{"id":4770,"date":"2011-02-10T12:46:08","date_gmt":"2010-10-12T00:24:20","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-10-12T00:24:44","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=4770","title":{"rendered":"MS applies a sliding scale to the exclusionary rule? Interesting take in a multiple offender DUI case"},"content":{"rendered":"

Officer\u2019s arrest of defendant for DWI slightly outside of the officer\u2019s jurisdiction is something not subject to the exclusionary rule. Here, the exclusionary rule is weighed against the defendant\u2019s repeated inability to conform his conduct to the law, so why should he benefit from exclusion? Delker v. State<\/a>, 50 So. 3d 300 (Miss. 2010):<\/p>\n

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<\/a>, 129 S. Ct. at 700 (quoting Hudson v. Michigan<\/a>, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)) (\u201cexclusion \u2018has always been our last resort, not our first impulse\u2019\u201d). Each case must be considered based upon the facts presented in that case. We find the exclusionary rule inapplicable in Delker\u2019s case and affirm the result reached by the circuit court and affirmed by the Court of Appeals.<\/p>\n

. . .<\/p>\n

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 \u201cappreciable\u201d or \u201csubstantial\u201d deterrence of such errors in the future. Herring<\/a>, 129 S. Ct. at 700-01. But even assuming arguendo that a marginal deterrent effect exists, it is significantly outweighed by the \u201csubstantial social costs\u201d and \u201charm to the justice system\u201d 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 \u201cbasic concepts of the criminal justice system\u201d by \u201cletting guilty and possibly dangerous defendants go free.\u201d Herring<\/a>, 129 S. Ct. at 701 (quoting Leon<\/a>, 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\u2019s 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.<\/p><\/blockquote>\n

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> (a murder costs society $17+M)? Can the language of this case be applied to the \u201cscourge\u201d 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 \u201cbad facts making bad law\u201d scenarios.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4770","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4770","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4770"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4770\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4770"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4770"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4770"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}