57 RI Bar J., No. 6, Pg 29. Admissibility of Illegally Seized Evidence after Herring.

AuthorJohn R. Grasso, Esq. Law Office of John R. Grasso, Inc., Providence

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 6, Pg 29.

Admissibility of Illegally Seized Evidence after Herring

Rhode Island Bar Journal57 RI Bar J., No. 6, Pg 29 May/June 2009Admissibility of Illegally Seized Evidence after HerringJohn R. Grasso, Esq. Law Office of John R. Grasso, Inc., ProvidenceWhen the government seeks to introduce evidence it has obtained solely as a result of unconstitutional law enforcement conduct, courts have applied the exclusionary rule as the traditional remedy to preclude law enforcement from profiting from its own illegality and to "enable the judiciary to avoid the taint of partnership in official lawlessness." United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting). See Weeks v. United States, 232 U.S. 383 (1914); Elkins v. United States, 364 U.S. 206 (1960). "If [evidence] can thus be [unlawfully] seized and held and used against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." Weeks, 232 U.S. at 393. Without the rule, "the Fourth Amendment [is reduced] to a form of words." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.).

Application of the exclusionary in federal proceedings has been a matter of settled law for almost a century. In Weeks, the United States Supreme Court applied the exclusionary rule to prohibit the introduction in a federal proceeding of evidence seized in violation of the Fourth Amendment. Forty-seven years later, the Court held that the exclusionary rule was enforceable against the states as an intrinsic part of the Fourth Amendment itself. Mapp v. Ohio, 367 U.S. 643 (1961). The rule is "designed to safeguard Fourth Amendment rights generally through its deterrent effect." Calandra, 414 U.S. at 348. Because the Fourth Amendment "contains no provision expressly precluding the use of evidence obtained in violation of its commands," Arizona v. Evans, 514 U.S. 1, 10 (1995), the exclusionary rule as it applies to the Fourth Amendment is a "judicially created rule," Herring v. United States, 129 S.Ct. 695, 699 (2009), with judicially created precedents which have established principles that constrain its application.

On January 14, 2009, the United States Supreme Court further constricted the domain of the exclusionary...

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