The Erosion of the Exclusionary Rule

In 2007, in Greenville, Alabama police stopped Stella Owens and Willie Davis.  Ms. Owens was thereafter arrested for DWI and Mr. Davis for giving a fake name to the police.  They were both put in the back of the squad car.  The police then search the car Owens and Davis had been driving.  They found a revolver in Davis’ jacket…another criminal charge.  Davis v. United States

At the time of the search of the vehicle incident to arrest, the police complied with the then existing law – authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants.  However, while Davis’ case was pending on appeal, the Supreme Court decided Arizona v. Gant, 556 U.S. __ (2009), and overruled the longstanding "search incident to arrest rule" in favor of a rule that allows a search of only (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.  The search in Davis, therefore, turned out to be unconstitutional under the Court's rule in Gant.

To discuss all of the cases contributing to the recent erosion of the exclusionary rule is an academic paper rather than a post on a blog.  However, the Court’s opinion in Davis is the most recent contributing factor to its all but certain demise.  The current Court held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule regardless of any Fourth Amendment violation. 

According to the current Court, the sole purpose of the exclusionary rule is to deter Fourth Amendment violations.  Never mind that previous Courts have adopted a more expansive view of the exclusionary rule and held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”  Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568–569 (1971).

Laws are passed every session that are applied retroactively.  Sex offender registration laws come to mind first.  Why not allow the exclusionary rule, a bedrock of our constitutional jurisprudence, to be applied retroactively, too, just to even things out?  If nothing else, the silver lining this case stands for is that police will have to be keenly aware of current Fourth Amendment law and conform their conduct to the same.

Put Down that Phone

It's tucked away in House Bill 242, but it's there.  Yes that's right.  The law we all knew was coming is officially here, and it's not such a bad idea actually.  NO TEXTING WHILE DRIVING unless you're stopped!   Not just in a school zone anymore...don't do it anywhere.  The penalty can be a fine not to exceed $200, up to 30 days in jail, or both a fine and jail time.  A judge also has the option of suspending a person's DL upon a conviction for TWD.

Aggravated DWI...Even if it's Your First

House Bill 1199, creating enhanced penalties for even first time DWI offenders, went to Governor Perry's desk on May 30 for signature.  The law takes effect 9/1/11 and will undoubtedly pass.  A first offense DWI, regardless of the breath, blood, or urine result, is a Class B misdemeanor.  Well, not anymore.  Now, a first time offender will find themselves charged with a Class A misdemeanor offense if it's shown at trial that the person's breath, blood, or urine at the time of driving is .15 or higher.  This means enhanced penalties. 

It is problematic though based on the theory of retrograde extrapolation.  A person could still be in the absorption phase at the time of the test.  The time of the test is always after the stop (i.e., time of driving).  Therefore, a person could actually be less than .15 at the time of driving but at the time of the test an hour or more after the driving a person could very well be at or over .15.  Remember the offense is driving while intoxicated and the only number that matters is the number at the time of driving. 

This is very problematic and yet another good reason to refuse the breath or blood test if you have any doubt that you are .08 or more.

No Deferred for DWI's...and That's a Good Thing

House Bill 189 the Deferred Adjudication bill applicable to DWI's did not pass!  Although the bill made it through the house, amendments to the bill made it unrecognizable, and the Senate basically never paid it much attention.  This is a good thing.  It was deferred probation by title only, not substantively.  As proposed, it would have required mandatory ignition interlock (blow and go machines) and the accused's record, like in family violence cases, could never be sealed, making the "deferred" useless.