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The Supreme Court on Thursday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional. New justices Elena Kagan and Sonia Sotomayor joined in the majority’s hostile approach toward the exclusionary rule, leading a dissenter to wonder if the rule — already weakened by recent decisions — might be on life support. “If the Court means what it says, what will happen to the exclusionary rule?” asked Justice Stephen Breyer in a dissent joined by Justice Ruth Bader Ginsburg. Justice Samuel Alito Jr., writing for the 7-2 majority in Davis v. United States, said the absence of police culpability at the time of the search “dooms” a defendant’s claim that evidence obtained in the search should be excluded at trial. “Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule,” Alito wrote. He also dismissed a line of high court precedents that viewed the exclusionary rule as a “self-executing mandate implicit in the Fourth Amendment itself.” Instead, Alito said the rule had a limited purpose of deterring future police misconduct, and could be ignored if it did not clearly serve that purpose in a given case. The exclusionary rule has long been a target of conservative justices, but the tenor of Alito’s majority opinion was unusually contentious. “It is one thing for the criminal ‘to go free because the constable has blundered.’” Alito wrote, quoting from an early ruling that foreshadowed the exclusionary rule. “It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs.” Kent Scheidegger of the Criminal Justice Legal Foundation said the Court’s hostile analysis of the exclusionary rule in Davis suggests “its days may be numbered.” The fact that Kagan and Sotomayor, both appointed by President Barack Obama, joined the majority, while Clinton appointees Breyer and Ginsburg dissented, was “pretty surprising,” said Scheidegger. “Kagan had practically no record on issues of criminal law,” so her vote was especially significant. Sotomayor wrote a concurrence stating that the use of the exclusionary rule when the legality of a search is unsettled — rather than legal but later found illegal – is a different question. Willie Davis was a passenger in a car stopped by police in Greenville, Ala., in 2007. Police arrested the driver for being under the influence of alcohol, then searched the car and found a revolver in a jacket that passenger Davis had left on the car seat. At trial on charges of felony possession of a firearm, Davis sought to suppress the gun evidence, citing the related, then-pending Supreme Court case of Arizona v. Gant. The evidence was permitted at trial, and Davis was found guilty and sentenced to more than 18 years in prison. The Supreme Court issued Gant in April 2009, narrowing the circumstances that can trigger a police search of a car’s passenger compartment. Lawyers for Davis went back to court seeking reversal of the conviction based on Gant. The U.S. Court of Appeals for the 11th Circuit agreed that Gant applied, but upheld the conviction, asserting that the exclusionary rule is inoperative when the police search was proper at the time it was conducted. Alito also found that Davis’s specific case was still pending when Gant was decided, but said, “Exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred.” The police officer acted in good faith, relying on governing precedent, so should not be punished by exclusion of the evidence, Alito said. “It’s ‘heads I win, tails you lose’ for defendants trying to vindicate Fourth Amendment rights,” said Sidley Austin partner Jeffrey Green, who monitors the Court’s criminal docket for the National Association of Criminal Defense Lawyers. “Here, an officer’s good faith is relevant to whether evidence should be excluded. But the Court recently told us in Kentucky v. King that defendants can’t allege bad faith if the police break the door down.” Davis’ lawyer, George Washington University law professor Orin Kerr expressed concern in his filings that if defendants cannot benefit from a change in the law governing their case, they would have little incentive to appeal adverse lower court decisions. Alito dismissed that concern, stating, “We have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case.” In his dissent, Breyer echoed Kerr’s point by worrying about the fairness of a system that “treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way.” Tony Mauro can be contacted at [email protected].

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