The Exclusionary Rule and Security

Earlier this month, the Supreme Court ruled that evidence gathered as a result of errors in a police database is admissible in court. Their narrow decision is wrong, and will only ensure that police databases remain error-filled in the future.

The specifics of the case are simple. A computer database said there was a felony arrest warrant pending for Bennie Herring when there actually wasn’t. When the police came to arrest him, they searched his home and found illegal drugs and a gun. The Supreme Court was asked to rule whether the police had the right to arrest him for possessing those items, even though there was no legal basis for the search and arrest in the first place.

What’s at issue here is the exclusionary rule, which basically says that unconstitutionally or illegally collected evidence is inadmissible in court. It might seem like a technicality, but excluding what is called “the fruit of the poisonous tree” is a security system designed to protect us all from police abuse.

We have a number of rules limiting what the police can do: rules governing arrest, search, interrogation, detention, prosecution, and so on. And one of the ways we ensure that the police follow these rules is by forbidding the police to receive any benefit from breaking them. In fact, we design the system so that the police actually harm their own interests by breaking them, because all evidence that stems from breaking the rules is inadmissible.

And that’s what the exclusionary rule does. If the police search your home without a warrant and find drugs, they can’t arrest you for possession. Since the police have better things to do than waste their time, they have an incentive to get a warrant.

The Herring case is more complicated, because the police thought they did have a warrant. The error was not a police error, but a database error. And, in fact, Judge Roberts wrote for the majority: “The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”

Unfortunately, Roberts is wrong. Government databases are filled with errors. People often can’t see data about themselves, and have no way to correct the errors if they do learn of any. And more and more databases are trying to exempt themselves from the Privacy Act of 1974, and specifically the provisions that require data accuracy. The legal argument for excluding this evidence was best made by an amicus curiae brief filed by the Electronic Privacy Information Center, but in short, the court should exclude the evidence because it’s the only way to ensure police database accuracy.

We are protected from becoming a police state by limits on police power and authority. This is not a trade-off we make lightly: we deliberately hamper law enforcement’s ability to do its job because we recognize that these limits make us safer. Without the exclusionary rule, your only remedy against an illegal search is to bring legal action against the police—and that can be very difficult. We, the people, would rather have you go free than motivate the police to ignore the rules that limit their power.

By not applying the exclusionary rule in the Herring case, the Supreme Court missed an important opportunity to motivate the police to purge errors from their databases. Constitutional lawyers have written many articles about this ruling, but the most interesting idea comes from George Washington University professor Daniel J. Solove, who proposes this compromise: “If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors.”

Increasingly, we are being judged by the trail of data we leave behind us. Increasingly, data accuracy is vital to our personal safety and security. And if errors made by police databases aren’t held to the same legal standard as errors made by policemen, then more and more innocent Americans will find themselves the victims of incorrect data.

This essay originally appeared on the Wall Street Journal website.

EDITED TO ADD (2/1): More on the assault on the exclusionary rule.

EDITED TO ADD (2/9): Here’s another recent court case involving the exclusionary rule, and a thoughtful analysis by Orin Kerr.

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Posted on January 28, 2009 at 7:12 AM • 108 Comments

Comments

Piper • January 28, 2009 7:41 AM

How long until the names of all present and past members of the Electronic Privacy Information Center are “accidentally” listed in their database as having outstanding arrest warrants?

DevinB • January 28, 2009 8:28 AM

I agree with the Supreme Court decision, although it won’t affect me because I’m Canadian.
The exclusionary principle is designed to protect the people from arbitrary or (forgive me) unwarranted invasions of privacy. It is designed to ensure that the police do not recklessly overuse their powers based on personal whimsy. It is designed to curtail fishing trips, entrapment, and other such abuses that stem from officers who do not deserve their title.
In this case, the officers were (as far as I know) following perfect protocol in executing a search warrant they believed to be legitimate. There were no abuses of power becasue they were limited by the ‘text’ of the warrant. So the evidence should be admitted.

That being said, in the case of human error, the officer who failed to retract the warrant should be reprimanded. If it was a technical error, then whatever company or department oversees that aspect should be fined, or the contract broken.
If there is any reason to believe that the data inaccuracy was willful then the evidence should be inadmissible.

sooth sayer • January 28, 2009 8:41 AM

I disagree with this narrow interpretation of the impact of this ruling.

First the database has errors not become police force is too smart and leaves it there, but because they normally bid these contracts to political hacks who are sub par and then don’t have the money/process to update and upgrade.

Second the ruling was important because it recognized that “prior” actions may be used to “indict” a suspect in a similar manner a grand jury does.
Even today grand juries routinely use one side of the story to indict someone.
May be the author likes lawyers to policemen; I hate them both.

Evan • January 28, 2009 8:50 AM

I don’t have the legal training at all to dispute this ruling and be taken seriously, but I will say that it makes me more than a little scared. Does it really matter in this case what the law was “designed” to do when the implication is that police can be knocking down your door without actual warrants?

Bryan • January 28, 2009 9:42 AM

@DevinB
The problem isn’t just how the database error in this case occurred, whether it was negligence, human error, software error, etc. How the error happened should have no bearing on the decision.

Why?

Because the decision sets precedence that in the future could allow any of these to happen and go unchallenged.

Maybe it was a simple mistake this time. That doesn’t mean that next time a corrupt police officer that believes he’s doing TheRightThing won’t create a database error to allow the illegal evidence he collected to be admissible. Or additional, honest database mistakes can continue to happen, because the police have no incentive to prevent them. Or human error by the database administrators or the officers that use the database could cause additional mistakes. If there’s no penalty for them, there’s no incentive to avoid these mistakes in the future and there is a benefit to them and a cost to society.

@sooth sayer
This ruling doesn’t help create an incentive to contract higher quality services either.

If the evidence collected as a result of acting on unreliable database information was not admissible, the time wasted would force the police to pay for higher quality services. If that is the reason for the error.

(There was a timeout the first time I attempted to post this, I apologize if it posts twice.)

Mike • January 28, 2009 9:45 AM

As Evan stated I have neither the training or experience to comment intelligently on this topic. But to my knowledge warrants are done by the magistrate so the error would have been in the courts database.

In this case I kind of agree to disagree here because I don’t believe that the police did anything wrong assuming they had the proper warrant to search and not just an arrest warrant. I also agree that by throwing out this (what appears to be) a minor charge based on the evidence would push court officials and police to make sure their database is error free or at least errors are at a minimum. If nothing is done court officials and police have no incentive to make sure that the databases are correct if they are still making arrests with incorrect information.

I was also under the impression that in order to search someones home you have to have a seperate search warrant that has to be shown to the home owner prior to entry. But like I said I don’t have any training or experience here so I could be totally wrong.

Julian Gall • January 28, 2009 9:48 AM

Suppose the police had found a dead body in the house. Should they not be permitted to arrest the man?

AppSec • January 28, 2009 9:58 AM

@Julian Gall:
If the warrant was received in bad faith, then no they shouldn’t be — that is unless they can prove they would have found the dead body and linked to him through other means regardless of the warrant.

Does anyone know the full process for getting the arrest warrant into the database? Aren’t there checks and balance (ie: a DA (or ADA) needs a judge to complete the process)?

Franky B. • January 28, 2009 10:08 AM

@DevinB
“If there is any reason to believe that the data inaccuracy was willful then the evidence should be inadmissible.”

The purpose of these constitutional protections is to put checks and balances in place that protect the citizen without his or her having to prove willful conduct on the part of the police. This is why such conditional rules are dangerous and why the evidence should have been ruled inadmissible no matter who made the mistake or wether or not it was an actual mistake. As a citizen, how do you go about proving that a “mistake” in a database was in fact willful misconduct on the part of the police or an agent thereof? If you don’t have to prove it, then how much evidence do you have to provide? If merely insinuating it is enough, then it would always be possible to have evidence excluded and thus be ineffective as an exception.

@Julian Gall

If there was no valid warrant or probable cause to enter the premises then, yes! Society decided long ago that we were willing to live with these situations in order to protect ourselves from a police state. The gravity of the crime should have no baring on the admissibility of the evidence.

A nonny bunny • January 28, 2009 10:08 AM

@Julian Gall

Would your position depend on whether or not police entered the house under legal pretenses? Surely you wouldn’t want a murderer to get away in either case.

It would be problematic. On the one hand you can’t condone murder, on the other hand you can’t condone police overstepping their boundaries. I’m not sure making evidence inadmissible is always the best option; but if not that, what penalty do you give the police?

Franky B. • January 28, 2009 10:13 AM

@AppSec

It depends on the type of warrant, but as far as I know, all the checks and balances are for the process of issuing a warrant. All of these can occur before anything is entered into a database. Plus, even if there are checks before entering a warrant into the court’s database, you have to consider that the police databases aren’t necessarily linked to that database. If they copy it over manually, there may be errors in that process.

