YOUR CONSTITUTIONAL RIGHTS:

                                          How are they protected?

                  For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

You've heard it before, and now you're reading it again.  Newspaper headlines report the case against a major drug dealer has been dismissed on a 'technicality'.  How can this be?  Why?  The newspaper reported officers found a large quantity of cocaine in the dealer's house.  Since the drug dealer is so obviously guilty, how can the courts possibly set him free?

What you're reading is probably the result of what is known as the 'exclusionary' rule.  That rule, established by the U.S. Supreme Court many years ago, states that when police obtain evidence by violating someone's constitutional rights, the evidence is 'excluded' from being used in any prosecution.  Why would the Supreme Court make such a rule?  Because it creates a system where everyone's rights are protected, guilty drug dealers and average citizens included.  That system encourages law enforcement officers to be vigilant in honoring constitutional rights.  There is nothing more frustrating to an officer than to spend many hours on an investigation, uncover good evidence, and then lose the case because the officer didn't follow constitutional mandates.

Assume, for example, that your neighbor is angry with you because your dog ran into his yard.  He decides to get even by giving police an anonymous tip that you have something illegal in your house.  One evening, you hear a knock on your door.  You open the door and find an officer standing there.  The officer tells you police heard you have something illegal inside your house and they want to search.  Being an honest citizen and knowing you have nothing to hide, you let them.  You become increasingly upset as officers rummage through your underwear drawer and read your spouse's diary.  You tell them to stop, however, they won't.  Improbable example?  Absolutely.  I'm sure no officers in our area would ever do such a thing.  But how do we know that?  Because of the exclusionary rule.  If officers would perform a search such as this, they would know they are violating your constitutional rights and could not use any evidence they may discover.   The exclusionary rule, therefore, provides police an incentive to understand and follow constitutional rights.

Under the above 'fairy tale' example, you haven't been arrested because police found nothing.  Although you're angry, you probably do no more than file a complaint with the police chief or sheriff.  You don't have much incentive to do anything else.  However, the drug dealer who faces a long prison term because drugs were found, has quite an incentive.  If a court should find the drug dealer search violates constitutional rights, that court decision will commonly be distributed widely to police, prosecutors and defense attorneys.  The drug dealer's court decision, therefore, helps to define and protect everyone's constitutional rights.

Could a 'fairy tale' example like this one happen in America?  Probably not.  Why?  Most likely because 'guilty' people have challenged searches successfully in the past, giving law enforcement specific guidance through court decisions on the exclusionary rule.

    For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP