CHAPTER 4
THE
EXCLUSIONARY
RULE
WHAT YO U WI L L L EA RN
■
The purpose of the exclusionary rule is to deter police
misconduct.
■
The exclusionary rule is judge-made and can be
eliminated by the courts.
■
The exclusionary rule was first applied to all federal
prosecutions in Weeks v. Ohio (1914).
■
The exclusionary rule was extended to state prosecutions
in Mapp v. Ohio (1961).
■
Illegally seized evidence and fruit of the poisonous tree
are both excludable.
■
There are four general exceptions to the exclusionary
rule: good faith, inevitable discovery, purged taint, and
independent source.
■
There are eight situations or types of proceedings in
which the rule does not apply: violations of the “knock
and announce” rule, private searches, grand jury investigations, sentencing, arrests based on probable cause
that violate state law, violations of agency rules, noncriminal proceedings, and parole revocation hearings.
■
There are arguments for and against the exclusionary rule.
■
There are alternatives to the exclusionary rule, none of
which is popular in the United States.
KEY TERMS
exclusionary rule
fruit of the poisonous
tree
good faith exceptions
harmless error
independent source
exception
inevitable discovery
exception
judge-made rule
purged taint exception
silver platter doctrine
standing
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T HE TOP 5 IM P O R T A NT C A S E S I N T H E
EXC LUS IO N A R Y R ULE
SILVERTHORNE LUMBER CO. V. UNITED STATES
Once the primary evidence (the “tree”) is shown
to have been unlawfully obtained, any secondary evidence
(the “fruit”) derived from it is also inadmissible. This case
enunciated the “fruit of the poisonous tree” doctrine.
1920
The Fourth
Amendment prohibits the use of illegally obtained
evidence in federal prosecutions, whether the evidence is
obtained by federal or state officers. This case did away
with the silver platter doctrine.
ELKINS V. UNITED STATES 1960
MAPP V. OHIO 1961 The exclusionary rule, which
prohibits the use of evidence obtained as a result of
unreasonable search and seizure, is applicable to state
criminal proceedings.
Evidence obtained
by an illegal search is admissible in court when the officer
conducting the search acted in objective reasonable
reliance on a search warrant that is subsequently declared
to be invalid.
MASSACHUSETTS V. SHEPPARD 1984
UNITED STATES V. LEON 1984 The Fourth Amendment’s
exclusionary rule should not be applied to bar the
prosecution from using evidence that has been obtained
by officers acting in reasonable reliance on a search
warrant that is issued by a detached and neutral
magistrate but is ultimately found to be invalid because it
lacked probable cause.
CHAPTER OUTLINE
The Exclusionary Rule Defined
The Purpose of the Rule
A Judge-Made Rule
Historical Development
The Rule Applied to State Criminal Prosecutions
Invoking the Rule
In Pretrial and Trial Motions
On Appeal
In Habeas Corpus Proceedings
“Standing” and Illegally Seized Evidence
Determining What Is Not Admissible
Illegally Seized Evidence
Fruit of the Poisonous Tree
Exceptions to the Rule
The Good Faith Exceptions
The Inevitable Discovery Exception
The Purged Taint Exception
The Independent Source Exception
When the Rule Does Not Apply
In Violations of the “Knock and Announce” Rule
In Private Searches
In Grand Jury Investigations
In Sentencing
When Arrest Based on Probable Cause Violates State Law
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When Only Agency Rules Are Violated
In Noncriminal Proceedings
In Parole Revocation Hearings
Arguments for the Rule
Arguments against the Rule
Alternatives to the Rule
The Future of the Rule
T
he exclusionary rule is a controversial rule in criminal procedure that has generated
debate among criminal justice professionals at all levels. No other rule of evidence
has had as much impact on criminal cases. The rule is applied by the courts and has
a direct effect on day-to-day law enforcement. It continues to undergo modification
and refinement in Supreme Court decisions. Every law enforcement officer should
be thoroughly familiar with the exclusionary rule, because the success or failure of
criminal prosecutions sometimes depends on it.
This section looks at the definition of the exclusionary rule, its purpose, the
role of judges in forming the rule, and how the rule developed in federal and state
courts.
TH E E X CLU S I O N AR Y R U LE DEF I NED
United States v. Leon
(1984)
United States v. Patane
(2004)
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The exclusionary rule provides that any evidence obtained by the government in
violation of the Fourth Amendment guarantee against unreasonable search and
seizure is not admissible in a criminal prosecution to prove guilt. U.S. Supreme
Court decisions strongly suggest that the exclusionary rule applies only to Fourth
Amendment search and seizure cases. But what happens if the constitutional right
violated is a Fifth, Sixth, or Fourteenth Amendment right? For example, suppose
X is charged with an offense and retains a lawyer to represent her. However, the police
interrogate X in the absence of her lawyer—a violation of her Sixth Amendment
right to counsel. Or suppose X is interrogated by the police while in custody without
having been given the Miranda warnings—a violation of her Fifth Amendment right
to protection against self-incrimination. In both instances, the evidence obtained is
inadmissible, but will it be suppressed under the exclusionary rule?
The Court has repeatedly stated that only the fruits, including any evidence
obtained, of a violation of the Fourth Amendment guarantee of protection against
unreasonable search and seizure will be suppressed under the exclusionary rule.
In United States v. Leon, 468 U.S. 897 (1984), the Court said that the exclusionary rule is a “judicially created remedy designed to safeguard Fourth Amendment
rights.” Therefore, not every violation of a constitutional right comes under the
exclusionary rule.
Evidence obtained in violation of any of the other constitutional rights is also
excludable in a criminal trial—but not under the exclusionary rule. For example,
suppose a confession is obtained without giving the suspect his or her Miranda
warnings. Miranda is primarily a Fifth Amendment right to protection against selfincrimination, so it is the suspect’s Fifth Amendment rights that are violated in this
example. The evidence is excludable anyway, usually as a due process violation under
the Fifth or Fourteenth Amendment. In United States v. Patane, 542 U.S. 630 (2004),
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involving an alleged violation of the Miranda warnings, the Court said that “the
Self-Incrimination clause contains its own exclusionary rule,” thus adding strength
to the argument that the exclusionary rule does not apply to Fifth Amendment
violations.
If the evidence was erroneously admitted by the judge during the trial, the defendant’s conviction is overturned if appealed unless the error is proved by the prosecutor to be harmless. Appellate court judges determine what is a harmless error on a
case-by-case basis from the facts and record of the case.
THE PURPOSE OF THE RULE
United States v. Janis
(1976)
The Court has stated in a number of cases that the primary purpose of the
exclusionary rule is to deter police misconduct. In United States v. Janis, 428 U.S.
433 (1976), the Court said that where “the exclusionary rule does not result in
appreciable deterrence, then, clearly, its use . . . is unwarranted.” The assumption is
that if the evidence obtained illegally is not admitted in court, police misconduct
in search and seizure cases will cease or be minimized. (For arguments in opposition to this assumption, see Exhibit 4.1.) The rule now applies to federal and state
cases. This means that evidence illegally seized by state or federal officers cannot be
used in any state or federal prosecution. To paraphrase one writer: The exclusionary
rule is the primary means by which the Constitution’s prohibition of unreasonable
searches and seizures is currently enforced; thus it is seen by some as the primary
protection of personal privacy and security against police arbitrariness and brutality.
It is also the basis for judges’ decisions to exclude reliable incriminating evidence
from the trials of persons accused of crimes, and it is thus considered by others to
be little more than a misguided loophole through which criminals are allowed to
escape justice.1
■ EXHIBIT 4.1 Reasons Why the Exclusionary Rule May Not Deter Officer Misconduct
■
■
■
■
The officer may truly believe his or her
actions were valid. Only later and after a
hearing are they declared invalid by the court
during trial.
The officer may lack proper training in Fourth
Amendment cases and may not know, in close
cases, what is valid action and what is not.
Most searches and seizures do not result in
prosecution; therefore, the exclusionary rule
often cannot be invoked because it applies only
if the case goes to trial.
A great majority of criminal cases, particularly
misdemeanors, result in a plea bargain. There
is no actual trial, so the exclusionary rule is not
invoked.
■
■
■
Filing a case against a suspect may not be the
main reason for police seizure. In some cases,
the police may simply want to confiscate
contraband or keep suspects locked up and off
the streets for a few hours or overnight but not
actually prosecute them.
The contraband obtained by the police is
seldom, if ever, returned to the suspect even if
the police obtained it illegally (nor would the
suspect want it returned to him or her because
of the risk of immediate rearrest).
Except in highly publicized cases, the erring
officer is seldom disciplined, particularly if
the seizure results in a conviction despite the
exclusion of the illegally seized evidence.
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A JUDGEMADE RULE
Mapp v. Ohio (1961)
Arizona v. Evans (1995)
Is the exclusionary rule a constitutional or a judge-made rule? If the rule is mandated
by the Constitution, then the Supreme Court cannot eliminate it, and neither can
Congress change it. If it is judge-made, however, the Court may eliminate it at any
time, or, arguably, it can be modified by Congress. Some writers maintain that this
rule of evidence is judge-made—that it cannot be found in the Constitution; instead,
it has been established by case law. Its proponents disagree, claiming that the rule is
of constitutional origin and therefore beyond the reach of Congress, even if Congress
should want to limit it. The proponents point to a statement of the Court, in Mapp v.
Ohio, 367 U.S. 643 (1961), that “the exclusionary rule is an essential part of both the
Fourth and Fourteenth Amendments.” However, the Court has more recently ruled
in favor of the concept that the exclusionary rule is a judge-made rule of evidence.
In Arizona v. Evans, 514 U.S. 1 (1995), the Court stated, “The exclusionary rule
operates as a judicially created remedy designed to safeguard against future violations
of Fourth Amendment rights through the rule’s general deterrent effect.”
HISTORICAL DEVELOPMENT
This section looks at how the exclusionary rule developed in both the federal and
state courts.