FWIW, in most jurisdictions, arrest warrants are signed by the DA, not a judge. Search and bench warrants are signed by judges, I believe.

DevinB • January 28, 2009 10:16 AM

@Bryan
I am referring to the case in which there has been some sort of investigation into the cause of the misinformation, and there was no finding of any willful negligence.
Let’s start with assuming it was not completely innocent negligence. In that case, there is gross misconduct, and the evidence should be considered compromised (thrown out).
Now, let’s assume that the computer related error was completely innocent. I am not suggesting that we let these mistakes go unpunished, I am simply suggesting that the punishment ought not be meted out against society at large.
To clarify the last statement. I believe that the officer should face some sort of repercussion. Warnings, fines, firings, doesn’t matter to me. Same principle applies to whomever administers the database. The contract should be structured in a way that the companies will have to be held accountable for any data corruption.
This is keeping in mind that people are most concerned with themselves. If a company believes they will lose a lucrative contract based on data integrity, then they will maintain data intergrity. If an officer believes he will lose his job, that will be more important to him than possibly flubbing some arrest because of procedural issues.

Bottom line, placing the consequences on those who perpetrated the errors will do more to eliminate the errors than placing the consequences on society by letting the criminal go free.

Anonymous • January 28, 2009 10:21 AM

nonny bunny:
I’d rather see the murderer get away. It’s not like catching him immediately is going to bring the victum back. The police may eventually be able to convict him based on other evidence. You also don’t need to catch every murderer to deter people from murdering.

Mike:
No, not all warrants need to be presented to the home owner before entering. No knock warrants are way overused and are very dangerous for everyone involved. There are also sneak and peak warrants. They used to require notification of the search (afterwards), but as part of the PATRIOT act that is no longer required.

brendan mckenna • January 28, 2009 10:21 AM

If you have nothing to hide you have nothing to worry about. If the police accidentally find child porn in a house I would seriously hope it would be admissible in court. The real question is how they will use this loophole- to go after petty drug offenders or some serious scumbags. Personally I think scumbags have no rights- especially someone having anything to do with child porn.

Anonymous • January 28, 2009 10:22 AM

It’s not about penalizing the police or ensuring they can “do their jobs”. It’s about securing freedom. They adjudicated from the wrong perspective, as usual.

Andrew • January 28, 2009 10:23 AM

@Bryan “That doesn’t mean that next time a corrupt police officer that believes he’s doing TheRightThing won’t create a database error to allow the illegal evidence he collected to be admissible.”

Exactly. And there’s no legal requirement for an audit-trail such that we’d even know who made changes to a police database. If our beloved hardass Senior Detective Lenny Briscoe knew how to use a database, you can be sure there’d be episodes of Law and Order with him making “mistakes” in a database for Ed Green to find.

clvrmnky • January 28, 2009 10:34 AM

Again, not a lawyer, but shouldn’t we be treating the data we get from automated agents like databases the same way we treat informants?

I assume that if I rat on my neighbour that something nefarious is going on, this can be used in some manner to assist their work. However, maybe I’m a troublemaker, or a paid informant. Surely the police already have ad hoc and legal requirements for information collected /essentially/ second-hand.

I’m with Bruce here. I’m not a lawyer, but I am a coder with over a decade of experience in the enterprise data space. Databases are so filled with errors, and so leaky, that for critical systems like this we should not trust them implicitly. And the problem is that the larger and more heterogeneous these databases get, the rate of error actually goes up, and the problems harder to fix. We are already approaching critical mass for these sorts of systems in banking and government. What makes anyone think it won’t be a problem for law enforcement?

This is exactly the sort of problem that clever cops will under report because it makes their job easier. Errors and leaks will go unreported for months or years, and not the incentive to keep data out of the public hands (say, because of abreach or a leak) will approach zero.

A DB that leaked info via a publicly accessible web presence, or over an easily sniffed wire? No cop in the world would want to give up a tool like that.

“Yes, your honour, this information was well-known by many people but we only recently became aware of the situation. Before we had a chance to correct it, we were contacted by members of the public about wrong-doing by the suspect.”

Even if you don’t like that scenario, there are literally hundreds more that we can come up with.

This decision actually makes the work of the court harder, forcing them to interpret law unnecessarily, and may even (ironically) leads to real criminals getting off because of a technicality.

clvrmnky • January 28, 2009 10:45 AM

@brendan: please do your homework before trotting out the “please think of the children” argument.

Children are murdered most often by their parents or a guardian. Dreaming up movie-plot threats to back up some fuzzy notion of personal safety that /naturally/ leads to a police state is specious, at best.

Things are a little more nuanced than you suggest. We limit law enforcement because doing so helps us catch real criminals (i.e., those that the law is invested in catching, because we recognize the real danger to people and property).

Furthermore, holding up anyone, including people who practise law enforcement, as paragons of virtue who are somehow better than the rest of us is the One True path to a police state. The day we stop reifying cops as automatic heroes is the day civilization grows up.

“Cops and little people” alike are likely the same: we assume good faith, but we always assume that, like crimes of opportunity, some cops may be open to enforcing their own laissez-faire law. They may think the ends justify the means, but society knows different. We’ve learned that one the hard way.

This is why we impose limits. It makes us all safer, including the cops.

Anderer Gregor • January 28, 2009 10:49 AM

I am soooo tired of these “what if”-pseudo-arguments.

I do not know much about the US laws about warrants, but I am quite sure that if officers search a house based on an — as it turns out — illegal warrant, and they find evidence that in there, Osama Bin Laden is actually molesting Elvis, Maddie, and JFK’s dead body (yes, I can make up unlikely examples as well), they will not have the slightest problem to obtain a new, legal warrant based on their observations, in which’s execution they will surely find evidence that is legal to be used in court.

Brandioch Conner • January 28, 2009 10:53 AM

@brendan mckenna
“stop your fking whining, if some legal issue stood in the way of you and a predator trying to harm your child you would be singing a different tune.”

I’m seeing a lot of similarly phrased comments lately. But they all seem to be posted under different ‘nyms.

Anyway, no, I for one would not be “singing a different tune”.

And there is one simple reason for that. You and your family are no safer in a police state than you are in a Free society. There wasn’t less crime in Soviet Russia than there was in the USofA at the time. But there was less justice.

I’ll choose unsafe Freedom over a police state every time.

brendan • January 28, 2009 10:56 AM

I was not calling for a police state- merely stating your emotions in that situation would make you want no limits to tracking down the person.

I also do not assume all cops are “heroes”, I specified MOST are good people, obviously there are bad ones which may be giving them a bad name.

I feel if the cops have a strong notion that someone is up to nefarious activities, and I mean really nefarious (as in child porn) then they should have no restrictions. There can be different classifications as to what they would be allowed to do given the severity of the crime. There was a previous post that the police can scan a suspect’s hard drive if they think they are involved in child porn. That sounds good to me. If you have illegal movies on your hard drive and are worried they will scan it, well you shouldn’t have illegal material in the first place. I have an instinct that most people reading this have illegal games/movies/whatever on their computer…when there really is NO justification for having that.

Bottom line is that if you have nothing to hide then wtf do you have to worry about?

Unnamed • January 28, 2009 11:03 AM

I have not researched this case or read the court’s decision. I make this comment based only on what I’ve read on this page.

To those who say that the police did nothing wrong:

We can assume in this case that the individual officers who acted to enforce the warrant did so in good faith.

We can also assume in this case that no one intentionally added fake or false information to the data system which said the warrant had been issued and not repealed.

But this fact remains: the police system created a situation which caused police officers to act as though they had a warrant when they did not have one.

So we must say that the police (as a whole, as a system) did something wrong.

We can argue, as we are, about the best way to minimize this kind of wrong action in the police system — but it is simply not accurate to look at the actions of the arresting officers and to conclude “The police did nothing wrong.”

Clive Robinson • January 28, 2009 11:16 AM

As a principle the SC has made a very bad one on this.

As a “suspect” you have no defense in law by saying you did not know that what you where doing is illegal.

This SC has effectivly said that the police do have this as a defence.

I do not know about the US but in the UK before a warrent is issued an “apointed officer” must make a case before a magistrate or judge (depending on various things).

If an apointed officer makes a false statment to either a judge or magistrate then the court has the right to take sanction against the officer concerned.

Further if it can be shown that it was done willfully then the officer can be charged with “malfeasance in public office”.

As far as I can tell the UK restriction to “willfully” does not apply in the US where “ignorance” by the officer is not a defence to the charge.

Therefore it is beholdent on an officer in office performing an official duty of the office must excercise sufficient care .

The excuse of “it’s in the database” is obviously not excercising sufficient care by the officer.

Michael Ash • January 28, 2009 11:18 AM

Wonderful! Now if the police need to arrest someone but they can’t get one of those silly judges to cooperate, all they have to do is put a fake entry in their warrants database and they get a free ride to court. Checks and balances are so silly anyway, it’s good that the Supreme Court has decided to let police get around them.

