Big Bill Haywood's revenge: the original intent of the exclusionary rule.

• Author: Hirsch, Milton

1. Introduction A. Hudson v. Michigan B. Herring v. United States II. The World Before Weeks A. As to Defendants B. As to Evidence III. Weeks IV. In the Wake of Weeks: The Original Understanding of Original Intent A. The Federal Cases B. The State Cases 1. The "deterrence rationale" 2. Social costs V. Conclusion I. INTRODUCTION

   We have been given fair warning.

   In two recent cases, Hudson v. Michigan (2) and Herring v. United States, (3) the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule--that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. (4) Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of redress for Fourth Amendment violations) Chief Justice Roberts, writing for the same five-justice majority in Herring, expressed the same dissatisfactions. (6) The two cases differ factually, but the Supreme Court's message is the same in both.

   1. HUDSON V. MICHIGAN

      Local police obtained a warrant to enter and search the home of Booker Hudson. (7) When they arrived to execute the warrant, their constitutional obligation was to "knock and announce:" to apprise the householder of their purpose and authority, and to afford him a brief, but reasonable, time to open the door in response to theft demand. (8) This they failed to do. (9) The issue before the Court was "whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement." (10)

      The purposes of the knock-and-announce requirement, the Court observed, differ from the purposes of the warrant requirement. (11) The knock-and-announce requirement is intended to protect "human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident." (12) It also protects property, because the compliant householder will be spared a smashed front door. (13) And it may, in some small measure, preserve "those elements of privacy and dignity that can be destroyed by a sudden entrance." (14) By contrast, the Fourth Amendment warrant requirement is intended to "prevent[] the government from seeing or taking evidence" to which it is not legally entitled. (15) Here, the police had a warrant. (16) In the circumstances, the Court was unwilling to extend the exclusionary rule to suppress the fruits of a warrant-based search as to which the police failed to knock and announce. (17)

      The majority opinion could have stopped there. The issue before the Court was simply "whether violation of the 'knock-and-announce' rule requires the suppression of all evidence found in the search," (18) and Justice Scalia had set forth a principled distinction between warrantless searches (as to which exclusion is the general rule) and warrant-based searches conducted in violation of the knock-and-announce rule (as to which the Court declined to extend the exclusionary remedy). (19) But the majority opinion went much further.

      According to Justice Scalia, the sole justification for the exclusionary rule is deterrence, viz., the notion that police will not violate the Fourth Amendment if they are persuaded that the fruits of their violations will not be received in evidence. (20) And even when there is reason to believe that application of the exclusionary rule will deter police misconduct, the benefit of deterrence must be weighed and balanced against what the Court routinely refers to as "social costs," i.e., the loss to the adjudicative process of probative but illegally obtained evidence. (21) Performing this cost-gain analysis, Justice Scalia concludes that "deterrence of knock-and-announce violations is not worth a lot," (22) and that therefore the exclusionary rule ought not to apply to the unlawfully obtained evidence in Hudson's case. (23)

      To reach his conclusion that the purpose of the exclusionary rule is to deter police misconduct, and that the deterrence effect must always be balanced against the "social cost" of evidence foregone, Justice Scalia was obliged to cite to relatively recent authority. Of those cases Justice Scalia chiefly relied upon--for example, Pennsylvania Board of Probation & Parole v. Scott, (24) United States v. Ramirez, (25) New York v. Harris, (26) United States v. Leon, (27) and Segura v. United States (28)--all were written in the last quarter-century. The majority opinion in Hudson scrupulously avoids any discussion of those earlier cases in which the exclusionary rule was first propounded and developed. (29)

      There is, of course, nothing wrong with citing to and relying upon recent authority. But Justice Scalia has often declared his preference, where constitutional jurisprudence is concerned, for original sources and original intent. (30) Given the centrality of the exclusionary rule to all of Fourth Amendment jurisprudence, why is no consideration given in Hudson to the seminal exclusionary rule case, Weeks v. United States, (31) and its contemporary expositors? (32)