In Federal Courts The exclusionary rule is of U.S. origin. In the words of
one observer, “The exclusionary rule is the creation of the Supreme Court of the
United States. It was unknown to the English law our ancestors brought with them
to America and unknown to the generations that adopted the Fourth Amendment
as part of the Constitution.”2
The first exclusionary rule case involving searches and seizures was decided by
the Court in 1886 when it held that the forced disclosure of papers amounting to
evidence of a crime violated the constitutional right of the suspect to protection
against unreasonable search and seizure, so such items were inadmissible in court
HIGH
L I G H T THE COURT’S JUSTIFICATION FOR THE EXCLUSIONARY RULE
“The effect of the Fourth Amendment is to
put the courts of the United States and Federal
officials, in the exercise of their power and
authority, under limitations and restraints as to
the exercise of such power and authority, and to
forever secure the people, their persons, houses,
papers, and effects, against unreasonable searches
and seizures under the guise of law. This protection reaches all alike. . . . The tendency of those
who execute the criminal laws of the country to
obtain conviction by means of unlawful seizures
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and enforced confessions, the latter obtained
after subjecting accused persons to unwarranted
practices destructive of rights secured by the
Federal Constitution, should find no sanction in
the judgments of the courts, which are charged
at all times with the support of the Constitution,
and to which people of all conditions have a right
to appeal for maintenance of such fundamental
rights.”
SOURCE Weeks v. United States, 232 U.S. 383 (1914).
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Boyd v. United States
(1886)
Hopt v. The Territory of
Utah (1884)
Weeks v. United States
(1914)
proceedings (Boyd v. United States, 116 U.S. 616 [1886]). It is worth noting that two
years before Boyd, the Court, in Hopt v. The Territory of Utah, 110 U.S. 574 (1884),
addressed the issue of the exclusion of a confession in a murder case. The Hopt case,
however, involved a confession and was not a search and seizure case, to which the
exclusionary rule traditionally applies. It was not until 1914 that evidence illegally
obtained by federal officers was held to be excluded in all federal criminal prosecutions
(Weeks v. United States, 232 U.S. 383 [1914]). In the Weeks case, the Court stated:
The efforts of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those great
principles established by years of endeavor and suffering which have resulted
in their embodiment in the fundamental law of the land. . . . To sanction
such proceedings would be to affirm by judicial decision a manifest neglect,
if not an open defiance, of the prohibitions of the Constitution, intended for
the protection of the people against such unauthorized action.
Elkins v. United States
(1960)
Wolf v. Colorado (1949)
Rochin v. California (1952)
From 1914 to 1960, federal courts admitted evidence of a federal crime if the
evidence had been illegally obtained by state officers, as long as it had not been obtained
by or in connivance with federal officers. This questionable practice was known as the
silver platter doctrine, which permitted federal courts to admit evidence illegally seized
by state law enforcement officers and handed over to federal officers for use in federal
cases. Under this doctrine, such evidence was admissible because the illegal act was not
committed by federal officers. In 1960, the Court put an end to this questionable practice
by holding that the Fourth Amendment prohibited the use of illegally obtained evidence
in federal prosecutions, whether obtained by federal or by state officers, thereby laying to
rest the silver platter doctrine (Elkins v. United States, 364 U.S. 206 [1960]).
In State Courts In 1949, the Court held that state courts were not constitutionally
required to exclude illegally obtained evidence, so the exclusionary rule did not apply
to state prosecutions (Wolf v. Colorado, 338 U.S. 25 [1949]). In 1952, the Court
modified that position somewhat by ruling that, although the exclusionary rule did
not apply to the states, some searches were so “shocking” as to require exclusion
of the evidence seized under the Due Process Clause. However, these were limited
to cases involving coercion, violence, or brutality (Rochin v. California, 342 U.S.
165 [1952]). (Evidence obtained in violation of the constitutional right to due
process is clearly inadmissible at present because it violates a constitutional right,
HIGH
L I G H T THE ORIGIN OF THE EXCLUSIONARY RULE
“Under the exclusionary rule, evidence obtained
in violation of the Fourth Amendment cannot
be used in a criminal trial against the victim of
the illegal search and seizure. The Constitution
does not require this remedy; it is a doctrine of
judicial design. Excluded evidence is oftentimes
quite reliable and the ‘most probative information
bearing on the guilt or innocence of the
defendant.’ Nevertheless, the rule’s prohibition
applies to such direct evidence, as well as to the
‘fruit of the poisonous tree’—secondary evidence
derived from the illegally seized evidence itself.”
SOURCE United States v. Houltin, 566 F.2d 1027 (5th Cir. 1978).
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but not necessarily under the exclusionary rule since the rule is limited to Fourth
Amendment violations. The right to due process comes under the Fifth or Fourteenth
Amendment. Moreover, due process violations at present are also actionable under
federal law and can lead to police civil liability.) Finally, in Mapp v. Ohio (1961), the
Court overruled the Wolf decision and held that the Fourth Amendment required
state courts to exclude evidence obtained by unlawful searches and seizures.
TH E R U LE AP P LI E D T O ST A T E C R I M I NA L PR O S EC U T I O NS
In Mapp v. Ohio, 467 U.S. 643 (1961), the defendant was convicted of knowingly
possessing certain lewd and lascivious books, pictures, and photographs, in violation
of Ohio law. Three Cleveland police officers went to Mapp’s residence, knocked on
the door, and demanded entrance. However, after telephoning her attorney, Mapp
refused to admit them without a search warrant. The officers again sought entrance
three hours later when at least four additional officers had arrived on the scene.
When Mapp did not come to the door immediately, the police forced their way in.
Meanwhile, Mapp’s attorney arrived, but the officers would not permit him to see his
client or enter the house. Mapp demanded to see the search warrant, which the officers
by then claimed to have. When one of the officers held up a paper and claimed it was
a warrant, Mapp grabbed the “warrant” and placed it in her bosom. A struggle ensued
in which the officers handcuffed Mapp because, they claimed, she was belligerent.
In handcuffs, Mapp was forced into her bedroom, where the officers searched
a dresser, a chest of drawers, a closet, and some suitcases. They also looked into a
photo album and through personal papers belonging to Mapp. The search spread to
include a child’s bedroom, the living room, the kitchen, a dinette, and the basement
of the building and a trunk found in it. The obscene materials were discovered in the
course of that widespread search. At the trial, no search warrant was produced by the
prosecution, nor was the absence of a warrant explained. The seized materials were
admitted into evidence by the trial court, and the defendant was ultimately convicted
of possession of obscene materials. On appeal, the Court excluded the evidence,
holding that the exclusionary rule prohibiting the use of evidence in federal courts if
illegally obtained was now applicable to state criminal proceedings.
Mapp is significant because, since 1961, the exclusionary rule has been applied
to federal and state criminal prosecutions (read the Case Brief to learn more about
Mapp). Before Mapp, the use of the exclusionary rule was left to the discretion of the
states; some used it, whereas others did not. It is perhaps the second most important
law enforcement case ever decided by the Court (the first is Miranda v. Arizona,
which is discussed in Chapter 11).
What caused the Court to change its mind on the exclusionary rule, which
12 years earlier, in Wolf v. Colorado, 338 U.S. 25 (1949), it had ruled was not applicable in state prosecutions? In Mapp, the Court said that the Wolf case had been decided
on factual grounds, implying that factual circumstances rather than philosophical
considerations guided the Court’s decision. The Court then noted that, when Wolf
was decided, almost two-thirds of the states were opposed to the exclusionary rule.
However, since then more than half of those states, by either legislation or judicial
decision, had adopted the Weeks rule excluding illegally obtained evidence in their
own criminal prosecutions.
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The Court further noted that Wolf was partially based on the assumption that
“other means of protection” against officer misconduct made the exclusionary rule
unnecessary. The Court considered that a mistake, finding instead that the experience of California and other states had established that “such other remedies have
been worthless and futile.” The Court therefore decided to abandon what it deemed
the “obvious futility of relegating the Fourth Amendment to the protection of other
CASE
BRIEF
Mapp v. Ohio,
367 U.S. 643 (1961)
THE LEADING CASE ON THE EXTENSION
OF THE EXCLUSIONARY RULE TO THE STATES
Facts: Mapp was convicted of possession of lewd
and lascivious books, pictures, and photographs,
in violation of Ohio law. Three Cleveland police
officers went to Mapp’s residence pursuant to
information that a person who was wanted in connection with a recent bombing was hiding out in
her home. The officers knocked on the door and
demanded entrance, but Mapp, telephoning her
attorney, refused to admit them without a warrant.
The officers again sought entrance three hours
later, after the arrival of more police officers. When
Mapp did not respond, the officers broke the door
open. Mapp’s attorney arrived but was denied
access to his client. Mapp demanded to see the
search warrant the police claimed they had. When
one of the officers held up a paper and claimed
it was the warrant, Mapp grabbed the paper and
placed it in her bosom. A struggle ensued, and the
paper was recovered after Mapp was handcuffed,
ostensibly for being belligerent. A search of the
house turned up a trunk that contained obscene
materials. The materials were admitted into evidence at the trial, and Mapp was convicted of possession of obscene materials.
Mapp appealed from a judgment of the
Supreme Court of Ohio, which affirmed her
conviction for possessing obscene literature in
violation of Ohio Rev. Code Ann. § 2905.34.
The defendant contended that the evidence
seized during a search and introduced at the trial
was prohibited under the Fourth Amendment.
Issue or Issues: Is evidence obtained in violation of
the Fourth Amendment guarantee against unreasonable search and seizure admissible in state court? No.
Holding: The exclusionary rule that prohibits
the use of evidence obtained as a result of
unreasonable search and seizure is applicable to
state criminal proceedings.
Case Significance: The Mapp case is significant
because the Court held that the exclusionary
rule was thenceforth to be applied nationally,
thus forbidding both state and federal courts
from admitting evidence obtained illegally in
violation of constitutional protection against
unreasonable search and seizure. In the minds
of the Court justices, the facts in Mapp illustrate
what can happen if police conduct is not
restricted. Mapp was therefore an ideal case for
the Court to use in settling an issue that had
to be addressed: whether the exclusionary rule
should now be applicable to state criminal proceedings. The facts in Mapp made it relatively
easy for the Court to answer that question in
the affirmative. Mapp v. Ohio is arguably the
second most important case in criminal procedure, next only to Miranda v. Arizona.
