Term Paper: Exclusionary Rule the Future

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[. . .] United States 2011, 2-4). The 'Gant' rule states that a vehicle search is constitutional if it meets either of two conditions: (1) the arrestee is within reach of the vehicle or (2) the police suspect the vehicle criminal evidence.

In Davis (2011, 4-5), two occupants of a vehicle were arrested for driving while intoxicated and providing a false name. They were handcuffed and placed into two separate patrol cars before the police searched the vehicle. During the search, the police discovered a handgun in the jacket of the male arrestee (Davis) and convicted him of illegal firearm possession by a felon. At the time of Davis' arrest, the 11th Circuit was applying the bright-line Belton rule and upheld the conviction. Davis' attorney was savvy enough to raise a Fourth Amendment challenge that could prove useful on appeal and the case was eventually reviewed by the U.S. Supreme Court. The Court held that the Gant rule did not exist at the time of the arrest. To render the search unconstitutional would therefore be unfair to the arresting officers who had acted in good faith. This good faith exception to the exclusionary rule was first articulated in United States v. Leon (1984), as mentioned by Justice Alito when writing the Davis opinion.

Exclusionary Rule: Dead, Dying, or Irreplaceable?

This shift in Supreme Court jurisprudence can be emphasized by contrasting the Mapp and Davis decisions. The court stated in Mapp that "… all evidence obtained by searches and seizures in violation of the Constitution are, by that same authority, inadmissible in a state court." (367, end of Section III). In Davis, the Court stated that "… penalizing the arresting officer for following binding appellate precedent would do nothing to deter Fourth Amendment violations" (Davis v. United States 2011, 5). The shift from a rights-based justification to one of deterrence is readily apparent.

University of Illinois law professor, Kenworthy Bilz, examined the support for each view of the exclusionary rule (149). In the absence of a literal Constitutional mandate, the Court has ruled that it should be applied only when it could potentially deter future illegal searches and preserve court legitimacy. Bilz called the two competing views of the exclusionary rule the integrity (Mapp) and deterrence (Davis) justifications. The validity of a deterrence justification has not been consistently supported by empirical studies (150). In contrast, the integrity justification has been viewed as a way to keep the government's hands 'clean' by forbidding the 'fruit of the poisonous tree.' A more pragmatic view was offered by Justice Ginsberg in Herring v. United States (2009),[footnoteRef:2] who suggested the government should not profit from illegal searches. [2: As cited by Bilz 150. ]

A number of empirical studies have examined social psychology questions relevant to an integrity justification and discovered significant support (Bilz 151-152). These findings have revealed people tend to attach moral meanings to objects. With respect to the exclusionary rule, this implies that evidence obtained in violation of the Fourth Amendment is irrevocably tainted as 'dirty.' Should a prosecutor or court allow such evidence to enter criminal proceedings, then the perception of legitimacy and thus the criminal justice system as a whole would be undermined. However, the definition of what constitutes dirty evidence is determined to a significant extent by social norms and expectations.

Indiana University law professor Craig M. Bradley calls the more recent approach a negligence approach, regardless of how strenuously Supreme Court justices object to this interpretation (1-2). The problem with this approach is that it requires the court to retroactively peer into the minds of officers at the time of the search and divine what their intentions were. In Herring v. United States (2009),[footnoteRef:3] the Court suggested that simple, isolated negligence by an officer conducting the search was insufficient grounds to exclude evidence (Bradley 3). However, having to discriminate between 'simple' and 'substantial' negligence creates a more subjective, and thus complex, exclusionary rule. [3: As cited in Bradley 3.]

Bradley points out that recent Fourth Amendment cases have not provided the type of challenge that could help courts and the public better understand how a contemporary exclusionary rule works (3). What is needed, is a case that forces the Court to apply the exclusionary rule to a situation where officers acted negligently, Fourth Amendment protections were violated, and the negligence was not 'attenuated' by external circumstances.

