Date22 March 2021
AuthorNir, Esther

INTRODUCTION 502 I. LITERATURE REVIEW 504 A. The Exclusionary Rule and Suppression Motions 504 B. Defense Attorneys in a Court Community Perspective 507 C. Defense Attorneys' Perceptions of the Police as Part of the Court Communit 510 II. DATA AND SAMPLING 512 A. Interview Sample 512 B. Survey Sample 513 III. RESULTS 515 A. Perceived Power Imbalance in the Court Community 515 1. Perceptions of Judicial Favoritism Toward Police 515 i. Credibility Calls Favor the Police 515 ii. Judges are Protective of the Police 516 2. Prosecutorial Favoritism Toward the Police 517 3. The Defense Position: "Lowest Rung on the Ladder" 518 B. Perceived Importance of Getting Along with Prosecutors Judges, and Police 519 C. Perceived Challenges in Holding the Police Accountable 521 1. Lack of Judicial Receptivity 522 2. Penalties for Bringing Suppression Motions 522 3. Shorter Sentences Over Police Accountability 523 D. Survey Results 524 1. Perceptions of Police Expertise 525 2. Perceptions of Judges and Prosecutors 525 3. Factors in Filing Suppression Motions 525 DISCUSSION AND CONCLUSION 526 INTRODUCTION

Protection from unreasonable searches and seizures is a fundamental right secured by the Fourth Amendment of the United States Constitution. Police violations of the Fourth Amendment not only adversely impact individual privacy rights but also erode perceptions of police legitimacy within communities more broadly. (1) Thus, deterring police from engaging in unreasonable stops, searches, and seizures is a constitutional imperative, and procedural safeguards, including the Exclusionary Rule, (2) have been established to encourage police compliance with Fourth Amendment mandates. (3) In theory, these safeguards should serve as an accountability structure for search and seizure related police conduct.

In the courtroom, judges and prosecutors play a role in operationalizing this accountability structure and ensuring that Fourth Amendment violations do not go unchecked. Judges may grant worthy suppression motions (i.e., motions brought by defendants to bar the prosecution from introducing improperly seized evidence at trial) and send a message to police that Fourth Amendment oversteps will not be tolerated. Prosecutors, who often collaborate with police during investigations, may proactively instruct police on Fourth Amendment mandates and make it clear to officers that illegally seized evidence may be barred from use at trial.

Yet defense attorneys arguably have the most critical role in holding the police accountable for Fourth Amendment violations. Specifically, they possess discretion to initiate suppression motions to challenge the constitutionality of police action. It is generally the defense attorney's filing of a suppression motion that fuels and directs the process of police accountability in court. In this way, defense attorneys serve as frontline defenders of Fourth Amendment rights and a check on police behavior. Notably, defense's filings of suppression motions are the primary catalysts that move other court actors to hold the police accountable for Fourth Amendment violations in that these motions are a prerequisite to judicial rulings (i.e., a suppression motion must be filed for the court to rule on it). Thus, defense attorneys hold a critical and indispensable role in operationalizing the Exclusionary Rule.

But are defense attorneys motivated to serve as a check on police conduct in court? Do dynamics within the court community complicate the desire of defense attorneys to defend their clients' Fourth Amendment rights? In this article, we seek to explore how power dynamics within the court community, concerns regarding relationships among prosecutors, judges, and police officers, and the quest for efficient and favorable case dispositions influence the manner in which defense attorneys litigate rights violations. For example, we explore: How do defense attorneys react to their clients' allegations of constitutional oversteps by police? What are the rationales behind these reactions? How do defense attorneys perceive their position within the court community and how do these perceptions influence their behavior? How do relationships among police officers, prosecutors, and judges play a role in the process? Are there systemic or strategic disincentives for defense attorneys to bring suppression motions?

