Home / Exclusionary Rule Back On the Chopping Block

Exclusionary Rule Back On the Chopping Block


I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.

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  • Linda Greenhouse?
    Totally unreliable!!

  • JoshA

    I used to be against the exclusionary rule, but came around to be for it b/c of the lack of a civil remedy.
    Basically, two fact patterns:
    1. Police stop and search someone on the streets for drugs w/o PC. Find nothing. Person doesn’t really have a civil case b/c its tough to argue they were harmed.
    2. Same as 1, except they find drugs. Now they were harmed, but you argue to a jury “hey, my illegal activities were caught and I suffered because of it” and I don’t think you’re getting a lot of sympathy.

  • fiend

    Or, as used to happen on my block,
    3. Cops bust down door, search for drugs w/o PC. Find nothing. Exit, laughing. Person spends night in doorless apartment.
    4. Same as 3, except they plantdrugs. Now they’re off to jail.
    I’d think this were less of a problem if white-collar crime was also treated this way.

  • A nony mouse

    The exclusionary rule will die before Roberts does. It’s already an empty shell.
    The good faith exception means that in practice every search backed by a warrant is legal (though that’s not what they wrote in Leon). The worst thing about it is that judges skip the PC analysis when reviewing warranted searches and go straight to good faith – thus depriving officers of the opportunity to learn what PC is and avoid making the same mistakes in the future.
    Furthermore, Terry searches are more and more common than they used to be, and LEOs have learned what lies they need to tell to make judges wink and say the officer had reasonable suspicion. Terry stops are on the verge of becoming co-extensive with searches incident to arrest.
    And the current court will use every opportunity presented to it to eviscerate the exclusionary rule. Just hope that the drug war exception to the Fourth Amendment doesn’t spread to the rest of the Bill of Rights.

  • drip

    A commonly voiced description of the difference between white collar and street crime is that in the latter, the question is “who did it” while in the former the question is “is it a crime” so there is no exclusionary rule necessary in most cases. Perhaps illegal wiretaps will bring the issue to the attention of rich folks. Oh, wait, there is no such thing as an illegal wiretap.

  • INotI

    There’s been a bunch of recent editorials about exclusion of evidence in Canada lately, because under the Charter, evidence obtained through violation of a constituional right is only excluded when admitting it would bring the “administration of justice” into disrepute.

  • wengler

    Will an exclusionary rule even matter when admissible evidence doesn’t even matter? Just lock them up and declare them an “enemy combatant” and no court on earth seems willing to touch them. The Padilla case would argue the opposite, but all you have to do is get them offshore.
    Where does law apply when no one in power follows it?

  • Sorry to go offtopic Scott, but this is really extraordinary and ought to get some play.
    Taylor Marsh takes exception to Bill O’Reilly lynching comment re: Michelle Obama. Partly because that’s an awful thing to say. But mostly because O’Reilly’s blunder distracts from the crucial issue of impugning Michelle Obama’s patriotism:
    Stay classy, Taylor Marsh.

  • Evan

    Sounds like judicial activism to me. The fourth amendment says no warrants except on probable cause, fifth says no punishment except by due process. If someone is imprisoned on the basis of evidence acquired with a bad warrant, I’d say that isn’t due process. IANAL, but the exclusionary rule seems to be on very solid constitutional ground.

  • cornbread

    um, can’t we get a thread to talk about the straight talk express’ rumored detour to poontown?
    afterall, that’s what all the establishment a-list bloggers are doing.

  • McKingford

    Canada has forged a more workable, and perhaps more intellectually honest, compromise. It is a two stage analysis:
    1. Was there an unreasonable search/seizure?
    2. If so, would the administration of justice be brought into disrepute by admitting the evidence?
    The advantage of keeping the two issues distinct is that it avoids blurring what is or isn’t an illegal search. If you have a bright line exclusionary rule, then you are less willing to call a foul. The result is that in many respects our jurisprudence is better on search and seizure – the best example I can think of is “voluntary” searches: in Canada the clear onus is on the police to demonstrate that an accused not only consented to a search, but that it was an informed consent; the opposite seems to be the case in the US.
    The downside is that with the political winds shifting here, and there being an outcry against handguns, the courts have made it just about impossible to get a gun excluded. They’ll find the search to be unreasonable, but let the evidence in anyway. And this trend is getting worse…

  • Any incentive to review and revoke stale arrest warrants could quickly evaporate–in fact, poor administration in the courts and police departments will be rewarded. Cynical politicians–or do I repeat myself?–will cut court budgets to open the door for ever sloppier management and more “good faith” exceptions. This isn’t a trivial issue: there are hundreds of thousands, if not millions, of warrants out there, many of them founded on inaccurate or outdated information. If police pick up people on those flawed warrants in “good faith,” the fruits of any search incident to arrest can be used in a new prosecution for another crime.

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