In defense of the exclusionary rule.

• Author: Lynch, Timothy

1. INTRODUCTION

   The Fourth Amendment to the United States Constitution reads:

   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 thy place to be searched, and the persons or things to be seized.(1) The Fourth Amendment was designed to shield the citizenry from unbridled police power to search and seize. No power of government, short of arrest and incarceration, has such a direct impact upon the life, liberty, and property of individual citizens. As Fourth Amendment scholar John Wesley Hall, Jr. observed:

   The raw power held by a police officer conducting a search is enormous. An officer wielding a search warrant has the authority of the law to forcibly enter one's home and search for evidence. The officer can enter at night and wake you from your sleep, roust you from bed, rummage in your drawers and papers, and upend your entire home. Even though the particularity clause of the warrant defines the scope of the search, the search, as a practical matter, will be as intense as the officer chooses to make it.(2) Indeed, when the police come to a house or business and demand entrance, the individual citizen has only a moment to decide whether to risk violence by withholding consent or, alternatively, to yield to one or more strangers. If police officers gain entrance and then abuse their search authority -- by using profanity in front of young children,(3) pointing their weapons at nonthreatening occupants,(4) damaging family belongings,(5) detaining residents for inordinate periods of time,(6) or using excessive force against the individual or his family(7)--the individual citizen can only stand by helplessly until such time as the police decide to leave. An aggrieved citizen might later hire a lawyer and file a lawsuit, but his likelihood of success would be far from certain, and it could take years to secure any compensation or vindication for such abuse.(8)

   Many citizens have lost their very lives during police searches. Here are a few recent examples of the tragic consequences that sometimes can accompany the execution of a police search:

   In 1995, sheriff's deputies in Beaver Dam, Wisconsin, burst into a trailer home to execute a search warrant as part of a drug investigation. Moments after the deputies entered the trailer, one of them shot and killed 29-year-old Scott Bryant. Bryant, who was unarmed and offered no resistance, died in front of his eight-year-old son. A search of the residence uncovered a few grams of marijuana.(9) In 1994, a police SWAT team in Boston broke down an apartment door without warning and tackled an elderly occupant. When the search did not turn up any drugs, the police soon realized they had raided the wrong home. The elderly man the police had tackled and handcuffed turned out to be a retired minister. The Rev. Accelynne Williams suffered a severe heart attack during the search and died the same afternoon.(10) In 1992, California law enforcement agents burst into Donald Scott's Malibu ranch at an early morning hour. Scott, who was in the process of getting dressed, thought he was being burglarized, so he retrieved his handgun. When he rushed into his living room carrying his gun, he was shot dead by the police. A subsequent inquiry into this incident by the local district attorney found that drugs never were located on the ranch and that Scott was completely innocent.(11) In 1996, an Iowa City patrolman's suspicions were aroused when he noticed that the door to a business firm was ajar at midnight. The patrolman thought a burglary might be in progress so he requested a backup unit. When another police unit arrived on the scene, officers entered the business to investigate. Moments after entering the building, a patrolman shot and killed 31-year-old Eric Shaw. Shaw turned out to be an artist who frequently worked on his sculptures at his father's business late in the evening because he ran his own small business during the day. Shaw was unarmed, offered no resistance, and had his father's permission to work on the premises.(12) Given such chilling examples -- regrettably, only a small sample -- fair-minded people from across the political spectrum should agree that the Fourth Amendment's safeguards against unreasonable searches are as important today as they were two hundred years ago.

   Like the other amendments that constitute the Bill of Rights, the Fourth Amendment was written and ratified to protect the citizenry against overweening government. But none of these amendments is self-enforcing. Much of the modern debate surrounding enforcement of the Fourth Amendment has focused on the wisdom or constitutional necessity of the exclusionary rule. Under that rule, evidence obtained in violation of the Fourth Amendment is ordinarily inadmissible against a criminal defendant at trial.

