In Tennessee, a big drug bust is in jeopardy after a federal judge found that police had no reason for the traffic stop that led to the subsequent search and arrest:
It should have been a victory for Tennessee narcotics policing. Drug task force agents see a car zoom past on Interstate 65 South in Robertson County — prime conditions for the kind of pretextual traffic stop that could lead to a drug search. Indeed, a search of the late-model Ford sedan reveals that the two Hispanic men from Dayton, Ohio, are drug mules who’ve been paid a pittance to risk transporting a half-kilo of heroin down a known drug corridor . . .
Instead, Lt. Shane Daugherty, a team supervisor with the 17th Judicial Drug Task Force and perhaps one of the most high-profile narcos in the state, now finds his own credibility in question. Meanwhile, the Ruizes are all but ready to walk out of jail as free men. With one ruling, federal district Judge Aleta Trauger rendered the evidence Daugherty discovered off limits and the prosecution’s case against the cousins virtually unwinnable.
The message Trauger’s memo sends to the agent and the Tennessee law enforcement community in general is clear: Have probable cause nailed down — or suffer the consequences in court. At issue is not whether one or both of the Ruizes were knowingly transporting heroin, but whether they were ever speeding in the first place.
The article goes on to detail how the dash cam and other evidence strongly suggests the Ruizes were not speeding, and that Daugherty pulled them over on little more than a hunch. He has also since changed his story, a couple times.
Critics of the Exclusionary Rule argue that it only protects the guilty. And sure enough, here you have the likely outcome that a couple drug runners—and the drug distributor they gave up—will go free.
But what about all the innocent, likely brown or black people Daugherty also pulled over on a hunch? I suppose it’s possible that every illegal stop Daugherty made solely on instinct turned up drug runners, but that seems unlikely. The fact that his dash cam was set to begin recording only after he turned on his lights—conveniently leaving out whatever traffic violation led to his decision to pull the motorist over in the first place—suggests that this wasn’t his first illegal stop. Most of the innocent people harassed by such stops aren’t likely to file a complaint, much less a lawsuit. Even if they have the inclination to sue, thanks to qualified immunity they aren’t likely to find an attorney to take their case. That’s because even in the unlikely event they can get past qualified immunity, it’s unlikely that a judgment for an illegal roadside search would win enough in damages to make a lawsuit worthwhile. It would take a group like the ACLU, amassing dozens of plaintiffs, to have any real effect. (The ACLU has filed and won such suits. But they certainly don’t have the resources to address this stuff everywhere it happens.)
So without the Exclusionary Rule (and frankly, even with it), there’s little to keep Tennessee cops from illegally pulling over and harassing innocent motorists. In fact, if you’ll remember back to that Nashville TV news investigation on asset forfeiture last month, there’s a strong financial incentive in favor of profiling motorists. I suppose we could fall back on internal discipline—that new police professionalism Justice Scalia is fond of bringing up. But how many police agencies are going to seriously discipline a cop for making pretext stops if every 10th or 20th such stop results in tens of thousands of dollars for his department?
The Exclusionary Rule certainly isn’t ideal. But it does at least serve as some check on Fourth Amendment violations. It’s really the only check. Daugherty’s career-making bust may now be a career-ending one, especially if he’s designated a “Brady cop.”
Yes, an unsavory character may duck charges in the process, but that’s what gets the public’s attention, which is what forces change. The bigger the fish that gets away, the more attention the Fourth Amendment violation that led to the arrest gets in the press, the more embarrassment subsequently cast on the law enforcement agency in question, the greater the likelihood that said agency will better train its cops in the future (or, if you’re cynical, change its unofficial policy). A cop the Nashville Scene says is one of the most high-profile narcos in the state is now fighting for his career. You can bet that the state’s drug cops now know that there’s a federal district court judge who’s growing suspicious of the way they operate. That means less harassment of innocent motorists.
(In less encouraging news, the Louisiana Supreme Court just went the other way, refusing to throw out evidence gathered after a search based on an police officer’s hunch and the old “furtive gesture” routine.)