Dollree Mapp and the exclusionary rule, pt.2

When law enforcement violates the constitution, the courts are faced with a difficult problem. The Constitution, as the enabling law from which all other federal and state laws obtain their validity, lacks one important feature. It has no enforcement mechanism for violations.

If law enforcement stops you illegally and attempts to charge you with a DUI or searches your car for drugs, and they find nothing, the Constitution does not provide for any damages or compensation for such an illegal search.

If they do discover evidence of criminal activity, and criminal charges are brought, a court can review the situation and punish law enforcement by imposing the exclusionary rule on the search.

The exclusionary rule excludes all of the evidence discovered by law enforcement or as it is sometimes referred to poetically as the “Fruit of the Poisonous Tree.” The search is the poisonous tree and all evidence that results from that search is tainted, and is excluded as a means of deterring the illegal activity represented by these searches.

What people often fail to appreciate is that excluding evidence gathered during an illegal search is not a “technicality,” because whatever was found was only found because of illegal police activity. Because it may have uncovered other illegal activity, does not absolve it of following the law, namely the Constitution.

Again, it cannot be overstated, when the police search without a valid warrant, their conduct is illegal. This is often missed, because, again, the Constitution does not state if the police commit a warrantless search, they will be arrested and sent to prison for 5 years. Perhaps that would make it clear, but the absence of a stated penalty does not make it less illegal.

Next week we will look at the origin of the exclusionary rule.

New York Times, “Dollree Mapp, Who Defied Police Search in Landmark Case, Is Dead,” William Yardley, Dec. 9, 2014

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