SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

“To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by
the justice system.” (Herring v. United States (2009) 555 U.S.
135 [172 L.Ed.2 nd 496]; see also People v. Leal (2009) 178
Cal.App.4 th 1071, 1064-1065.)
The exclusionary rule should only be used when necessary to deter
“deliberate, reckless, or grossly negligent conduct, or in some
circumstances, recurring or systematic negligence.” (Herring v.
United States, supra, at p. 144 [172 L.Ed.2 nd at p. 507.]
But, officers who took 26½ hours to obtain a search
warrant for a residence while the residence was “detained”
(i.e., the occupant was kept from reentering), failing to
recognize that they were required to act with due diligence
and to expedite the process, were not excused by the rule of
Herring. The resulting evidence, therefore, was subject to
exclusion. (United States v. Cho (9 th Cir. 2010) 597 F.3 rd
995, 1004-1006.)
See United States v. Monghur (9 th Cir. 2009) 576 F.3 rd 1008,
where a case involving the illegal warrantless search of a container
was remanded for a determination of whether the exclusionary rule
required the suppression of the gun found in that container.
Illegally collecting blood samples from defendant, mistakenly
believing that he qualified under the newly enacted DNA and
Forensic Identification Data Base and Data Bank Act of 1998
(P.C. §§ 295 et seq.), even if it was a Fourth Amendment
violation to do so, did not require the suppression of the results in
that the mistake was not intentional, reckless, the results of grow
negligence, nor of recurring or systematic negligence. (People v.
Robinson (2010) 47 Cal.4 th 1104, 1124-1129.)
But by the same token, not all courts are in agreement that the
exclusionary rule is reserved exclusively for constitutional
violations. (See discussion in United States v. Lombera-
Camorlinga (9 th Cir. 2000) 206 F.3 rd 882, 886-887, and in the
dissenting opinion, p. 893.)
© 2012 Robert C. Phillips. All rights reserved
A civil rights “action under (42 U.S.C.) section 1983
‘encompasses violations of federal statutory law as well as
constitutional law.’ (Maine v. Thiboutot (1980) 448 U.S. 1,
4, . . . 65 L.Ed.2 nd 555.) Thus, section 1983 may be used to
enforce rights created by both the United States
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