Exclusionary Rule: Is There a Better Way?

Wednesday, May 16, 2001

Page 7

IN MY OPINION (Column)

Exclusionary Rule: Is There a Better Way?

By R. MORGAN

(The writer is a judge of the Los Angeles Superior Court, writing under a pseudonym.)

Long ago, in a galaxy far, far away some learned jurists wrestled with a thorny problem. On their planet, they had overzealous police who sometimes overstepped the bounds of reasonableness in the competitive cat and mouse game of catching criminals. The jurists wondered, "What do you do about police who violate citizens’ rights and how do you make them stop conducting illegal searches."

The learned jurists may have been football fans. They determined that the ill-gotten evidence was to be judicially suppressed, even if it often meant that the criminal would be freed only to try again. In other words, they threw a penalty flag on the police and let the opposing team take the play over again.

They called this remedy the Exclusionary Rule. It seems to have been premised on the belief that in the game of cops and robbers, the police like to score points by getting convictions, so the best way to deter police misconduct is to deny the police the use of their ill-gotten evidence. The jurists seem to have thought that since the police were highly competitive, they would play by the rules so they could get convictions. By this means, police misconduct was to have been deterred. All these things happened long ago on a distant planet much different from our own.

In those days, police were not paid overtime for their court appearance time. When they made an arrest, they came to court out of a sense of duty. They gave up their own time to come to court sometimes during their normal sleep periods, or days off. The police were different, in those days. They took pride in their work. In those days, they would sometimes stay beyond their shifts to provide better coverage. They did it without the thought of overtime, with the dedication and commitment of professionals.

In those days, the police were more selective about making arrests. They were not quick to arrest. Sometimes, they gave "breaks." In those days, those who really needed to go to jail went to jail, and the rest were "warned and advised." It seemed a kinder and gentler time. If an officer had to make an arrest, he knew he would have to follow through with a court appearance, so he was selective about what he did. Like Archie Bunker’s voting record, he would save himself up for the biggies.

Then, an amazing thing happened. Someone on this distant planet decided that police should be paid overtime for showing up in court. Who could argue with fairness? If they had to go to work, it was only fair that they should be paid for their trouble, and paid at premium pay rates as well.

Paid overtime changed things in some profound ways.

Aside from the discovery that not every police officer was absolutely honest about his court hours, and the realization that it was possible for a police officer to make as much money as a lieutenant without even bothering with the sergeant’s exam, it came to pass on this far distant planet that police officers began to volunteer for work on the graveyard shift and they began to patrol the night drinking spots instead of remaining in the residential areas for burglary suppression. Police officers became entrepreneurs bagging as many DUI arrests as they could, sometimes encouraging the arrestee that "a good lawyer could beat this case."

On this distant planet, a new kind of police officer started coming to court. Unlike his professional predecessors, the new hire was a mercenary; there for the money. The new breed seemed more interested in what the country could do for him, than what he could do for the country.

The learned jurists who implemented the Exclusionary Rule could not have foreseen how profitable they made a career in police work. It was a win/win situation for those inclined to make frequent court appearances, regardless of the outcome of the case. In fact, the weaker the case, the more likely it was to be a revenue producer for the police. So where was the deterrent value of the Exclusionary Rule?

Then another amazing thing happened on this distant planet.

Over the course of time, a lot of the professions on that planet began to be regulated. Realtors and real estate sales agents, along with security guards, doctors, lawyers, used car sales people, fumigators, contractors, barbers, even teachers and auto repair mechanics came under the umbrella of regulation. Even the police had to go through a standardized training program to gain their Peace Officers Standards and Training (POST) certificate, and without that POST certificate, no one could serve as a peace officer. The police profession greeted the POST certification with enthusiasm, since those with advanced certificates used them as resume talking points for promotion and higher proficiency pay.

One day, when nobody actually realized it, there came a time when every police officer in the state found himself individually certified. It was as if each officer had a license to practice police work. He could take his POST certificate from one department and move to another. His POST certificate was akin to a teaching credential, or a real estate sales agent’s license. The POST certificate became his professional degree, the license that let him practice his trade anywhere in the state.

It is said that those to whom much is given, much is required, and on this distant planet where every police officer had his own individual license, unbeknownst to them, there arose an infrastructure to police the police officer. Enter the dawn of individual accountability!

Remember the Exclusionary Rule? After years of always doing it that way, the courts began to realize that there might be a better way of deterring police misconduct, without allowing the criminals and the police to benefit. They realized there might be a way to deter crime and police misconduct that rewarded neither the police nor the robbers. They began to talk about a system of demerits or "black marks" on individual officers’ POST certificates. Officers with too many demerits might be identified for retraining, or remedial classes. Those who continue to pile up demerits might need to be reassigned to less responsible duties, and those who continue unabated, might have to be retrained without pay, suspended, or eventually stricken off the rolls of qualified police officers.

Looking at the judicial system as it had become, the jurists came to realize that their Exclusionary Rule was never intended to reward the criminals. It was intended to strike a blow to the police. However noble the idea, they could see that it had not worked well since it became more profitable to make bad arrests than to make good ones. On this distant planet, the jurists began to wonder if punishing the police and the criminals for their misdeeds made more sense than rewarding both of them for their bad deeds. It was a moment of great insight.

All systems have their inherent problems, and all systems require vigilance and maintenance, even fine-tuning.

It will be interesting to imagine how they handle things on that distant planet. One can only imagine the possibilities. Certainly, we are fortunate there are no similarities to the way we do things on this planet