Hudson v. Michigan

June 16, 2006

Publius at Law and Politics has written a very insightful post approving of the decision in Hudson. Jedmunds at Pandagon linked to it in approval. I commented at Pandagon, after reading both Publius' post and Scalia's decision. I think I will make that comment my post for tonight (it's late, I'm tired, and I have to drive to the beach through what I am sure will be 5 hours of hellish traffic in the AM). Not included in the original comment , tho, is this line by Publius in a follow-up:

A lot of this turns on how much trust you have for the police. The early exclusionary rule cases can't be separated from race and Southern racism. The question is whether those assumptions are still valid in 2006.

While I am in the American south, I am also very cynical about human nature. I just don't believe it changes much in a mere century. Humans are as good as they are forced to be. I will believe those assumptions are true util it is proven otherwise (maybe in 10,000 years :-))

Anyhow, here's the comment:

The problem is that the United States runs not only the Constitution, but also (to a limited extent) under common law. There is and should be a great respect for prior decisions, known generally as stare decisis. The exclusionary rule has been the remedy for almost any fault in the execution of a warrant for over 90 years. It is the essence of what I think of when I think of “settled law”. If you ask any police officer the price of screwing up at any point, they will tell you, “Then anything you find gets thrown out.” and as a result, they are very careful in every step of the process. I truly believe this is exactly as it should be. The minute you open up any grey area, then you introduce a decision into the police officer executing his duty. I don’t like that. Police should have a bright line. The fouth is a biggie and they should be extrememly careful. All sides in this case admitted that the pause would not have allowed the defendant to dispose of the evidence. If they had adhered to the existing standard, then they get the evidence, if not then they don’t. With this decision, they are now tempted… “How far can I go, and still get the evidence in?” THAT IS A BAD QUESTION!!!! I think we need that line.

In addition, if this court is willing to reopen decisions that are nearly a century old, God help us all. Again and again at hearings for judicial nominations we hear the question, “Do you regard Roe v. Wade as “settled law”?” If this is not settled law, then Roe has no chance.

When exceptions to the law are made to assure catching 100% of the guilty, then we must be prepared to pay the price tha we will assuredly convict some of the innocent.


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