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Only this time it looks like Braun really is innocent. According to MLB protocols, the person who collected the sample from Braun was supposed to take it directly to Fed Ex where they would ship it to the testing lab. Once the sample is submitted to Fed Ex, the samples cease to have a name attached to them and instead have a number. While the numbers match up to certain players, the lab doesn’t know which number corresponds to which player. This anonymity is important so that no one has an incentive to falsify or tamper with a sample. The only time that the sample can be linked to a particular player is the time between when the collector receives it from the player and when the collector takes it to Fed Ex. This is time time when the potential for abuse is high.

Which is why MLB mandates that the collector take the sample to Fed Ex as soon as possible. Only this collector didn’t do that. Instead, he drove by a number of Fed Ex locations on his way home and then put the sample in his refrigerator. There it sat for roughly forty hours, until the collector finally took it to Fed Ex so they could ship it to the lab. What happened to the sample in that 40 hours? Did the collector put the synthetic testosterone in Braun’s sample? If so, why?

This is called a chain of custody problem. Before evidence can be admitted, you must be able to prove that the evidence is in the same or similar condition as it once was. For this, you typically need three witnesses – the collector, the preserver, and the presenter. The collector is the one who first discovers the evidence at the scene. The collector then gives the evidence to the preserver – typically an evidence storage person – who puts it somewhere until the presenter comes along. The presenter is the person who takes the evidence from the preserver and brings it to court. Sometimes the collector and the presenter are the same person. Each of these witnesses must be able to identify the evidence in court as the same piece of evidence they handled. For some pieces of evidence, such as the Hope diamond, this would be easy – there’s only one of them in the world. For others, such as a piece of clothing, the item is typically placed in a bag that has each witnesses’ initials on it. The key is that these witnesses can account for the location of the evidence for every second since it was first recovered so that there’s no chance someone tampered with it. It’s called the chain of custody.

MLB couldn’t prove its chain of custody. It couldn’t account for Braun’s sample during the time in which the collector apparently disregarded league rules and kept the sample at his home. Because they couldn’t do that, Braun won. In criminal cases, it’s rare that a chain of custody objection results in victory. Police officers are drilled in chain of custody protocols at the academy and follow those protocols religiously. Because when they’re not followed, evidence gets tossed. In this case, the arbiter was right to exclude the sample from evidence. Without a proper chain of custody, the evidence simply isn’t reliable.

Until Scalia’s opinion in Jones. Scalia explained how Katz did not replace the trespass theory with something else; Katz actually added a whole new theory. These two theories are now mutually exclusive. They exist as independent but parallel barriers to the introduction of evidence seized through warrantless searches. Scalia’s revival of the trespass theory gives constitutional practitioners another front to litigate the merits of state action.

But how narrow will that front be? Justice Alito’s concurring opinion goes further than Scalia’s. It says that putting the GPS on Jones’ vehicle and tracking his movements for two weeks was an invasion of his reasonable expectation of privacy. Alito’s opinion does offer some qualifications which essentially say that his result is determined by the facts of this particular case. A shorter or less extensive monitoring might not implicate the Fourth Amendment. Justice Sotomayor wrote separately to articulate the heart of the case: technological advancement is beginning to outpace the law’s ability to adapt to it. The authors of the Fourth Amendment cannot have envisioned the world we now live in. Sotomayor’s opinion suggests she thinks it’s time for the Supreme Court to reevaluate the ideas that undergird its Fourth Amendment analyses.

Pay attention to what the Court did not decide. The Court did not hold that affixing the GPS unit to Jones’ car was an unreasonable search. Only that it was a search. The Fourth Amendment doesn’t prohibit all warrantless searches, just unreasonable ones. Scalia specifically pointed out that the government waived this argument and so the Court wasn’t going to decide it. The Court could later hold that placing a GPS unit on a vehicle is a reasonable search and doesn’t require a warrant. Until it does, the government will need a warrant to trespass to any person’s property.

Arizona v. Youngblood and subsequent cases say that the prosecution’s failure to preserve evidence it knows will be potentially useful to the defense is a constitutional due process violation. The remedy for the violation depends on how much the evidence would have helped the defense. That’s the wrong remedy.

The right remedy is one that will deter the prosecution from destroying evidence. That’s why the exclusionary rule exists. It is a synthetic deterrent – a judicially-created rule – that excludes illegally-obtained evidence. The rule exists to deter police from violating the constitutional rights of citizens. The thinking is that if the police know that the evidence won’t be admitted at trial then they won’t violate a person’s rights to get that evidence.

Shouldn’t we apply that same rationale to destruction of evidence? Let’s compare the two situations. Take a police officer in the field who makes a quick decision to search a suspect without considering whether he’s entitled to do it. Compare that to someone who knows that evidence could help the defendant at trial and destroys it anyway. If we could only deter one of those activities, wouldn’t it be the latter?

But we don’t. Instead, we look and see how much the destroyed evidence would have helped the defendant at trial. This is a process witnesses aren’t allowed to do (it’s called speculation) but apparently judges who were were not in courtroom to hear the live evidence are perfectly free to do (they’re called appellate judges).. The courts regularly decide that the destroyed evidence wouldn’t have mattered at trial and uphold the conviction. The police know they can get away with it and have no incentive to stop.

We should apply the exclusionary rule to these situations. The intentional destruction of exculpatory evidence mocks the idea of a just society. We shouldn’t just deter it, we should punish it.

The evidence against her was suppressed, and the case will most likely be dismissed. If you’ve been the victim of an illegal search, contact Bell Folsom today so we can start fighting for you.