The Exclusionary Rule

 The Fourth Amendment  History of the Exclusionary Rule  Deontological Defenses of the Rule  Consequentialist Defenses  Objections  Alternatives

The Fourth Amendment in its Original Context

 Primarily concerned with general warrants issued to tax and customs officials.

 Assumed that people would not tolerate warrantless searches.

 No organized police forces: victims brought charges against their attackers.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers and effects, against unreasonabe searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oaths or affirmations, and particularly describing the place to be searched, and the persons or things to be seized.

Madison’s Original

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonabe searches and seizures, shall not be violated by Warrants issued without probable cause, or not supported....” I.e., the protection was against general warrants, not against warrantless searches.

History of the Exclusionary Rule

 Weeks v. U. S. (1914): exclusionary rule applied to illegal searches by federal officers.

 Wolf v. Colorado (1949): 4th amendment, but not the exclusionary rule, applied to states.

 Mapp v. Ohio (1961): exclusionary rule applied to states

 Linkletter v. Wallace (1965): exclusionary rule not to be applied retroactively

Deontological Defenses of the Exclusionary Rule

 Seizing the evidence and accepting the evidence in court are parts of a single governmental action: illegality of first part contaminates the second.

 Admitting the evidence is inevitably to condone and encourage illegal searches.

 The government must set an example of scrupulous abiding by the law.

 The courts honor and underscore the value of the 4th amendment by paying such a high price to protect it.

 Exclusion asserts judicial independence from the executive branch.

Consequentialist Defenses

 Deters illegal searches and seizures. Forces police and prosecutors to develop procedures and training regimens that make violations rare.

 No other alternative is available to the courts. The Bill of Rights is addressed to the courts -- they have no other control over activities of police.

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Objections to the Rule

Little or no empirical evidence that it actually deters police illegality. Most police work is not intended to result in prosecutions.

 Causes considerable delay and waste of judicial resources. Between 20-35% of court time is spent on motions to suppress evidence.

 Provides absolutely no protection to innocent victims of illegal searches.

 Encourages perjury on the part of police, to cover up technical violations.

 Grants police the unlimited ower to grant immunity to any criminal, by deliberately engaging in an illegal search. Could lead to corruption.

 Forestalls the development of alternative protections of 4th amendment rights.

Alternatives

 Prosecution of police for trespass. Prosecutors, juries are reluctant.

 Civil tort action against officers. In many states, they enjoy immunity.

 Administrative discipline by police internal affairs. Not objective?

More Alternatives

 Independent, citizen review board, with disciplinary powers. No experience in U. S.

 Charging police under federal civil rights statutes. No experience.

The Leon Decision: "Good Faith" Exceptions

 Evidence is admissible if a "reasonably trained" police officer would have had good reason to believe that the search was legal (e.g., that the warrant was valid).

 Standard is objective: doesn't depend on what the officer actually believed.

Objections to Leon

 Encourages a "see-no-evil" approach on part of officers: they are OK so long as they don't encounter any evidence or advice that the search will not be legal.

 Encourages "magistrate shopping". Can use evidence, no matter how unreasonable the judge was in granting the warrant.

Interpreting the Bill of Rights

 Learned Hand argued, in using history, we look for "general purposes, not specific practices."  Profound differences in historical context. When the Bill of Rights was passed, there were no police, no wiretapping, no eavesdropping devices.

Finding the “General Purposes”

 What is the appropriate level of generality? Anti-federalists were primarily concerned with revenue collectors, not crime investigators.

 What to do when the Constitution provides no enforcement mechanism, or relies (implicitly) on one (popular resistance) that has proved inadequate?

The Fifth Amendment

“No person ... shall be compelled in any criminal case to be a witness against himself, ...”  If taken literally, applies only to criminal trials, not to grand juries, civil trials, congressional hearings.

 What does “compelled” mean? May prosecutors point out the failure?

Does Ideology Determine Interpretation?

Contrast the expansive interpretations given to the 1st, 4th and 5th amendments with the the very restrictive interpretations given to the 2nd and 10th.

Is there a right answer?

How great is the indeterminacy?

Who should decide?