The Illinois Court of Appeals holds that the exclusionary rule does not apply absent police misconduct. It applies this holding to a case where there was no "stop," instead of simply finding there was no stop. Here, the defendant's car was already stopped on the side of the road, and the officer turned on his blue lights for safety reasons, a rule already well established to not be a stop. People v. McDonough, 917 N.E.2d 590 (Ill. App. 2009):
Given that the Supreme Court began its discussion in Herring by accepting the concession of the parties that a fourth amendment violation had occurred in that case, we distill the Supreme Court's holding as supportive of the point this court made in Garriott 16 years ago: absent police misconduct, the exclusionary rule does not apply. The reason why is simple: if the justification for the exclusionary rule is solely to deter police misconduct (as the Supreme Court reaffirmed in Herring), then the necessary condition precedent for the exclusionary rule's application is police misconduct. Thus, absent police misconduct, the exclusionary rule does not apply because there is no misconduct to deter.
The trial court here deemed defendant to be "detained" solely as a result of the trooper's activating the overhead emergency lights on his police car. The court concluded that the trooper's doing so violated the fourth amendment because, when the trooper activated those overhead lights, he had no legitimate basis for the "detention" he thereby caused. Based upon Herring and Garriott, we disagree with this conclusion because the trooper's activation of his overhead emergency lights did not constitute police misconduct, even if the trial court were correct that this action constituted a violation of the fourth amendment.
C. No Police Misconduct Occurred in This Case
The rule that absent police misconduct, the exclusionary rule does not apply is dispositive in this case because we conclude that no police misconduct occurred here. We further conclude that the trooper's activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway not only did not constitute misconduct, it was the entirely prudent and appropriate thing for the trooper to do. Indeed, his failure to do so could very well be viewed as dangerous.
In this case, the trial court granted defendant's motion to suppress because it found that the trooper had seized defendant in violation of his fourth-amendment rights the moment the trooper activated his overhead emergency lights. By so finding, the court essentially declared that whenever a police officer approaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur, regardless of the other circumstances that may be present, the officer's action is unlawful and should be deterred by employing the exclusionary rule.
We disagree with the trial court. Its finding places a police officer in the unreasonable position of compromising not only his safety, but also the safety of any occupants of the stopped vehicle. Further, other motorists using the highway may be put at risk because of a police car parked on the highway shoulder without its emergency lights activated to warn of its presence.
. . .
In any event, we deem nothing of the trooper's activities remotely close to the police misconduct the Supreme Court discussed in Herring that would trigger suppression. For instance, nothing about the trooper's activation of his emergency lights represents "the flagrancy of police misconduct" that constitutes an important step in the calculus of applying the exclusionary rule. Herring, 555 U.S. at , 172 L. Ed. 2d at 506, 129 S. Ct. at 701. Nor do the trooper's actions constitute "systemic error or reckless disregard of constitutional requirements" (Herring, 555 U.S. at , 172 L. Ed. 2d at 509, 129 S. Ct. at 704), or the "culpability of the police," thereby suggesting "the potential of exclusion to deter wrongful police conduct" (Herring, 555 U.S. at , 172 L. Ed. 2d at 502, 129 S. Ct. at 698). In sum, the trooper did nothing improper in this case. Because no police misconduct is present, the exclusionary rule does not apply.
This case is an example of Fourth Amendment bias--the court does not like the Fourth Amendment, so it goes way beyond the requirements of the case to uphold the action of the police. The court could not just state there was no "stop" because that does not fit into its bias. Instead, it went for the exclusionary rule when that should not have even been the issue. This is Justice Frankfurter's Rabinowitz caution in action; United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (dissenting opinion):
It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616 , in Weeks v. United States, 232 U.S. 383, in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , in Gouled v. United States, 255 U.S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)