Excerpts from the Decision: [O]ur holding that
the exclusionary rule is an essential part of both
the Fourth and Fourteenth Amendments is not
only the logical dictate of prior cases, but it also
makes very good sense. There is no war between
the Constitution and common sense. Presently, a
federal prosecutor may make no use of evidence
illegally seized, but a State’s attorney across the
street may, although he supposedly is operating under the enforceable prohibitions of the
same Amendment. Thus the State, by admitting
evidence unlawfully seized, serves to encourage
continued
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disobedience to the Federal Constitution which
it is bound to uphold. Moreover, as was said in
Elkins, “[t]he very essence of a healthy federalism depends upon the avoidance of needless
conflict between state and federal courts.” Such a
conflict, hereafter needless, arose this very Term,
in Wilson v. Schnettler, 365 U.S. 381 (1961), in
which, and in spite of the promise made by Rea,
we gave full recognition to our practice in this
regard by refusing to restrain a federal officer
from testifying in a state court as to evidence
unconstitutionally seized by him in the performance of his duties. Yet the double standard
recognized until today hardly put such a thesis
into practice. In non-exclusionary States, federal
officers, being human, were by it invited to and
did, as our cases indicate, step across the street to
the State’s attorney with their unconstitutionally
seized evidence. Prosecution on the basis of that
evidence was then had in a state court in utter disregard of the enforceable Fourth Amendment. If
the fruits of an unconstitutional search had been
inadmissible in both state and federal courts, this
inducement to evasion would have been sooner
eliminated. There would be no need to reconcile
such cases as Rea and Schnettler, each pointing
up the hazardous uncertainties of our heretofore
ambivalent approach.
Federal-state cooperation in the solution of crime under constitutional standards
will be promoted, if only by recognition of
their now mutual obligation to respect the
same fundamental criteria in their approaches.
“However much in a particular case insistence
upon such rules may appear as a technicality
that inures to the benefit of a guilty person, the
history of the criminal law proves that tolerance
of shortcut methods in law enforcement impairs
its enduring effectiveness.” Denying shortcuts
to only one of two cooperating law enforcement
agencies tends naturally to breed legitimate suspicion of “working arrangements” whose results
are equally tainted.
There are those who say, as did Justice (then
Judge) Cardozo, that under our constitutional
exclusionary doctrine “[t]he criminal is to go free
because the constable has blundered.” In some
98
cases this will undoubtedly be the result. But,
as was said in Elkins, “there is another consideration—the imperative of judicial integrity.” The
criminal goes free, if he must, but it is the law
that sets him free. Nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter
of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, “Our
Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole
people by its example. . . . If the Government
becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto
himself; it invites anarchy.” Nor can it lightly be
assumed that, as a practical matter, adoption of
the exclusionary rule fetters law enforcement.
Only last year this Court expressly considered
that contention and found that “pragmatic evidence of a sort” to the contrary was not wanting.
The Court noted that
The federal courts themselves have operated under the exclusionary rule of Weeks for
almost half a century [367 U.S. 643, 660];
yet it has not been suggested either that the
Federal Bureau of Investigation has thereby
been rendered ineffective, or that the administration of criminal justice in the federal
courts has thereby been disrupted. Moreover,
the experience of the states is impressive. . . .
The movement towards the rule of exclusion
has been halting but seemingly inexorable.
Id., at 218–219.
The ignoble shortcut to conviction left open
to the State tends to destroy the entire system
of constitutional restraints on which the liberties of the people rest. Having once recognized
that the right to privacy embodied in the Fourth
Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore,
constitutional in origin, we can no longer permit
that right to remain an empty promise. Because
it is enforceable in the same manner and to like
effect as other basic rights secured by the Due
Process Clause, we can no longer permit it to be
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revocable at the whim of any police officer who,
in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded
on reason and truth, gives to the individual no
more than that which the Constitution guarantees him, to the police officer no less than that to
which honest law enforcement is entitled, and, to
the courts, that judicial integrity so necessary in
the true administration of justice.
The judgment of the Supreme Court of Ohio
is reversed and the cause remanded for further
proceedings not inconsistent with this opinion.
remedies.” Clearly, the Court realized the need to apply the exclusionary rule to all
criminal prosecutions in order to protect Fourth Amendment rights.
I N V O K I N G T H E R U LE
The exclusionary rule may be invoked by the defendant at just about any stage of
the criminal justice proceeding and even while the defendant is serving a sentence
after a conviction. This almost perpetual availability points to the importance of the
exclusionary rule as a vehicle to remedy violations of the Fourth Amendment right.
Indeed, opportunities to invoke the exclusionary rule in a criminal case are virtually
unending—from the trial up to habeas corpus proceedings.
IN PRETRIAL AND TRIAL MOTIONS
In both federal and state courts, the basic procedure for excluding evidence on a claim
of illegal search and seizure is a pretrial motion to suppress the evidence. If this fails, the
motion can be filed again during the trial when the evidence is introduced. The burden
of proof in a motion to suppress the evidence depends on whether the search or seizure
in question was made with or without a warrant. If the search or seizure was pursuant
to a warrant, there is a presumption of validity. The burden is therefore on the accused to
show that the warrant was issued without probable cause. This is a heavy burden for the
accused to bear, because it usually takes clear and convincing evidence (a higher degree
of certainty than probable cause) to prove that probable cause did not, in fact, exist.
In contrast, if the search was made without a warrant, the prosecution has the
burden of establishing probable cause or, in its absence, of proving that the search was
an exception to the warrant requirement. To establish probable cause, the police officer
usually must testify during the hearing on the defendant’s motion to suppress.
ON APPEAL
If the evidence is admitted by the trial judge, the trial proceeds, and the prosecution
uses the evidence. If the accused is convicted, the defense may appeal to the appellate
court the allegedly erroneous decision to admit the evidence. If the trial judge decides
to exclude the evidence, most jurisdictions allow the prosecution to appeal that decision immediately; otherwise, the effect of the allegedly wrongful decision might be
the acquittal of the defendant. If the defendant is acquitted, there can be no appeal
at all, which would thus deprive the prosecution of any opportunity to challenge the
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Chapman v. California
(1967)
judge’s decision to suppress. The appeal by the prosecutor, however, will likely cause
a delay in the trial if it takes a long time for the appellate court to resolve the issue.
The prosecutor might decide not to appeal the exclusion if she feels there is sufficient
other evidence to convict.
If a motion to exclude was made in a timely manner, it is an error for the court to
admit evidence obtained by an illegal search or seizure. On appeal, such mistakes automatically lead to the reversal of any conviction, unless the admission of the evidence
is found by the appellate court to be a harmless error. To prove harmless error, the
prosecution must show beyond a reasonable doubt that the evidence erroneously
admitted did not contribute to the conviction. To establish harmless error, it is
not enough for the prosecution to show that there was other evidence sufficient to
support the verdict. Rather, it must show that there is no reasonable possibility that
a different result would have been reached without the tainted evidence (Chapman v.
California, 386 U.S. 18 [1967]).
IN HABEAS CORPUS PROCEEDINGS
If the motion to exclude the evidence fails during appeal, the defendant must then serve
the sentence imposed. The defendant may still invoke the exclusionary rule at this late
stage through a habeas corpus proceeding (a proceeding that seeks the defendant’s release
from jail or prison because his or her constitutional rights were allegedly violated before
or during trial). Suppose, for example, X is convicted of murder based on evidence illegally seized by the police. X’s repeated motions to exclude were denied during pretrial
and at trial. X was convicted and is now serving time in prison. While serving time,
X obtains reliable and compelling evidence, not available to him during trial, that the
police illegally seized the gun used in the murder. The time to appeal the conviction is
past, but X may file a habeas corpus case asking the court to set him free because his constitutional rights were violated and therefore his imprisonment is unconstitutional. Strict
limitations set by federal law limit what prisoners can do in habeas cases, but exceptions
are made if a defendant can establish a strong case for the violation of a constitutional
right and such evidence was not or could not be available to him or her during trial.
“STANDING” AND ILLEGALLY SEIZED EVIDENCE
Minnesota v. Carter
(1998)
Standing is a legal concept that generally determines whether a person can legally file a
lawsuit or submit a petition. It therefore determines whether a person can be a proper
party in a case and can seek certain remedies. The general rule on standing is that the
exclusionary rule may be used only by the person whose Fourth Amendment rights
have been violated, meaning the person whose reasonable expectation of privacy was
breached by the police. In Minnesota v. Carter, 525 U.S. 83 (1998), the Court said:
“The Fourth Amendment protects people, not places.” But the extent to
which the Fourth Amendment protects people may depend upon where
those people are. We have held that “capacity to claim the protection
of the Fourth Amendment depends . . . upon whether the person who
claims the protection of the Amendment has a legitimate expectation of
privacy in the invaded place.”
Not everybody who was at the scene of the violation by the police can use the rule.
The Court has held that an overnight guest, staying at a residence while the owner was
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Minnesota v. Olson (1990)
away, has legal grounds to cite the exclusionary rule (Minnesota v. Olson, 495 U.S. 91
[1990]) because that guest has a reasonable expectation of privacy. In another case,
however, the Court decided that defendants who were on a short-term visit and who,
together with the lessee, “used the apartment for a business purpose—to package drugs,”
had no legitimate expectation of privacy in the apartment. Therefore, the action by a
police officer in looking in an apartment window through a gap in the closed blinds and
observing the defendants and the apartment’s lessee bagging cocaine did not violate the
defendants’ legitimate expectation of privacy (Minnesota v. Carter, 525 U.S. 83 [1998]).
Why did an overnight guest in Olson have standing, whereas defendants on a
short-term visit and who used the apartment, together with the lessee, for a business
purpose—to package drugs—in Carter did not? The Court reasoned that in Carter,
the “purely commercial nature of the transaction . . . , the relatively short period of
time on the premises, and the lack of any previous connection between respondents
and the householder, all lead us to conclude that respondents’ situation is closer to
that of one simply permitted on the premises,” and not that of an overnight guest,
and therefore had no reasonable expectation of privacy.
D E T E R MI N I N G WH A T I S NO T A DM I SS I BLE
Illegally seized evidence and fruit of the poisonous tree are both not admissible at trial.
ILLEGALLY SEIZED EVIDENCE
If seized illegally, evidence including contraband, fruits of the crime (for example,
stolen goods), instruments of the crime (such as burglary tools), or “mere evidence”
(shoes, a shirt, or similar items connecting a person to the crime) may not be admitted at a trial to show the defendant’s guilt.
