N.Y. search warrant case shows why we need the Exclusionary Rule

The New York Post and the head of a New York City police union are upset that an accused drug dealer with a prior record may walk due to “a technicality.”

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk . . .

“New York City police officers put their lives on the line to get these illegal weapons off the street,” Patrolmen’s Benevolent Association boss Patrick Lynch said of the ruling. “There are some technicalities — like if the premise is a single- or multiple-family dwelling — that are so insignificant that suppressing the evidence actually subverts justice and public safety.”

So what was that technicality? The cop who filled out the search warrant didn’t specify which unit in a multi-family housing unit was to be searched. Consequently, the cops raided the wrong residence, which caused them to kick down the door and terrorize an innocent family. Someone could have been killed. It’s happened before. Hell, it’s happened before in New York.

The requirement that the location on a search warrant be specific isn’t “a technicality.” It’s a core principle of the Fourth Amendment. The entire reason we have a Fourth Amendment goes back to the general warrants the British crown issued to English soldiers in the streets of Boston in the 18th century. Those warrants, called writs of assistance, allowed British troops and inspectors to raid private residences in search of untaxed goods and illegal imports. The warrants permitted searches of any residence. These violations of private homes that required no probable cause stirred anger and resentment, and helped turn Boston into a hub of revolutionary fervor.

So when a police officer today gets a warrant for a multi-residence building but doesn’t specify which unit is to be searched, and the police then raid multiple units within that building, they haven’t made a minor technical error — they’ve violated one of the founding principles of this country. This is isn’t an exaggeration.

What the police union and NY Post are actually upset about is the remedy — the Exclusionary Rule that bars any evidence found in an illegal search from being used against a suspect at trial. The objection to the Exclusionary Rule is that because it only comes into play when police find evidence of criminal activity, it only protects the guilty. That’s an understandable sentiment. But it also misses the point.

It’s nearly impossible to sue a police officer in a case like this one. The number of times a cop has been criminally charged for an illegal search is barely north of never. Internal discipline for these kinds of mistakes is nearly nonexistent. (Want to wager on whether these cops were sanctioned in any way?) The Exclusionary Rule is the only real deterrent available. It not only discourages police from conducting intentionally illegal searches, it encourages them to use care and precaution to avoid mistakes. After all, if you’re subjected to an illegal search, it doesn’t matter if the search occurred due to malice or to negligence. Your rights have been violated either way.

The odd thing is that this case shows exactly why the rule is necessary. Had the police guessed correctly and raided the right unit, and then Judge Weinstein dismissed the evidence against Shakeel “Blam” Wiggins, opponents of the Exclusionary Rule would be on stronger ground. (Though they’d still be wrong.) But the police didn’t guess correctly. And because they didn’t take the proper care to be sure they had a specific address, they raided an innocent family, subjecting them to all the violence, terror and fear of a volatile, “dynamic entry” drug raid.

This story isn’t an indictment of the Exclusionary Rule. This story shows exactly why we need it.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · April 11