A number of years ago, I had the pleasure of joining a distinguished prosecutor, now Montgomery County Deputy State’s Attorney John Maloney and a preeminent defense attorney Louis J. Martucci, Esquire, in a discussion of the wisdom of maintaining what is known as the “Exclusionary Rule”. That Rule requires a trial court Judge and ultimately perhaps a majority of whatever panel or appellate court considers the issue to exclude any evidence obtained by a law enforcement officer in a manner which in the opinion of the Court was in violation of the Fourth, Fifth or Sixth Amendments to the United States Constitution. This Column will highlight that discussion.
In his part of the exchanged billed dramatically as “What Is An Officer To Do?”, Prosecutor Maloney bemoaned a then recent decision of the Maryland Court of Appeals which limited the right of a Police Officer to detain a citizen for “investigation” even if the citizen “consents” to remain with the officer. While Defense Attorney Martucci celebrated this same decision, Mr. Maloney pointed out that the decision came after three years, during which “different lawyers and judges have been in comfort-controlled courtrooms debating Trooper Smith’s actions”. Maloney then quite appropriately noted, “Trooper Smith had a few seconds to decide on the side of the road in the early morning hours what to do. If those judges, in over three years, cannot agree on what was proper, how is the officer supposed to know in a few seconds?”
This judge’s answer is that is clear that this officer couldn’t have known at the time that he could not constitutionally detain for further “investigation” one Peter Michael Ferris who was driving 92 miles an hour at 1:06 a.m. on Route 70 in Washington County, Maryland just because he noticed that Ferris had bloodshot eyes and was “acting fidgety and nervous,” even if Ferris said in response to the trooper’s asking him “if he would mind stepping to the back of his vehicle to answer some questions”, that he “didn’t mind”.
It is equally clear now, however, that in the future the officer will know. The cost of his learning is that the truth about Peter Michael Ferris being in possession with intent to distribute drugs was ultimately excluded from evidence and the prosecution of this particular criminal was crippled.
There are essentially three schools of legal opinion on the use of this judicially created legal remedy to exclude otherwise truthful and reliable evidence in a criminal trial. The first is it should never be done. The second is that it should be utilized only on a limited basis after the application of a judicial cost-benefit analysis. The third is that it should be invoked at any time evidence is seized in violation of a defendant’s constitutional rights.
The Exclusionary Rule has been applied in federal prosecutions since 1914. It has applied to state criminal trials since 1961. Since those dates it is fair to say that the view that this doctrine, created to regulate police conduct, should be abolished has never gained acceptance by the judiciary of any state or the federal courts. As a result of its acceptance, albeit perhaps not enthusiastically in some quarters, the Exclusionary Rule in one form or another appears to be embedded firmly in the law.
The proper scope of the rule remains however very much at issue. To illustrate the debate, contrast the opinions of former Supreme Court Justices Byron White and William Brennan.
In 1984, Justice White in two opinions, flat out stated that “the exclusionary rule was not part of the Fourth Amendment, but was a remedy created by the courts solely to deter police violations of the amendment. Whether to apply the rule in a given case depends on a cost-benefit analysis.” In those same cases, Justice Brennan dissented stating that the rule “was part of the Fourth Amendment and that the admission of evidence was as much of a violation as its initial seizure.” Brennan went on to acknowledge that “this restriction on official power means that some incriminating evidence will go undetected if the government obeys these constitutional restraints. It is the “price’ our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment”, said Brennan.
Are you as a citizen willing to pay that price? Defense attorney Louis Martucci says you as a citizen and motorist should be pleased and your confidence restored that Maryland’s Court of Appeals judges are willing to closely scrutinize police conduct in suggesting “consent searches” and ready to exclude evidence if it is obtained in a manner that doesn’t withstand that scrutiny.
Prosecutor John Maloney says “Law Enforcement is dangerous enough without putting these impossible burdens on the officers and troopers.” He also expresses hope that his young daughter, Maggie Maloney, “when she is Supreme Court justice, will write an opinion to overturn this case”.
As a trial court judge, I took an oath to apply the law which includes opinions from the Maryland Court of Appeals. So, I will, at least for the time being, more closely scrutinize consent searches which follow traffic stops even though I personally find Judge Chassnow’s dissent more persuasive than the majority opinion in this case. I will patiently await, however, the opinion of Justice Maggie Maloney citing Maryland Judge Chassnow’s dissent for further and perhaps more enlightened guidance and direction.