Tuesday, August 29, 2006


In an earlier post (July 13, 2006) we discussed the exclusionary rule. The rule excludes relevant evidence from criminal trials, if the evidence was obtained in violation of certain provisions of the United States Constitution. Fourth Amendment prohibition of unreasonable searches and seizures, is the clear example.

The exclusionary rule was adopted by the United States Supreme Court, in the Weeks case, in 1914, as a rule to govern federal criminal prosecutions, but not to apply to the States. The States were free to adopt an exclusionary rule or to continue with the common law rule that evidence is not to be excluded from evidence (for example, the murder weapon; or the body of the victim, with dna attached), on the basis that the evidence was obtained in violation of the Fourth Amendment. A violation of the Constitution may be the basis of a civil action; but the evidence may be used in the criminal prosecution. New Mexico did not have an exclusionary rule. State v. Dillon, 34 N.M.366 (1929).

Then, in 1961, in the case of Mapp v. Ohio, the United States Supreme Court imposed the exclusionary rule on the States; and from 1961 on, New Mexico has followed the federal rule. We do now have an exclusionary rule. If the constable blunders, the murderer goes free. If the underpaid deputy makes a good faith misjudgment as to the law (very complex), the incriminating evidence is excluded and the killer goes free. However, in 1993, the New Mexico Supreme Court, instead of merely following the federal rule (which it was required to do), went further, and adopted an exclusionary rule that places additional restrictions on New Mexico law enforcement.

In 1993, our Supreme Court, in State v. Gutierrez, 116 N.M.431 (1993), considered the federal exclusionary rule in a case in which the law enforcement officer in New Mexico had in good faith sought a warrant, and a magistrate had in good faith issued a warrant for a search and seizure. The warrant was defective. Looking first to federal law, our Court saw that the United States Supreme Court had created an exception to the exclusionary rule that it had imposed on federal and State courts. The exception was that if the officer in good faith seeks a warrant, and the magistrate in good faith issues the warrant, the search may proceed; and if evidence is found, it may be used in criminal court, even though as a matter of law the warrant is defective. This exception was adopted in part because it encouraged officers to seek warrants, rather than to act on their own on what they thought was probable cause.

Our Court did not follow that federal precedent, and overruled our 1929 case, and adopted an exclusionary rule that is more stringent (restrictive of the police) than the federal rule. Thus we went from no exclusionary rule (from time immemorial to 1961) to the federal rule, imposed on us by the United States Supreme Court (in 1961), to our expanded exclusionary rule, imposed by our own Supreme Court in 1993. That is called standing the rule of law on its head.

The exclusionary rule is arbitrary; it is capricious; it is so unfair that it gives one a sickening feeling in the stomach. The rule has to be followed as the United States Supreme Court directs; but it need not be expanded by New Mexico. Gross miscarriages of justice will follow; and perjury by law enforcement officers will increase; and officers will be further demoralized.

A serious, unintended result of the exclusionary rule, is that the Courts will narrow the rights to privacy of the general public, in order to avoid having to exclude evidence in difficult cases. For example, can the police read my diary based on permission from my brother? Yes, if you follow the Sirhan case ruling. Hard cases make bad law. Now all of us are subject to having our diaries read if our brother consents.

Can the police look in our seabag for a knife, based on the consent of our landlady? Yes, if you follow the Witherspoon case (knife-murder of eight nurses). Indeed, hard cases make bad law. Either adopt a rule that the brother can consent to your diary being read; and adopt a rule that your landlady can consent to a police search of your seabag; or let this vital evidence go in a hard case.

In a recent case, the Court of Appeals of New Mexico ruled that a Lea County man had a right of privacy in his trash after he set it out in sealed garbage bags in a non-transparent container for pickup by the trash collectors. Our Court found a right of privacy where the United States Supreme Court found none. Our Court then failed to follow a U.S Supreme exception to the exclusionary rule (if officers ask in good faith for warrant, and Magistrate in good faith issues invalid warrant, evidence will not be suppressed). No big deal, only marijuana and crack were suppressed by our Court of Appeals; but what if the garbage had been body parts or the murder firearm?

When, where and how often do you hear any criticism of this aspect of our criminal justice system? We have too few lawyers.