While you were sleeping, the Supreme Court weakened the Exclusionary Rule

The Exclusionary Rule started out with such promise. Under the "fruit of the poisonous tree" doctrine, evidence illegally seized by the police cannot be used against you in court. But, hey, that was 1920. It's now 2010.

The case is U.S. v. Julius, decided on June 11, 2010. Julius absconded from his parole supervision and was hiding out in his girlfriend's house, where the police showed up without a warrant and found him lounging on the bed with the mattress a little askew. The officer searched around and lifted the suspicious mattress to find an unauthorized gun. The officer admitted at the suppression hearing that "all we were there for was to find Mr. Julius and take him into custody. We had done that. The weapon being found is out of our parameters or out of the scope of what we do."

For those of us who do not practice federal criminal law, this admission sounds like a slam-dunk to suppress the pistol. But not so fast. As it is, parolees who have absconded enjoy fewer privacy rights under the Fourth Amendment. Moreover, a funny thing happened on the way to the suppression hearing. In Herring v. United States, 129 S.Ct. 695 (2009), the Supreme Court said that not all improperly-seized evidence needs to be suppressed. The Second Circuit (Pooler, Hall and Sweet [D.J.]) writes:

Above all else, Herring makes plain that a search that is found to be violative of the Fourth Amendment does not trigger automatic application of the exclusionary rule. That is, application of the exclusionary rule is not a matter of right upon a finding that an improper search has taken place. Rather, “the exclusionary rule is not an individual right and applies only where ... [it serves the purpose of] deterring Fourth Amendment violations in the future.” Id. Further, in light of the costs of letting a guilty defendant go free because of the exclusion of possibly probative, but improperly obtained, evidence from use in his prosecution, a court should order exclusion only after it has satisfied itself that “the benefits of deterrence . . . outweigh the costs."

This means that "technical" Fourth Amendment violations -- where the search is the result of some computer or bookkeeping error -- do not warrant suppression. Courts also have to think about the social costs of suppression, such as "letting guilty and possibly dangerous defendants go free – something that 'offends basic concepts of the criminal justice system.'”

What does all this mean for Julius and his gun? The case is remanded to the district court in Connecticut to sort it all out. Judge Pooler suggests the district court take into account the totality of the circumstances in revisiting suppression, including for example whether the officers legitimately feared for their safety and whether the officers had knowledge that the search was unconstitutional under the Fourth Amendment. Other relevant factors (among many) include whether a child could have accessed the gun and the fact that Julius's girlfriend gave consent to search the place.