FRUIT OF THE POISONOUS TREE
Silverthorne Lumber Co. v.
United States (1920)
The “fruit of the poisonous tree” doctrine states that once the primary evidence (the
“tree”) is shown to have been unlawfully obtained, any secondary evidence (the “fruit”)
derived from it is also inadmissible (Silverthorne Lumber Co. v. United States, 251 U.S.
385 [1920]). This rule is based on the principle that evidence illegally obtained should
not be used to gain other evidence, because the original illegally obtained evidence
“taints” all evidence subsequently obtained. The tainted secondary evidence (some
courts prefer to call it “derivative evidence” or “secondary evidence”) can take various
forms (see Figure 4.1):
Illegal police act
Example: Searching
without warrant or
probable cause
■
Evidence illegally
obtained is
not admissible.
This is primary evidence.
Example: Map showing
where stolen money is
hidden
Evidence obtained from
illegally obtained evidence.
This is fruit of the
poisonous tree.
Example: The money
found as a result of
information obtained from
the illegally obtained map
FIGURE 4.1 Illegally Obtained Evidence Distinguished from Fruit of the Poisonous Tree
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■
■
■
Example 1. The police conduct an illegal search of a house and find a map that
shows the location of the stolen goods. Using the map, the police recover the goods
in an abandoned warehouse. Both the map and the goods are inadmissible as
evidence but for different reasons. The map is not admissible because it is illegally
seized evidence; the goods (physical evidence) are not admissible because they are
fruit of the poisonous tree.
Example 2. Police officers make an illegal search of D’s house and find heroin. They
confront D with the evidence, and she confesses to possession of an illicit drug. D’s
confession is the fruit of the illegal search (verbal evidence) and must be excluded.
Example 3. The police enter a suspect’s house without probable cause or
consent and discover the suspect’s diary, an entry of which contains the details
of a murder and the location of the murder weapon. The police go to the
location and find the weapon. The diary is not admissible as evidence in court
because it is illegally seized evidence; the murder weapon is not admissible
because it is fruit of the poisonous tree.
In sum, these two types of inadmissible evidence may be distinguished as follows:
Illegally seized evidence is obtained as a direct result of the illegal act (the search),
whereas the fruit of the poisonous tree is the indirect result of the same illegal act. The
fruit of the poisonous tree is thus at least one step removed from the illegally seized
evidence, but it is equally inadmissible.
E XC E P T I O N S T O T H E R U LE
Court decisions have identified situations in which the evidence obtained is
admissible in court even though something may have been wrong with either the
conduct of the police or the court that issued the warrant. These exceptions fall into
four categories:
■
■
■
■
Good faith and its many variations
Inevitable discovery
Purged taint
Independent source
It must be noted, however, that some states have rules that exclude these types of
evidence. Those more narrow rules prevail because they, in essence, give more rights
to the accused than the Constitution allows.
THE GOOD FAITH EXCEPTIONS
Over the years, the Court has carved out several “good faith” exceptions to the exclusionary rule. This means that evidence obtained by the police is admissible in court
even if there was an error or mistake, as long as the error or mistake was not committed
by the police, or, if committed by the police, the error or mistake was honest and reasonable. It must be emphasized that not all claims of good faith result in the evidence
being admissible. What is needed instead is an honest and “objectively reasonable
belief ” by the officer (as determined by the trial judge or jury) that the act was valid.
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Thus far the Court has identified five instances, based on actual cases, that constitute exceptions under good faith:
■
■
■
■
■
When the error was committed by the judge or magistrate, not by the police
When the error was committed by a court employee
When the police erroneously, but reasonably and honestly, believed that the
information they gave to the magistrate when obtaining the warrant was
accurate
When the police reasonably believed the person who gave them permission to
enter the premises had the authority to do so
When the police action was based on a law that was later declared
unconstitutional
Each of these good faith cases is discussed in this section.
Massachusetts v. Sheppard
(1984)
When the Error Was Committed by the Judge or Magistrate The
first significant good faith exception to the exclusionary rule applies when the error
was committed by the judge or magistrate and not by the police. The Court held
in Massachusetts v. Sheppard, 468 U.S. 981 (1984), that evidence obtained by the
police acting in good faith on a search warrant that was issued by a neutral and
detached magistrate, but that is ultimately found to be invalid, may be admitted
and used at the trial.
In the Sheppard case, a police detective executed an affidavit for an arrest and
search warrant authorizing the search of Sheppard’s residence. The affidavit stated
that the police wanted to search for certain described items, including clothing of
the victim and a blunt instrument that might have been used to murder the victim.
The affidavit was reviewed and approved by the district attorney. Because it was
a Sunday, the local court was closed, and the police had a difficult time finding a
warrant application form. The detective finally found a warrant form previously used
in another district in the Boston area to search for controlled substances. After making some changes to the form, the detective presented it and the affidavit to the judge
at his residence, informing him that the warrant form might need further revisions.
The judge concluded that the affidavit established probable cause to search the
residence and told the detective that the necessary changes in the warrant form would
be made. The judge made some changes, but he did not change the substantive
portion, which continued to authorize a search for controlled substances, nor did he
alter the form to incorporate the affidavit. The judge then signed the warrant and
returned it and the affidavit to the detective, informing him that the warrant was of
sufficient authority in form and content to authorize the search.
The ensuing search of Sheppard’s residence was limited to the items listed in the
affidavit, and several incriminating pieces of evidence were discovered. The defendant was convicted of first-degree murder in a trial at which the evidence obtained
under the warrant was used. On appeal, the Court ruled that the evidence obtained
was admissible in court because the officer conducting the search had acted in good
faith, relying on a search warrant that had been issued by a magistrate but that was
subsequently declared invalid.
In a companion case decided that same day, United States v. Leon, 468 U.S.
897 (1984), the Court made the same decision on a different set of facts. Acting on
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information from a confidential informant, officers of the Burbank, California, police
department had initiated a drug-trafficking investigation that involved surveillance of
Leon’s activities. On the basis of an affidavit summarizing the officer’s observations,
the police prepared an application for a warrant to search three residences and Leon’s
automobiles for an extensive list of items. The application was reviewed by several
deputy district attorneys, and a state court judge issued a warrant that was apparently
valid. When Leon was later indicted for federal drug offenses, he filed motions to suppress the evidence seized. The trial court excluded the evidence on the grounds that
no probable cause had existed for issuing the warrant, because the reliability of the
informant had not been established and the information obtained from the informant
was stale. This decision was affirmed by the court of appeals.
The government then took the case to the Supreme Court solely on the issue of
whether a good faith exception to the exclusionary rule should be recognized. The
Court ruled that the Fourth Amendment’s exclusionary rule should not be applied
to bar the use of evidence in the prosecution’s case that has been obtained by officers
acting in reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be invalid because probable cause was lacking.
The Sheppard and Leon cases are arguably the most important cases decided on the
exclusionary rule since Mapp v. Ohio. They represent a significant, although narrow,
exception to the exclusionary rule and thus a breakthrough that police proponents
have long advocated. In these cases, the Court said that there were objectively reasonable grounds for the police’s mistaken belief that the warrants authorized the searches.
The officers took every step that could reasonably have been taken to ensure that
the warrants were valid. The difference between these two cases is that in Sheppard
the issue was the improper use of a form (a technical error) by the judge, whereas in
Leon it was the use of a questionable informant and stale information by the judge to
determine probable cause. The cases are similar, however, in that the mistakes were
made by the judges, not the police. When the warrants were given to the officers, it
was reasonable for them to conclude that each authorized a valid search.
In the Sheppard case, the Court noted: An error of constitutional dimension may
have been committed with respect to issuing the warrant in this case, but it was the
judge, not the police officer, who made the crucial mistake. Suppressing evidence
because the judge failed to make all the necessary clerical corrections despite his assurance that such changes would be made will not serve the deterrent function that the
exclusionary rule was designed to achieve.
And in the Leon case, the Court concluded: The exclusionary rule is designed to
deter police misconduct rather than to punish the errors of judges and magistrates.
Admitting evidence obtained pursuant to a warrant while at the same time declaring
that the warrant was somehow defective will not reduce judicial officers’ professional
incentives to comply with the Fourth Amendment, encourage them to repeat their
mistakes, or lead to the granting of all colorable warrant requests.
In sum, the Court reasoned that the evidence was admissible because the judge,
and not the police, erred; therefore, the exclusionary rule did not apply, because it
is designed to control the conduct of the police, not of judges. However, at least
one state supreme court (Pennsylvania) has ruled that evidence seized with a deficient search warrant cannot be used in state court based on the provisions of the
state constitution, even if the police acted in good faith when obtaining the warrant.
Therefore, what the exclusionary rule allows as an exception may be negated by state
case law or provisions of the state constitution.
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When the Error Was Committed by a Court Employee Another good
faith exception to the exclusionary rule was carved out by a divided Court in Arizona
v. Evans, 514 U.S. 1 (1995). In that case, Evans was arrested by the Phoenix, Arizona,
police during a routine traffic stop when a patrol car computer indicated that there
was an outstanding misdemeanor warrant for his arrest. A subsequent search of Evans’s
car revealed a bag of marijuana. He was charged with possession of marijuana. Evans
moved to suppress the evidence under the exclusionary rule, saying that the marijuana
was illegally obtained because the misdemeanor warrant, which was the basis of the
stop, was dismissed 17 days before the arrest but was not entered in the computer
due to court employee error. This claim was, in fact, true. Evans was convicted and
appealed, claiming that the evidence obtained should have been held inadmissible
under the exclusionary rule. The Court rejected Evans’s claim and admitted the
evidence, saying:
The exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment where the erroneous information resulted
from clerical errors of court employees. The exclusionary rule is a judicially
created remedy designed to safeguard against future violations of Fourth
Amendment rights through its deterrent effect. . . . The exclusionary rule was
historically designed as a means of deterring police misconduct, not mistakes
by court employees.
In admitting the evidence, the Court stressed the following: (1) The exclusionary
rule historically has been designed to deter police misconduct, not to deter mistakes
committed by court employees; (2) Evans in this case offered no evidence that court
employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness by court employees required the extreme Court action of exclusion of the
evidence; and (3) there was no basis to believe that the application of the exclusionary
rule would have a significant effect on the behavior of court employees responsible
for informing the police that the warrant had been dismissed. (Read the Case Brief to
learn more about Arizona v. Evans.)
