A Portland man has filed a $25,000 lawsuit arising out of a DUI arrest from last summer. The man was arrested in Idaho. During the DUI investigation, police opened the man's Native American medicine bag. According to Native American religion, the magical power of the bag was destroyed when it was opened.
Reports about the DUI arrest indicate that the man had a BAC of .16. At this level, the man must have certainly smelled of alcohol. It is very likely that the man also exhibited the effects of having consumed alcohol. If these facts were present, it makes opening the medicine bag suspect.
Generally, police cannot conduct a search absent a warrant. There are a few exceptions to this requirement. One of these exceptions is the search incident to arrest doctrine. This doctrine says that police may search a person after he is lawfully arrested. The United States Supreme Court recently restricted the doctrine of search incident to arrest in Arizona v. Gant. Nevertheless, police still have fairly broad abilities to search a person's clothing after a lawful arrest.
The question remains, however, for what were the police looking. There is little change that a Native American medicine bag was going to hold a weapon. While police could have been hoping to find drugs, in this case the man appeared intoxicated on alcohol not drugs. Therefore, the search was likely simply a fishing expedition.
From a criminal defense perspective, I have mixed feelings about this type of civil lawsuit. On the one hand, I am happy to see someone standing up for his rights. On the other hand, some people argue that civil litigation is the proper remedy for civil rights violations not the exclusionary rule. Most criminal defense lawyers consider the exclusionary rule to be safeguard of constitutional rights.
In this case, the magistrate held that the search was lawful. Therefore the exclusionary rule does not apply. Generally, when a search is unlawful, the results of that search are suppressed. This exclusion is thought to be the best deterrent against civil rights violations by the police. Some argue, however, that the evidence should not be excluded. Instead these people argue that the best remedy is a civil lawsuit.
This case will likely have no impact on the ongoing debate regarding the exclusionary rule. Nevertheless, whenever I see a case like this I have mixed feelings. I am happy that Portland man is standing up for himself. I just hope the government does use his courage to argue that future unlawful searches should be allowed into criminal cases.
