Way before Nirvana There was U2 and Blondie And music still on MTV Her two kids in high school They tell her that she's uncool Cause she's still preoccupied With 19, 19, 1985 (1) Introduction I. Back to the Future? A. The (Unhappy) History of the Exclusionary Rule B. The "New" Exclusionary Rule Debate: Hudson and Herring 1. Hudson 2. Herring II. Normative and Empirical Dimensions of the Overdeterrence Hypothesis A. The Overdeterrence Concept B. Police Incentives C. Testing the Overdeterrence Hypothesis 1. Warrant Searches 2. Warrantless Searches 3. Terry Stops 4. Police Brutality 5. Arrests 6. Summary of the Evidence on the Overdeterrence Hypothesis III. Rights-Based Theories of the Exclusionary Rule IV. Virtual Deterrence A. Virtual Deterrence: The Basic Idea B. Pros and Cons C. The Bottom Line on Virtual Deterrence Conclusion INTRODUCTION
The exclusionary rule for evidence found in violation of the Fourth Amendment is, again, in play. In Hudson v. Michigan, (2) the Court held that the exclusionary rule does not apply to violations of the Fourth Amendment's knock-and-announce requirement. This by itself was not surprising. Justice Scalia's majority opinion, however, joined by Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito, contained language, gratuitous to the result, lamenting the "substantial social costs" of the exclusionary rule, questioning the need for the "massive remedy" of exclusion, (3) and claiming the effectiveness of alternative remedies. The phrase "substantial social costs" appears three times in the majority opinion. (4) Justice Breyer's stout dissent, joined by Justices Stevens, Souter, and Ginsburg, replied that exclusion would deter violations (5) and threw cold water on the claim of effective alternatives. (6) Justice Kennedy, who joined in the majority, filed a concurrence including the assertion that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." (7) He was the only justice to express this particular view.
Just this January, in Herring v. United States, (8) the justices divided into the same blocs. This time, however, Justice Ginsburg's dissent raised the ante, by arguing that the familiar cost-benefit approach to applying the exclusionary rule is misguided. (9) For the first time since Justice Brennan left the Court, members of the Court appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. (10)
The ideas in this "new" debate, however, are about as fresh as the musty air of an antique shop. The Justices have added nothing to the stock arguments of their predecessors on the Burger Court. I find myself wearing the remains of my hair long, putting on wide ties, reading dismal economic news, and seeing in the latest pages of the Supreme Court Reporter the United States v. Leon decision (11) being countered by appeals to 1983 law review articles and prior dissenting opinions by Justice Brennan. (12) It could be 1985 all over again.
This Article has two objectives. The first is to discredit both the majority and dissenting positions in Herring. I contend that the loss of evidence is a cost of the exclusionary rule, as distinct from the Fourth Amendment, only in a precise technical sense. It is conceptually possible that the rule might deter borderline but legal police activity. (13) While that cost is conceptually possible, the empirical evidence does not suggest that it is significant. (14)
Notions of a right to exclude illegally-obtained evidence based on unitary-transaction theories or judicial integrity are equally unsound. (15) They rest on a conception of substantive Fourth Amendment rights that goes beyond personal security and informational privacy to include a constitutional right to private crime. Moreover, right-to-exclude accounts indeed threaten the good-faith immunity defense in tort, (16) with the attendant risk of overdeterrence. If Justice Ginsburg invoked the Brandeis and Brennan views of exclusion because she believes that the cost-benefit cases have shortchanged deterrence (a correct apprehension), the Herring dissent is less than candid, as well as less than logical--a red Herring, as it were.
My second objective is more constructive. I have previously suggested the suppression of evidence contingent on the failure to pay damages. (17) If damage actions really were a good remedy for typical violations, I would stand by this idea. Assessing the damages, however, is difficult and dangerous. If damages are set too high, they will overdeter; if set too low, they will underdeter. Using the administrative machinery of the motion to translate suppression into damages, therefore, takes an interesting road to the wrong destination.
