Exclusion of the exclusionary rule: Hudson v. Michigan.

AuthorBrown, Eric


In Hudson v. Michigan, the Supreme Court of the United States once again limited the use of the exclusionary rule as a remedy for violations of the Fourth Amendment to the United States Constitution by holding that the rule is inapplicable to violations of the knock-and-announce rule. (1) Furthermore, unlike any other time since the application of the exclusionary rule to the states, a majority of the Court strongly implied that several existing remedies are viable alternatives, or even superior alternatives, to the exclusionary rule. (2) With this favorable treatment of other remedies, the Court appears to put the exclusionary rule itself on trial in all Fourth Amendment situations. In fact, Dean David A. Moran, who argued for the defense in Hudson, reached a similar conclusion. (3)

If Hudson is stating that remedies other than the exclusionary rule are sufficient to protect the Fourth Amendment, the situation arises where a legislature could pass a statute mandating that these other remedies are the exclusive remedies for Fourth Amendment violations. Such a statute should withstand a constitutional challenge, and it would eliminate the exclusionary rule without forcing the police to face any greater liability than they presently face. This fact is important because increasing police liability is most likely the reason why legislators have ignored all previous scholarly proposals for legislation that replaces the exclusionary rule with some other remedy. (4)

After setting forth the background of the exclusionary rule, this article explores whether a statute eliminating the exclusionary rule in favor of other existing remedies would withstand a constitutional challenge. Also, this article examines whether the existing remedies mentioned in Hudson are really viable, or even superior, alternatives to the exclusionary rule. Finally, this article looks at the antidemocratic nature of the exclusionary rule and finds that it unnecessarily places all of the power in the hands of the judicial branch while at the same time exacting a large cost on society as a whole, which is another reason for supporting the elimination of the rule.


  1. In General

    In criminal procedure, the exclusionary rule "excludes or suppresses evidence obtained in violation of an accused person's constitutional rights." (5) This rule has application in the contexts of the Fourth, Fifth, and Sixth Amendments. (6) However, this article limits most of its discussion to the Fourth Amendment because that is the area where the majority of exclusionary rule jurisprudence originates, including Hudson.

    The Fourth Amendment to the United States Constitution provides:

    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. (7) While this amendment states a rule "against unreasonable searches and seizures," it says absolutely nothing about remedies in the event of a violation. (8) More specifically, the amendment "contains no provision expressly precluding the use of evidence obtained in violation of its commands." (9)

    In Weeks v. United States, the Supreme Court first adopted the exclusionary rule in federal prosecutions as a remedy for Fourth Amendment violations. (10) The Court stated that the evidence in question was taken from the house of the accused "in direct violation of [his] constitutional rights," and permitting use of the seized evidence at trial involved "a denial of the constitutional rights of the accused." (11) With this holding, the Court established the exclusionary rule and applied it to all federal prosecutions. (12) Nearly forty years later in Mapp v. Ohio, the Court extended the exclusionary rule to all state prosecutions through the Due Process Clause of the Fourteenth Amendment. (13)

    The scope of the exclusionary rule is not limited to evidence seized as a direct result of the constitutional violation. (14) In general, the exclusionary rule applies not only to illegally obtained evidence but also to all evidence that is "come at by exploitation of that illegality." (15) Courts consider such evidence tainted and deem it as "fruit of the poisonous tree." (16)

  2. Purpose of the Exclusionary Rule

    Although the purpose of the exclusionary rule has not always been clear, deterrence of unlawful police conduct is the only purpose that the Supreme Court currently recognizes. (17) In Mapp, the Court mentioned policies such as ensuring judicial integrity as a purpose for having the exclusionary rule, (18) and at least one commentator has suggested that a purpose of the exclusionary rule is to restore the victims of Fourth Amendment violations to the position they were in before the violation occurred. (19) However, in United States v. Calandra, the Court made clear what the singular purpose of the exclusionary rule is by stating:

    The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim.... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. (20) Calandra established that deterrence is the only purpose of the exclusionary rule and exclusion of evidence obtained in violation of a person's constitutional rights is not a protected constitutional fight itself but, instead, is only a remedy designed to effectuate constitutional rights. Since Calandra, the Court has explicitly stated that the exclusionary rule is strictly "a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule's general deterrent effect." (21) This more recent holding clearly shows that the exclusionary rule is not mandated by the Constitution but is merely a judicial creation designed only to provide necessary protection to the Fourth Amendment.

  3. Undesirable Consequences of Using of the Exclusionary Rule

    There are many undesirable consequences of using the exclusionary rule. Since inception, the exclusionary rule has been embattled as shown by Judge Cardozo's oft-quoted characterization of the rule in the following terms:

    The criminal is to go free because the constable has blundered. .... ... The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. (22) The Supreme Court has recognized that "the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: It undeniably detracts from the truth finding process and allows many who would otherwise be incarcerated to escape the consequences of their actions." (23) This exclusion of unquestionably relevant and reliable evidence contradicts what we normally consider as justice and is a strong argument against the use of the exclusionary rule. (24) While it is not particularly hard to accept excluding inherently unreliable evidence, such as a forced confession obtained in violation of the Fifth Amendment, excluding reliable evidence is much harder to accept. The only other obvious examples of evidentiary rules that tend to exclude unquestionably reliable evidence in order to serve some other important purpose are some of the recognized privileges, such as the attorney-client privilege. (25) Nevertheless, the Court has allowed application of the exclusionary rule to Fourth Amendment violations in situations "where its deterrence benefits outweigh its 'substantial social costs.'" (26) In fact, as noted earlier, deterrence of police misconduct is the only remaining justification for the rule. (27) However, both judges and commentators have repeatedly questioned whether any real deterrence benefit actually exists, and because deterrence is the only remaining justification for the rule, this question is where much of the debate has focused. For instance, in United States v. Cusumano, Judge Cane wrote the following:

    The argument that the exclusionary rule deters police misconduct is made of whole cloth. Indeed, one must assume there is any warp or woof to it at all. In United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 3418, 82 L. Ed. 2d 677 (1984), the Court stressed the lack of empirical data to determine the effectiveness of the deterrence theory. Discussion is limited to supposition. .... Practical experience suggests the exclusionary rule is illusory as a deterrent. Officers, both zealous and overzealous, receive credit for the initial arrest and approval from their peers in the station house, not from the results of a trial or court hearing which may take place months or even years after the evidence is seized. The exclusionary rule operates only in the small fraction of police work which results in prosecution. It is understandable that an officer would be more concerned with crime prevention, "visible enforcement" or other goals such as recovering stolen property or removing narcotics from circulation than the rules involving evidence at trial. (28) Many commentators have reached similar conclusions. (29) As a corollary to this point, some commentators suggest that the wealth of exceptions to the exclusionary rule recognized by the Supreme Court creates a...

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