Instrumentalizing jurors: an argument against the Fourth Amendment exclusionary rule.

AuthorPettys, Todd E.

Introduction I. Jurors' Deliberative Autonomy A. The Moral Problem with Exclusionary Rules B. The Fourth Amendment Exclusionary Rule II. Remedying the Problem A. Lesser Approaches B. Abandoning the Exclusionary Rule 1. Broaden the Availability of Punitive Damages for Violations of the Fourth Amendment 2. Increase Municipalities' Financial Exposure for Fourth Amendment Violations Committed by Their Law Enforcement Officers 3. Increase the Amount of Attorney's Fees That May Be Recovered by Incarcerated Plaintiffs in Actions Brought Under [section] 1983 Conclusion INTRODUCTION

Ever since the Fourth Amendment exclusionary rule emerged on the scene roughly a century ago, (1) judges and scholars of formidable intelligence and towering reputations have disagreed about the rule's merits. Prior generations found Justice Potter Stewart declaring, for example, that "the exclusion of illegally obtained evidence" (2) is the only effective means of "ensur[ing] that the government does not violate the fourth amendment at its pleasure," (3) while Judge Benjamin Cardozo condemned the notion that "It]he criminal is to go free because the constable has blundered." (4) Today, Wayne LaFave painstakingly defends the exclusionary rule (5) and calls the Fourth Amendment his "cheval de bataille," (6) while Akhil Amar insists that "[t]he exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens." (7) The core reasons for the rule's divisiveness are not difficult to perceive. Without the exclusionary rule or any other deterrence mechanism, one can reasonably fear that government officials will sometimes behave like totalitarian bullies, brazenly disregarding the Fourth Amendment's demands and securing criminal convictions on the strength of illegally obtained evidence. With the exclusionary rule, one can reasonably fear that guilty and possibly dangerous individuals will sometimes be released due to seemingly technical Fourth Amendment violations, thereby frustrating many citizens' conceptions of justice and good sense.

Both of these countervailing fears have powerfully influenced the Supreme Court's Fourth Amendment jurisprudence. With respect to the fear of totalitarian behavior, the exclusionary rule traces its birth to cases in which government officials evinced no regard whatsoever for citizens' Fourth Amendment rights. In the landmark case of Weeks v. United States, (8) for example, state and federal law enforcement officers searched the defendant's home without a warrant and seized numerous items of evidence while the defendant was away, after a neighbor showed the police where a key to the defendant's residence was hidden. (9) In Silverthorne Lumber Co. v. United States, (10) federal officials entered the defendant's office "without a shadow of authority ... and made a clean sweep of all the books, papers and documents found there." (11) In Agnello v. United States, (12) one group of federal officials took the defendant to the local police station while another group simultaneously searched the defendant's home without a warrant and seized incriminating evidence. (13) In Mapp v. Ohio, (14) police officers forced their way into the defendant's residence, physically restrained the defendant, and searched the defendant's residence without a warrant, all despite the defendant's vociferous objections. (15) The Court created the exclusionary rule with the hope that, stripped of the incentive to obtain evidence illegally for use in criminal prosecutions, law enforcement officers would not commit such abuses again. (16)

With respect to the fear that guilty and possibly dangerous defendants will escape punishment due to non-egregious violations of the Fourth Amendment, the Court has identified numerous occasions when the exclusionary rule need not be applied. In United States v. Leon, (17) for example, the Court held that the exclusionary rule does not "bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." (18) The Court found that applying the exclusionary rule in such cases would provoke "'disrespect for the law and administration of justice.'" (19) In Illinois v. Krull, (20) the Court held that the exclusionary rule does not apply when an officer acts in objectively reasonable reliance upon a statute that is later held unconstitutional. (21) For the officer who is complying with a statute in an objectively reasonable manner, the Court found, the exclusionary rule is likely to have "little deterrent effect." (22) In Hudson v. Michigan, (23) the Court held that the exclusionary rule does not apply when the police arrive at a residence to execute a search warrant but enter the residence before giving the defendant adequate time to answer the officers' knock on the door. (24) To apply the exclusionary rule on these facts, the Court concluded, "would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago." (25) Most recently, in Herring v. United States, (26) the Court held that the exclusionary rule may not apply when "an officer reasonably believes there is an outstanding arrest warrant [and accordingly arrests the suspect and conducts a search incident to arrest], but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee[.]" (27)