Bryan • January 28, 2009 11:19 AM

@brendan
Emotions shouldn’t have any bearing on how law in enforced. We have written rules for a reason.

There are several quotes about measuring the moral fiber of a society by how it treats it’s worst criminals.

Until someone is convicted, at least in the United States, they have every civil right as the next citizen. Including “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. …”

As far as “having nothing to hide”, I think you can find plenty of information on Bruce’s site alone about that argument. I believe part of the problem is that you may believe you have nothing to hide, or have done nothing wrong. Part of the problem is, you don’t get to decide what is officially wrong, and that definition keeps changing.

brendan • January 28, 2009 11:20 AM

I thought Bruce was a COMPUTER security expert when did this site become his own personal rant anyway? Can we perhaps get some material on rootkits or current malware instead of topics designed for lawyers? I personally have designed an XP kernel mode rootkit detector for my company and would be interested in perhaps some RELEVANT material….

Ben Sauer • January 28, 2009 11:20 AM

The analysis skips over a key point. The exclusionary rule is probably outdated anyway. So swinging it so wide that society has to let a drug runner go free because of a database error is using an outdated rule to accomplish something that should and can be done in other ways.

Pete Austin • January 28, 2009 11:27 AM

@brendan mckenna
You say “If you have nothing to hide you have nothing to worry about.”

Coincidentally, I just found the following online: “Brendan McKenna of Obins Avenue, was convicted of carrying a firearm with intent, false imprisonment, and hijacking on August 5, 1981.” http://www.residentgroups.fsnet.co.uk/brendan.htm

Still sure that you have nothing to worry about?

Michael Ash • January 28, 2009 11:30 AM

@brendan

The simple fact that this blog is found on “schneier.com” should clue you off to the fact that it’s his PERSONAL blog, and he can post whatever he wants.

The fact that his knowledge of computer security spills over to other areas is just a bonus for those of us who enjoy reading about a variety of topics. If you don’t like it, may I suggest reading some other blog instead?

Impossibly Stupid • January 28, 2009 11:37 AM

Another reason why this ruling is wrong is that it will end up making law enforcement more difficult. I am very much reminded of the DUI Cases Thrown Out article:

http://www.schneier.com/blog/archives/2005/09/dui_cases_throw.html

It’s hard enough to get the source for a single small device, so imagine trying to do a code verification for all the computer systems that process an entire case from start to finish. How long will it be before all kinds of prosecutions are challenged because the courts know that a black box system can contain grievous errors and yet refuse to open them up for defense review?

Kate • January 28, 2009 11:38 AM

The thing is if they didn’t rule this way they would be leaving the door open for a wide variety of ‘errors’ that could lead to unreasonable search and seizure issues. If any police wanted to search your home without a the right paperwork they could just claim that they thought they had it.

paul • January 28, 2009 12:09 PM

So what we have here is a situation with an incentive for police and courts to “forget” to purge outdated warrants, and for database implementors to build code that won’t alway purge outdated warranted when ordered to do so. And for code that will respond that, yes, there is a warrant under a particular name when in fact there isn’t. (Anyone remember the um, permissive matching standards for the florida voter registration rolls?) We’re never going to get the reports from cases where someone did have a warrant and the system reported that they didn’t, but I’m going to bet that that’s a much more commonly-corrected error mode.

One of the problems no one has discussed here is that these kinds of errors make the job of dishonest police officers much easier. Find an outdated warrant, conduct a “search” of your target and their vehicle, and presto!

Clive Robinson • January 28, 2009 12:19 PM

@ brendan,

“I have an instinct that most people reading this have illegal games/movies/whatever on their computer…when there really is NO justification for having that.”

What do you mean by “illegal”?

I have a movie on an external hard drive which is encoded like all such movies via a proprietry codec, and I have a copy of the playback codec on the same drive.

Now if I play it back on an MS machine using the codec it’s apparently legal.

However if I connect the drive on to a Linux or other OS box in some parts of the world then the IP holder will probably take the view that it is illegal…

Such are the joys of torts.

HJohn • January 28, 2009 12:37 PM

This is just one more case where one has to pick their posion.

1) I’m uncomfortable with a system where a movie-cop scenario plays out where the system can be manipulated by a cop determined to break the rules to do TheRightThing(TM).

2) I’m also uncomfortable that someone can make an honest mistake and a henious criminal gets off. You get a warrant and through honest error enter 100 E Main instead of 100 W Main and you find evidence of a seriously violent crime, and you have to drop it? That seems wrong as well.

Looking at it statistically and unemotionally, #1 seems like a much more common scenario (aside from the movie-cop reference) that innocent people would be needlessly bothered, and false incidents would be much less likely given the associated incentive to not make errors. #2, though horrid, would probably be extremely rare.

It’s not often I disagree with Antonin Scalia, and even less often that I agree with the likes of Breyer, but I’m compelled to be with the minority on this one. I really can’t blame the majority when considering the severity of potential consquences, but the probability just isn’t high enough. Then again, who wants to tell someone the person who raped their daughter was let off because a house number was transposed.

Perhaps there could be a law granting an exception in the rare instance the evidence points to a serious felony like murder, rather than a minor crime like drugs or something.

Tough dilemma. Good discussions.

Oliver • January 28, 2009 12:47 PM

brendan, a lot of things that are illegal should not be illegal. Speeding, driving while intoxicated, possession of depictions of underage nudity and sex, possession and sale of recreational drugs, boycotting Israel, sodomy, unauthorized access of a computer, copyright infringement… I could go on and on. These are all either victimless crimes, crimes that punish people for creating risk instead of for causing actual harm, or crimes that make no sense with our current technology or culture. Each of the large groups of people who participate in these behaviors at some point in their lives has been criminalized when they’ve never harmed, stolen, or threatened another person.

And before you jump on me for lumping kiddie porn in there brendan, remember that there are already laws against child abuse. I’ve never heard of law enforcement bothering to use their vast powers of surveillance, image recognition, and domestic intelligence to track down and find the sick degenerates who have sex with prepubescent children. Nope, the people who actually perform this abuse on the children tend to get away with it, while the ones who go to prison and get branded sex offenders for life are the sick guys who are hopefully just repressed and jacking off to it in their bedrooms to keep from making any of the children they know their first rape victim.

DUI is the same scenario – instead of punishing people harshly for vehicular manslaughter while intoxicated, they arrest a huge swath of the population every year because everybody and their mother drives around drunk or on benzodiazepines or oxycodone now and then.

Just legalize normal behavior, folks, and most of your crime will go away.

another bruce • January 28, 2009 12:57 PM

bruce schneier’s analysis is sound as far as it goes, but it doesn’t go far enough. the fourth amendment is essentially a dead letter now. just as organisms and species evolve, so do communities and nations. when benjamin franklin emerged from constitution hall in philadelphia one day, a woman asked him what he had made in there, and he famously responded

“a republic, if you can keep it.”

franklin knew that societal institutions are not endowed with automatic self-secured immortality. there is constant pressure from all sides, just as there is on an individual, and resistance to change is futile. power is a common and primal objective, right up there with food, sex, air and water, and the exclusionary rule is a transitory barrier to the arrogance of power, so it is a perfectly natural development that this rule will ultimately be discarded, and that franklin’s republic will be ultimately discarded in favor of something else.

the comments on this thread had my sides shaking like lime jello. the foreign language material provoked a giggle even with no understanding, and then brendan showed up…

“when did this site become his own personal rant anyway?”

uhh, when he reserved the url through a registrar? when your name is on a blog and you control it, you can post an-eee-thing you want. videos of rick james songs mashed up with hindu suttees, even. it’s a matter of free choice to enter a url in your address bar, and someday soon it might be the only freedom you have left, so enjoy it already.

A Concerned Citizen • January 28, 2009 1:07 PM

The way I’m seeing this is that this ruling just gave the police an effective loop hole around certain elements of the law thats supposed to prevent this thing from happening. Whats to stop them from intentionally introducing “errors” into the database?

DevinB • January 28, 2009 1:14 PM

@another bruce
A republic is not about liberty, it is about the BALANCE between liberty and tyranny. The reason there is a constitution is to set out limitations on the power of the government, but in that there is an implicit argument that there must BE a government. With no limits on liberty there is anarchy (anarchism) a system which (if I understand it correctly/somewhat simplistically) assumes that the collection of all people will be able to guide and watch over themselves without any governing body of any kind.

I am just saying this because you seem to imply (I beg forgiveness if I misunderstood) that EVERY power the government affirms (not bestows, but affirms) is somehow AGAINST the republic.

There is a delicate balance that must be maintained between individual and societal rights, and it’s not always greed or malice that has the governing body affirming their right to protect the peace.

Although, sometimes it is. 😉

HJohn • January 28, 2009 1:15 PM

A Concerned Citizen: “The way I’m seeing this is that this ruling just gave the police an effective loop hole around certain elements of the law thats supposed to prevent this thing from happening. Whats to stop them from intentionally introducing “errors” into the database?”