To date, few empirical studies have explored these critical questions. However, these nuanced courtroom dynamics are central to understanding the extent to which the defense bar holds the police accountable for Fourth Amendment violations. Using in-depth interviews and surveys with two separate samples of defense attorneys, we explore the answers to these questions by studying these uniquely positioned court actors who have generally been overlooked by scholars in the criminal justice field. (4) The paper begins with a brief review of the Exclusionary Rule and suppression motions, followed by a discussion of how and why defense attorneys exercise their discretionary powers from a court community perspective. After placing our study within this theoretical framework, we share our methodology and our qualitative interview and descriptive survey results. We conclude the paper with a discussion of the challenges faced by defense attorneys in enforcing Fourth Amendment protections in profoundly imbalanced courtrooms.



      The Exclusionary Rule provides a remedy for defendants whose constitutional rights have been violated by allowing them to move the court to bar the prosecution from using illegally obtained evidence at trial. (5) The primary objective is to deter unconstitutional searches and seizures by police, thereby preserving the integrity of the legal system. In the landmark Fourth Amendment case of Mapp v. Ohio, the Court emphasized the importance of preserving these rights: "Nothing can destroy a government more quickly than its failure to observe its own laws." (6)

      Over the years, the Supreme Court has narrowed the scope of the Exclusionary Rule in a series of defining decisions. In a monumental 1984 case, (7) the good faith exception to the Exclusionary Rule was created. The Leon Court held that evidence should not be excluded where an officer acted in good faith, based on an objectively reasonable reliance on a search warrant issued by a neutral judge or magistrate but later found to be invalid. (8) In 2009, the Supreme Court further limited the reach of the rule by expanding the good faith exception to police error. (9) In Herring, the arresting officer mistakenly believed that an arrest warrant for the defendant was still in effect due to outdated information in the police database. (10) The Court concluded that the Exclusionary Rule did not apply:

      "To trigger the [E]xclusionary [R]ule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it[] and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the [E]xclusionary [R]ule serves to deter deliberate, reckless[] or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (11) More recently, in Utah v. Strieff, the Court ruled that evidence seized incident to the defendant's arrest could be used by the prosecution even though the initial stop was illegal because the illegality was "sufficiently attenuated" by a pre-existing search warrant discovered during the stop. (12) In its decision, the Court noted that the officer's errors did not rise to the level of a purposeful or flagrant violation. (13) This decision, as well as other modifications made by the Supreme Court over time, have limited the power of the Exclusionary Rule to enforce Fourth Amendment protections. (14)

      In order to invoke the Exclusionary Rule, defendants may bring suppression motions alleging improper police conduct regarding stops, searches, or seizures before the court. (15) In deciding whether to grant or deny a suppression motion, judges review statements of fact and legal arguments posited by counsel. (16) At times, hearings are conducted at which police officers, defendants, and other eyewitnesses testify; judges evaluate the credibility and reliability of witnesses and determine if suppression is warranted. (17) If the judge denies the suppression motion, the prosecutor may use the challenged evidence at trial. (18) If the court grants the motion, the prosecutor is barred from using the evidence. (19) In these situations, the prosecutor may either dismiss the case if the remaining evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, or, alternatively, proceed to trial with the remaining evidence. (20)

      Since the exclusion of valuable prosecutorial evidence is an outcome that police would arguably want to avoid, the threat that the seized evidence will be suppressed should theoretically deter police conduct that violates Fourth Amendment protections. Yet, empirical studies on the rule's effectiveness have yielded mixed results, (21) and the rule has been the subject of harsh critiques. (22) For example, critics of the Exclusionary Rule argue that the rule operates under limitations and constraints that inhibit its ability to deter Fourth Amendment violations. (23) Specifically, Counselor Oaks argued that the Exclusionary Rule does not provide a direct disincentive for unconstitutional police behaviors. (24) Instead, the penalty for suppressed evidence, if imposed, more directly affects prosecutors and their work on the case. (25) Counselor Oaks further argued that the Exclusionary Rule fails to address the norms and expectations within police departments regarding street enforcement practice. (26) Furthermore, judicial practice in adjudicating suppression motions is often an impediment to the Exclusionary Rule's deterrent value. To illustrate, Professor...

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