entire criminal justice system. This is a dangerous and unnecessary trend. Law enforcement has long taken as their own the maxim “give them an inch, they take a mile.” For example, police already have such a long list of permissible justifications for traffic stops, car searches, home invasions and general rummaging through your belongings that they can always come up with an after-the-fact justification hiding the real basis for their conduct, and thereby making illegal conduct extremely difficult to uncover even for a very experienced criminal defense attorney. We see this type of conduct, for example, in “wall stop” cases, where the police hide illegal conduct by masking their activity behind a second, outer layer of law enforcement. Nonetheless, law enforcement is deterred to the extent that they may have to justify their activity in a court against the exacting scrutiny of an aggressive criminal defense lawyer; there is really no other effective deterrent to the police from invading your privacy as they see fit. The Herring decision threatens to erode accountability for police misconduct.
Perhaps the new composition of the Supreme Court, with Justice Sotomeyer, will resist repeal of the exclusionary rule. Time will tell.