That’s my concern with it.

I do see the other side, and Scalia and Thomas have a history of protecting rights, so I won’t ascribe nefarious motives to them. Their concern over letting someone go is valid, and there is nothing nefarious about that. The fact remains, however, that it is unlikely, so I think their flaw is not in their reasoning, it is in their assessment of the risk.

As I said previously, perhaps an severity exception could be considered should henious criminals start getting off due to honest mistakes, but at this point that is more of a movie plot risk than reality.

Michael Ash • January 28, 2009 1:33 PM

In discussing the trouble of convicting an innocent person versus letting the guilty go free, I think one important point has been missed: it is vastly worse to convict an innocent man than it is to fail to convict a guilty man.

Letting a murderer go free is unfortunate. Imprisoning an innocent man on charges of murder is a travesty. We should be willing to accept many instances of the former in order to avoid an instance of the latter.

I’m all for punishing criminals, but only if we are absolutely sure that the people being punished really are criminals. In the grand scheme of things we have far more to lose from a state run rampant than from criminals getting prosecuted a little bit less than before.

brendan • January 28, 2009 1:45 PM

“Letting a murderer go free is unfortunate. Imprisoning an innocent man on charges of murder is a travesty. We should be willing to accept many instances of the former in order to avoid an instance of the latter.”

Yup…letting a murdered go out and murder someone else..let’s say your wife, is quite “unfortunate”. Yup, merely “unfortunate”.

Again anything I said I believe should only be imposed in THE most severe crimes, not a blanket rule to be imposed on all crimes,by any means.

DevinB • January 28, 2009 1:45 PM

@Michael Ash
I think we should note, that we’re not talking about charging innocent people. No one claims that the man who was charged in this case was ‘innocent’ in the classical sense. They were simply saying that he cannot be charged with a crime because of the procedural issues.

If they had busted down his door and found nothing, then he would not have been charged with anything.

The court was ruling about the inclusion/exclusion of evidence. This is not about creating evidence that was not already there.

another bruce • January 28, 2009 1:48 PM

@devinb:

thank you for your thoughtful and well-meaning contribution. there were parts of it that i may have failed to understand, and other parts that frankly could have been better articulated.

“a republic is not about liberty, it is about the BALANCE between liberty and tyranny.”

uh-oh. i would have described it as the balance between liberty and order. when you balance something against tyranny, i will make my choice reflexively and unconsciously.

regarding your second paragraph, all i can tell you is that the constitution affirms rights in the people, but bestows powers on the government, and that the republic is a synthesis of these actions.

i agree with you about the delicate balance, but not your casual conflation of greed and malice. i was born greedy (the desire to hold maximum resources for the benefit of myself, my loved ones and my small tribe) but i am not malicious (the desire to gratuitously hurt people). i am not an anarchist, just a radical libertarian. i want safe roads to drive on, and for my mail to go through.

other than that, your comment (as well as bruce schneier’s analysis) regrettably ignores the reality of evolutionary change.

HJohn • January 28, 2009 1:53 PM

@DevinB: “I think we should note, that we’re not talking about charging innocent people. No one claims that the man who was charged in this case was ‘innocent’ in the classical sense. They were simply saying that he cannot be charged with a crime because of the procedural issues.”

I agree. The issue is not with imprisoning the innocent. The rights of innocent until proven guilty, right to counsel, right to jury, unanimous vote, reasonable doubt are what applies to “better the guilty free than the innocent imprisoned.”

The issue is here is with illegal search, and the basic right to not be bothered without just cause. This is where it gets tricky. It’s letting a vicious criminal go free because of an honest mistake vs. a hole where due process can be bypassed by disguising intent as mistakes. And the side effect of the incentive to clean up errors.

Both sides of the debate have excellent points that are nearly irreconcilable.

Eli • January 28, 2009 1:56 PM

I rather like HJohn’s take on this. Bruce, given the mass (and mess) of comments on this, I think some discussion about the tradeoff and the odds of the tradeoff might be worth an addendum to your post.

HJohn • January 28, 2009 2:01 PM

@DevinB: “BALANCE between liberty and tyranny.”

@another bruce: “BALANCE between liberty and tyranny.”

I think liberty falls between a balance between anarchy and tyrrany. Too much government and we lose our freedoms due to extreme order (tyranny), too little government and we lose our freedom due to extreme disorder (anarchy).

DevinB • January 28, 2009 2:02 PM

@another bruce
I disagree that Liberty and Order are natually exclusive.
I suppose it would have been fairer to illustrate a contiuum that consists of
(in order of personal freedom)
Anarchy > Liberty > Order > Tyranny

I actually agree with you regarding your characterizations, however, I feel we’ll still continue to come down on different sides of the issue. I’ll continue to favour Order (as opposed to excess liberty) and you’ll continue to favour Liberty (as opposed to excess order)

And in the interest of full disclosure I’m fairly Hobbesian, as opposed to your “radical libertarianism”.

I’m willing to agree to disagree if you are.

Ed T. • January 28, 2009 2:06 PM

@brendan –
You said “If you have nothing to hide you have nothing to worry about.”

I have been unable to locate the exact quote, however I do remember a quote from a former French nobleman who said in effect “give me a completely honest and innocent man, and in 6 minutes I will have enough from his own mouth to hang him.”

Which is one of the reasons some feel that one should NEVER talk to police without a lawyer present.

~EdT.

Adrian Lopez • January 28, 2009 2:06 PM

“The way I’m seeing this is that this ruling just gave the police an effective loop hole around certain elements of the law thats supposed to prevent this thing from happening. Whats to stop them from intentionally introducing “errors” into the database?”

Exactly. Police who testify in court will sometimes lie about the manner in which evidence has been obtained when such evidence has been obtained illegally. For instance, I know from a credible source that this is common practice when people are arrested for drug possession during a warrantless search of a driver’s vehicle, a practice which is legal only under particular circumstances which the cops will often ignore, forcing them to lie later on.

Inserting false data into a database is just a more advanced form of this kind of liying.

Michael Ash • January 28, 2009 2:11 PM

@DevinB

But the rules about inclusion/exclusion and the rules about creation are inextricably intertwined. All of these rules exist to prevent the police from framing people, something they will do out of the purest of motivations if they are allowed to.

Was this man really guilty? Probably. It seems that the police really did make an honest mistake here. But what about the next time, where they decide to make another “honest mistake” in order to nab the man they “know” is guilty but can’t prove through legitimate means?

You really can’t tell after the fact whether the illegitimately gathered evidence was fabricated or simply discovered. That’s the whole point behind having these rules in the first place.

Anonymous • January 28, 2009 2:13 PM

DevinB:
When the police search an innocent person’s property the normal case is that the person is not compensated for the problems caused by that search. Typically they don’t even get an apology.
Another approach to this issue is that whenever a person’s property is searched they are paid a signicant sum of money for the imposition regardless of any charges filed. They should receive additional compensation to cover damages to the property. And if any pets or people are killed or maimed during the search another set of benefits should kick in.
This is a better solution than using the exclusionary rule, but good luck getting goverments to agree to it.

brendan • January 28, 2009 2:17 PM

We all seem to be ignoring the fact that this man WAS in possession of illegal drugs and (assuming illegal) gun. In the end he was guilty of these things, however the were discovered. These laws are to protect us from a tyrannical government, which ours IS NOT. Do you see people actually being arrested for visiting infowars.com or prisonplanet.net? No- they use these laws to try to go after the really dangerous people. The liberal defense is one day they could be used to impose tyranny but this is ignoring the fact that most police officers in THIS country are at the core good hearted people who are just trying to protect YOU and put their lives on the line for YOU.

HJohn • January 28, 2009 2:20 PM

@Michael Ash: “All of these rules exist to prevent the police from framing people, something they will do out of the purest of motivations if they are allowed to.”

Very true. I can see where a good police officer, after seeing enough blood, violence, and corpses, would decide he was doing a favor by making sure the person he “knew” was guilty could not do it again.

This is exactly why we have the rule of law. Good intensions can lead many to do bad things. The old saying “the road to hell is paved with good intensions” definitely applies. Hell on earth is most often created by people who are trying to make heaven on earth.

Michael Ash • January 28, 2009 2:24 PM

@brendan

It’s the good-hearted cops who are just trying to protect us who I fear the most.

A corrupt cop is troublesome but is limited by the system, who frowns on his activities no matter how terrible it is.

A good cop who does everything right is, of course, good.

A “good at heart” cop who believes in truth, justice, and the American Way but rightfully sees the rules as getting in his way rather than helping him is the most dangerous kind. This is the cop who will plant evidence to frame the suspect he “knows” is guilty. This is the cop who will harass people who “got away” with crimes. This is the cop who will shoot a suspect “who was reaching for his gun”, then plant the gun to make the story fit.

