Is the Exclusionary Rule Doomed?, 0315 SCBJ, S.C. Lawyer, March 2015, #40

Author:Rhett DeHart, J.
 
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Is the Exclusionary Rule Doomed?

Vol. 26 Issue 5 Pg. 40

South Carolina BAR Journal

March, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Rhett DeHart, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Fourth Amendment to the Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1] Yet the Constitution is silent as to how the Fourth Amendment should be enforced, and it says nothing about suppressing evidence obtained in an unreasonable search and seizure. To enforce the protections of the Fourth Amendment, the Supreme Court created the exclusionary rule, “a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”2

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The first case to adopt the exclusionary rule was Weeks v. United States.3 In Weeks, the Court held that evidence seized in violation of the Fourth Amendment was inadmissible against a defendant in a federal criminal trial. The practical impact of the Weeks decision was modest because it applied only to federal prosecutions, which were relatively rare in 1914. This changed in 1961 when the Court decided Mapp v. Ohio.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Mapp, the Supreme Court ruled that the exclusionary rule was required in all state criminal justice systems. By any measure, the conduct in Mapp was egregious. Officers forced open the door to Mapp’s house, prevented her lawyer from entering, brandished a false search warrant, placed her into handcuffs, and searched her house illegally.5 Based on the materials found during the unlawful search, Mapp was convicted of possession of obscenity.6 After her conviction was upheld in state court in Ohio, the Supreme Court reversed Mapp’s conviction.7 In overruling a previous decision that allowed each state to devise its own procedures to deter Fourth Amendment violations, the Court in Mapp held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court.”[8]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Mapp decision was criticized by many in law enforcement for violating the principles of Federalism and endangering public safety. Chief Justice John Roberts worked to restrict the exclusionary rule as a young lawyer in the Reagan Administration.9 Justice William Rehnquist spoke for many in law enforcement when he wrote that, “I feel morally certain that the United States is the only nation in which the most relevant, most competent evidence as to the guilt or innocence of the accused is mechanically excluded because of the manner in which it may have been obtained.”10

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Many civil libertarians, by contrast, cheered the Mapp decision and argued that the exclusionary rule was part and parcel of the Fourth Amendment and was necessary to deter police misconduct. In their view, any violation of the Fourth Amendment justified the exclusionary rule, and the exclusionary rule was a necessary corollary to the Fourth Amendment. Justice Ruth Bader Ginsburg reflected this view in a recent dissent when she referred to the exclusionary rule “as an essential auxiliary” to the Fourth Amendment which “earlier inclined the Court to hold the two inseparable.”11

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For years after the Mapp decision, the civil libertarian view prevailed, but it seems the tide has turned. In the last six exclusionary rule cases, the Supreme Court has ruled against the application of the exclusionary rule in each case. Several recent decisions by the Roberts Court have led some legal scholars to predict that the Supreme Court will soon abolish the exclusionary rule.12

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Good-faith exception

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The first sign that the Supreme Court sought to ease the impact of the exclusionary rule came in 1984 in United States v. Leon.13 In Leon, the Court established the good-faith exception to the exclusionary rule. The Court ruled that the exclusionary rule should not apply where police conducted a search in reasonable reliance on a search warrant that was later held invalid.14 In Leon, a magistrate judge found that there was probable cause to issue a search warrant, but this probable cause determination was later reversed by a district judge.15 The magistrate judge, not the police, committed the error, and the Court in Leon held that deterring judicial errors was not the purpose of the exclusionary rule.16 In Illinois v. Krull, 17 the Supreme Court extended the good-faith exception to searches conducted in reasonable reliance on a statute that was later ruled unconstitutional. The Court reasoned that penalizing the police for the legislature’s error would not deter Fourth Amendment violations.18 And in Arizona v. Evans, the Supreme Court applied the good-faith exception where police reasonably relied on an arrest warrant in a computer database that, unbeknownst to the officer, had previously been quashed.19 In Evans, a court employee, as opposed to a law enforcement officer, was responsible for the failure to remove the quashed warrant from the database.20 Like in Leon, the Court reasoned that the exclusionary rule was designed to deter police misconduct, not mistakes by court employees.21

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0None of these cases in which the good-faith exception was applied involved mistakes by a law enforcement officer or employee. This changed in 2006. In Hudson v. Michigan, the police violated the knock-and-announce rule when they executed a search warrant at a house in Michigan.22 (The knock-and-announce rule generally requires law enforcement officers to announce their presence and give residents an opportunity to open the door before executing a warrant.) Despite the knock-and-announce violation, the search warrant was valid, and during the search, police found cocaine and a handgun.23 Because the police violated the knock-and-announce rule, the defendant moved to suppress the contraband found during the search of his house.24

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a 5-4 opinion written by Justice Antonin Scalia, the Supreme Court ruled that the exclusionary rule was not an appropriate remedy for a knock-and-announce violation.25 The Court reasoned that even if the knock-and-announce rule had not been violated, the police would have executed the search warrant and would have found the drugs and guns anyway.26 Because the failure to wait at the door for a sufficient time before entering the house did not cause the discovery of the evidence, the Court ruled that suppression was not appropriate.27 In affirming Hudson’s conviction, the Court noted that the exclusionary rule generates significant societal costs that “sometimes include setting the guilty free and the dangerous at large.”28 Due to such societal costs, the Court reasoned, suppression of evidence is “our last resort, not our first impulse.”29

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Herring v. United States, the Supreme Court decided whether the exclusionary rule should apply where a defendant was arrested on an outstanding arrest warrant that, unbeknownst to the arresting officer, had been previously rescinded.30 In Herring, a sheriff’s deputy saw Herring drive to the sheriff’s office to retrieve something from his...

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