The Exclusionary RuleThe Exclusionary Rule

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

The Fourth Amendment in The Fourth Amendment in its Original Contextits 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 AmendmentThe Fourth AmendmentThe 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 OriginalMadison’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 History of the Exclusionary RuleRule

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 Deontological Defenses of the Exclusionary Rulethe 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 DefensesConsequentialist 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.

Objections to the RuleObjections 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.

AlternativesAlternatives

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 AlternativesMore 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: The Leon Decision: "Good Faith" Exceptions"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 LeonObjections 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 Interpreting the Bill of RightsRights

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 Finding the “General Purposes”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 AmendmentThe 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 Does Ideology Determine Interpretation?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?