Why do you think we don’t live in a tyranny right now? It’s precisely because of these sorts of rules. You can’t just let them go and then hope that our government remains exactly the same.

These rules don’t protect us from a tyrannical government, they protect us from having our government turn into one.

HJohn • January 28, 2009 2:28 PM

@brendan: “We all seem to be ignoring the fact that this man WAS in possession of illegal drugs and (assuming illegal) gun. In the end he was guilty of these things, however the were discovered. ”

I share your frustration. I personallly think the person is guilty and I can sympathize with the cops and the justices (4 of the 5 I support strongly in almost all cases) about how letting him go seems wrong. The flip side concern is not about the person’s guilt or innocence, it is about 1) the fear that the hole could be used by even good police officers and 2) the lack of incentive to clean up the errors.

I just don’t think the guilty scenario would be nearly as common as the scenario of harrassing innocent people. If it turns out to be more common, I would favor an exception based on the severity of the crime, if it comes to that.

brendan • January 28, 2009 2:30 PM

“Very true. I can see where a good police officer, after seeing enough blood, violence, and corpses, would decide he was doing a favor by making sure the person he “knew” was guilty could not do it again.”

-Is there anything wrong with that assuming the person is infact 100% guilty but let’s say got off b/c of an expensive lawyer or a technicality? Ever see the movie Boondock Saints? Killing scumbags is an ancient right to us Irish.

What about Madoff- if found guilty he will go to a white collar resort prison. Fair to say our justice system has failed? Is justice not shooting him in the head?

DevinB • January 28, 2009 2:34 PM

@ a few people
I’ve noticed a lot of the people who are against the ruling mention “honest mistakes”, or things “accidentally” not being deleted.
I would like to make clear that I am NOT supporting any corruption of any sort. Which includes circumventing the correct paper trail. I would consider any thing which deserves to be air-quoted to be an illegal misuse of power. Anyone caught using such a loophole should be fired, because that amounts to obstruction of justice.

I am speaking of actual honest mistakes. Which is what this court case was about. As Schneier has mentioned many times, bad guys or (in this discussion) “corrupt cops” will find ways to achieve their goals, regardless of the loopholes we close.

My argument is simply that because they were following up on a “valid” warrant, one which was not maliciously created out of thin air, then the evidence gathered should be valid.

Once again, if there is any indication that someone tampered with the warrant in order to cause an “accidental” invasion, that person should be removed.

HJohn • January 28, 2009 2:36 PM

@brendan

Thankfully, we have due process. It isn’t perfect, but I don’t like the idea of shooting someone in the head because you are “just sure” he screwed some people out of some money.

I fully understand the police wanting to lock up scumbags who hurt people. But, without the trial, all the evidence, the defense case, and everything else, the cop may very well be wrong. Even if every cop were stellar and right 99% of the time–which would be an impressive accuracy rate–that would still be a large number of innocent people with their lives shattered.

Jack Bauer is good on TV, bad in reality.

another bruce • January 28, 2009 2:36 PM

@devinb:

liberty and order are antithetical, but paradoxically, both necessary to the individual pursuit of happiness. let me show you the metascene:

all social organizations larger than a tribe are doomed to collapse under their own weight. our uncle sam is stumbling about, dead on his feet like a wounded zombie. antisynergy, as last seen in the old soviet union in the late 1980’s, will come here too, it is an economic force impersonal, implacable and unstoppable.

as a side note, i’m wondering where the moderator is. i envision a kindergarten teacher abandoning her class for a hair appointment, and the toddlers are rioting in her absence. i call not for the deletion of any of these comments, which would subtract from the comic synthesis, just for the reminder of a benevolent orderly presence.

HJohn • January 28, 2009 2:45 PM

@brendan: “in my example you are ignoring the fact that I assumed due process failed. Due process does not always work. So would you rather see the person walk away scott free or have justice actually served? In the case of Madoff he is clearly a sociopath who has no remorse for his actions. I do not live my life as a movie, I hardly watch any movies or TV other than history or discovery. If you have any sympathy for Madoff than you are a pussy who needs to realize the harsh realities of life and death.”

Brendan, you have gone way overboard. I’ve expressed some agreement with you, and some concern, and because I don’t follow you I’m a wimp (a kinder name than what you called me)?

Where did I express sympathy for Madoff? I didn’t. I have none. My comment is not about him, it was about the legality and rights of someone to take the law into their own hands to take care of a scumbag.

You’re being a jerk, and you are out of line.

brendan • January 28, 2009 2:53 PM

Well I am sorry, you must excuse me I am writing this in between debugging a new driver in the lab. If due process fails I would still favor vigilante justice over him walking scott free.

Michael Ash • January 28, 2009 2:59 PM

Vigilante justice is just as much a failure of the system as letting a guilty man go free.

Make no mistake: nobody here WANTS guilty people to go free. But many of us believe that sometimes you MUST let guilty people go free in order to protect the innocent.

It’s a tough game to play. But the answer is not to punish people you’re “really sure” are guilty when the system lets them off. If the system is systematically freeing guilty people then concentrate on fixing the system, but only if the changes do not result in punishing the innocent.

HJohn • January 28, 2009 3:00 PM

@brendan: “Well I am sorry, you must excuse me I am writing this in between debugging a new driver in the lab. If due process fails I would still favor vigilante justice over him walking scott free”

You are forgiven, forget about it.

What you don’t realize is that I’m a very conservative person, and I am a big supporter of 4 of the 5 justices who made this ruling. I sometimes get into lively debates with others because I tend to be more conservative than most. This issue is a difficult one for me since I badly want the guilty to be punished for severe crimes. Nothing about my opinion is based on not caring about whether the guilty are punished. Everything about me wants to say it was an honest mistake, punish him. He certainly deserves it. But when applying the risk, I see the misuse of the loophole as impacting more innocent people. I would find the odds of, just by chance, finding evidence of something severe to be very very rare, whereas harrassing innocent people may be common.

Sometimes due process fails. It happens. The burden of proof is great enough that we may end up letting someone guilty off so that someone who is innocent may not be imprisoned. It is a trade off.

It is really a tough issue.

DevinB • January 28, 2009 3:14 PM

The term “misuse of the loophole” implies that there is a “valid use of the loophole”.
The loophole that we’re discussing is that if someone enters a warrant into the system then does not delete it, then the police will act on it and the evidence will be valid.
However, there is nothing I’ve read that indicates such an act would be legal in ANY case.
This precedent has NOTHING to do with people who would misuse the computer system to cause invasions of privacy.
That could have been done before, and still can be done.
If an officer creates a fake warrant and enters it into the system, this precendent CANNOT (or at least SHOULD NOT) be used to defend that evidence.
The narrow inturpretation of this case is that computer errors of THIS SORT which lead to evidence does not destroy the evidence itself.
As soon as you add a willful party into the equation, you have completely changed the discussion.

HJohn • January 28, 2009 3:17 PM

@DevinB: “The term “misuse of the loophole” implies that there is a “valid use of the loophole”.”

I certainly didn’t mean it that way. I do not think there is a valid use of the loophole. It’s an issue of inadvertant or deliberate, and it is really hard to prove something was intentional.

Robert Jackson • January 28, 2009 3:24 PM

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

Ayn Rand • January 28, 2009 3:27 PM

There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.

another bruce • January 28, 2009 3:27 PM

@devinb:

your position requires an independent factual adjudication of whether the expired warrant was deliberately or negligently left in the database. the nature of independent factual adjudications is that they 1) consume finite judicial/public resources, and 2) frequently lead to other factual adjudications to determine whether or not a witness at the first factual adjudication was lying.

the way we conserve finite judicial/public resources and preclude a potentially infinite concatenation of factual adjudications is known as the exclusionary rule. i support it.

DNFTT • January 28, 2009 3:32 PM

From http://en.wikipedia.org/wiki/Troll_(internet)

…Experienced participants in online forums know that the most effective way to discourage a troll is usually to ignore him or her, because responding tends to encourage trolls to continue disruptive posts — hence the often-seen warning: “Please do not feed the trolls”.[11]

Savik • January 28, 2009 3:33 PM

If a crime was committed – any evidence should be submissable no matter how it was obtained.

IF an officer obtains it illegally though – he should lose his job or be charged criminally…separate the offense of the officer from the offense of the criminal.

This way society is protected by maintaining the ability to prosecute and convict a criminal while punishing those that breach other principles that we hold dear.

DevinB • January 28, 2009 3:40 PM

@another bruce
Once again, I agree with everything in your statement except your opinion.
Yes, I’m aware that it would require a factual adjudication. Although I would have been much less eloquent.
I think that MORE investigation and more factual evidence is good. If we discover that there was a glitch in the computer, the reaction should NOT be to discount the evidence but rather to investigate the glitch. If there was no glitch but rather a person forgetting to deactivate the warrant, then we should investigate that.
Yes it takes time and money, but I strive for the truth. And (this statement will get me in trouble, but you know what I mean) the unvarnished truth will condemn no innocent man.

