Introduction.

• Author: Kamins, Barry

The federal exclusionary rule, which is approaching its 100th anniversary, (1) was extended to the states almost fifty years ago by the Supreme Court in its landmark decision of Mapp v. Ohio. (2) It has thus defined the legal landscape for the entire career of virtually everyone who practices in a criminal courtroom today.

Numerous decisions have refined the scope of the exclusionary rule and recently the Supreme Court, in Hudson v. Michigan (3) and Herring v. United States, (4) limited its application in ways that have led some commentators to predict its demise. Whether or not that prediction is warranted, these decisions nevertheless provide an opportunity to reflect on the future of the exclusionary rule and to envision a world without it, even if that is a world many of us would regret.

Justice Kennedy, in his concurrence in Hudson, notably stated that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." (5) But surely Hudson changes the operation of the rule to the extent that its holding--a knock-and-announce violation by the police will not result in the suppression of evidence seized pursuant to a valid warrant--limits suppression even in cases in which evidence derives from intentional, unconstitutional police misconduct, which is the very behavior that the exclusionary rule was designed to address.

Perhaps the seeming incongruity of this result stems from two competing views of the exclusionary rule that have developed in the jurisprudence. There is, first, a "majestic conception" (6) of the rule that originates in Boyd v. United States (7) and Weeks v. United States. (8)

In Boyd, the Court wrote, "It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property...." (9)

And in Weeks, the Court established a procedure, which ultimately became the suppression hearing, allowing a defendant to seek the return of items that had been illegally seized, thus rendering them unavailable to the prosecution at his or her trial:

The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. (10) The view expressed in these decisions is concerned with preserving the integrity of the process by which convictions are obtained. It has been referred to as the "imperative of judicial integrity." (11)

But a more ends-oriented approach--the one favored by the Court in Hudson and Herring--applies the exclusionary rule only where it "result[s] in appreciable deterrence.... [W]e have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future." (12) In other words, "the benefits of deterrence must outweigh the costs." (13)

This more pragmatic approach applies the exclusionary rule only where it is necessary to deter police misconduct. Rather than finding that the integrity of the judicial process requires the rule's application in all cases in which the police have violated the Fourth Amendment, the ends-oriented approach is limited to flagrant misconduct of law enforcement. Thus, according to this view, Weeks is not so much about the integrity of the judicial process as deterrence of police misconduct: "Not only did [the officers] have no search warrant.... but they could not have gotten one had they tried. "(14)

This is therefore the view of the exclusionary rule that the Court in Herring expresses: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." (15)

A brief survey of the history of the exclusionary rule may help to understand how the Supreme Court has arrived at its current jurisprudence. As we will see, this history reflects a tension between viewing the rule, on the one hand, as upholding the Bill of Rights and the integrity of the Court's processes (16) and, on the other, as punishing law-enforcement misconduct.

Mapp v. Ohio, for example, cited both the "majestic" view of the exclusionary rule and the more pragmatic deterrent rationale. With regard to the former, it stated:

Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom implicit in the concept of ordered liberty. (17) The Court went so far as to call "the exclusion doctrine--an essential part of the right to privacy," (18) and warned that, "The ignoble...