§ 20.05 WHEN THE EXCLUSIONARY RULE DOES NOT APPLY: IN GENERAL

• Jurisdiction: United States

§ 20.05. When the Exclusionary Rule Does Not Apply: In General

The Supreme Court has stated that, "[a]s with any remedial device, the application of the [exclusionary] rule [should be] restricted to those areas where its remedial objectives are thought most efficaciously served."¹¹⁹ In other words, in determining whether the rule should be applied, the issue is whether the cost of its use is likely to outweigh the incremental deterrent benefit of extending the doctrine to the new situation.

As the Supreme Court has grown increasingly disenchanted with the exclusionary rule, it has placed a greater and greater burden on those who would invoke the rule to justify suppression of evidence. The Court now says that exclusion of evidence is "our last resort, not our first impulse."¹²⁰ In view of "the rule's 'costly toll' upon truth-seeking and law enforcement objectives," this "presents a high obstacle for those urging [its] application."¹²¹

The Supreme Court has gone about blunting the effect of the Fourth Amendment exclusionary rule in two ways: (1) holding that it does not apply at all in certain types of proceedings or when certain types of Fourth Amendment issues are raised; and (2) limiting its use, even when it is otherwise applicable, when the police officer's culpability is not sufficiently egregious. The first of these two approaches is considered in this section; the second is considered in the chapter section that follows.

As you will see, the cumulative effect of these various exceptions to the exclusionary rule is quite extensive. Some commentators have argued that there are now so many limits on the exclusionary rule that it is effectively dead, or at the very least it is only a matter of time before it is explicitly overruled or limited to the rarest of cases.¹²²

[A] Non-Criminal Proceedings

[1] In General

The exclusionary rule applies in some quasi-criminal contexts, such as in proceedings in which property will be forfeited because of criminal wrongdoing.¹²³ On the other hand, the rule does not apply in ordinary civil suits, civil tax proceedings, or deportation hearings.¹²⁴

[2] Habeas Corpus

Although the exclusionary rule generally applies in state criminal trials, a state's failure to apply it in a particular case usually may not be remedied in a federal habeas corpus civil proceeding brought to overturn a state criminal conviction. In Stone v. Powell,¹²⁵ the Supreme Court balanced "the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims." It characterized the costs of the rule as "well known." As for the deterrent benefits of the rule, "[t]here is no reason to believe . . . that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions." Therefore, the Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."

The Supreme Court has not clarified what it meant by the phrase "an opportunity for a full and fair litigation of a Fourth Amendment claim." Under Stone, however, a habeas petitioner may not claim simply that a state court misapplied search-and-seizure doctrine. According to Professor Wayne LaFave, the effect of Stone is "there will be few occasions when a state prisoner will be able to obtain an adjudication of his Fourth Amendment claim in a federal habeas court."¹²⁶

[B] Criminal Proceedings

[1] Non-Trial Proceedings

Evidence seized unconstitutionally may be introduced in grand jury proceedings without violation of the Fourth Amendment.¹²⁷ Apparently, such evidence may also constitutionally be used in preliminary hearings,¹²⁸ at bail proceedings,¹²⁹ in sentencing,¹³⁰ and at proceedings to revoke parole.¹³¹

[2] At a Criminal Trial

[a] Impeachment Exception¹³²

As the result of a string of complicated and seemingly conflicting Supreme Court opinions, the rule now is that a prosecutor may introduce evidence obtained from a defendant in violation of his Fourth Amendment rights for the limited purpose of impeaching the defendant's: (1) direct testimony; or (2) answers to legitimate questions put to him during cross-examination. For example, if D testifies in a drug prosecution that he has never seen narcotics,¹³³ or denies in cross-examination that he previously possessed particular evidence of a crime,¹³⁴ the prosecutor may introduce testimony that contradicts these claims in order to impeach D's credibility, even though the impeachment evidence was secured in violation of D's Fourth Amendment rights.

The impeachment exception applies because the Supreme Court has determined that use of Fourth Amendment tainted evidence to impeach a defendant's false testimony significantly furthers the truth-seeking process by deterring perjury; at the same time, use of such evidence in this limited manner creates only a speculative possibility that the police will be encouraged to violate the Fourth Amendment.

Notwithstanding the impeachment exception set out above, the Supreme Court held in James v. Illinois¹³⁵ that evidence obtained...