What is the Exclusionary Rule? [No. 86]


The Fourth Amendment forbids unreasonable
searches and seizures. And so then the question arises, what is the
remedy for the violation of Fourth Amendment rights? If police officers unreasonably search and
seize and find evidence, in those situations, evidence can be excluded. The exclusionary rule is designed as a way
to deter illegal police searches and, as a result, to protect our Fourth Amendment rights. For many years, the Fourth Amendment was not
interpreted as having an exclusionary rule in it. But the Supreme Court had said that questions
of the remedy for the violation of Fourth Amendment rights raised questions of a different
order. What the Supreme Court held for many years
was the way to enforce the Fourth Amendment was left up to the states. The states could provide civil remedies or
criminal prosecutions against police officers who illegally searched. Those would be the kinds of ways in which
the Fourth Amendment would be enforced. Evidence, however, would come into court even
if it was illegally seized. The United States and most common law
countries never had an exclusionary rule to begin with. But in this country at around the turn of
the 19th century into the 20th century, courts began, a- accepting the principle that
there were some situations where government misconduct should lead to the exclusion of
evidence that had been illegally obtained. Indeed, the U.S. Supreme Court in a case called
United States versus Weeks in 1914 recognized an exclusionary rule for federal criminal
cases. And then the Warren court in around 1960 recognized
an exclusionary rule in a case called Mapp versus Ohio. Mapp versus Ohio concluded that the Fourth Amendment should be interpreted as creating an exclusionary rule as an inevitable enforcement mechanism for Fourth Amendment rights. The Supreme Court’s current doctrine says
the exclusionary rule is a judicially-created deterrent device designed to safeguard Fourth
Amendment rights by taking away any incentive for police officers to violate the Fourth
Amendment. The basic idea is this: if the cops know that
if they violate the Fourth Amendment, the evidence they find is going to be excluded,
then they won’t violate those Fourth Amendment rights to begin with. In other words, instead of maybe breaking
into a house to get evidence, they’ll go get a search warrant, they’ll conduct the search
in a lawful way because that’s the only way in which they can be sure that the evidence
they find will be used and admissible in court. Procedurally, the way an exclusionary rule
argument will be raised is that a defense attorney will file something known as a motion
to suppress evidence. That will be filed with the judge. The judge will then hold an evidentiary hearing. Typically, we’ll hear from the police officers. We’ll hear any evidence that the defense wants
to put in. And at that point, the judge will decide whether
the evidence was obtained through a search that was consistent with the Fourth Amendment. If the evidence was obtained in an unconstitutional
way, the judge will exclude the evidence, grant the motion to suppress, and the exclusionary
rule will operate to keep that evidence out, at least during the government’s case in chief
at trial. One of the problems with the exclusionary
rule’s that it is a federal doctrine that applies across all 51 criminal procedure systems,
in the federal system, and in the states. And it essentially creates a one-size-fits-all
approach. And if it were to be abolished, I think we
would see interesting developments across the country as different states decided how
they want to craft their own exclusionary principles. One of the criticisms of the exclusionary
rule is that it provides freedom for the guilty and nothing for the innocent. It’s only when the police search a guilty
person that they’re likely to find incriminating evidence. And that’s why the exclusionary rule perversely
provides benefits for criminals, but no benefits for those who are innocent. If the Supreme Court ever reconsiders the
exclusionary rule, front and center will be the idea that there should be some sort of
civil remedy as a replacement. No one suggests that the police should get
off scot-free if they illegally search someone. If you look at the Bill of Rights, what are
the enforcement mechanisms for other constitutional provisions? There are damage remedies, and then isn’t
it the logical conclusion that damages remedy should apply to the Fourth Amendment no less
than it applies to other provisions of the Constitution? The exclusionary rule has been part of American
constitutional law for now more than 50 years. And so, when you think about the doctrine
of stare decisis, and more broadly the, the common, uh, wisdom that if it ain’t broke,
don’t fix it, uh, there’s a case to be made for retaining the exclusionary rule. A lot of critics believe it’s time for the
Supreme Court to reconsider the exclusionary rule. The Supreme Court created the exclusionary
rule more than 50 years ago. There have been a number of intervening developments
since then. And given those changes in modern American
law enforcement, do we really need an exclusionary rule as a way of enforcing Fourth Amendment
rights?

5 thoughts on “What is the Exclusionary Rule? [No. 86]

  1. Yes. We need the exclusionary rule to enforce 4rth Amendment Rights. Taking it away will only result in bringing it back after the pendulum swings back into a police state.

  2. How does the exclusionary rule provide freedom for the guilty and nothing for the innocent?? Without it how would you find anyone innocent? If everything is included then everyone would be guilty.

  3. During a traffic stop, an officer is denied a search of the detained vehicle/car. The officer deploys a dog to search ( the air around the outside) of that car. The canine officer, signals/ alerts the officer indicating the presence of a scent (the dog is trained to find) . This process seems to doom any further search, to exclusion. I seems that the right to deny a warrant less search, applies to the use of a canine unit. Ripe?

  4. We need to keep the exclusionary rules in place as it adds protections for the innocent. In getting warrants the judge is in theory suppose to protect the innocence by weighing evidence. Without the rule it encroaches on civil liberties as it would be easier for a cop to justify searches if there is little and no disincentive to the search. I have little faith in civil remedies as it is difficult to get the government to admit fault so small slights go to the wayside.

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