Poetry aside, I don’t like “knee-jerk” laws such as a blanket exclusionary principle. That why we have judge-made law and precedence to define parametres.

And to your “infinite concatenation of adjudications” That would only be if there is an infinite concatenation of suspicious or irregular circumstance.
Possible of course, but wouldn’t that be WORTHY of investigation?

brendan • January 28, 2009 3:44 PM

“When you can’t catch criminals, make criminals out of the people you can catch.”

What a brilliant example of liberal vaguery, showcasing the subconscious aspect of anonymous’ mind which feels all cops do is set up innocent people.

Michael Ash • January 28, 2009 3:53 PM

@brendan

It’s not that “all cops do is set up innocent people.” It’s that police officers are only human. Being human, they rationalize more than they think. They come to conclusions first, then seek the evidence to back them up. To the average police officer, a suspect is NOT innocent until proven guilty, he is simply guilty. (Otherwise why would he have arrested the guy?)

That’s not a slam against police officers in any way, it’s simply how people are.

This is why the system is set up the way it is. Not because police officers are scum who like the torment the innocent. But because police officers are mostly righteous human beings who are willing to do what it takes to put the guilty behind bars. Even if it means bending the rules here and there, or outright framing someone who really deserves it.

Of course your use of the term “liberal vaguery” indicates that you have zero interest in an honest, rational discourse here, so one wonders why I even bother….

brendan • January 28, 2009 4:16 PM

my term liberal vaguery was in response to this brilliant post: “When you can’t catch criminals, make criminals out of the people you can catch.”

-I would think a nonsensical post like that would stir more anger than me calling it liberal vaguery.

Also sarcasm does not transmit over forums…which is what the Ayn Rand comment was.

Part of the problem is the media which is like a blood sucking vulture which loves to showcase the awful instances of corrupt policemen and ignores the hundreds of good deeds which are done everyday.

Moderator • January 28, 2009 4:23 PM

Brendan, I’m about to remove the most obnoxious of your comments. You may not continue to fling around childish insults on this blog. Participate civilly or don’t participate at all.

another bruce • January 28, 2009 4:42 PM

brendan, i’m getting a little tired of you. ayn rand was not a “liberal dyke”. she was an objectivist heterosexual. you’re debugging a new driver in your lab while you’re posting all this shit? your comments have bugs, and the bugs in your driver will have comments after you’re done.

oh devinb, now you want to investigate the glitch in the computer that stored the expired warrant? we can do that! when i bailed out of the justice industry in 1995 because i couldn’t stand it for another minute, my billing rate was $250/hour. my opposing counsel charges at least that much, our respective expert computer witnesses charge a king’s ransom, and the judge up there earns a hundred and a half grand/year, to say nothing of the clerk, the bailiff and the reporter. after we’re done investigating the computer glitch, let’s investigate whether the officer took a bribe to create the computer glitch, then we can investigate whether a jailhouse snitch improperly implicated the officer in return for a reduced sentence, then we can investigate the underlying facts of the snitch’s incarceration…

litigation breeds more litigation breeds more litigation. i know this because i helped breed it for fifteen years, as sire, dam and midwife. if you’ve got the dime, i’ll make the time. the exclusionary rule is what stops my erstwhile colleagues from breeding new litigation until the parties 1) run out of money to pay them, 2) get distracted by an AMAZING NEW DEVELOPMENT ™, or 3) die.

Bargepole • January 28, 2009 4:57 PM

It was Cardinal Richelieu.

“Qu’on me donne six lignes de la main du plus honête homme, j’y trouverai de quoi le faire pendre.”

(If one gives me six lines in the handwriting of the world’s most honest man, I’ll find in them something to hang him.)

There is no such thing as someone with nothing to hide. It all depends on who’s looking.

(You could easily construct an argument to say this post itself is evidence that I have something to hide or why would the question even remotely interest me? Why am I looking at a security blog? Why am I posting pseudonymously? Pull me in! Now! I clearly have something to hide! Let’s find out what it is!)

Two Edged Sword • January 28, 2009 5:21 PM

Imagine the wrong was done BY the error being in the data base,
and the police could seek to exclude their errror from evidence?

Clive Robinson • January 28, 2009 5:46 PM

@ HJohn

“…too little government and we lose our freedom due to extreme disorder (anarchy).”

I do not like the word “anarchy” as it is a word that due to infrequent misuse has changed it’s meaning with time.

Living without being “governed” does not in any way imply that we will “lose our freedom due to extreme disorder”.

In societies that have an ethos of “stewardship” not “ownership” a government is usually superfluous.

“Extreme disorder” is usually a by product of assumed ownership over a limited resource such as water. Where the party that assumes ownership denies access to others who due to self presevation resort to wresting the resource from the party that has sought to control it against the more common good.

Clive Robinson • January 28, 2009 6:42 PM

With regard “good cops” and “bad cops”.

I live in London and most of it is covered by the Met Police.

In official reports in the not to distant past they have been found to have been “Institutionaly racist” and suffering from a “canteen mentality”.

In more recent times they have sought to cover up failings at a very senior level and have been accused of lying under oath over the death of a Brazilian suposadly mistaken for a (possible) terroist suspect.

This was not the first occasion when the Met had shot compleatly inocent people and tried to pass of their actions onto their unfortunate victims.

Shortly after the Stockwell debacle when armed police officers where arresting terror suspects a journo overheard two armed officers joking that “did you see them s**t themslves when the got the marksman’s messels”. Refering to the red points from lazer sights on the suspects.

On other previous occasions they have been found wanting in many many respects.

A recent case I personaly witnessed was when two police officers goaded a homeless person into trying to get away then beat him with their batons. When other police support arrived they joined in with one officer kicking the man in the head whilst he was on the ground. This occured in a public park infront of many many witnessess many of them very young children and their parents from three nearby schools. The police later anounced that the man had violently resisted arrest and had been found in posession…

I’m personaly aware of other quite serious failings by the Met and now generaly treat them in the same way I would a group of drunken adoleccents, ie I cross over the street to avoid them.

There are good police officers in the Met and I know several, and they also share my view that in general avoiding the police is a not unwise thing to do. Why, because they have seen it change due to “target driven” policing where an officer has to fill their quoter so the top dogs get their bonus…

Neighborcat • January 28, 2009 8:09 PM

Setting aside (please?) what anyone thinks of law officers, prosecutors, judges, criminals, the presumed guilty, the improbable innocent, crime, punishment, the course of empires… etc… I’d like to return to where Bruce’s original post relates information security and law enforcement as systems. (incidentally, that is why this post is precisely on-topic in this forum.)

Regardless of any individuals intent or the particulars of this one specific case, the ruling does not merely ignore the issue of bad data and bad database design, it creates a DIS-incentive to improve the system.

A second problem with this ruling as a precedent that I have not heard addressed:

The search was illegal under the law at the time it occurred. “I mistakenly thought what I did was legal because of erroneous information from a database.” is now a valid defense for breaking the law- as long as it is being used by law enforcement. Will defendants also be allowed this defense? If not, why not?

NC

J.E. Andreasen • January 28, 2009 10:35 PM

First, I agree with Bruce on the huge level of errors in these databases, and the adversities they cause. I run a small construction subcontracting business. In the past month alone, two of my fifteen long-time employees suffered the results of these database errors:
1. Just before Christmas, one of my employees was driving (with his crew of five) from a jobsite and became ensnared in a DUI checkpoint. All the men checked out as having consumed no alcohol. They were then racially profiled, and intimidated into producing their driver’s licenses. The police ran “wants and warrants” on every one. The computer (erroneously) showed a suspended driver’s license for the driver. He was arrested and jailed. His van (including thousands of dollars in trade tools (many rented) used by the entire crew was seized and towed. The other men had to call for rides to their homes forty miles away. My employee bailed out the next day. He was informed that the truck and tools incurred a towing charge and storage charges of $15 per day until released by the court. The hearing on the charges and seizure was to be a month away, at the earliest.
2. At about the same time, my young bookkeeper arranged a New Years party for family and friends at the family home. Notice & invitations had been sent out weeks prior & the neighbors were all invited. Eight thirty in the evening on New Years Eve local police knock on the door relaying a noise complaint over the music. The noise ordinance is 90 minutes from even applying. The cop asks them to turn the music down (they do) and then asks my employee for his driver’s license so he can “write a contact report” on the visit. The cop comes back after running the license and says that there is a bench warrant out for the employee from another city. The employee says that is in error (a previous court clerk error tied to a bogus charge), had been since corrected, and the bench warrant quashed. He offered to show the officer the paperwork from the court to prove the error. The cop refused, and radioed for “backup”. The employee tries to call his lawyer on a cell phone to clear the matter up. The cop grabs the phone, handcuffs the kid (22 year old), frog marches him to the squad car. Four other cars arrive. The party is ruined people are literally running away. The relatives collect over $600 to bail the kid out at 3:00 a.m. the next morning. Part of the money was for the mortgage payment on the family’s home. The attorney is called; he is furious. A hearing occurs several days later. The attorney for the city where the “warrant” originated says they can’t find their paperwork. The judge gives the city a couple of weeks to find it, refuses to look at the documents from the accused, and schedules the next hearing. Meanwhile, the city keeps the money.
It is my contention that the purpose of the exclusionary rule is to constrain not just the beat cop, but the entire system from benefitting from constitutionally suspect fourth amendment conduct. If the criminal justice system abuses people’s liberty not due to blatant, particularized malice, but because they simply do not care, we guarantee more molestation like the stories above. The majority in this case reinforces a grand tradition of not having a clue what actually occurs at the hands of their praetorians, and, if they do, not giving a rats a**.

