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Mark Clark

Mark Clark

Mark Clark is the public information officer for a law enforcement agency in the southwest. He is also a photographer and contributor to POLICE Magazine.
Patrol

A Short Cut to Termination?

Don't try to "work around" the exclusionary rule.

June 03, 2010  |  by - Also by this author

A friend that I once worked with advised me of the latest cop to get relieved of duty by his agency. The cop had hooked up an ex-con for possession of a firearm. It was one of several charges that the felon was good for, and he readily admitted as much to the station detective.

There was only one problem.

In the cop's arrest report, he stated that the suspect was in physical possession of the weapon at the time of the arrest. When asked about this, the parolee acted befuddled.

"I don't know why he wrote that," he supposedly told the detective. "I mean, it's mine. I was holding it before he contacted me. But I stashed it before he got to me. You can talk to my girlfriend. She was there."

One corroborating witness later, the station detective was on the phone asking the cop what was up.

"Oh, yeah," the cop admitted. "I just put it on him to smooth things out."

Really.

Instead of "smoothing things out," the cop laid himself out. Worse still, there was not only a good chance that he'd get fired, but be prosecuted, as well.

It's by no means the first time I've heard of someone taking a short cut, and I know it won't be the last. On the one hand, I understand the temptation: You know the suspect is good for the crime, and rather than document him going from Point A to Point B to Point C and so on, you just skip ahead to Point Z. The problem is that when you're dealing with probable cause declarations and similar paperwork, you leave yourself vulnerable to all manner of impeachments, not only regarding the arrest in question, but as it relates to your credibility in all past and future arrests.

One of the biggest problem areas for cops involves their attempts to work around the exclusionary rule.

Now, as a concept, it's arguably understandable: You want to prevent cops from conducting illegal searches and seizures. But as a practice it smacks of redundancy: If the person is culpable for the offense, then so be it: He's guilty. And if he isn't, then anyone who's inclined to make a false or illegal arrest will probably cover his ass by falsifying its documentation, as well.

But most of the time, it's not the malicious cops who find themselves behind the eight ball. It's the numbnuts who screw themselves up by trying to make a half-assed concession between their natural laziness and adhering to the law.

Look, the exclusionary rule is a mess and has been for some time now, and one could easily fill the walls of the Staples Center with all manner of Rube Goldberg matrices bifurcating and trifurcating at various junctures as to how much further you may proceed with a search given each new variable (e.g., who has dominion, who doesn't, what constitutes an exigency, etc.).

This headache-inducing miasma of legalese has at various times seen people repeatedly call for its focus to be narrowed. Hell, as Judiciary Committee Chairman, Senator Orrin Hatch once introduced a bill designed to eliminate the exclusionary rule (as this was back in the mid-nineties, you can imagine what became of it). Still, there continues to be those who believe it makes more sense to punish the occasional bad cop then continually throw out the baby with the bath (indeed, some who seek to get rid of the exclusionary rule say it would make more sense to hold bad cops increasingly liable for individual acts of professional malfeasance).

Maybe one day the tide will change. Just this week, the Supreme Court made a long overdue clarification on the Miranda matter that is favorable to cops. And who knows? Perhaps one day they'll clean up the exclusionary rule, too.

But in the meantime, cops are saddled with it. I hope that you don't try to "work around" it, but work with it.

It's better than not being able to work at all.

Tags: Handling Evidence, Search and Seizure


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