Whether achieved by suppression or by damages, deterrence operates by giving the police incentives to prevent future violations. There are different administrative means to this end. If the violation is negligent, retraining the officer or instituting more intensive training programs for the wider force are plausible options. If the violation is reckless or intentional, discipline as well as retraining may be appropriate.
If the point of exclusion is deterrence, why exclude now and hope the police take preventive action later? Why not, in other words, suppress tainted evidence, then give the prosecution the opportunity to prove the precise, concrete steps the police department has taken to prevent recurrence? If the court finds the corrective action adequate, the evidence could be received; if not, it would be suppressed.
Part I locates the current controversy in historical context, a prelude to Part II's attack on the Herring majority's concept of the exclusionary rule's costs and Part III's attack on the Herring dissent's turn to theories other than deterrence. Part IV makes the case for my revised contingent exclusionary rule, an approach I call, in keeping with my plea for modernity, "virtual deterrence."
BACK TO THE FUTURE?
The (Unhappy) History of the Exclusionary Rule
The doctrinal history of the exclusionary rule is well known and can be briefly summarized. Weeks v. United States permitted a pretrial motion for the return of property in order to prevent the government's use of incriminating evidence against the search victim. (18) Weeks made sense given the dual doctrines of Boyd v. United States: the Fourth Amendment forbids the seizure of evidence other than contraband, fruits, and instrumentalities, and the Fifth Amendment forbids the use of the accused's property to prove his guilt at trial. (19) Silverthorne Lumber Co. v. United States retained the exclusionary rule despite a corporation's lack of Fifth Amendment rights, (20) and Agnello v. United States blessed the suppression of contraband seized in violation of the Fourth. (21)
Some states followed Weeks and some states did not. In Wolf v. Colorado the Court held that the Fourth Amendment applies to the states through Fourteenth Amendment due process, but refused to apply the exclusionary remedy on unwilling states. (22) Twelve years later, Mapp v. Ohio reversed the latter holding. (23)
The Mapp opinion faithfully reflected the doctrinal incoherence of the federal exclusionary rule cases, which remained premised on property rights and the self-incrimination privilege, but often disregarded these premises to reach results calculated to regulate federal law-enforcement agencies, as in Agnello. Mapp cited the ineffectiveness of other remedies, (24) the need to deter misconduct, (25) and "the imperative of judicial integrity." (26) Only Justice Black, who supplied the fifth vote, worked from the Boyd doctrine to reach the Mapp result. (27) Since Twining v. New Jersey (28) and Adamson v. California, (29)--holding that the Fifth Amendment self-incrimination privilege did not apply to the states through the Fourteenth Amendment--were not yet overruled by Malloy v. Hogan, (30) this is perhaps not surprising.
Subsequent cases made clear the salience of the deterrence rationale. Linkletter v. Walker (31) refused to apply Mapp retroactively, a result consistent with the deterrence theory. Alderman v. United States (32) retained the standing requirement, a seeming retention of the Fifth Amendment theory, but the opinion took pains to stress that the search victim's right to exclude provided adequate deterrence of Fourth Amendment violations. (33)
Through Alderman, the history of the exclusionary rule tracks the history of the Fourth Amendment generally. The early federal Fourth Amendment cases reflected an "atomistic" conception of the Amendment as protecting individual entitlements to property, privacy, and personal security. (34) Searches were defined as tortious trespasses upon private property interests; (35) executive-branch agents could not engage in such trespassory activity without a judicial warrant; (36) warrants by their terms could be issued only with probable cause and the agents logically could have no greater power without judicial authorization than with it. Even when authorized by a valid warrant, the seizure of any property other than fruits, instrumentalities, or contraband was held to violate the Fourth Amendment. (37) Exclusion, exemplified by Weeks, aimed to restore the status quo ante when the government's agents had broken into private spheres without lawful authority.
The logic of this atomistic perspective, however, often yielded to the "regulatory perspective," the perceived necessity to discourage lawless actions by the police, even when those actions could not be equated with tortious invasions of private property rights. During the Prohibition Era, contraband booze could be the subject of suppression and even of return. (38) This surely reflected some degree of sentiment for nullification, but it also reflected a quite principled concern that if...