Earlier this week the Supreme Court returned its opinion on Illinois v. Caballes, much to the consternation of the more strident civil libertarians. I’m a bit ambivalent about the result: I’m certainly not in favor of turning our public ways and spaces into unadulterated surveillance zones, but I can also see merit in the nuanced view that nothing in the Constitution, statutory codes, or social contract provides an absolute right of privacy in shared public spaces such as highways.
(As an aside, the absence from the case of two aspects really puzzle me. First, Caballes was pulled over for doing 71 (!) on rural I-80 so Driving While Brown was an element of probable cause. Second, the arresting officer just so happened to have a drug-sniffing dog with him. Either one individually, and certainly both together, seem somewhat random and perhaps capricious. Why didn’t they argue uneven enforcement of laws?)
However, some of the dissenting arguments left me astonished at their panicky absurdity. The most strident I’ve seen was from Orin Kerr, who feels the opinion might allow the police to release computer viruses to sniff out crimes and have the resulting data stand up in court. Oh, puh-leeze…computer viruses are illegal, and wiretap laws have already been applied to internet communications, so unless the U.S. court system decides to suddenly abandon well-established jurisprudence, I think we’re safe in that regard. Eric Zorn and Ruth Bader Ginsberg (!) were slightly more restrained but still opined that the ruling might lead to pervasive police (and canine) surveillance at routine traffic stops, stoplights, and public events. Again, c’mon…that would be so hugely expensive to enact, and so burdensome for the public (i.e. voters) to cope with, that no (American) government could keep it up for long. The problem with these types of slippery-slope arguments is that they make the unreasonable assumption that something is inevitable simply because it is technically permissable.
Yet, this case also brings to light a facet of American jurisprudence that has always bothered me, namely the fruit-of-a-poisoned-tree principle of evidence. Most of the discussions about the case seem to ignore the undisputed fact that Carballes had 282 frickin’ pounds of marijuana in his trunk! He, many others, and I may think that current pot laws are stupid but his action was (and is) in violation of current law regardless. That the truth of evidence is rarely considered in such cases bothers me. I understand–and generally sympathize with–the general premise that has led to this situation: the courts (and public) want to prevent capricious actions against citizens by the government/police, and have decided that draconian penalties for even minor, inadvertent deviations from police procedure are an effective deterrent. But is this really justice? I don’t think so, for it holds one abstract body (the government) accountable for the actions of an individual (the police officer) while absolving another (the defendant) of any responsiblity–and does so without regard to truth. (And what about the rights/responsibilities of the public in general?)
I think that a vast difference lies between a cop who plays a hunch and one who plants evidence. Certainly the latter should be thrown in prison, but perhaps administrative penalties–ranging from reprimand to termination of employment/pensions–might prove quite effective in keeping the former in check; the self-interest of a cop who has to weigh the possibility of a direct punishment (perhaps to his immediate supervisors as well?) will be a much greater inducement to do the Right Thing than will the possibility of some lawyer being reversed on appeal months or years down the road. In my view, physical evidence should stand on its own merits and only be excluded when its connection to truth is tenuous; if we put true offenders away (perhaps with slightly reduced sentences?), I don’t think our republic will fall into tyranny as long as we also hold government officers accountable for violations of the rules in pursuit of said offenders.