MBC • January 28, 2009 11:09 PM

Minor factual dispute: they didn’t search his home, they searched his car: “A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle.” Slip opinion, page 2.

Martin Andersen • January 29, 2009 2:42 AM

Think of all the unwarranted searches that must have preceded this one, where they just happened to stumble upon evidence of (other) crimes.

Given the statistical likelihood of this happening, one would expect hundreds of broken doors, shattered social lives and a huge loss of faith in the authorities for every story like this one.

If anything, cases like this where the warrant turns out to be erroneous, should be the greatest incentive for the police to clean up the databases and pull their act together. Not be seen as a chance to make everything worse.

Whenever they contemplate knocking down a door the first thought in their minds should be “Am I 100% certain the warrant is valid or risk letting the guilty go free?”.

Bookem Danno • January 29, 2009 5:39 AM

If the police search your home without a warrant and find drugs

Better to prosecute BOTH you for the drugs and the police for burglary.

mantar • January 29, 2009 7:15 AM

If anything, cases like this where the warrant turns out to be erroneous, should be the greatest incentive for the police to clean up the databases and pull their act together. Not be seen as a chance to make everything worse.

Whenever they contemplate knocking down a door the first thought in their minds should be “Am I 100% certain the warrant is valid or risk letting the guilty go free?”.

seks • January 29, 2009 7:16 AM

Minor factual dispute: they didn’t search his home, they searched his car: “A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle.” Slip opinion, page 2.

Anonymous • January 29, 2009 7:25 AM

Julian Gall: “Suppose the police had found a dead body in the house. Should they not be permitted to arrest the man?”

You are incorrect in your view of the exclusionary rule , but don’t worry this is common.
The rule would not allow the cops to use any evidence obtained through illegal means, but it does not prevent the finding of other legally obtained evidence, and prosecution from the it.

Will • January 29, 2009 10:12 AM

The police can leave a warrant in place even after it has be quashed and then have reason to harass the person with the warrant. Happens quite often.
I believe I read somewhere else on this case that the cops call the other department and were told there was no warrant and the went ahead and messed with this guy.

Jess • January 29, 2009 8:23 PM

DNFTT — thank you!

Also, I can’t believe this whole thread, which even included some “libertarians” and “objectivists” (well, to be fair, Ms. Rand was speaking in general terms only), let go unchallenged the assertion that “this is a really bad guy!”

What? Because he had drugs and a gun? I have those things. Any reasonable person has those things. Any government that makes mere possession of them illegal, rather than actual harmful acts against others, is tilted pretty close to the “tyranny” end of the scale.

I don’t go in for the child porn that so fixates Brendan, but even if that should be criminal, it isn’t nearly enough of a problem to justify police misconduct. Surprisingly few people seem to have noticed that that’s the actual topic under discussion: police breaking the rules meant to protect society, and being rewarded for it. Only our government’s vigilant apologists will be surprised by what comes next.

tomj • January 30, 2009 3:59 PM

The police always win by this sort of thing. A worse abuse of the following:

  1. On police officer lies to get a search warrant.
  2. A different officer executes the warrant and isn’t aware of the lie.
  3. search warrant is defective, but evidence can be kept, even though it was obtained by lies.

But we can be sure that this type of thing would never happen on purpose.

Clive Robinson • January 30, 2009 5:19 PM

@ tomJ

I am actualy aware of a case like this except for step 1 needs to be replaced with.

0, An officer with an agender supplies false information to another unsespecting officer.

1, the second officer stands before the judge and presents the false information beliving it to be true.

Further down the line when the little shenanigans is uncovered by studidity of the officer with an agender. The second officer takes early retirment on full pension.

And no action is taken against the officer with the agender.

Why because his agender is not his own but that of a very senior member of his organisation (director level) who has set the agender due to the very public failings of the organisation to their political masters.

boris_kolar • January 30, 2009 5:19 PM

I strongly disagree with exclusionary rule. Evidence should be taken into account no matter how it was obtained. After all, the purpose of evidence is to determine the truth. Excluding evidence is inconsistent with effort to learn the truth. Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn’t the term “excluding an evidence” seem obviously irrational?

Clive Robinson • January 30, 2009 6:08 PM

@ boris_kolar,

“Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn’t the term “excluding an evidence” seem obviously irrational?”

No for exactly the reason you state it was “obtained by a crime”.

If the evidence is not excluded then the method by which it was obtained has to be put before the jury.

The jury then have the choice of beliving a person of unknown honesty against one who has taken an oath to uphold the law and admits in court to having broken the law…

I think a defence lawyer of even modest talent can throw sufficient doubt on the prosecutions “burden of proof” to put it well outside of “beyond reasonable doubt”.

The rule therefor also protects not just the court system and the police officer (who may have acted in inocence) but actually increases the likley conviction should other evidence be available.

To see why ask yourself a question,

Irrespective of if you belive OJ Simpson was guilty of murder or not, what do you think made the jury decide to reject the evidence presented?

A • January 31, 2009 12:34 AM

I don’t think the exclusionary rule is the only way to deter police from doing bad stuff and keep the right to privacy. If the police have final accountability to the right people, and discipline officers well, that can be as secure as a legal rule enforced by judges; remember judges aren’t perfect either. But in the U.S., we don’t have that accountability and tight regulation; we just have the exclusionary rule, and we should keep it.

I’ve heard it said that if you never lose your car keys, you’re being too careful. The underlying principle is that you need marginal benefits and marginal costs to balance out — if your costs are zero, the balance may be wrong. It’s not a principle that applies everywhere — if your nuclear plant has never melted down, it doesn’t mean you’re being too careful — but its instructive here.

Privacy needs strong protections; it’s important, and the incentives to violate it are strong. If, in our quest to enforce privacy, we truly don’t impose any cost on law enforcement — if we don’t see any cases where properly applying the rules causes real inconvenience to the police — then we’re probably not changing police behavior at all, and we’re almost certainly not giving due weight to a right that’s always at risk and is critical to a free political system and valuable to people in its own right.

If U.S. police professional conduct standards were strong enough to match the interest in privacy — “Constitutional-strength” — then, first, you’d know it, because someone would be out there complaining about the overbearing restrictions on policework, and second, it would be justifiable to ease the exclusionary rule — to weigh the importance of the crime and of the evidence against the deterrent value of excluding it. Four concrete things you’d need, speculatively: one, a system of review, so that a local police department can’t go rogue; two, strong rules and independent internal investigators; three, what’s been called a “civil service tradition,” in which enough of the employees follow the rule of law most of the time, even if politics or personal or popular prejudices produce lots of pressure; and four, final accountability to the right people (heck, maybe find some folks who were mistakenly convicted and have them help govern the police), so that the bureaucracy doesn’t, over time, veer towards becoming a machine to get as many convictions as possible, to heck with the other consequences.

It’s funny — when you list the elements you’d need in order for the police to reliably restrain themselves from violating people’s rights, it sounds a lot like building a court system within law enforcement.

Moderator • February 1, 2009 3:20 PM

RichieRich, I’m removing your comment because you repeated points already made in this thread, only in more incendiary language. If you want to comment here, please calm down, read the thread, and join the conversation in a way that moves it forward, rather than bringing it back to square one. Thank you.

HJohn • February 3, 2009 4:19 PM

@boris_kolar: “I strongly disagree with exclusionary rule. Evidence should be taken into account no matter how it was obtained. After all, the purpose of evidence is to determine the truth. Excluding evidence is inconsistent with effort to learn the truth. Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn’t the term “excluding an evidence” seem obviously irrational?”

I agree with your concept, even though I took the rare and painful position of siding with Breyer over Scalia.

I don’t think it is that anyone here wants evidence excluded. All of us on both sides want accurate and valid evidence in criminal proceedings, and we want due process. Where we differ is on how to best meet that end. I’ve come to some difficult conclusions that I’ve already said, but that I will repeat (combine into one post) in response to your comment and your valid concerns.

Fellow bloggers, forgive the redundancy, but I think boris’ concern is valid and I want to summarize a response buried in over 100 comments.

