In Defense of the Exclusionary Rule
by Timothy Lynch
Timothy Lynch is associate director of the Cato Institute's Center for Constitutional Studies.
Executive Summary
The Fourth Amendment to the U.S. Constitution protects Americans against unreasonable searches and seizures by
government officials. Like other guarantees in the Bill of Rights, however, the Fourth Amendment cannot enforce
itself.
Much of the modern debate about the enforcement of the Fourth Amendment has focused on the wisdom of and
constitutional necessity for the so-called exclusionary rule, under which evidence obtained in violation of the Fourth
Amendment is ordinarily inadmissible in a criminal trial. Conservatives often oppose the rule as not grounded in the
Constitution, not a deterrent to police misconduct, and not helpful in the search for truth. Abolishing the exclusionary
rule has been a high priority for conservatives for more than 30 years. When Republicans gained control of Congress
in 1995, they immediately set their sights on the exclusionary rule. Although that "reform" effort did not succeed, it is
likely that similar efforts may resurface.
The drive to abolish the exclusionary rule is fundamentally misguided, on constitutional grounds, for the rule can and
should be justified on separation-of-powers principles, which conservatives generally support. When agents of the
executive branch (the police) disregard the terms of search warrants, or attempt to bypass the warrant-issuing
process altogether, the judicial branch can and should respond by "checking" such misbehavior. The most opportune
time to check such unconstitutional behavior is when prosecutors attempt to introduce illegally seized evidence in
court. Because the exclusionary rule is the only effective tool the judiciary has for preserving the integrity of its
warrant-issuing authority, any legislative attempt to abrogate the rule should be declared null and void by the
Supreme Court.
Exclusionary Rule Explained
Many people are familiar with the concept that they have a right to privacy, and cannot
be searched without a warrant. However, not many people understand how the
exclusionary rule, which is what actually enforces this right, protects us.
The purpose of the Exclusionary Rule is to deter police misconduct. If a police officer
violates a citizen’s 4th amendment right to be free from illegal searches and seizers,
that evidence is to be suppressed in federal court.
The exclusionary rule has 3 elements. First, there must be an illegal action by a police
officer, or by someone acting as n agent of the police. Second, there must be evidence
secured. The third element states that there must be a casual connection between the
illegal action and the evidence secured. If there is an illegal action, but it cannot be
proven that the action in question was responsible for the collection of the evidence, the
evidence does not fall under the exclusionary rule by the doctrine of attenuation.
If the defense believes such an offense has taken place, the defense lawyer may file a
motion to suppress the evidence. It is then up to the prosecutor to prove by a
preponderance of the evidence that the evidence was collected without violating the
defendant’s 4th amendment rights. If the prosecution fails to prove this case, the
evidence will be suppressed from the case-in-chief. This means the evidence may not
be used while the prosecution is trying to prove its case. However, this evidence may be
allowed during rebuttal when attempting to determine credibility of the witness. The
illegally seized evidence may also be admissible in grand jury hearings as well as in civil
courts.
There are three exceptions to the exclusionary rule. In these cases, while the situation
meets the three elements needed to trigger the exclusionary rule, the evidence will be
allowed anyway.
The first exception is the Independent Source Doctrine. This exception was created in
the Supreme Court case of Segura and Colon v U.S in 1984. In this situation, evidence
is seized in two different physical ways. One of them is illegal, but the second seizure of
the same evidence is legal. For example, if one were to photo-copy financial records
without a warrant of someone suspected of embezzlement, but then later returned with
a warrant and re-copied the information, that evidence would be allowed.
The second exception is the Inevitable Discovery Doctrine. The case that added this
exception was Nix vs. Williams, in 1984. This exception states that the evidence is
seized in two different ways, but only one being physical. The evidence is secured
physically by illegal means, but there is also a hypothetical seizure of the evidence that
would not have been illegal. For example, if a dead body was buried, and the police
violated a defendant’s rights in order to force him to tell where the body was, this would
be the illegal physical seizure. However, if there was a search for the body in progress
that would have eventually crossed the area where the body was to be found, this would
be the hypothetical seizure. The prosecution must prove by a preponderance of the
evidence that the evidence would have been located by this hypothetical means had it
not been sized illegally.
The third and final exception is that of Good Faith, which was added in the Supreme
Court cases of U.S. vs. Leon and Mass. vs. Sheppard, both in 1984. In this case, a
police officer receives a warrant from a magistrate and acts on it to seize evidence.
However, there may have been an error in allowing the police officer to have the
warrant. Since the point of the exclusionary rule is to deter police misconduct, and there
would have been no misconduct by a police officer, the evidence would not be
suppressed.
The Good Faith exception itself has limitations. If the defense can show that the police
officer misled the magistrate to issue the warrant by providing information he knew to be
false, or showed a reckless disregard for the truth, this would prove that there was no
good faith. Also, the magistrate must be performing his duty in a neutral and detached
manner. If the magistrate was simply acting as a rubber stamp, this too invalidates the
good faith. The warrant must also specifically state what is to be seized, and where it is
to be seized. If the warrant is facially deficient in these regards, once again the good
faith argument is invalidated. The final limitation on the good faith rule is that of probable
cause. The warrant must show probable cause for the seizure of evidence. If a logical
person cannot determine logical cause from the warrant, good faith is eliminated once
more.
The exclusionary rule cannot be found in the United States Constitution, it was a judicial
construction. The U.S. Supreme Court created the exclusionary rule out of necessity.
They deemed that it was the only method to enforce the protections of the 4th
amendment. The Supreme Court originally created the exclusionary rule in the case of
Weeks vs. US in 1914. This case only applied the exclusionary rule to defendants being
prosecuted in federal court. The Supreme Court later expanded the protection to
defendants in state court in the case of Mapp vs. Ohio in 1961.
As you can see, a citizens right to be free from warrantless searches is hardly absolute.
The Supreme Court has the right to create exceptions that reduce our privacy at will. It
is very important for us all to keep up with these decisions, as you never know when
you will be the next person being searched.