The Dunkin' Donuts gap: rethinking the exclusionary rule as a remedy in constitutional criminal procedure.

AuthorTipton, D. Taylor

From its early common law antecedents to the present day, the exclusionary rule, the constitutional principle that sometimes renders inadmissible evidence collected in violation of a defendant's constitutional rights in criminal court proceedings, has been derided as a legal technicality which protects criminals to the disadvantage of society. William Blackstone argued that the only appropriate remedy for a search and seizure without a warrant based on probable cause was personal liability for the arresting officer or the magistrate who issued the warrant. (1) Associate Justice Benjamin Cardozo, then a judge on the New York Court of Appeals, maintained that it was a non sequitur to hold that the "criminal is to go free because the constable has blundered." (2) More recently, Associate Justice Antonin Scalia has urged that the exclusionary rule be "our last resort, not our first impulse," as it "set[s] the guilty free and the dangerous at large." (3)

However, others have argued for the preservation of the exclusionary rule on the grounds that it is, in fact, pro-law enforcement. Professor Michael Seidman of Georgetown University Law Center has argued that the exclusionary rule, as opposed to a liability rule, gives police more freedom to pursue law enforcement, because they do not have to be concerned with personal liability. (4) As Seidman persuasively argues, the exclusionary rule is an effective post-hoc method of addressing constitutional violations. If police pursue law enforcement past the constitutionally permissible limits, the exclusionary rule operates to restore the status quo. (5) On the other hand, a rule that imposed criminal or civil liability on either law enforcement officers or agencies would deter enforcement to the constitutionally mandated limits. (6) Officers would avoid "close" situations, choosing to ignore potential criminal violations rather than risking personal liability for constitutional violations. (7) We may, somewhat lightheartedly, term the difference between law enforcement levels pursued under a proposed liability rule and the levels pursued under the current exclusionary rule as the "Dunkin' Donuts Gap," positing that police officers would choose to spend their time at that fine establishment rather than pursuing law enforcement. (8)

While Seidman's rationale is extremely persuasive, it ultimately fails to justify the exclusionary rule. The central failing of the Dunkin' Donuts Gap justification is that it only accounts for two variables--the level of law enforcement pursued under liability and exclusionary rule regimes and the number of guilty persons set free. So long as the social costs of a lack of constitutionally permissible law enforcement under a liability rule regime outweighs the social costs of guilty persons being set free on a legal technicality, the exclusionary rule is justifiable. However, these are not the only two variables to consider in weighing a liability rule regime against an exclusionary rule regime. By eliminating personal liability from law enforcement officers and agencies, the exclusionary rule disincentivizes due care in law enforcement. Under an exclusionary rule regime, law enforcement officers are allowed to pursue "alternative policing"--making searches and seizures without probable cause in order to get illegal firearms and controlled substances off the streets. This Note will show, the victims of these alternative policing practices disproportionately tend to be poor minorities who are unprotected by remedies provided for in current civil rights laws.

This Note will argue that the Dunkin' Donuts Gap is a detriment, not a benefit, to society. As such, the current exclusionary rule regime should be replaced with a liability rule regime. In Part I of this Note, I will trace the history of the exclusionary rule to show that the Dunkin' Donuts Gap is a post hoc justification for the exclusionary rule, contemplated neither by the text and history of the Constitution nor the courts that adopted the exclusionary rule. In Part II, I will examine the justifications for the exclusionary rule and particularly the Dunkin' Donuts Gap to determine whether, despite the post hoc nature of such justifications, they are sufficient to justify the continuing use of the exclusionary rule as a remedy for constitutional violations. Ultimately, I will conclude in Part III that such justifications are insufficient to justify the Dunkin' Donuts Gap and exclusionary rule because of their deleterious effects on the poor and minorities. Finally in Part IV, I will propose a liability rule with statutory minimum damages to replace the exclusionary rule as a remedy for constitutional violations.