The attenuation of negligence came to the forefront of the exclusionary rule debate when the California Supreme Court upheld a lower court conviction in People v. Robinson (2009) (Kaye para. 2-4). A blood sample was incorrectly obtained while Robinson was incarcerated for burglary. After running the sample through a database and getting a hit, he was convicted of sexual assault. Since Robinson's conviction depended on a clerical mistake, the California Supreme Court ruled the negligence attenuated and upheld the conviction.

Given how weak the exclusionary rule seems to have become, maybe it should be dispensed with altogether. Oaks argued that there are a number of good reasons for trashing the rule. The exclusionary rule provides no relief for victims of illegal searches if no criminal charges result (736-737). Nor does it punish the wrongdoer. The only persons who benefit are those charged with a crime, whether innocent or guilty. Since it is safe to assume that the guilty are charged more often than the innocent, then the group receiving the greatest benefit from the exclusionary rule is the guilty. From this perspective, the main effect of the exclusionary rule is to frustrate justice.

Oaks mentioned several other drawbacks to the exclusionary rule (739-742), including the possibility that police officers will lie more often under oath to prevent suppression of evidence. Despite Oaks making this claim back in 1970, contemporary evidence shows that this is a widespread practice (Wilson 10-11). Melanie D. Wilson argues that instead of eliminating the exclusionary rule, it should be revised to impose swift and harsh penalties on police officers who lie under oath (45-54). Her version would also require strengthening judicial and public oversight of police testimony.

Other problems discussed by Oaks included shifting the attention away from questions of guilt or innocence, to questions of police negligence or misconduct (742-754). In addition, guilty criminals can be given immunity in exchange for admissible evidence. The constraints placed on the ability of the police to secure evidence may also cause them to resort to extrajudicial punishments. This type of behavior is at least consistent with contemporary attitudes of police and prosecutors towards the accused (Wilson 10-11).

Part of the problem with the exclusionary rule is that it represents the only mechanism through which illegal searches are addressed (Oaks 753-757). State and federal legislative bodies could have been more proactive in controlling unconstitutional police activities, but recent police misconduct trends reveal little official concern about restraining lawless police activities (Cato Institute).[footnoteRef:4] In the absence of efforts by the other two branches of the government to control unconstitutional police behavior, the courts have been forced to step in with their own imperfect remedy. [4: The most relevant figures in this report are 15, 17 and 18 (Cato Institute).]

Oaks argued that a tort remedy allowing victims of illegal searches to seek damages from the police or police agency is a viable option (756-757). To support his proposal, he discussed how effective this approach was in controlling police misconduct in Canada (703). Canadian judges retain the right to grant immunity to officers of the law, but rarely exercise this right. In addition, Canadian juries tend to consider police misconduct a serious transgression and will frequently award damages. The Canadian example suggests this remedy might work in the United States as well, if not for indications that the trend is moving in the opposite direction.[footnoteRef:5] [5: For example see Bauer.]


Very few legal scholars and judges would argue that the exclusionary rule is a perfect solution for controlling unconstitutional searches and seizures by the police, however, almost everyone agrees, except for many within the police profession, that the need to control unlawful police behavior is essential for preserving individual rights and liberty. While the arguments debating integrity vs. deterrence, or the increasing subjectivity and complexity of the exclusionary rule, seem important, the real argument is why has the exclusionary rule not been replaced or supplemented by a more effective system. Until that happens, the exclusionary rule remains the only viable remedy for Fourth Amendment violations.

In light of this conclusion, the courts are not to blame, but the other two branches of the government. What form a more effective remedy will take is unknown, but there does not seem to be any shortage of opinions or energy regarding this issue. With so many stakeholders clamoring to get their opinions heard, it is hard not to wonder why nothing has been done to craft a better remedy. Given the considerable time and energy the courts have devoted to this issue, it seems likely most… [END OF PREVIEW]

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