Maryland v. Garrison
(1987)
When the Police Erred Accidentally In Maryland v. Garrison, 480 U.S. 79
(1987), police officers obtained a warrant to search “the premises known as 2036
Park Avenue, third-floor apartment” for drugs and drug paraphernalia that allegedly
belonged to a person named McWebb. The police honestly believed that there was
only one apartment at the location. In fact, however, there were two apartments on
the third floor, one belonging to McWebb and the other belonging to Garrison.
Before the officers became aware that they were in Garrison’s apartment instead
of McWebb’s, they discovered contraband that led to Garrison’s conviction for
violating provisions of Maryland’s Controlled Substance Act. Garrison appealed his
conviction, claiming that the evidence obtained by police was inadmissible based on
the exclusionary rule. The Court disagreed, stating that “the validity of a warrant
must be judged in light of the information available to officers when the warrant is
sought.” The Court added: “Plainly, if the officers had known, or even if they should
have known, that there were two separate dwelling units on the third floor . . . they
would have been obligated to exclude respondent’s apartment from the scope of the
requested warrant. But we must judge the constitutionality of their conduct in light
of the information available to them at the time they acted. . . . The validity of the
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warrant must be assessed on the basis of the information that the officers disclosed,
or had a duty to discover and to disclose, to the issuing magistrate.”
In the Garrison case, the officers had a warrant when they searched the apartment.
The issue in that case, therefore, was whether the warrant itself was valid in light of
the erroneous information given by the police that helped them obtain the warrant.
A slightly different situation is a scenario in which the police have a valid warrant but
act outside the scope of the warrant. In such cases, the good faith exception does not
apply because although the warrant was valid, the extent of the search was invalid. For
example, the police have a valid warrant to seize a 42-inch flat-panel plasma TV set,
but while searching for it, the police open cabinet drawers and find drugs. The good
faith exception does not apply because the police clearly acted outside the scope of
the warrant (it is unreasonable to search cabinet drawers when looking for a 42-inch
TV set); therefore, the drugs are not admissible as evidence.
CASE
BRIEF
Arizona v. Evans,
514 U.S. 1 (1995)
THE LEADING CASE ON THE GOOD FAITH
EXCEPTION TO THE EXCLUSIONARY RULE
Facts: Officers saw Evans going the wrong way
on a one-way street in front of the police station. Evans was stopped, and officers determined
that his driver’s license had been suspended.
When Evans’s name was entered into a computer data terminal, it indicated that there was
an outstanding misdemeanor warrant for his
arrest. While being handcuffed, Evans dropped
a hand-rolled cigarette that turned out to be
marijuana. A search of Evans’s car revealed more
marijuana under the passenger’s seat. At trial,
Evans moved to suppress the evidence as the fruit
of an unlawful arrest because the arrest warrant
for the misdemeanor had been quashed 17 days
prior to his arrest but had not been entered into
the computer due to clerical error of a court
employee. This was, in fact, true. The motion was
denied, and Evans was convicted. On appeal, the
Supreme Court of Arizona agreed with Evans and
held that the exclusionary rule required suppression of evidence due to erroneous information
that resulted from an error committed by an
employee of the court. The Arizona police
appealed by certiorari to the U.S. Supreme Court.
Issue or Issues: Does the exclusionary rule require
suppression of the evidence of marijuana obtained
from Evans? No.
106
Holding: The exclusionary rule does not require
suppression of evidence seized in violation of
the Fourth Amendment where the erroneous
information resulted from clerical errors of court
employees.
Case Significance: This case adds another
exception to the exclusionary rule: when the
error is committed by court employees instead
of by the police. The exclusionary rule was
fashioned to deter police misconduct, so the
Court has refused to apply it to cases where the
misconduct was not by the police. Previous cases
have held that if the error is committed by the
magistrate (as in Massachusetts v. Sheppard and
United States v. Leon) or by the legislature (as
in Illinois v. Krull ), the exclusionary rule does
not apply. The theme in these cases is that, if
the error is not committed by the police, then
the exclusionary rule should not apply because it
was meant to control the behavior of the police.
Evans is therefore consistent with the Court’s
holding in previous cases, and the ruling came as
no surprise. The unanswered question is whether
other errors by any public officer other than the
police would be an exception to the exclusionary
rule and therefore make the evidence admissible.
The dissent in Evans argued that the Fourth
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Amendment prohibition against unreasonable
searches and seizures applies to the conduct of all
government officers, not just that of the police.
The majority in Evans disagreed, preferring to
focus on the original purpose of the exclusionary
rule—which is to control police conduct.
Excerpts from the Decision: In Leon, we applied
these principles to the context of a police search
in which the officers had acted in objectively
reasonable reliance on a search warrant, issued
by a neutral and detached magistrate, that later
was determined to be invalid. On the basis of
three factors, we determined that there was no
sound reason to apply the exclusionary rule as
a means of deterring misconduct on the part of
judicial officers who are responsible for issuing
warrants. First, we noted that the exclusionary
rule was historically designed “to deter police
misconduct rather than to punish the errors of
judges and magistrates.” Second, there was “no
evidence suggesting that judges and magistrates
are inclined to ignore or subvert the Fourth
Amendment or that lawlessness among these
actors requires the application of the extreme
sanction of exclusion.” Third, and of greatest
importance, there was no basis for believing that
exclusion of evidence seized pursuant to a warrant would have a significant deterrent effect on
the issuing judge or magistrate.
Applying the reasoning of Leon to the facts
of this case, we conclude that the decision of the
Arizona Supreme Court must be reversed. The
Arizona Supreme Court determined that it could
not “support the distinction drawn . . . between
Illinois v. Rodriguez (1990)
clerical errors committed by law enforcement personnel and similar mistakes by court
employees,” and that “even assuming . . . that
responsibility for the error rested with the justice
court, it does not follow that the exclusionary
rule should be inapplicable to these facts.” Ibid.
Finally, and most important, there is no basis
for believing that application of the exclusionary
rule in these circumstances will have a significant
effect on court employees responsible for informing the police that a warrant has been quashed.
Because court clerks are not adjuncts to the law
enforcement team engaged in the often competitive enterprise of ferreting out crime, they have
no stake in the outcome of particular criminal
prosecutions. The threat of exclusion of evidence
could not be expected to deter such individuals
from failing to inform police officials that a warrant had been quashed.
If it were indeed a court clerk who was
responsible for the erroneous entry on the police
computer, application of the exclusionary rule
also could not be expected to alter the behavior
of the arresting officer. As the trial court in
this case stated: “I think the police officer
[was] bound to arrest. I think he would [have
been] derelict in his duty if he failed to arrest.”
(“Excluding the evidence can in no way affect
[the officer’s] future conduct unless it is to make
him less willing to do his duty.”
The judgment of the Supreme Court of
Arizona is therefore reversed, and the case is
remanded to that court for proceedings not
inconsistent with this opinion. It is so ordered.
When the Police Reasonably Believed That Authority to Enter
Was Valid A good faith exception has been fashioned by the Court under the
“apparent authority” principle. In Illinois v. Rodriguez, 497 U.S. 117 (1990), the
suspect, Rodriguez, was arrested in his apartment and charged with possession of
illegal drugs that the police said were in plain view when they entered his apartment.
The police gained entry into Rodriguez’s apartment with the assistance of a woman
named Fischer, who told police that the apartment was “ours” and that she had
clothes and furniture there. She unlocked the door with her key and gave the officers
permission to enter. In reality, Fischer had moved out of the apartment and therefore
no longer had any common authority over it. The Court held that the consent given
by Fischer was valid because the police reasonably and honestly believed, given the
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circumstances, that she had authority to give consent, thus establishing the apparent
authority principle as one of the good faith exceptions to the exclusionary rule.
Illinois v. Krull (1987)
When Police Action Was Based on a Law Later Declared Unconstitutional In Illinois v. Krull, 480 U.S. 340 (1987), police officers entered the
wrecking yard belonging to Krull without a warrant and found evidence of stolen
vehicles. Such warrantless entry was authorized by state statute. The next day, however, a federal court declared the statute unconstitutional, saying that it permitted
police officers too much discretion and therefore violated the Fourth Amendment.
On appeal, the Court did not dispute the constitutionality of the statute, saying
instead that the evidence obtained was admissible under the good faith exception to
the exclusionary rule. The Court concluded that suppression is inappropriate when
the fault is not with the police, but—as in this case—with the legislature.
Some legal scholars believe that the good faith exceptions to the exclusionary rule, as
enunciated in the preceding cases, “will hasten the ultimate demise of the exclusionary
rule and weaken its application.” Others believe that these decisions should be interpreted and applied very narrowly—only to cases in which the police are not at fault or,
if the mistake is by the police, when the mistake is honest and the officer’s belief in the
legality of the act is reasonable. Despite all these rulings, there has been no indiscriminate application of the good faith exceptions to the exclusionary rule. The more reasonable view appears to be that the good faith exceptions have been and will continue to
be applied cautiously by the Court. The belief by some law enforcement officers that
courts will automatically admit evidence obtained illegally as long as the officer believes
in good faith that what he or she did was legal is unsupported by case law.
The preceding paragraphs discuss the many good faith exceptions to the exclusionary rule. Their facts vary, but in all these cases the police acted in good faith and
their actions were reasonable. Let us now look at the three other categories of exception to the exclusionary rule.
THE INEVITABLE DISCOVERY EXCEPTION
Nix v. Williams (1984)
108
The “inevitable discovery” exception says that evidence is admissible if the police
can prove that they would inevitably have discovered it anyway by lawful means,
regardless of their illegal action. The exception usually applies to instances when the
evidence obtained is a weapon or a body. For example, while the police were taking
a suspect back to Des Moines from Davenport, Iowa, where he surrendered, they
induced him to tell them the location of the body of the girl they believed he had
murdered by appealing to the suspect (whom the police addressed as “Reverend”),
saying that it would be nice to give the deceased a Christian burial. The police did not
directly question the suspect but instead asked him to “think it over.” The suspect led
the police to the body of the murdered girl. Before the departure from Davenport, the
suspect’s lawyer had repeatedly requested that no questioning take place during that
drive. While conceding that the police violated the defendant’s right to counsel by
encouraging him to discuss the location of the body, the Court nevertheless admitted
the evidence on the grounds that the police would have discovered it anyway. At the
time that the suspect was leading police to the body, searchers were approaching the
actual location, so the body would inevitably have been found (Nix v. Williams, 467
U.S. 431 [1984]).
