Monday, March 5, 2012

The New York State Court of Appeals and the Exclusionary Rule

From the Kaye Court to the Lippman Court

By Mackenzie M. Keane
Mackenzie Keane, a second-year student at Albany Law School, is a member of the Law Review and an Associate Editor of the Center. Originally from Albany, she graduated magna cum laude from SUNY Buffalo where she majored in English and spent a summer studying in Spain. She has interned with the Albany County District Attorney's Office and Governor Cuomo's Office of General Counsel, and is a Research Assistant for Professor Bonventre, as well as a Teaching Assistant for his Criminal Law class.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

In the landmark Supreme Court decision of Weeks v. United States in 1914, the Court held that the exclusionary rule is inherent in the Fourth Amendment, which protects all citizens against unreasonable searches and seizures. The now famous “fruit of the poisonous tree” language first appeared in Nardone v. United States and has since been used to describe evidence linked to an illegal search or seizure.

The language of the Fourth Amendment took time to become a part of the New York State Constitution. The 1938 New York State Constitutional Convention was largely influenced by the events taking place in Europe at the time, including the social and political strife caused by the Nazi regime. The debate that ensued was a highly publicized and partisan one that threatened both constitutional and political consequences.

Then New York County District Attorney Thomas E. Dewey framed the constitutional argument as a dangerous one that would limit the ability of the State of New York to protect its citizens. Most supporters of the addition of the Fourth Amendment language to the New York State Constitution relied on the Supreme Court’s decision in Weeks v. United States, arguing that the protection of the exclusionary rule was inherent in the substantive protection of the Fourth Amendment. Despite the heated debate, the convention ultimately decided not to constitutionalize the exclusionary rule and to instead let the Legislature and the Court of Appeals debate its scope and limitations. Although the convention did not add the exclusionary rule to the New York State Constitution, state voters ratified the 1938 convention’s proposed constitution’s bill of rights provisions in 1938. Those provisions included search and seizure and wiretapping provisions.

The United States Supreme Court decision in Mapp v. Ohio extended the exclusionary rule protection to state criminal cases. Justice Clark argued the hypocrisy of the fact that federal prosecutors could not even consider using illegally obtained evidence, but state prosecutors could use that same evidence in their case, even though those state prosecutors are supposedly acting under the same Constitution as the federal prosecutors. Although the New York State Constitution’s adoption of the U.S. Constitution’s Fourth Amendment language would seem to frame the State’s adoption of the exclusionary rule as a constitutional issue, the Court of Appeals has never made clear whether its application of the rule is a constitutional interpretation or a common law rule of evidence.

A judge’s stance on the application of the exclusionary rule indicates much about her personal and political views. Calabresi’s commentary on the exclusionary rule simplifies the indication as follows: “To liberals, it is a pillar of privacy; it is essential to protect individuals from predations on the part of the police. To conservatives, it is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.”

Calabresi also mentions the interesting paradox of the “veracity” of evidence obtained in violation of search and seizure rights. Illegal evidence obtained from illegal wiretapping, warrantless searches, and vehicle stops without probable cause are examples of evidence that is inherently truthful because of the way in which it is gathered. And yet that evidence is barred from use by the prosecutor. The way that a judge votes on an exclusionary rule issue is very telling, because of the high stakes that accompany use of the rule. In reality, the judge isn’t simply voting on whether or not the exclusionary rule applies in a straightforward, application of law to facts approach. The judge is performing a costs versus benefits analysis of the gravity of the police misconduct and the danger of letting a criminal reenter society.*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.