What is the Exclusionary Rule? [No. 86]

The Fourth Amendment forbids unreasonable searches and seizures.

And so then the question arises, what is the remedy for the violation of Fourth Amendment


If police officers unreasonably search and seize and find evidence, in those situations,

evidence can be excluded.

The exclusionary rule is designed as a way to deter illegal police searches and, as a

result, to protect our Fourth Amendment rights.

For many years, the Fourth Amendment was not interpreted as having an exclusionary rule

in it.

But the Supreme Court had said that questions of the remedy for the violation of Fourth

Amendment rights raised questions of a different order.

What the Supreme Court held for many years was the way to enforce the Fourth Amendment

was left up to the states.

The states could provide civil remedies or criminal prosecutions against police officers

who illegally searched.

Those would be the kinds of ways in which the Fourth Amendment would be enforced.

Evidence, however, would come into court even if it was illegally seized.

The United States and most common law countries never had an exclusionary rule to

begin with.

But in this country at around the turn of the 19th century into the 20th century, courts

began, a- accepting the principle that there were some situations where government

misconduct should lead to the exclusion of evidence that had been illegally obtained.

Indeed, the U.S. Supreme Court in a case called United States versus Weeks in 1914 recognized

an exclusionary rule for federal criminal cases.

And then the Warren court in around 1960 recognized an exclusionary rule in a case called Mapp

versus Ohio.

Mapp versus Ohio concluded that the Fourth Amendment should be interpreted as creating

an exclusionary rule as an inevitable enforcement mechanism for Fourth Amendment rights.

The Supreme Court's current doctrine says the exclusionary rule is a judicially-created

deterrent device designed to safeguard Fourth Amendment rights by taking away any incentive

for police officers to violate the Fourth Amendment.

The basic idea is this: if the cops know that if they violate the Fourth Amendment, the

evidence they find is going to be excluded, then they won't violate those Fourth Amendment

rights to begin with.

In other words, instead of maybe breaking into a house to get evidence, they'll go get

a search warrant, they'll conduct the search in a lawful way because that's the only way

in which they can be sure that the evidence they find will be used and admissible in court.

Procedurally, the way an exclusionary rule argument will be raised is that a defense

attorney will file something known as a motion to suppress evidence.

That will be filed with the judge.

The judge will then hold an evidentiary hearing.

Typically, we'll hear from the police officers.

We'll hear any evidence that the defense wants to put in.

And at that point, the judge will decide whether the evidence was obtained through a search

that was consistent with the Fourth Amendment.

If the evidence was obtained in an unconstitutional way, the judge will exclude the evidence,

grant the motion to suppress, and the exclusionary rule will operate to keep that evidence out,

at least during the government's case in chief at trial.

One of the problems with the exclusionary rule's that it is a federal doctrine that

applies across all 51 criminal procedure systems, in the federal system, and in the states.

And it essentially creates a one-size-fits-all approach.

And if it were to be abolished, I think we would see interesting developments across

the country as different states decided how they want to craft their own exclusionary


One of the criticisms of the exclusionary rule is that it provides freedom for the guilty

and nothing for the innocent.

It's only when the police search a guilty person that they're likely to find incriminating


And that's why the exclusionary rule perversely provides benefits for criminals, but no benefits

for those who are innocent.

If the Supreme Court ever reconsiders the exclusionary rule, front and center will be

the idea that there should be some sort of civil remedy as a replacement.

No one suggests that the police should get off scot-free if they illegally search someone.

If you look at the Bill of Rights, what are the enforcement mechanisms for other constitutional


There are damage remedies, and then isn't it the logical conclusion that damages remedy

should apply to the Fourth Amendment no less than it applies to other provisions of the


The exclusionary rule has been part of American constitutional law for now more than 50 years.

And so, when you think about the doctrine of stare decisis, and more broadly the, the

common, uh, wisdom that if it ain't broke, don't fix it, uh, there's a case to be made

for retaining the exclusionary rule.

A lot of critics believe it's time for the Supreme Court to reconsider the exclusionary


The Supreme Court created the exclusionary rule more than 50 years ago.

There have been a number of intervening developments since then.

And given those changes in modern American law enforcement, do we really need an exclusionary

rule as a way of enforcing Fourth Amendment rights?