top of page

"Take Your Motions to Suppress, Roll 'Em Up Real Tight, And Insert Them Up Your Booty,&quot

Officer after being informed that he can have no pie because of illegal search.

Police officers are overwhelmingly good and honorable people who follow the rules. A minority are not. This observation is not unique to the police. Most defense attorneys are conscientious, honest, and do right by their clients. Some are lazy and unscrupulous. It’s a simple fact of life that every profession has some bad apples.

What makes police different from most professions is that they possess enormous and life altering power from the moment they’re sworn in. The power to arrest is the power to ruin lives. As a society, we want to ensure that officers wield their power responsibly.

A big part of protection against bad policing is the 4th Amendment. In a nutshell, the 4th Amendment is your right to be left the hell alone. Police can’t stop you on the streets for no reason. They can’t come into your house unless they have a really good reason.

What happens when the police break the rules? For instance, what if a rogue officer decides to stop and search everyone who lives in a low income apartment complex? The remedy that the U.S. criminal justice system created is the exclusionary rule. The exclusionary rule is a simple concept. If the police break the rules to obtain evidence, they don’t get to use that evidence in court. It’s such a simple and logical idea that all the players in the criminal justice system take it for granted.

Well, it should be at least mildly concerning then, that the next Supreme Court Justice of the United States doesn’t think the exclusionary rule should be a thing. Articles published in the Chicago Tribune and LA Times detail Brett Kavanaugh’s speech to the American Enterprise Institute in which he lauded the idea that the exclusionary rule is just some silly made up judicial mumbo jumbo and lamented that "freeing obviously guilty violent criminals [is] not a proper remedy.”

WTAF is this guy talking about? What does he think should happen when an illegal search happens? Scoldings? Sending the officer home without supper? I can just imagine it now:

Defense Attorney: Judge! This search was a clear violation of my client’s 4th Amendment rights!

Judge: Very astutely observed counsel. I must agree that this was an unreasonable warrantless search that violated the 4th Amendment. Officer, you have been a very naughty boy. I want you to go straight home and think about what you’ve done. And no ice cream tonight.

Officer: Aww, man.

Defense Attorney: Your honor I have a motion to dismiss the charges.

Judge: Counsel, as you know, the exclusionary rule no longer exists and I have already satisfied the remedy of scolding the officer and ordering him to have no dessert. The evidence will be admitted and your client is guilty.

As an aside, Brett Kavanaugh has never stepped foot in a criminal courtroom. That wouldn’t make him any different from the rest of the justices on the court. Alito and Sotomayor were briefly baby U.S. Attorneys early in their careers. That represents the entirety of trenches experience on the highest court in the country. Would it kill a president to nominate someone who has actually tried a case before?

Look, I get it. Letting guilty people go unpunished feels a bit icky, but what's the alternative? Erasing the 4th Amendment?The simple reality is that there is no other way to protect citizens from unreasonable searches and seizures. To be fair, Kavanaugh acknowledged in his speech that his view is outside the mainstream and not many are calling for a change today, given the exclusionary rule’s "firmly entrenched position in American law.” While it seems ridiculous that the U.S. Supreme Court would actually undo the exclusionary rule, we live in ridiculous times and who knows what could happen over the next 30 years Justice Kavanaugh is likely to be on the bench.

bottom of page