The Exclusionary Rule

1
The Exclusionary Rule

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

2
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.

3
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.

4
Madisons 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.

5
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

6

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

7
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.

8

• 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.

9
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.

10
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.

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• 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.

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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?

13
More Alternatives

• Independent, citizen review board, with
  disciplinary powers. No experience in U. S.
• Charging police under federal civil rights
  statutes. No experience.

14
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.

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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.

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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.

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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?

18
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?

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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?