Thursday, December 29, 2005


The title to this post is a paraphrase of (Justice Cardozo’s?) statement in opposition to the exclusionary rule. The federal exclusionary rule, a Court rule not required by the Constitution of the United States, was devised in 1914 in Weeks v. United States. The purpose was to give teeth to the Fourth Amendment prohibition of unreasonable searches and seizures. The Court felt that the only way to give meaning to the prohibition of the unconstitutional activities of the law enforcement officers, was to suppress the evidence obtained, that is to exclude the evidence in any trial of criminal charges against the person whose rights were violated.

We lived with the exclusionary rule in the federal criminal justice system and still do. Each state was allowed to decide whether there should be such a rule for state criminal law trials. New Mexico was one which rejected the idea of an exclusionary rule. Thus, from 1914 to 1961, in New Mexico, if the police violated constitutional rights to privacy, by committing a search and seizure in violation of the Fourth Amendment, the evidence would be excluded (suppressed) in any federal criminal trial, but could be used in a New Mexico criminal trial.

In 1961, that was changed. The United States Supreme Court, in Mapp v. Ohio (1961), ruled that evidence obtained in violation of the Fourth Amendment must be suppressed, excluded, from trials in state criminal cases as well as federal criminal cases. The exclusionary rule is not restricted to wilful, intentional violations of the Fourth Amendment. A constable (read that, any law enforcement officer) may through ignorance of law or clerical error violate the warrant requirement of the Fourth Amendment, or misjudge her powers to search or seize without a warrant. The constable blunders and the murderer goes free. If the evidence is essential to a conviction, then it is true that the constable blunders and the murderer is pardoned. No need for the Governor to act on an application for a pardon or commutation. The constable, or part-time deputy in Jal or Aztec, Yeso or Claunch, has that power.

Next post: How the Supreme Court of New Mexico overruled its precedents and extended the exclusionary rule even beyond that required by the United States Supreme Court. The irony of all of this is that we have a government that is willing to order its agents (CIA or soldiers) to engage in cruel, inhuman or degrading interrogation of captives (a violation of international law), with no warrant requirement, that is, no Court intercession; but we are so insistent on observance of constitutional directives in our domestic criminal procedure that we go overboard and release (pardon) the guilty, including murderers, on hyper-technicalities.