These two fears--the fear of totalitarian behavior by law enforcement officials and the fear of releasing guilty and perhaps dangerous defendants-weigh especially heavily on the judge who must decide whether the exclusionary rule applies in a given case. As Justice Stewart acknowledged on behalf of the Court in Elkins v. United States, (28) judges have no desire to "be accomplices in the willful disobedience of a Constitution they are sworn to uphold." (29) The power to exclude illegally obtained evidence thus enables judges to maintain a sense of "judicial integrity." (30) Yet a judge's sense of integrity can sometimes be strained by the exclusionary rule itself. As Judge Henry Friendly observed, judges take no pleasure in "perform[ing] the distasteful duty of allowing a dangerous criminal to go free because of a slight and unintentional miscalculation by the police." (31) No judge takes satisfaction in associating himself or herself with (as Professor Amar puts it) "grinning criminals getting off on crummy technicalities," (32) nor does any judge want to be part of the story that is told when a defendant who benefits from the suppression of incriminating evidence commits terrible crimes after he or she has been released.

The most personally wrenching Fourth Amendment cases for judges might be those that fall somewhere between two extremes--cases in which law enforcement officers' conduct is not as egregious as the conduct that prompted the Court to create the exclusionary rule in the first place, yet not so innocent (or otherwise removed from the rule's core objectives) as to fall within any of the rule's available exceptions. Unless a judge believes that such a case falls beyond the reach of Supreme Court precedent, he or she presumably will apply the rule and suppress the illegally obtained evidence. Yet the judge might anguish about whether he or she is truly doing justice, in the broadest sense of the term.

There are at least two ways in which our legal system offers solace to judges who feel misgivings when they suppress incriminating evidence pursuant to the exclusionary rule. The first involves what James Whitman, in a different context, calls "agency denial"--the notion that, when the judge carefully obeys the law's substantive and procedural demands, "it [is] the law that [makes] the decision, not the judge." (33) Professor Whitman credits Saint Augustine and Saint Jerome with proposing this conception of judges as mere "ministers of the law" in the fifth century; (34) he finds this conception reiterated by Gratian in the twelfth century (35) and argues that it provided one of the chief ways in which medieval judges learned to deflect moral responsibility for their actions. (36) Agency denial can play a role today when judges feel qualms about applying the exclusionary rule. In 1961, for example, when the Supreme Court announced that state judges were just as obliged as their federal counterparts to apply the exclusionary rule when law enforcement officers violate the Fourth Amendment, the Court offered state judges a version of Augustine's and Jerome's ancient assurance: "The criminal goes free, if he must, but it is the law that sets him free." (37)

The second source of solace for judges who are troubled by their applications of the exclusionary rule lies in the subject of this Article: the work performed by jurors. Scholars and judges have long recognized that, when a judge shares the stage with a jury, the judge diffuses the responsibility that he or she must bear for unpopular outcomes. (38) In the sixteenth century, for example, Sir Thomas More and others observed that "judges sought refuge from the ... agonies of decision by ... refusing to meddle with questions of fact" and by placing those factual questions in the hands of jurors. (39) James Stephen similarly noted in the late nineteenth century that trial by jury "saves judges from the responsibility--which to many men would appear intolerably heavy and painful--of deciding simply on their own opinion upon the guilt or innocence of the prisoner." (40) That sense of shared responsibility confers benefits upon a judge when he or she suppresses illegally obtained yet damning evidence of the defendant's guilt and the defendant is ultimately acquitted by a jury. Although the judge is, of course, the one who made the crucial evidentiary ruling, a portion of the public's ire can be directed to the jurors...

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