Dear Judge Kavanaugh,
In a lecture you gave last year honoring the late Chief Justice William Rehnquist, you questioned the value of the “exclusionary rule,” which, as you know, says that evidence obtained illegally by law enforcement cannot be used against a defendant in court. Of course, judges "exclude" if they find that the police violated someone's rights (like the 4th Amendment) in a pretrial hearing initiated by a defendant. Sometimes that's the end of the case, sometimes not. Your comments regarding the exclusionary rule suggest that you believe that too many “criminals” are “getting off on technicalities.”
Unfortunately, that's a short-sighted position, more typical of a misinformed citizen afraid of crime or, worse yet, a pandering tough-on-crime politician. You, however, are a learned judge susceptible to reason. May I remind you that the Supreme Court decisions behind the exclusionary rule came from the Republican, supposedly conservative-minded chief justice of the 1960s and ‘70s, Earl Warren. They have mostly survived the test of time.
Your confirmation to become the newest Supreme Court justice is imminent. So, after reading about your publicly stated positions, which don't exactly condemn unlawful police searches, I wanted to share my opinion on the subject with you — from the trenches of state trial courts, where I have been a Baltimore City public defender for 15 years and where many of the U.S. Supreme Court's criminal appeals originate.
You live in one of the wealthiest towns in Montgomery County, Md., one of the richest counties in the nation. You attended Yale undergrad and law. You clerked at the Supreme Court, worked for a big firm, then served on President George W. Bush's White House staff. From there, you were appointed to the D.C. Circuit bench, where you've been for over 10 years. Having attended the University of Baltimore School of Law, having lived in Baltimore City in a predominately black neighborhood for years and having worked in the Public Defender's office my whole career, my perspective on policing, race and criminal law should matter to you. I listen to my clients and investigate their cases. I question cops on the witness stand. I also watch body camera footage of arrests and inspect police personnel files. My background informs me that the 4th Amendment and the exclusionary rule not only protect our rights, they curb police misconduct.
Did you know that in 2016 the Department of Justice (DOJ) found that 26 out of every 27 Baltimore Police Department (BPD) pedestrian stops netted no criminal activity? Over 7,200 incidents were analyzed in the DOJ investigation sample. Only 3.7 percent of BPD's aforementioned "encounters" even led to citations or arrests.
The takeaway here is that most folks stopped, searched or harassed by the police are not arrested. These are mostly law abiding citizens who have little recourse if wronged, harmed or degraded by the police. Internal police investigations are ineffective, and suing law enforcement is very difficult. Policing is also biased. According to the DOJ report, African-Americans are three times more likely to be stopped by BPD. In Baltimore, nearly half of the stops occur where only 12 percent of the population lives (in two predominantly black areas).
In court, the reality is that the percentage of cases where 4th Amendment issues are litigated is similar to those that go to trial (roughly 7 to 10 percent of all cases). So, making the right decision when someone challenges a police stop is crucial for judges because, despite public perception, it doesn't happen often. These rulings still set the tone for permissible policing, and cops tend to take note of their limits. Judges should look beyond the case at hand and consider the impact on the entire police department and community when considering the rule — and so must the Supreme Court. When I litigate law enforcement actions in hearings with judges, it often seems like I'm arguing against two prosecutors, the judge being the second (especially if a gun is involved versus drugs). Exclusion is hard to come by.
Perhaps you've heard of Baltimore's notorious Gun Trace Task Force, eight members of which have been convicted in federal court. They robbed people, stole contraband and illegally stopped citizens for sport. One of their indiscretions of choice was to drive a vehicle into a crowd to see who ran. Then, they'd choose a fleeing individual to stop and search. Task force members admitted to carrying fake guns to plant on suspects. Please understand that the exclusionary rule speaks directly to this type of cop. Water it down or eliminate it, and this style of law enforcement could be the norm.
You have a conservative philosophy. Conservatives want to stem government overreach. When cops overstep their boundaries, that certainly seems like overreach. Please don't make exceptions where the issues most directly impact African Americans and the poor. Even the late Justice Antonin Scalia stayed consistent on the 4th Amendment by ruling to restrict police power and favor exclusion. When you decide 4th Amendment issues, try to expand your perspective beyond the defendant before you, who might have done something wrong — that makes it easier to keep the exclusionary rule intact for everyone.
Todd Oppenheim is an attorney in the Baltimore City Public Defender's Office. Twitter: @Opp4Justice; email: email@example.com.