    The rationale underlying the Dunkin' Donuts Gap justification for the exclusionary rule is essentially a collectivist rationale. As opposed to the traditional legal and historical narrative which portrays the Fourth, Fifth, and Sixth Amendments, and the exclusionary remedy for violations of such amendments, as essentially individual fights, the Dunkin' Donuts Gap justification rests in the idea that a strong exclusionary rule allows for maximum law enforcement and the aggregation of public good. (9) If this collectivist rationale is deeply rooted in either the text of the Fourth, Fifth, or Sixth Amendments or the interpretive history of such amendments, then it is deserving of a degree of deference accorded to it by practice and history, regardless of the soundness of such a rationale from a policy perspective. However, both the text of the Constitution and the judicial history of the exclusionary rule fail to demonstrate such a collectivist rationale as a justification for the exclusionary rule.

    1. English Common Law and the Early Understanding of the Fourth, Fifth, and Sixth Amendments

      At common law, while there was no exclusionary rule for illegal searches and seizures, self-incriminatory statements made under compulsion were inadmissible as evidence. (10) This rule extended beyond mere compulsory testimony at trial, and included confessions made to law enforcement officials conducting investigations. (11) However, English courts declined to extend exclusionary remedies to evidence obtained as a result of compelled confessions. (12) In Warickshall, the court found that evidence obtained as a result of a coerced confession did not merit exclusion in the same manner as a coerced confession, because "a fact, if it exist at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false." (13) A coerced confession, on the other hand, was excluded because it was "forced from the mind." (14) Traditionally courts, modern as well as common law, were not as concerned with the pragmatic effects of an exclusionary rule as they were with respect for individual autonomy and self-determination. (15)

      Recognizing the common law exclusion of coerced confessions, the first congress passed the Fifth Amendment, guaranteeing that no person would be "compelled in any criminal case to be a witness against himself." (16) Since the remedy for such a coerced confession at the time was exclusion, the Fifth Amendment should be read as implicitly mandating exclusion. However, as discussed above, the rationales mandating exclusion were individual and not collective. Therefore, the text of the Fifth Amendment in an "originalist" sense cannot be said to implicitly support the Dunkin' Donuts Gap. Additionally, the text of neither the Fourth nor Sixth Amendments explicitly mandates exclusion as a remedy for violations. (17) At the time the Fourth Amendment was written, neither English nor American courts recognized exclusion as a remedy for violations of the Fourth Amendment. (18) In fact, the dominant English practice was the imposition of personal liability on a law enforcement official who conducted a search without a warrant. (19) Likewise, the exclusionary rule was not used as a remedy for violations of the Sixth Amendment until the second half of the Twentieth Century. (20) Since the exclusionary rule was not mandated by English common law as incorporated into the understanding of the text of the Constitution, it cannot be said that a collectivist rationale for exclusion was incorporated into the Constitution as originally written.

    2. Early American Judicial History of the Exclusionary Rule

      While a collectivist rationale for the exclusionary rule is not apparent from the text of the Constitution or the English common law, subsequent judicial interpretations of the Fourth, Fifth, and Sixth Amendments may put such a collectivist "gloss" on the exclusionary rule. (21) However, the judicial history of the exclusionary rule has not placed such a gloss on the rule, and the collectivist rationales for the exclusionary rule are not entitled to deference under principles of stare decisis.

      The Supreme Court first applied the exclusionary rule outside of its traditional Fifth Amendment boundaries for the first time in Boyd v. United States. (22) In Boyd, the Court held that an illegal search and seizure that led to the production of the defendant's personal papers was equivalent to compelling the defendant to testify against himself. (23) Although the Court found the search and seizure unconstitutional under the Fourth Amendment, it adopted the individual liberty rationale that underlay its Fifth Amendment jurisprudence, holding "constitutional provisions for the security of person and property should be liberally construed." (24)

      Eleven years later, the Court again addressed the exclusionary rule as a remedy for Fifth Amendment violations in Brain v. United States. (25) After tracing the development of the common law exclusionary rule to the time of the founding, the Court reaffirmed the exclusionary rule, as it existed at common law, as the remedy for violations...

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