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An article in the FBI Law Enforcement Bulletin issues the following caution
about the inevitable discovery exception: “Under the inevitable discovery doctrine,
it is not sufficient to allege that the evidence could have been found in a lawful fashion if some hypothetical events had occurred. It must be shown that the evidence
inevitably would have been discovered.” The writer adds that “the inevitable discovery exception ensures that the exclusionary rule does not go beyond that limited
goal of deterring illegal police conduct by allowing into evidence those items that
the police would have discovered legally anyway.”3 The inevitable discovery claim
by the police is strengthened if the department has a policy about such searches that,
if followed, would have led to the inevitable discovery of what was seized—as long
as the policy is constitutional.
THE PURGED TAINT EXCEPTION
Wong Sun v. United
States (1963)
Brown v. Illinois (1975)
Taylor v. Alabama (1982)
A third category of exceptions is based on the concept of purged taint. The “purged
taint” exception applies when the defendant’s subsequent voluntary act dissipates the
taint of the initial illegality. A defendant’s intervening act of free will is sufficient to
break the causal chain between the tainted evidence and the illegal police conduct, so
the evidence becomes admissible. For example, in one case, the police broke into a
suspect’s house illegally and obtained a confession from him, but the suspect refused to
sign it. The suspect was released on his own recognizance. A few days later, he went back
to the police station and signed the confession. The Court said that the suspect’s act
manifested free will and therefore purged the tainted evidence of illegality (Wong Sun v.
United States, 371 U.S. 471 [1963]).
In a subsequent case, the Court clarified what it meant by the “purged taint”
exception it created in Wong Sun, in effect saying it is not that simple. In Brown
v. Illinois, 422 U.S. 590 (1975), the police arrested suspect Brown without probable
cause and without a warrant. After receiving the Miranda warnings, he made two
incriminating statements while in custody. During the trial, he moved to suppress the
statements, but the motions were rejected by the trial court and Brown was convicted.
The Illinois Supreme Court later held that although the arrest was unlawful, the
“statements were admissible on the ground that the giving of the Miranda warnings
served to break the causal connection between the illegal arrest and the giving of the
statements, and petitioner’s act in making the statements was ‘sufficiently an act of
free will to purge the primary taint of the unlawful invasion.’ ” On appeal, the U.S.
Supreme Court disagreed and held the statement inadmissible, saying that, circumstances in the case considered, the confession had not been purged of the taint of the
illegal arrest without probable cause.
To break the causal connection between an illegal arrest and a confession that is
the fruit of the illegal arrest, the intervening event must be meaningful. For example,
in another case, after an unlawful arrest, a suspect confessed to the commission of a
robbery. Even though the suspect received three sets of Miranda warnings and met
briefly at the police station with friends prior to the confession, the Court said that
these events were not meaningful and that the evidence obtained was therefore not
admissible during the trial (Taylor v. Alabama, 457 U.S. 687 [1982]).
Key to understanding the purged taint exception to the exclusionary rule is
whether the defendant’s subsequent voluntary act dissipated or negated the initial
illegal act of the police. This is a subjective determination made by the court on a
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HIGH
L I G H T IT IS DIFFICULT TO KNOW WHAT “PURGED TAINT” MEANS
“The question whether a confession is the product
of a free will under Wong Sun must be answered
on the facts of each case. No single fact is dispositive. The workings of the human mind are
too complex, and the possibilities of misconduct
too diverse, to permit protection of the Fourth
Amendment to turn on such a talismanic test.
The Miranda warnings are an important factor, to
be sure, in determining whether the confession is
obtained by exploitation of an illegal arrest. But
they are not the only factor to be considered. The
proximity of the arrest and the confession, the
presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official
misconduct are all relevant.”
SOURCE The majority opinion in Brown v. Illinois, 422
U.S. 590 (1975).
case-by-case basis and does not lend itself to specific rules. For example, in the Wong
Sun case, the Court held that the suspect’s subsequent act of going back to the police
station and signing the confession sufficed to rid the confession of its initial illegality.
But what if Wong Sun had come back an hour or a few hours later, instead of a few
days later? Or, suppose it had been one day instead of a few days later—would his act
have been considered one of free will sufficient to break the illegality?
By contrast, the Court held in the Taylor case that the intervening events (Taylor
having been given three sets of Miranda warnings and meeting briefly with friends at
the police station) between the unlawful arrest and the confession were not meaningful enough to purge the taint of the initial illegal act of the police. What if the meeting
with friends had lasted for hours or days instead of just briefly? Would the purged
taint exception have applied? In sum, whether the initial taint has been sufficiently
purged is a subjective judgment that may differ from one judge to another; there are
no easy answers as to when the purged taint exception may apply.
THE INDEPENDENT SOURCE EXCEPTION
United States v. Crews
(1980)
State v. O’Bremski (1967)
110
A fourth category of exceptions to the exclusionary rule is independent source. The
“independent source” exception holds that evidence obtained is admissible if the
police can prove that it was obtained from an independent source not connected
with the illegal search or seizure (United States v. Crews, 445 U.S. 463 [1980]). In the
Crews case, the Court said that the initial illegality (illegal detention of the suspect)
could not deprive the prosecutors of the opportunity to prove the defendant’s guilt
through the introduction of evidence wholly untainted by police misconduct.
For example, in another case, a 14-year-old girl was found in the defendant’s
apartment during an illegal search. The girl’s testimony that the defendant had had
sexual relations with her was admissible because she was an independent source
that predated the search of the apartment. Prior to the search, the girl’s parents
had reported her missing, and a police informant had already located her in the
defendant’s apartment (State v. O’Bremski, 423 P.2d 530 [1967]).
There are differences between the independent source and the purged taint
exceptions. Under the independent source exception, the evidence was obtained from
a source not connected with the illegal search or seizure. Thus, although the evidence
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might be viewed as suspect, it is admissible because no illegality was involved (as
when evidence was legally obtained before the police committed an illegal act). By
contrast, under the purged taint exception, the evidence was obtained as a result of
an illegal act, but the defendant’s subsequent voluntary act removes the taint of the
initial illegal act (as in the Wong Sun case, in which the suspect went back to the
police station and voluntarily signed the confession). The subsequent voluntary act,
in effect, purges the evidence of its initial illegality.
W H E N T H E R U LE DO ES NO T A PPLY
The exclusionary rule is not applicable in all Fourth Amendment proceedings. There
are eight situations or types of proceedings in which the rule does not apply, according to court decisions. In these situations or proceedings, the evidence obtained is
admissible in court:
■
■
■
■
■
■
■
■
Police violations of the “knock and announce” rule
Searches done by private persons
Grand jury investigations
Sentencing
Arrests based on probable cause that violate state law
Violations of agency rules
Noncriminal proceedings
Parole revocation hearings
This section looks at each of the above exceptions.
IN VIOLATIONS OF THE “KNOCK AND ANNOUNCE” RULE
Hudson v. Michigan
(2006)
The Court has held that violation of the “knock and announce” rule does not require
exclusion of the evidence seized (Hudson v. Michigan, 547 U.S. 586 [2006]). In
Hudson, the police obtained a warrant to search for drugs and firearms in Hudson’s
home. The police went there and announced their presence, but waited only 3–5
seconds (the usual wait is 20–30 seconds) before opening the door and entering.
Hudson moved during trial to suppress the evidence, saying that the premature entry
by the police violated his Fourth Amendment rights. His motion was denied and he
was convicted. On appeal, the Court rejected Hudson’s argument, saying:
Violation of the warrant requirement sometimes produces incriminating evidence that could not otherwise be obtained. But ignoring knock-and-announce
can realistically be expected to achieve absolutely nothing except the prevention
of destruction of evidence and the avoidance of life-threatening resistance by
occupants of the premises—dangers which, if there is even “reasonable suspicion of their existence,” suspend the knock and announcement requirement
anyway.
The Court added that there are other remedies available to defendants for violations of the knock-and-announce rule, such as civil lawsuits and seeking the discipline
of erring officers.
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IN PRIVATE SEARCHES
Burdeau v. McDowell
(1921)
The Fourth Amendment’s prohibition against unreasonable searches and seizures
applies only to the actions of governmental officials, so prosecutors may use evidence illegally obtained by private individuals (by methods such as illegal wiretap or
trespass) as long as the police did not encourage or participate in the illegal private
search. In one case, the Court said that the Fourth Amendment’s “origin and history clearly show that it was intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon other than governmental
agencies” (Burdeau v. McDowell, 256 U.S. 465 [1921]).
IN GRAND JURY INVESTIGATIONS
United States v. Calandra
(1974)
A person being questioned by the grand jury cannot refuse to answer questions
on the grounds that the questions are based on illegally obtained evidence (such
as information from an illegal wiretap). The reason is that the application of the
exclusionary rule in such proceedings would unduly interfere with the grand jury’s
investigative function (United States v. Calandra, 414 U.S. 338 [1974]).
IN SENTENCING
Some lower courts have likewise permitted the trial judge to consider illegally
obtained evidence in fixing sentences after conviction, even when the same evidence
had been excluded during the trial because it was illegally obtained. During sentencing, they reason, a trial judge should consider any reliable evidence. The fact that it
was obtained illegally does not necessarily affect its reliability. The evidence is not
admissible, however, if state law prohibits its admission.
WHEN ARREST BASED ON PROBABLE CAUSE VIOLATES
STATE LAW
Virginia v. Moore (2008)
112
In a 2008 case, the Court held that evidence seized after the police made an arrest that
violated state law but was based on probable cause does not violate the exclusionary
rule and is admissible at trial (Virginia v. Moore [06–1082] [2008]). In this case, the
Virginia police received information that Moore was driving on a suspended license.
Virginia state law specifically provides that for these types of minor offenses, no arrest
was to be made by the police; instead, the suspect was to be issued a citation and summons to appear in state court at a later time. However, the police arrested Moore after
the stop and obtained his consent to search his hotel room, which Moore gave. The
search yielded 16 grams of crack cocaine. Moore was later charged with possession of
cocaine and convicted. On appeal he claimed that the crack cocaine was not admissible as evidence during his trial because the seizure violated his Fourth Amendment
right since it violated state law. The Court disagreed, saying that although the arrest
was against state law, such a violation did not constitute a violation of the Fourth
Amendment because it was based on probable cause. Since it did not violate the
Fourth Amendment, the evidence seized could be used during prosecution.
