This rule ensures that justice is excluded

June 10, 2006|By GREGORY KANE

Aquick show of hands: Who wants to die for the exclusionary rule?

Anyone? Anyone? Bueller? Frye?

With murder charges dropped - perhaps temporarily, perhaps not - against Davon David Temple this week, that's the compelling question of the moment.

Temple was charged with the killings of Jason David Woycio and Jennifer Lynne Morelock in late April. According to police charging documents, Lt. William Davis while conducting field interviews in the neighborhood of the fatal shootings, near Arunah Avenue in West Baltimore, was led to Temple. Charging documents also alleged that the lieutenant asked Temple if "he could look at his phone to see if there were any gang members in the phone."

What happened next is either a reasonable police search or an illegal search, depending on how you feel about the exclusionary rule.

"Davon gave Lt. Davis permission to look in his phone," a police charging document of April 29 says. "While [the detective] was looking at the contacts on the phone, he found a text message. The text message was written by Davon and sent out to another cell phone. The message reads as follow[s], `I killed 2 white people around my way 2day & 1 of them was a woman."

At issue is whether the detective exceeded the bounds of his search by focusing on Temple's text messages. Folks in Baltimore's state's attorney's office say cops needed a warrant to look at Temple's text messages. (Margaret Burns, a spokeswoman for the state's attorney's office, stressed that the case remains open even though charges have been dropped.)

So for now, at least, the text message is out as evidence. That makes this an exclusionary rule case. Burns confirmed that, and she elaborated.

"The exclusionary rule was a legal precedent based on Weeks v. the United States," Burns said of the case argued in 1914. "Any evidence seized illegally during the course of an investigation can't be used."

Thank heavens Burns went with the simple explanation. You could read more about it if you want, but you just might be rolling the dice with your sanity.

I tried reading the history of the exclusionary rule in The Oxford Companion to the Supreme Court. It was akin to reading a textbook I had when I took a probability and statistics course at City College my junior year. The textbook was full of theories and theorems. One of my classmates remarked that the more he read of the text, the more confused he got.

And the more I read about the exclusionary rule and the Fourth Amendment and the 14th Amendment and the "incorporation doctrine," the more I understood about those of us who have a problem with both the exclusionary rule and the "incorporation doctrine" - which basically says most of the restrictions placed on the federal government by the Bill of Rights also, because of the 14th Amendment, restrict the states.

For a time, the exclusionary rule applied only to the federal government. Many state governments ignored it until 1961, when the U.S. Supreme Court decision in Mapp v. Ohio "incorporated" the ruling and applied it to the states.

Before Mapp, many state judges read the Fourth Amendment and used their common sense, zeroing in on that word "unreasonable" in the phrase "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

So what, exactly, was unreasonable about the homicide detective's search of Temple's text messages? Are names of gang members somehow physically incapable of being put in text messages? I put that question to Baltimore police. Here's their official word from department spokesman Matt Jablow:

"We will yield to the judgment of the state's attorney's office."

Here's Burns, answering the same question, on the official position of the state's attorney's office:

"The case is still under investigation. We can't comment further."

So they can't say that the exclusionary rule - combined with the incorporation doctrine - has resulted in unnecessary federal meddling in state affairs that hamstrings prosecutors and cops. But I can say it.

Karl Spence, a San Antonio journalist whose book Yo Liberals! You Call This Progress? should be on somebody's best-seller list, said it too. Spence had this to say about the exclusionary rule while making a reference to how illegal searches were handled by many states before Mapp: by allowing lawsuits to be filed against cops who made illegal searches.

"If the police ransack my house without a search warrant and find nothing," Spence wrote, "a lawsuit for money damages is just the thing to make me whole. The exclusionary rule, on the other hand, is of no use to me at all. ... But if police ransack my house without a warrant and find a dismembered body in the refrigerator, then my prospects of collecting money damages evaporate, and the exclusionary rule suddenly comes in mighty handy."

It looks like, for a while at least, it has come in handy for Davon David Temple too.

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