Asset Protection BLOG - Mark Nestmann: Supreme Court Upholds the "'Barney Fife" Exception to the Constitution [Part II]

In my last blog entry, I described an appalling Supreme Court decision that eviscerates the "exclusionary rule" to enforce your right to be free of unreasonable searches and seizures. This right is guaranteed under the Fourth Amendment to the U.S. Constitution. Essentially, if police mistakenly arrest you based on faulty information, they can still use any evidence they seize against you in a subsequent prosecution. The only requirement is that the error results from "isolated negligence."

Imagine that you're driving down the highway and police stop your vehicle. Based on faulty information on their computers, they arrest you based on a warrant that never existed, or that has expired. Under the search incident to arrest doctrine I described in Part I, they search you and your car. They also copy all the information in your laptop and your cell phone. But, after a few minutes, they apologize.

"Oops, we made a mistake…there was no warrant. But you're under arrest anyway, for conspiracy, because we found a text message in your phone to someone we arrested last week for drug trafficking." Under the newly created Barney Fife exception to the U.S. Constitution, this is now perfectly legal.

It's also not hard to imagine police deliberately neglecting to update arrest warrant records. This couldn't happen too often—otherwise it wouldn't be "isolated negligence." But what if police decided to embark upon an informal policy of not updating records to reflect expiring warrants of selected criminal suspects? These suspects might be selected on the basis of the crimes they commit, their political beliefs, their race, their religion, or any other criteria police devise. Whether conducted in good faith or otherwise, under the Supreme Court's reasoning, such a policy—so long as it could be attributed to "isolated negligence"—would probably pass legal muster.

Back in 1965, Judge Henry Friendly, a highly regarded appellate judge, wrote, The sole reason for [the] exclusion[ary rule] … is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution." And, I might add to protect us all from any real harm that might be perpetrated by the well meaning, but poorly executed law enforcement efforts of the Barney Fifes of the world.