   2. HERRING V. UNITED STATES

      The same question presents itself to the reader of Herring. There, a local police officer was informed--incorrectly, as it later turned out--that there was a warrant pending in the next county for Bennie Dean Herring. (33) Reasonably but mistakenly relying on this information, the officer pulled Herring over, arrested him, and searched his car. (34) The search unearthed methamphetamine and a pistol (which Herring, as a convicted felon, could not lawfully possess), for which Herring was prosecuted. (35) "For purposes of deciding this case," the Court "accept[ed] the parties' assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied." (36)

      Writing for the same five justices who made up the Hudson majority, (37) Chief Justice Roberts picks up where Justice Scalia left off. The exclusionary rule, we are told, is "not an individual right" (38) at all, but merely a "judicially created rule" (39) to be valued and applied only to the extent of its deterrent effect. (40) "In addition, the benefits of deterrence must outweigh the costs[,]" (41) the costs of course being the loss of probative evidence that might mean the difference between conviction and acquittal. Where, as here, the police misconduct was "the result of isolated negligence attenuated from the arrest[,]" (42) the social costs outweigh any deterrence value, and the exclusionary rule is inapplicable.

      Like Justice Scalia in Hudson, Chief Justice Roberts looks to recent case authority to ground his deterrence/social costs balancing analysis--indeed to many of the same authorities cited by Justice Scalia, notably United States v. Leon. (43) Like Justice Scalia, Chief Justice Roberts has more than once tipped his cap to the doctrine of "original intent." (44) But the original intent of the exclusionary rule itself--the intent of the justices who gave us Weeks, and of their contemporaries on the state and federal benches--is nowhere considered in Herring.

      According to Hudson and Herring, the sole rationale for the exclusionary rule is deterrence. (45) The rule is no longer necessary to serve a deterrence function, however, because of heightened police "professionalism." (46) And application of the rule comes at too high a price in terms of the fact-finding function. (47) The aggrieved party would be better suited filing a civil-rights action to vindicate his injury, and society would not be "punished" by the loss of proof. (48) Two points form a line, and the line in which the Supreme Court's Fourth Amendment jurisprudence points is clear.

      We have been given fair warning. (49)

      The Court as presently constituted may have the votes to ease the exclusionary rule into the Old Rules Home. Those votes will be cast by justices who proclaim their support for the notion of original intent. But the arguments that the Court presently offers against the exclusionary rule take little cognizance of that rule's original intent.

      Prior to Weeks, it was generally the American law that courts would receive evidence and pass judgment upon litigants without inquiring about the means, fair or foul, by which that evidence or those litigants came before those courts. (50) The first part of this Article discusses the state of the law as it existed before Weeks. (51)

      The exclusionary rule propounded in Weeks was narrow. Key to the holding was the defendant's having moved, pretrial, for the return of the fruits of the unlawful search visited upon him; the clear implication being that, but for that pretrial motion, Weeks would have been entitled to no relief at all. But the rationale for exclusion as a remedy had nothing to do with deterrence. The Fourth Amendment does not provide that the householder's privacy and security shall not be unreasonably infracted by the police, or by executive-branch officers; it provides that the householder's privacy and security shall not be unreasonably infracted by government at all. For courts of justice to receive evidentiary artifacts, knowing those artifacts to have been obtained by illegal search and seizure; for courts to treat those artifacts as they would treat evidence lawfully obtained; for courts to adjudicate cases and controversies and enter judgments based upon such evidentiary offal--to do these things is to violate the Fourth Amendment as surely as the initial unlawful entry into the home violates the Fourth Amendment. Arguably the courts' misconduct in knowingly receiving such forbidden evidence is the greater constitutional violation; for when executive-branch officers sin, the citizen can seek redress of grievances in court, but when the courts make themselves parties to the sin, where shall the citizen look for...