So here's the second case I'm working on for the public defender. The cops get a 911 call in the area near defendant's home. The caller reports domestic violence in progress, but at a different house a few doors down from defendant's. The cops nevertheless show up at defendant's house (because they had problems with him in the past) and go up to the front door, where sure enough, they say they hear a domestic assault in progress. After the cops try to kick down the door, defendant opens it and the cops storm in. The woman inside has clearly been hit -- she has marks on her face and there are objects strewn across the living room. She tells the cops that defendant hit her. Defendant is arrested and charged, and now we are representing him.
My task is to write the motion to suppress all the evidence the cops obtained when they entered the house. The theory is that the cops violated the Fourth Amendment, which bars unreasonable searches and seizures. The cops were called to a different house, and they had no business being at defendant's home in the first place. Since they were there illegally and since they entered illegally, all evidence obtained in the entry must be suppressed a "fruit of the poisonous tree," in lawyer-speak.
If the motion wins, our guy walks with no punishment. It's obvious that he did something wrong, but we will nevertheless try to get him off on a technicality -- that is, if you view a constitutional right as a "technicality." So do I work my hardest on this motion to help this asshole get right back on the street? Or do I blow it off because I figure this guy deserves something on his record? This is why I love my job. Morally ambiguous decisions everyday!
The reality is, I'll be working my hardest. I don't want the cops snooping around my house whenever they want.
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I often wonder
Being a survivor of sexual assualt (totally unprosecuted, not by choice) I want to see people who rape and beat women in jail, and it makes me angry to think that this guy is going to get off on a 'technicality.' But after a moment's reflection, I don't think that fourth ammendment rigts are a technicality. I have often thought that torture is so awful it should never be used, no exceptions. In the case of the 'ticking bomb' (where torturing someone allows a bomb to be diffused and innocent lives to be saved) I still think you choose not to torture, and those people essentially die for the cause of not torturing prisoners.
This seems analogous in that here, you have a woman getting hurt, and probably continuing to be hurt, for the sake of fourth ammendement rights. In the abstract, it seems like a fair trade-off, but the people who pay the price (the bomb victims or the woman this guy hit) don't elect to pay it, and may disagree--they may have told you to violate those rights or torture the guy. I think that is where it gets tricky--I think we need more of a dialogue about these tradeoffs so that lawyers (capable as they are :) aren't the only ones wrestling with these moral ambiguities. I know calling for a dialogue is a little vague, but it seems we need some sort of knowledge of what being a citizen entails, that we all implicitly agree to be blown up or beaten if it means that certain principles will be upheld...
what do you think, Mr. GopherLawyer?
Those are good points; the discussion should definitely extend beyond lawyers to all citizens, since this stuff affects everyone (whether they know it or not).
One thing I find interesting is that the so-called "exclusionary rule" (which bars the use in court of illegally-obtained evidence) is not literally required by the Constitution. It's a prophylactic rule that the U.S. Supreme Court invented in in 1960s to discourage cops from illegally searching and seizing (see Mapp v. Ohio). But there is no text in the actual Bill of Rights that requires illegally obtained evidence to be excluded.
Given that the exclusionary rule is judge-invented, I think society should constantly evaluate the pros and cons of such a rule. Are too many sex offenders and drug dealers going free because the cops can't get evidence against them? Or would chipping away at the rule result in too much police intrusion?
We don't want criminals going free, but we also don't want to come home from work and find the police in our living rooms going through our closets. I don't know where to draw the line; that's why all citizens need to weigh in.
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