Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule

Author:Eugene R. Milhizer
Position:President, Dean, and Professor of Law, Ave Maria School of Law
Pages:211-262
2012] FOURTH AMENDMENT EXCLUSIONARY RULE 211
DEBUNKING FIVE GREAT MYTHS ABOUT THE
FOURTH AMENDMENT EXCLUSIONARY RULE
EUGENE R. MILHIZER*
I. Introduction
I would like to begin by expressing what a great honor it is to be
invited to speak before such a distinguished group of jurists. I especially
want to thank Colonel Diner, Lieutenant Colonel Brookhart, and Major
Flor for their kind invitation and their support.
While serving as a professor in the Criminal Law Division here more
than 20 years ago, I always looked forward to the Judge’s Course. This is
a special privilege for me to speak with you all today, as I cut my teeth
and learned my craft as a trial and appellate counsel appearing before
military judges. I must also confess, as a former Government Appellate
Division advocate who twice had the privilege of arguing before the
then-Army Court of Military Review sitting en banc, I am a bit
apprehensive appearing before so many military judges gathered together
in one place at one time. But confident in your kindness and judicial
temperament, I will press on.
The subject of my talk today will be the Fourth Amendment1
exclusionary rule. My position, if nothing else, is straightforward and
* President, Dean, and Professor of Law, Ave Maria School of Law. This article draws
from two previous articles by the author, “The Exclusionary Rule Lottery” Revisited, 59
CATHOLIC UNIV. L. REV. 747 (2010) [hereinafter “Lottery Revisited”], and The
Exclusionary Rule Lottery, 39 U. TOL. L. REV. 755 (2008) [hereinafter “Lottery”]. This
speech was presented at the 54th Judges Course at The Judge Advocate Generals School
on May 5, 2011. The author is grateful to Professor Ryan Alford, Professor Mark Bonner,
and Chief Justice Clifford Taylor for their wise comments and suggestions for an earlier
draft of the article. The author is also grateful to Christy Alvey for her outstanding work
as a research assistant.
1 U.S. CONST. amend. IV. The text of the Fourth Amendment is as follows:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and 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.
The text does not specify exclusion as a remedy for Fourth Amendment violations and is,
in fact, silent as to remedies in general.
212 MILITARY LAW REVIEW [Vol. 211
clear: the rule must be rescinded and replaced with an approach under
which most if not all evidence obtained as a result of unconstitutional
searches and seizures is deemed to be admissible at trial, and that police
officers who violate the Fourth Amendment should be punished or
disciplined, as appropriate. This conclusion is based on my belief that the
rule rests on an unprincipled premise; its costs outweigh its presumed
and largely illusory benefits; it is ill-suited to accomplish its stated
purposes; and it cannot be saved through marginal adjustments, major
reforms or sweeping re-conceptualization.
While much can be debated about the Fourth Amendment
exclusionary rule, its basic functioning is clear and undisputed: evidence
obtained as the result of an unconstitutional search or seizure is
suppressed at trial for the purpose of obtaining some broad or attenuated
objective regardless of the relevance, necessity and probity of that
evidence. The precise benefit or benefits to be achieved by operation of
the rule is a matter of dispute, and I will address the subject of the rule’s
purported benefits a bit later in my talk today.
As contrasted to the rule’s ostensible benefits, however, the rule’s
costs are far more certain and in some respects undeniable, although the
precise magnitude of the costs has not been satisfactorily specified.2 That
being said, it seems only fair that the rule’s proponents, who necessarily
believe that the rule’s diffuse and remote benefits outweigh its more
immediate and tangible harms, should have the burden of persuasion in
defending and justifying the rule. Opponents of the rule, for their part,
should be prepared to address and rebut the contentions of the rule’s
proponents in order to make the case that the rule should not stand. This
will be the task of my talk today.
Before one can respond to the rule’s proponents, however, one must
first state their position and, in particular, the specific justifications they
offer for the rule. This is a surprisingly complicated proposition, as
2 The Supreme Court has said that the exclusionary rule “often frees the guilty.” Stone v.
Powell, 428 U.S. 465, 490 (1976). Efforts have been made to quantify the magnitude of
this social cost. See, e.g., Thomas Y. Davies, A Hard Look at What We Know (and Still
Need to Learn) About the “Costs” of the Exclusionary Rule: the NIJ Study and Other
Studies of “Lost” Arrests, 1983 AM. B. FOUND. RES. J. 611, 680, 688 (noting that the
percentage of nonconvictions due to illegal searches were significant during the period
studied, ranging from 2.8 to 7.1 percent, and the offenses at issue generally were drug
offenses rather than violent crimes). Of course, there are a multiplicity of other, less
concrete social costs connected with the exclusionary rule.
2012] FOURTH AMENDMENT EXCLUSIONARY RULE 213
supporters of the rule do not speak with a uniform voice and may offer
several inconsistent and sometimes conflicting justifications for it.
Accordingly, and to facilitate my presentation today, I have organized
the most common arguments in favor of the exclusionary rule into five
major justifications, which I have characterized in an admittedly
unflattering fashion as “myths.” And so, here are the five great myths in
support of the exclusionary rule:
Myth #1: The contemporary exclusionary rule is constitutionally
required in order to achieve several objectives, which
include but are not limited to deterring future police
misconduct.
Myth #2: Even if the rule is not constitutionally required and is
intended only to deter future police misconduct, it is
justified because it efficiently accomplishes this
objective.
Myth #3: Even if the present rule is too inefficient in deterring
future police misconduct to justify its application, it can
be sufficiently improved in achieving deterrence by a
modification that accounts for the seriousness of the
crime or the dangerousness of the criminal.
Myth #4: Even if deterrence of future police misconduct in any
form is insufficient to justify the rule, the rule’s
objectives can be expanded to encompass and promote
noble aspirations beyond police deterrence, which
thereby justify the rule.
Myth #5: In any event, the rule is needed to preserve the integrity
of the criminal justice system.
One caveat with respect to the five myths: if I am incorrect as to
Myth #1, and the Supreme Court has instead concluded that the
exclusionary rule is constitutionally required, then the other pragmatic
justifications for the rule, which are the subject of Myths #2–#5, are not
jurisprudentially needed in its defense. I hope that you will be convinced,
at the conclusion of my discussion of Myth #1, that the Supreme Court
has disavowed any constitutional basis for the exclusionary rule and thus
a discussion of the other myths is warranted. Whether the Court was
correct as a matter of law in its rejection of a constitutional basis for the
exclusionary rule is beyond the scope of my discussion today.3
3 See infra notes 217 & 223 and accompanying text.

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