This case clarifies the extent of the exclusionary rule and adheres to the principle
that not all police mistakes or illegal actions constitute a violation of the Fourth
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Amendment that would lead to the exclusion of the evidence seized. There was no
question that what the police did violated state law, but such violation did not mean
Moore’s Fourth Amendment constitutional right was violated because the police had
probable cause to make the arrest. Since the exclusionary rule applies only to violations of the Fourth Amendment, the evidence obtained was admissible. This does
not mean that there are no consequences of police misbehavior when they violate
state law. There could be punishment imposed by state law or agency policy for such
violations, but the evidence seized is nonetheless admissible.
WHEN ONLY AGENCY RULES ARE VIOLATED
South Dakota v. Neville
(1983)
The evidence is admissible if the search violates an agency rule but not the Constitution
(South Dakota v. Neville, 459 U.S. 553 [1983]). For example, suppose police department policy prohibits home searches without written consent. If an officer obtains
evidence in the course of a home search without written consent, the exclusionary rule
does not apply because written consent is not required under the Constitution for the
search to be valid. The evidence is admissible unless it is excludable under state statute
or court decisions.
IN NONCRIMINAL PROCEEDINGS
The exclusionary rule applies only to criminal proceedings, not to proceedings such
as civil or administrative hearings. Illegally obtained evidence may be admissible
against another party in a civil tax proceeding or in a deportation hearing. It may
also be admissible in administrative proceedings, as when an employee is being
disciplined. For example, illegally obtained evidence may be admissible in cases in
which a police officer is being investigated by the internal affairs division for violation
of departmental rules.
However, court decisions have established that even in administrative cases, there
are instances when illegally obtained evidence may not be admitted. One is if state
law or agency policy prohibits the admission of such evidence. Another is if the
evidence was obtained in bad faith, as when evidence against a police officer under
investigation is obtained illegally and for the purpose of establishing grounds for
disciplinary action.
IN PAROLE REVOCATION HEARINGS
Pennsylvania Board of
Probation and Parole v.
Scott (1998)
The Court has held that the exclusionary rule does not apply in state parole revocation
proceedings (Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 [1998]).
In Scott, parole officers conducted what was later considered an invalid search because
of the absence of reasonable suspicion to believe that a parole violation had, in fact,
occurred. The Court held that the exclusionary rule does not apply to parole revocation proceedings primarily because the rule does not apply “to proceedings other than
criminal trials” and because application of the rule “would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature
of parole revocation proceedings.” Although Scott involved parole revocation, there is
good reason to believe that the exclusionary rule does not apply to probation revocation
proceedings either, given the similar goals and functions of parole and probation.
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InAction
THE EXCLUSIONARY RULE
Officers of the San Francisco Police Department
stepped up patrols in the Pacific Heights neighborhood in response to special requests from
residents. The homeowners became concerned
over the recent rash of burglaries in their wellpreserved neighborhood of historic homes.
Late in the evening of May 16, while patrolling in Pacific Heights, Officer Y observed a white
male emerge from behind a hedge and proceed to
crawl in the eastward window of the residential
home at 1423 McKinley Circle. Officer Y called
for backup and advised the dispatcher that he
would be investigating. Officer Y continued to
watch the McKinley Circle home. He observed
the same male subject exit the home through a
side door. Officer Y watched the suspect approach
a green sedan parked in front of the home.
Officer Y confronted the suspect and placed him
under arrest for burglary. Officer Y searched the
suspect and recovered two marijuana cigarettes, a
gold watch, and a car key from the suspect’s coat
pockets. During this period the suspect tried to
convince Officer Y that he lived at the residence,
and had been forced to climb through a window
because he had forgotten his house key. Officer Y
ignored the suspect’s explanation.
Officer Y notified the dispatcher that he had
a suspect in custody for burglary and possession
of marijuana. Officer Y then turned his attention
to the green sedan. He used the recovered key to
open the sedan’s trunk. Upon opening the trunk,
he immediately smelled fresh marijuana and saw
a large number of plastic bags containing a green
leafy substance he believed to be marijuana. Officer
Y seized the marijuana and impounded the vehicle.
As a criminal justice student, evaluate the
above scenario from the following two vantage
points:
1. Assume that the residence was broken into and
that Officer Y established probable cause to
believe that the suspect committed the crime.
■ Is Officer Y’s arrest of the suspect lawful?
■ Is Officer Y’s subsequent search of the suspect
lawful, and is the evidence recovered from the
suspect’s coat admissible in court?
■ Is Officer Y’s search of the sedan lawful, and
is the evidence recovered from the sedan’s
trunk admissible in court?
2. Assume that the suspect actually resides at the
residence and that on this particular night
he forgot his house key, which is why Officer
Y observed him climbing through a window.
■ Is Officer Y’s arrest of the suspect lawful?
■ Is Officer Y’s subsequent search of the suspect
lawful, and is the evidence recovered from the
suspect’s coat admissible in court?
■ Is Officer Y’s search of the sedan lawful, and
is the evidence recovered from the sedan’s
trunk admissible in court?
A R G U M E N T S F O R T H E R U LE
Proponents make the following arguments in support of the exclusionary rule:4
1. It deters violations of constitutional rights by police and prosecutors.
A number of studies and testimonies by police officers support this
contention.
2. It manifests society’s refusal to convict lawbreakers by relying on official
lawlessness—a clear demonstration of our commitment to the rule of
law, which states that no person, not even a law enforcement official, is
above the law.
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3. It results in the freeing of the guilty in only a relatively small proportion
of cases. A 1978 study by the General Accounting Office found that, of
2,804 cases in which defendants were likely to file a motion to suppress
evidence, exclusion succeeded in only 1.3 percent. Moreover, the same
study reported that, of the cases presented to federal prosecutors for
prosecution, only 0.4 percent were declined by the prosecutors because
of Fourth Amendment search and seizure problems.5 In 1983, another
study found that “only between 0.6 and 2.35 percent of all felony arrests
are ‘lost’ at any stage in the arrest disposition process (including trials
and appeals) because of the operation of the exclusionary rule.”6
4. It has led to more professionalism among the police and increased
attention to training programs. Fear that evidence will be excluded has
forced the police to develop greater expertise in their work.
5. It preserves the integrity of the judicial system, because the admission
of illegally seized evidence would make the court a party to violations of
constitutional rights.
6. It prevents the government, whose agents have violated the Constitution,
from profiting from its wrongdoing. Somebody has to pay for the
mistake—better it be the government than the suspect who has already
been wronged.
7. It protects the constitutional right to privacy.
A R GU M E N T S A GA I NS T T HE R U LE
Opponents, including justices of the Supreme Court, have opposed the exclusionary
rule. Among their arguments are the following:
1. In the words of Justice Benjamin Cardozo, “The criminal goes free
because the constable has blundered.” It is wrong to make society pay
for an officer’s mistake—punish the officer, not society.
2. It excludes the most credible, probative kinds of evidence—fingerprints,
guns, narcotics, dead bodies—and thereby impedes the truth-finding
function of the courts.7
3. It discourages internal disciplinary efforts by law enforcement agencies.
If police are disciplined when the evidence will be excluded anyway,
they suffer a double setback.
4. It encourages police to perjure themselves in an effort to get the
evidence admitted. Particularly in major cases, the police might feel that
the end justifies the means—in other words, it is better to lie than to let
a presumably guilty person go free.
5. It diminishes respect for the judicial process and generates disrespect for
the law and the administration of justice.8
6. There is no proof that the exclusionary rule deters police misconduct.
In the words of Chief Justice Warren Burger, “There is no empirical
evidence to support the claim that the rule actually deters illegal conduct
of law enforcement officials.”
7. Only the United States uses the exclusionary rule; other countries do not.
Justice Scalia says, “[It] has been ‘universally rejected’ by other countries.”
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JUSTICE SCALIA SAYS THE EXCLUSIONARY RULE
HIGH
L I G H T IS NOT USED IN OTHER COUNTRIES
“The Court-pronounced exclusionary rule . . . is
distinctly American. When we adopted that rule
in Mapp v. Ohio, 367 U.S. 643 (1961), it was
‘unique to American Jurisprudence.’ Since then, a
categorical exclusionary rule has been ‘universally
rejected’ by other countries, including those
with rules prohibiting illegal searches and police
misconduct, despite the fact that none of those
countries ‘appears to have any alternative form of
discipline for police that is effective in preventing
search violations.’ England, for example, rarely
excludes evidence found during an illegal search
or seizure and has only recently begun excluding
evidence from illegally obtained confessions.
Canada rarely excludes evidence and will only
do so if admission will ‘bring the administration
of justice into disrepute.’ The European Court
of Human Rights has held that introduction of
illegally seized evidence does not violate the ‘fair
trial’ requirement in Article 6, Section 1 of the
European Convention on Human Rights.”
SOURCE Dissenting opinion by Justice Antonin Scalia in Roper v.
Simmons, 543 U.S. 551 (2005).
8. It has no effect on those large areas of police activity that do not result
in criminal prosecutions. If the police make an arrest or search without
any thought of subsequent prosecution (such as when they simply want
to remove a person from the streets overnight or when they confiscate
contraband to eliminate the supply), they do not have to worry about
the exclusionary rule, because it takes effect only if the case goes to trial
and the evidence is used.
9. The rule is not based on the Constitution; it is only an invention of the
Court.9
10. It does not punish the individual police officer whose illegal conduct led
to the exclusion of the evidence.
A L TE R N A T I V E S T O T H E R U LE
The continuing debate about the exclusionary rule has produced several proposals
to admit the evidence obtained and then to deal with the wrongdoing of the police.
Among these proposals are the following:
■
■
116
An independent review board in the executive branch. This proposal envisions a
review board composed of nonpolice personnel to review allegations of violations
of constitutional rights by the police. The problem with this alternative is that
police oppose it because it singles them out among public officials for differential
treatment. Moreover, they view outsiders as unlikely to be able to understand the
difficulties and dangers inherent in police work.
