Exclusionary Rule, Counterterrorism, and Crime Prevention

The Exclusionary Rule and Police Misconduct

The exclusionary rule controls police misbehavior, but in a manner that is more indirect than direct. Technically, it does not actually control what police officers do; rather, it imposes certain penalties after the fact that are intended to deter future misconduct. The exclusionary rule is powerless to prevent police officers from violating constitutional protections or the established rules of criminal procedure designed to guarantee constitutional rights in any specific instance.

However, by excluding evidence obtained in violation of constitutional protections, the exclusionary rule prevents improperly obtained evidence from being used at trial. In that way, the exclusionary rule provides an incentive for police to comply with established constitutional principles in general, because failure to do so undermines the underlying purpose of conducting investigations in the first place — it prevents illegally obtained evidence from being used to secure convictions at trial.

Good Faith and Inevitable Discovery Exceptions

Prior to the establishment of the "good faith" exception in 1984 and further revisions to that doctrine in 1995, the exclusionary rule sometimes penalized police actions that involved no actual wrongdoing. Concepts like the good faith exception and the "inevitable discovery" rule narrowed the applicability of the exclusionary rule to genuine police misconduct. By distinguishing the kinds of police action that violate the Constitution from honest mistakes and clerical errors, these exceptions achieve a better balance between the conflicting goals of crime control and due process.

Specifically, they exclude only evidence seized through purposeful violations while permitting the use of evidence seized improperly but in a manner not capable of being deterred — because it was not purposeful. This refinement ensures that the rule functions as a meaningful deterrent rather than an arbitrary penalty.

Local Police and Counterterrorism Efforts

Counterterrorism efforts comprise both strategies intended to identify and prevent terrorist threats against the local community and those intended to help identify and prevent threats against the broader homeland. With respect to the local community, police efforts must focus on identifying potentially high-value terrorist targets for the purpose of controlling unauthorized access to sensitive facilities and infrastructure. That is achieved through the erection of physical barriers, the assignment of patrol responsibilities to monitor activity, and the imposition of appropriate rules and policies to insulate those high-value targets from unrestricted access. At the same time, counterterrorism at the local level should also include identification of soft targets that can be hardened at minimal cost wherever possible.

With respect to national counterterrorism efforts, local police should emphasize the collection and appropriate dissemination of intelligence at the local level and its communication to federal authorities. At the local level, the emphasis should be to facilitate the efforts of Joint Terrorism Task Forces (JTTFs). Local authorities must also ensure that policies and procedures result in the timely and efficient communication of intelligence to counterterrorism fusion centers designed to collect, analyze, and distribute counterterrorist intelligence provided by local authorities, so that local efforts can be implemented against terrorist threats anywhere in the nation. To facilitate counterterrorism efforts on both levels, local law enforcement should continually emphasize the public's responsibility to report potentially suspicious activity.

Crime is attributable to a complex combination of larger social issues and other factors that contribute to the incidence of specific criminal activity in society. To the extent that crime is a function of larger social issues, it is unrealistic to expect those underlying social problems to be rectified by law enforcement efforts alone. Even with respect to specific incidents of criminal behavior, law enforcement authorities must address two competing interests that fall within the purview and responsibility of law enforcement.

Reasonable Expectations for Crime Prevention

Specifically, poverty, unwanted pregnancy, lack of educational and vocational opportunities, and perceived social disenfranchisement within communities contribute heavily to crime in those areas — but none of those social factors are capable of being redressed directly by law enforcement authorities. Likewise, even within the realm of law enforcement responsibilities, emphasis on quality-of-life-oriented policing and crime-prevention-oriented policing can conflict with the goal of reducing crime overall, given empirical evidence and anecdotal experience demonstrating that efforts directed at the former do not necessarily achieve the goals of the latter appreciably.

In that regard, directed police patrols and crackdowns on specific types of crimes have proven effective at addressing those targeted types of criminal activity, but they do not provide a substantial benefit with respect to overall crime rates outside of those targeted crime types or outside of areas with increased directed police activity. Conversely, research also indicates that community perceptions of crime are not necessarily consistent with the results produced by community-oriented policing and "broken windows" approaches to crime reduction.