   A simple example will illustrate how the exclusionary rule can affect a criminal investigation. If a policeman gets a tip that a local cab driver, Tom Smith, has been moonlighting as a cat burglar, the officer might launch an investigation and search for evidence that would enable him to arrest and prosecute Smith. If the policeman decided that the fastest way to find evidence was to break into Smith's home without a search warrant, however, his effort would be for naught. Even if the police officer discovered seven stolen TV sets in Smith's living room, a judge would almost certainly throw the case out of court -- at least under current law. Smith's attorney could have the trial judge bar the admission of the stolen goods as evidence because the officer obtained the evidence through an illegal search.(13) Without that illegally obtained evidence, the district attorney probably would be unable to prosecute successfully a case of theft.

   The exclusionary rule is very controversial. Conservatives often oppose the rule as not grounded in the Constitution, not a deterrent to police misconduct, and not helpful in the search for truth in criminal proceedings.(14) They believe more sensible ways exist to handle law enforcement abuses.(15) Thus, when Republicans gained control of Congress in 1995, conservative legislators immediately set their sights on the exclusionary rule.(16) Although that "reform" effort did not succeed, similar efforts will likely resurface in the future.

   Liberals, on the other hand, generally have defended the exclusionary rule, both as an appropriate judicial remedy for Fourth Amendment violations and as a mechanism to deter police misconduct. This Article will conclude that the exclusionary rule is fundamentally sound, but for somewhat different reasons than liberal legal scholars typically offer.

   The drive to abolish the exclusionary rule is fundamentally misguided on constitutional grounds, for the rule can be justified on separation of powers principles, which conservatives generally support. When agents of the executive branch (the police) disregard the terms of search warrants or attempt to bypass the warrant-issuing process altogether, the judicial branch can and should respond by "checking" such misbehavior when it can. The most opportune time to check such unconstitutional behavior is when lawyers for the executive branch (prosecutors) attempt to introduce illegally seized evidence in court. Because the exclusionary rule is the only effective method the judiciary has to preserve the integrity of its warrant-issuing authority, any legislative attempt to abrogate the rule should be declared null and void by the Supreme Court.

2. FIRST PRINCIPLES: THE SEPARATION OF POWERS DOCTRINE

   Before examining the constitutional merits of the exclusionary rule in detail, it will be useful to begin with first principles and then proceed, through deduction, to the narrow question of whether use of the exclusionary rule can be justified in criminal proceedings.

   One might say without overstatement that the central organizing principle of the U.S. Constitution, as distinct from its substantive principles, is the separation of powers doctrine. Although the phrase "separation of powers" does not appear in the constitutional text, no one can deny that the Constitution's structure centers on that maxim. Article I vests certain "legislative Powers" in Congress;(17) Article II vests the "executive Power" in the President;(18) and Article III vests the "judicial Power" in the Supreme Court.(19) As Justice Joseph Story observed:

   The first thing, that strikes us, upon the slightest survey of the national Constitution, is, that its structure contains a fundamental separation of the three great departments of government, the legislative, the executive, and the judicial. The existence of all these departments has always been found indispensable to due energy and stability in a government. Their separation has always been found equally indispensable, for the preservation of public liberty and private rights. Whenever they are all vested in one person or body of men, the government is in fact a despotism, by whatever name it may be called, whether a monarchy, or an aristocracy, or a democracy.(20) Because two hundred years have passed since the ratification of the Constitution, modern day Americans tend to forget that the Constitution of 1787 represented a bold new experiment in political science. In England, the balance of power would shift back and forth between the King and Parliament.(21) The judiciary was not known as a separate power, but was in both theory and practice a part of the executive.(22) While the Framers of the U.S. Constitution did incorporate those aspects of the British Constitution they deemed worthwhile, the separation of powers principle and an independent judiciary are distinctively American innovations in political science.(23)

   To guard against the danger of one...