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.