MS applies a sliding scale to the exclusionary rule? Interesting take in a multiple offender DUI case

Officer’s arrest of defendant for DWI slightly outside of the officer’s jurisdiction is something not subject to the exclusionary rule. Here, the exclusionary rule is weighed against the defendant’s repeated inability to conform his conduct to the law, so why should he benefit from exclusion? Delker v. State, 50 So. 3d 300 (Miss. 2010):

P3. A Fourth Amendment violation does not automatically precipitate the exclusion of evidence. Rather, it sets into motion a separate inquiry, i.e., whether application of the exclusionary rule outweighs the costs to society in allowing the criminal to be set free. See Herring, 129 S. Ct. at 700 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)) (“exclusion ‘has always been our last resort, not our first impulse’”). Each case must be considered based upon the facts presented in that case. We find the exclusionary rule inapplicable in Delker’s case and affirm the result reached by the circuit court and affirmed by the Court of Appeals.

. . .

P17. Any purported deterrent effect in encouraging officers to be aware of jurisdictional boundaries is dubious at best, given the dearth of similar cases involving errors in jurisdictional boundaries presented to this Court over the years. This alone should negate any perception of the beneficent need for exclusion to the end of “appreciable” or “substantial” deterrence of such errors in the future. Herring, 129 S. Ct. at 700-01. But even assuming arguendo that a marginal deterrent effect exists, it is significantly outweighed by the “substantial social costs” and “harm to the justice system” exacted by exclusion. Id. at 700-02, 704. It takes neither a judge nor a lawyer to recognize the compelling social interest in protecting innocent citizens from drunk drivers and the offense to “basic concepts of the criminal justice system” by “letting guilty and possibly dangerous defendants go free.” Herring, 129 S. Ct. at 701 (quoting Leon, 468 U.S. at 908). Here, a multiple DUI offender, who was driving under the influence on Christmas Eve, would not be required to answer for his actions because of Langston’s error. The counter-effect would be that innocent citizens of this State, who look to the government for protection from drunk drivers, would be subjected to the potentially fatal risk of a recalcitrant, multiple-DUI offender being placed back on their roadways. This risk only adds to the undeniable substantial social costs exacted by drunk drivers through not only fatalities, but also through grief to the survivors; personal injuries ranging from catastrophic to minor; and property loss. Moreover, harm to the justice system is self-evident. Delker has demonstrated a deliberate, reckless, and flagrant disrespect of the laws of this State, despite opportunity after opportunity to alter his conduct.

So, is it reasonable to assume, then, that the exclusionary rule in Mississippi will not be applied on a sliding scale of the gravity of the crime? So, if this were Delker’s first offense, would the exclusionary rule apply? Second in five years? What about any murder case in Mississippi, considering the NYTimes op-ed piece from three days ago, High Cost of Crime (a murder costs society $17+M)? Can the language of this case be applied to the “scourge” of drug dealers who might be selling to innocent children or minors? I don’t see this case being limited to its facts, and this is truly one of those “bad facts making bad law” scenarios.