A civil tort action against the government. This would mean filing an action
seeking damages from the government for acts by its officers. It poses real
difficulty for the plaintiff, who would have to shoulder the financial cost of the
litigation. Most defendants do not have the resources to finance a civil case,
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■
■
■
particularly after a criminal trial. Moreover, low damages awards against police
officers usually discourage the filing of civil tort actions except in egregious cases.
A hearing separate from the main criminal trial but before the same judge or jury.
The purpose of the hearing is to determine if, in fact, the officer behaved illegally
in obtaining the evidence used during the trial and, if so, to impose the necessary
sanctions on the officer. Although this is the least expensive and most expedient
alternative, its effectiveness is questionable. If the violation is slight, the judge or
jury will not look with favor on what may be considered an unnecessary extension of the original trial. Furthermore, if the criminal trial ends in a conviction,
the chances of the officer being punished for what he or she did become remote.
Adoption of an expanded good faith exception. The final report of the Attorney
General’s Task Force on Violent Crime in the late 1980s proposed a good faith
exception different from and broader than that allowed by the Court in the
Sheppard and Leon cases. The proposed good faith exception covers all cases
in which the police would claim and can prove that they acted in good faith
(not just when the magistrate issues an invalid warrant). It is based on two
conditions: (1) The officer must allege that he or she had probable cause for
the action in question, and (2) the officer’s apparent belief that he or she was
acting legally must be a reasonable one. These are questions of fact that would
be determined by the judge or jury. Opponents fear that this proposal would
lead to more violations of rights using good faith as a convenient excuse. Good
faith is a vague concept that is best determined on a case-by-case basis; it may
therefore vary from one judge or jury to another. Opponents also maintain that
this exception discourages training and rewards lack of knowledge. (The theory
is that the more untrained and uninformed the police officer, the greater the
claim to good faith his or her ignorance would permit.)
Adoption of the British system. Under the British system, the illegally obtained
evidence is admitted in court, but the erring officer is subject to internal
departmental sanctions. The problem is that this system is not effective even
in England, where the police system is highly centralized and generally has
attained a higher level of professionalism. Internal discipline by peers has been
and is a problem in U.S. policing; the public will most likely view this as an
ineffective means of control.
T H E F U T U R E O F T HE R U LE
The debate on the exclusionary rule continues in some quarters, although the intensity has receded. Proponents and opponents of the exclusionary rule range across a
continuum, from the purists to the accommodationists. Proponents want the rule to
remain intact and to be applied strictly, the way it was applied in the two decades after
Mapp v. Ohio. Any concession is interpreted as widening the door that will eventually
lead to the doctrine’s demise. Others are not so unbending, agreeing instead to “logical” and “reasonable” exceptions. Some opponents are not satisfied with such victories
as the Sheppard, Leon, and other cases involving the good faith exceptions. They want
to scrap the rule completely and admit the evidence without reservation or subsequent sanctions. Still others feel that the exclusionary rule should be modified, but
there is no consensus about what that modification should be.
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What, then, of the future? The controversy surrounding the exclusionary rule has
abated, but the debate will not completely fade away. In view of the several exceptions
carved out in Court decisions (as discussed in this chapter), the exclusionary rule is
no longer as controversial as it once was, nor is it as much a controlling force in law
enforcement as when it first emerged. In the words of one observer: “The exclusionary
rule today is a shadow of that envisioned in Weeks. Ironically, the ‘deterrence rationale’
has been invoked to permit so many uses of unconstitutionally seized evidence that
the rule’s efficacy as a deterrent may well be diminished. Certainly, unconstitutionally
seized evidence can often be used to the government’s advantage.”10
During his time on the Supreme Court, Chief Justice Burger called for the rule’s
abolition, calling it “conceptually sterile and practically ineffective.” Other justices
have publicly expressed dissatisfaction with the rule and want it to be abolished or
modified. They have made some inroads, but chances of complete abolition appear
remote. To paraphrase Mark Twain, reports concerning the demise of the exclusionary
rule are greatly exaggerated. It is here to stay.
SUMMARY
The exclusionary rule states that evidence obtained by
the police in violation of the Fourth Amendment right
against unreasonable searches and seizures is not admissible in court.
The purpose of the exclusionary rule is to deter police
misconduct.
It is a judge-made rule designed to protect the Fourth
Amendment right against unreasonable searches and
seizures.
It excludes two kinds of evidence: that which is illegally
seized and “fruit of the poisonous tree.”
Mapp v. Ohio (1961) applied the exclusionary rule to
state criminal cases.
■
■
■
■
■
■
■
■
There are four exceptions to the exclusionary rule: good
faith, inevitable discovery, purged taint, and independent source.
The exclusionary rule does not apply in the following
situations or types of proceedings: violations of the
knock-and-announce rule, private searches, grand jury
investigations, sentencing, arrests based on probable
cause that violate state law, when only agency rules are
violated, noncriminal proceedings, and parole revocation hearings.
Despite continuing debate, the exclusionary rule is here
to stay.
REVIEW QUESTIONS
1. What is the exclusionary rule? Does it apply only to
violations of Fourth Amendment rights or also to violations of any constitutional right in the Bill of Rights
(the first 10 amendments to the Constitution)?
2. The purpose of the exclusionary rule is to deter police
misconduct. Critics, however, say the exclusionary
rule has failed to achieve that purpose. Do you agree?
Why?
3. Is the exclusionary rule a constitutional or a judgemade rule? Can it be modified by the U.S. Congress
through legislation?
118
4. What is the silver platter doctrine? Is it in use today?
5. “Mapp v. Ohio is the most significant case decided by
the Court on the exclusionary rule.” Is this statement
true or false? Defend your answer.
6. Distinguish between illegally seized evidence and the
“fruit of the poisonous tree.” Give examples.
7. “The exclusionary rule does not apply if the police
seize evidence illegally but in good faith.” Is this statement true or false? Explain your answer.
8. What does Arizona v. Evans say? Is this case important?
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9. Name at least four situations or types of proceedings in which the exclusionary rule does not apply.
Discuss each.
10. What is the inevitable discovery exception to the
exclusionary rule? Give an illustration.
11. What is the purged taint exception to the exclusionary
rule? Why is it difficult to apply?
12. “A trial court judge admits evidence during trial that,
on appeal, was held not to be admissible. The conviction of the accused is automatically reversed.” Is this
statement true or false? Support your answer.
13. Are you in favor of or against the exclusionary rule?
Justify your answer.
TEST YOUR UNDERSTANDING
1. Officer P searched the house of Citizen Q based on a
warrant. He found five pounds of cocaine. P then asked
Q if there were other drugs in his residence. Q replied,
“I might as well tell you—I have other drugs in my
car in the garage.” Officer P then went to the garage,
searched the car, and found a pound of heroin and three
illegal weapons. P seized all these. All seized evidence
was later introduced in Q’s trial. Questions: (a) What is
admissible in court? All, some, or none of the evidence?
and (b) If any evidence is to be excluded, is the exclusion based on “evidence illegally seized” or “fruit of the
poisonous tree”? Give reasons for your answers.
2. Officer X was sent by a radio dispatcher to Apartment
B in a dilapidated building at 44 Magnolia Avenue
because the dispatcher received an urgent 911 call
from there that said somebody was being harmed.
Officer X went to Apartment B at that address
and heard somebody moaning and groaning inside.
Officer X identified himself, demanded to be admitted, was admitted, and saw illegal drugs all over the
place. Officer X seized the illegal drugs. It turned out
later that Officer X had gone to the wrong apartment.
The 911 call came from Apartment D, at the same
street address, but the 911 dispatcher misheard the
caller and sent the police to Apartment B by mistake.
You are the judge during the trial. Will you admit or
exclude the drugs seized? State your reasons.
3. B and C, who for years were live-in lovers, had a big
fight one night. C hastily moved out of the apartment
they shared. A week later, C went to the police and
told them that B, the boyfriend, was dealing drugs
from his apartment. C said she no longer lived there
but had a key to the apartment, that she had gone back
there a couple of times, and that she and B were in the
process of reconciling—none of which was true. C led
the police to the apartment and opened it with her
key. The police saw marijuana, amphetamines, and
other illegal drugs in various places in the apartment.
They seized all these drugs and introduced them later
in court as evidence against B. You are the judge.
Will you admit or exclude the evidence? Support your
decision.
RECOMMENDED READINGS
“Exclusionary Rule” [Wikipedia entry], http://
en.wikipedia.org/wiki/Exclusionary_rule.
“Evaluation of the Exclusionary Rule,” http://www.
essortment.com/all/exclusionaryrul_rmlx.htm.
“Exclusionary Rule—Origins and Development of the
Rule, the Policy Debate, Other Constitutional
Exclusionary Rules, Proposals for Reform,”
http://law.jrank.org/pages/1111/Exclusionary-Rule.html.
R. Morgan. “Exclusionary Rule: Is There a Better Way?”
http://www.metnews.com/articles/morg0516.htm.
Donald Dripps. The case for the contingent exclusionary rule.
The American Criminal Law Review 1, 46 (2001).
NOTES
1. Bradford P. Wilson, “Exclusionary Rule,” Crime File
Study Guide (Rockville, MD: National Institute of
Justice, n.d.), p. 1.
2. Ibid.
3. FBI Law Enforcement Bulletin, September 1997,
pp. 29, 32.
4. For an excellent discussion of the arguments for and
against the exclusionary rule, see Yale Kamisar, Stephen
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119
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H. Sach, Malcolm R. Wilkey, and Frank G. Carrington,
“Symposium on the Exclusionary Rule,” 1 Criminal
Justice Ethics, pp. 4ff (1982). Some arguments for and
against the exclusionary rule in these lists are taken from
that source.
5. Houston Chronicle, July 8, 1979, sec. 4, p. 2.
6. A study by Thomas Davies, as cited in Kermit L. Hall
(ed.), The Oxford Companion to the Supreme Court of
120
7.
8.
9.
10.
the United States (New York: Oxford University Press,
1992), p. 266.
Supra note 4, p. 118.
Steven Schlesinger, “Criminal Procedure in the Courtroom,” in James Q. Wilson (ed.), Crime and Public
Policy (San Francisco: ICS Press, 1983), p. 195.
Supra note 1, p. 1.
Supra note 6, p. 266.
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