Eminent Domain

How Appealing linked to US v Elder, a Seventh Circuit Court of Appeals case that was decided today. The case dealt with the reasonableness of a search under the Fourth Amendment and the possible suppression of evidence. In a unanimous opinion by my favorite three judge panel (Easterbrook, Posner, and Sykes), the court held that the search was reasonable absent a warrant. I won't go deeply into the facts, because they aren't the interesting part of the case. Basically, there was a cryptic, short 911 call about a meth lab, the cops showed up to where the call originated, and found an open door to an outbuilding on the property. The meth lab was inside.

Things get interesting when Judge Easterbrook starts talking about the exclusionary rule...

If probable cause alone-without putting in train the process of applying for a warrant-—were enough to invoke the inevitable-discovery doctrine, that would have the same effect limiting the exclusionary rule to searches conducted without probable cause.

Perhaps that would be a good development; the main requirement of the fourth amendment, after all, is that the search be reasonable. [citations omitted]

For those of you non-legal types playing along at home, the exclusionary rule says that evidence collected in violation of the Constitution cannot be used against you in a criminal court. It was a remedy that the Supreme Court came up with in Weeks v US and then applied to the states in Mapp v Ohio. The inevitable discovery doctrine is an exception to the exclusionary rule. It says that evidence obtained through an unlawful search is admissible if it can be established that a normal police investigation would have inevitably led to the discovery of the evidence. Easterbrook then quotes Scalia's opinion the Hudson case from the Supreme Court's last term...

The exclusionary rule comes at such high cost to the administration of the criminal justice system that its application might sensibly be confined to violations of the reasonableness requirement.

Easterbrook also recognizes that the exclusionary rule punishes the public more than the police but says that the Seventh Circuit can't do anything about that...

Allowing the criminal to go free because of an administrative gaffe that does not affect substantial rights seems excessive. But whether to trim the exclusionary rule in this fashion is a decision for the Supreme Court rather than a court of appeals.

Think that's a slight nudge to the Court?