§ 20.01 HISTORICAL DEVELOPMENT OF THE FOURTH AMENDMENT EXCLUSIONARY RULE

• Jurisdiction: United States

§ 20.01. Historical Development of the Fourth Amendment Exclusionary Rule¹

[A] Rights versus Remedies

The Fourth Amendment text describes "[t]he right of the people": "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures." And we are told that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Rights presumably come with remedies for their violation. What is the remedy for violation of our Fourth Amendment rights? The constitutional text does not answer this question. Ultimately, however, the Supreme Court concluded that an exclusionary rule is a non-exclusive remedy for such violations. Very generally speaking, evidence gathered in violation of the Fourth Amendment is inadmissible at the criminal trial of the victim of the unreasonable search or seizure. As will be seen later sections in this chapter,² however, the exclusionary rule is controversial and, consequently, the Court has gradually narrowed its scope.

[B] Federal Exclusionary Rule: Weeks v. United States

The Supreme Court adopted the Fourth Amendment exclusionary rule in 1914 in Weeks v. United States.³ In Weeks, the Court held that in federal trials the Fourth Amendment bars the use of evidence unconstitutionally seized by federal law enforcement officers. Without such a rule, the Court subsequently explained, the Fourth Amendment would be reduced to a mere "form of words."⁴

[C] Exclusionary Rule for the States?

[1] Step 1: Wolf v. Colorado

When Weeks v. United States was decided, the Supreme Court had not yet held that the guarantees of the Fourth Amendment applied to the states pursuant to the Fourteenth Amendment Due Process Clause.⁵ Therefore, the Court in Weeks had no reason to consider whether the exclusionary rule applied in state criminal trials.

In 1949, in Wolf v. Colorado,⁶ the Supreme Court, per Justice Felix Frankfurter, offered a "good news/bad news" message to criminal defendants. First, it held that "security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society." As a consequence of Wolf, therefore, states are now subject to the substantive provisions of the Fourth Amendment, albeit through the Fourteenth Amendment Due Process Clause.

On the other hand—the bad news for criminal defendants—the Wolf Court indicated that "the ways of enforcing such a basic right raise questions of a different order." According to Wolf, the exclusionary rule adopted in Weeks "was not derived from the explicit requirements of the Fourth Amendment. . . . The decision was a matter of judicial implication." The Court seemed to be hinting by this remark that the federal exclusionary rule of Weeks might not be constitutionally required. It stated that "a different question [than was raised in Weeks] would be presented if Congress . . . were to pass a statute purporting to negate the Weeks doctrine." In "default of that judgment," the Court indicated, it would "stoutly adhere" to Weeks.

Although the Court was unwilling to back down from its holding in Weeks, it refused to extend the exclusionary rule to the states. The Court concluded that the states were not compelled to exclude "logically relevant evidence" from their trials, even if that evidence was obtained unconstitutionally as a result of an unreasonable search or seizure.

[2] Step 2: Rochin v. California and Its Progeny

Although Wolf v. Colorado⁷ held that evidence was not inadmissible in a state criminal trial merely because it was gathered in violation of the principles underlying the Fourth Amendment, the Court demonstrated in Rochin v. California⁸ that it was prepared to require the adoption of an exclusionary rule in state trials, albeit by a different...