1) The chances of the information being accurate is far more likely if it is generally useless otherwise. As it stands now, they authorities have little incentive to correct errors. If it is right, they can use it. If it is wrong, from their perspective, they search someone else and may catch another criminal.

2) In this case, the person clearly broke the law. However, I think that would be a rarity. Much more common would be searching someone by mistake, something that is forgivable if it is rare, but that we want to keep to a minimum. If we know such errors exist, we want every incentive for them to be corrected.

3) Most police officers are fine people who would risk their lives for the safety of complete strangers. That said, they are bound by due process for a reason. A cop who is “sure” someone is guilty should not be able to use intent disguised as a mistake to bypass due process.

4) I struggle with this because I don’t like seeing the guilty get a pass any more than I like seeing the innocent get harrassed, I just think seeing the innocent get harrassed would be more common. However, I would not mind a serious felony exception. If you execute a warrant on the wrong person and find a dead body or a kidnapped child in their trunk, or a restrained rape victim in their home, then it would be more of a travesty to let it go. This would be an extremely rare, ticking bomb type scenario. In general, dismissing more common findings, like drugs, theft, piracy, etc., would provide an incentive to get the documentation right–something that would protect our freedoms and the integrity of the evidence in the long run.

Best regards.

John Messing • February 15, 2009 8:24 AM

This comment regards technical legal rules, that like the exclusionary rule, can have important real world effects. While I agree with the points Bruce makes, there is another part of the picture that can and should be considered.

Database information by definition is a collection of records. The information contained in it, when offered in court, is asserted for the truth of the matter stated. The net result of these propositions is that before the information can be used as evidence in an American court, it needs to pass two hurdles. First it must pass legal authentication, which is different from computer or electronic authentication as it has come to develop in the electronic world, and it must fall within an exception to the hearsay rule.

Two cases have been decided that come out somewhat differently on the nuanced issues. The first is In re Vee Vinhee, decided by the Bankruptcy Appellate panel of the U.S. Court of Appeals for the Ninth Circuit. A copy can be viewed online at
http://www.legalethics.com/include/content/amex012406.pdf. See also this discussion of it. http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html. The other decision is Lorraine v. Markel, out of the Maryland U.S. District Court, available online at http://indianalawblog.com/documents/Lorraine_v_Markel.pdf. It is a tome written by Magistrate Judge Grimm and is viewed as some as authoritative on the subject, myself excluded.

The different views reflect an ongoing debate in a small section of the legal community on the relationship between information security and needed or unnecessary rules concerning reliability of digital evidence as they relate to traditional rules of evidence in an oral and hardcopy evidentiary world.

The importance is underscored by the proliferation of legal agreements between law enforcement entities for sharing database information between them. For an example of such sharing in the immigration context, please view the MOU’s (memoranda of understanding) between law enforcement entities and DHS obtained by the Yale Law School Worker and Immigrant Rights Clinic, http://islandia.law.yale.edu/wirc/287g_foia.html. Such information sharing is proceeding apace in the US using such open standards such as SAML and WSS.

Unfortunately, many legal professionals do not yet appreciate the fact that collections of records are no more reliable because they are being stored and served up by an electro-mechanical device rather than a human clerk, and miss the available evidentiary objections to digital evidence, with often disastrous results for the litigants. In the criminal immigration area, this tendency is most common in the routine admission of digital fingerprint evidence to tie identity determinations in earlier records of deportation to a particular illegal re-entry defendant. Defense lawyers assume that the digital fingerpring information is accurate because it came out of a computer and fail to put the Government to the test of establishing the foundation (legal tests of reliability) that are described in the context of the In re Vee Vinhee and Lorraine v. Markel case.

While the subject of this rather long posting will not necessarily impact exclusionary rule cases, it perhaps does touch upon a broader and more ominous development in the law which results more from a lack of understanding and education of legal professionals than from any one misguided decision in the developing body of the law of digital information and evidence.

Chuck King • February 15, 2009 1:43 PM

As Ernest van den Haag has pointed out, and I’m paraphrasing, the exclusionary rule offers no advantage to innocent defendants. It merely serves to exclude evidence of guilt. The innocent man arrested without probable cause derives no benefit from this rule. When the rule of the “fruit of the poisoned tree” came into vogue in the ’60s, it quickly became a career criminal’s best friend…is there an advocate out there for the dead victims of those violent criminals freed only because of exclusionary rule technicalities? Would not sanctioning police for illegal searches be a better way to offer the correct incentive for proper investigative conduct?

HJohn • February 17, 2009 3:16 PM

@Chuck King: ” The innocent man arrested without probable cause derives no benefit from this rule.”

My apologies for delay, I was banished to a place last week where there was no Internet access (it was heaven I think).

I agree with you in the “after” sense. The exclusionary rule provides no benefit to an innocent person after he is arrested or searched and every benefit to the guilty. I admit this is troublesome. However, the key word is “after.”

Innocent people are the ones more likely to benefit before the search even takes place. The exclusionary rule would be incentive to ensure information is accurate and fewer innocent people would be searched. I don’t know that stats are available, I am unaware of any, but I would wager that the number of innocent people searched by mistake would dwarf the number of people searched who just happened to be guilty of a serious crime–I’m so sure of this that I would be my wife on it. But not my Playstation.

Best regards,
John

John David Galt • February 28, 2009 9:40 PM

They’ve already raided a popular (and innocent) mayor’s house. Maybe someday soon one of those “accidental” midnight SWAT-team raids will hit the home of a member of the Supreme Court. Then they’ll get it right.

DR. Bill OGO • May 23, 2010 4:13 AM

Gentlemen: A story for your consideration. Unfortunately, it is true and occurred in these United States of Amerika. A no-knock warrant was issued and served 3:30am at my estranged wife’s home. I was sleeping in the “living room” while recovering from an injury. I needed assistance to perform certain daily functions. The warrant process was started by an anonymous call of “drug related” activity at the address. Household trash(left outside of the home) was searched on several occasions. Seeds, stems and unburned marijuana were recovered. Residency status for my son and I was found in the trash. My son’s MVA(Motor Vehicle Administration) record was obtained(stated in the warrant application) and his DOB(date of birth) determined. His criminal history was”checked” with no arrests found. Curiously, while the house belongs to and is in her name, my estranged wife’s records were never researched. My MVA record was not obtained(at least not mentioned in warrant application). Had my MVA record been “run” the storm troopers would have been apprised of my legal address and my date of birth. However, they did possess my full name complete with a rather unusual middle name(part of Mom’s Native American heritage). Unbeknown to them I was staying there while an injury was healing. Their sworn affidavit related my violent record of assaults, 1st, 2nd degree, w/wo weapons, handgun violations, robberies, trips to a mental institution and subsequent incarcerations. The record stretched back to 1987. However, it wasn’t my record. The record belonged to a person born on a different day; two years earlier. Who is an African-American(I’m of Native American and European stock). Also, he stands five inches shorter and is a 100lbs. lighter. This gross negligence allowed the SS to break down the door and storm(while carrying fully automatic rifles) 15 strong into the home. Additionally, the warrant allowed them to have their way with my family and me. Handcuffed, orally degraded, strip and body cavity searched, deprived of toilet use, hydration, We sat there hand cuffed, door open, freezing..no coats allowed, thirsty and frightened. Deathly afraid that one of the nimrods(SS Troopers) would accidentally shoot one of us(yes it does happen..I’ve first hand experience). We suffered these indignities until 11:30 that morning; seven hours of degradation, deprivation and dehumanization. As the “authorities” went through our belongings they made snide, trite and sometimes even crude comments. I was a competitive shooter on the national/world level. Therefore, the SS Troopers found my target and personal protection handguns. Thinking they had hit the triple play; a convicted felon with guns and drugs, one said,(if they can lie I can embellish)…”quick someone call the press.” The idiots started combing their hair, making certain personal uniforms were correct. Two changed their foot gear!! The “cops” danced gleefully with visions of commendations and promotions in their eyes. However, at my estranged wife’s constant, nagging, bitching insistence their joy was short-lived. Apparently one of the SS-Unterscharführers ran the proper name and DOB. The festive atmosphere soon chilled as the truth about my status as a SUPERVILLIAN was debunked. Finally, a small amount of a substance which appeared to marijuana was found in my son’s room. He was hauled off to jail. Two weeks later the wife and I were charged with possession of marijuana and paraphernalia. Guess the SS and Gestapo hierarchy had to charge us with something. Was it worth endangering so many lives, spending an obscene amount of money(especially during the worst economic slowdown this country has ever had) for so little a return. Does any thinking man/woman believe that raid was worth the price? Aren’t we humans supposed to be a intelligent animal? Which learns more and more daily with each experience? If a bust during prohibition netted a single bottle of beer and a couple of empty bottles the arresting officers would be laughed off the force!! Today, nothing happens, “oh well another citizen loses their rights”. When will this country learn. Whatever it’s called; prohibition doesn’t work and never will.

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