It goes against the US tradition, but I'd prefer to not have the 'fruit of the poisoned tree' doctrine but instead direct penalties for violations by police.
As it stands, it has the following effect:
1. If illegal actions by policemen violates the rights of someone commiting a crime, then the evidence obtained this way is discarded, letting a true criminal go free, assuming that the evidence actually proves guilt.
2. If illegal actions by policemen violates the rights and privacy of an innocent person (e.g. me) then nothing happens.
In both cases, any benefit of the doctrine goes to people who don't deserve it - the lawbreakers with or without badges and uniforms.
For most law-abiding people who value their rights and privacy it would be rational to request that the doctrine is "violations by police in gathering evidence get handled by existing law".
If a policeman obtains evidence by breaking down a door without a warrant and taking some documents, despite being a professional with special training on what their specific rights and duties are, then let the evidence stand but let also the policeman stand trial (not disciplinary action, but a proper trial) for breaking and entering. Just as for cases of policemen shooting people - at least worldwide, given the recent events I'm not sure anymore how it's in USA.
Bivens actions,[1] and suits under 42 U.S.C. 1983,[2] exist precisely to remedy Constitutional violations in situations where the exclusionary rule doesn't apply. They allow you to sue for money damages for violations of your Constitutional rights by federal and state actors, respectively. They are very common.
However, police have qualified immunity in such suits unless their actions were in violation of "clearly established law." Under qualified immunity, the police can't be penalized for guessing wrong when it comes to unsettled law, or when a court decides to take the law in a new direction.
This decision is quite a departure from the general rule that anything visible from public property is outside 4th amendment protection. So the police here would likely be protected by qualified immunity for failing to anticipate that a court would take previously well-established law in this new direction.
>This decision is quite a departure from the general rule that anything visible from public property is outside 4th amendment protection
I don't believe that to be true. Were Vargas in a suburban or metropolitan area the ruling may have been quite different. The order specifically mentions that being in a rural, isolated area comes with different expectations of privacy.
16 The American people have a reasonable expectation of privacy in the activities
17 occurring in and around the front yard of their homes particularly where
18 the home is located in a very rural, isolated setting.
Might that not incentivize law enforcement officials to hire a series of scapegoats?
"Listen, Mike, we really need this drug dealer in prison. Break into his house, and get use the evidence we need. Penalty for that is, what, a year in county lockup? Plus we're just about certain you'll get out in six months for good behavior. Plus, hey, it's Christmas time, couldn't your family use a nice bonus for presents?"
The current situation can also incentivize organized crime to hire law enforcement officials - "Listen, officer Mike, we can't figure out how to safely distance ourselves from this stash of bodies/drugs/guns/whatever. Break into this house without a warrant based on an anonymous tip. Penalty for this is, what, a written reprimand? We're just certain we can give you better bonuses than the county district can afford.
(Assuming that the doctrine works in the way I understand and there aren't nifty extra failsafes built in)
You should read about what goes on in countries that don't have this rule, even countries you'd consider otherwise functioning western democracies.
The police "know" you're a pothead so they break into and search your house. The search is entirely illegal but you go to jail anyway, after all they found some evidence. If they didn't find some evidence that's just a fine paid out of taxpayer money (police are similarly unaccountable almost everywhere).
By having the fruit of the poisoned tree doctrine police have a direct incentive to follow due process to the letter, least they get evidence or their entire case thrown out of court.
As other commenters here point out this doesn't always work out well in the US, but at least it's better than nothing.
If I understand you correctly, are you really saying that getting a prosecutors case not thrown out of court a few years later is "a direct incentive" to a police officer, but personal liability for the same officer would not be a direct incentive ?
Note that in the parent post I'm explicitly mentioning direct criminal action against the officer personally, not compensation claims against the police district; as far as I understand, fines are not an option for felonies in USA, and even the lightest possible 'guilty' sentence would automatically get such policemen out of their jobs after the first such act.
Yes, that's what I'm saying. Getting cases thrown out frequently is an embarrassment to the police force as a whole. Whereas getting fined for the wrongful doings of a police officer is usually just a slap on the wrist for the police department, and it's paid out of taxpayer money.
Sure, having criminal action against the officer personally would be nice, but it seems as though it practice that's much easier to erode than the fruit of the poisoned tree doctrine. After all who polices the police? At least with a doctrine like that you have a different branch of government handling it. In any case prosecuting police for violating the law is not mutually exclusive with the fruit of the poisoned tree doctrine, both are nice things to have.
I really don't see any downside to the fruit of the poisoned tree doctrine. If police are doing their job as they should it'll never even come up, but if they aren't they're committing a grave offense against society as a whole, and shouldn't be allowed to limp away with whatever illicit evidence they've gathered while performing illegal acts.
In the US, illegal actions by policemen (alleged or not) result in suppression of that evidence less than 10 percent of the time (in actual courts). Judges just don't like to suppress evidence, even in the face of what you and I would consider overwhelming reasons.
Police in the US get an extreme amount of benefit-of-the-doubt from the public and especially prosecutors' offices (police keep them in business and both sides value their working relationships), as we've seen in recent newsworthy court cases- this alternate approach you've suggested does not appear to be an improvement except in theory.
Bribery laws also don't mean that every crooked official gets caught, but still they have some positive effect as a deterrent.
I'm fairly sure that if a cop had a 'less than 10 percent of the time' risk of permanently ending his career, then they would be much more careful than they are now. Of course, there could be an argument that we as a society don't want our cops to be too careful with rights of criminals, we also have an interest in them taking some risk and getting risky evidence; but that's a bit different direction of values/morals/rights.
There are more possible effects than the 2 you include. Another would be the police violates your rights, plants evidence, and you are unable to prove your innocence... off to jail you go. Another would be the police violate your rights and coerce a false confession out of you... off you go to jail.
And your example of "breaking down a door without a warrant and taking some documents" doesn't help an innocent person who's being framed. Further, a possible trial is something of a deterrent... but not much (see Eric Garner and grand juries).
If recent events have shown anything, it's that it's very hard to hold the police criminally accountable. Why would you remove one of the few incentives against illegal search?
As it stands, it has the following effect:
1. If illegal actions by policemen violates the rights of someone commiting a crime, then the evidence obtained this way is discarded, letting a true criminal go free, assuming that the evidence actually proves guilt.
2. If illegal actions by policemen violates the rights and privacy of an innocent person (e.g. me) then nothing happens.
In both cases, any benefit of the doctrine goes to people who don't deserve it - the lawbreakers with or without badges and uniforms.
For most law-abiding people who value their rights and privacy it would be rational to request that the doctrine is "violations by police in gathering evidence get handled by existing law".
If a policeman obtains evidence by breaking down a door without a warrant and taking some documents, despite being a professional with special training on what their specific rights and duties are, then let the evidence stand but let also the policeman stand trial (not disciplinary action, but a proper trial) for breaking and entering. Just as for cases of policemen shooting people - at least worldwide, given the recent events I'm not sure anymore how it's in USA.