A spectacular non sequitur: the Supreme Court's contemporary Fourth Amendment exclusionary rule jurisprudence.

• Author: Gray, David
• Position: Introduction through II. A Brief History of the Fourth Amendment Exclusionary Rule, p. 1-29

ABSTRACT

Much of the Supreme Court's contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H. L. A. Hart described in another context as a "spectacular non sequitur." The Court's non sequitur is a consequence of its recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This exclusively consequentialist approach ignores or rejects the principled foundations of the rule. It also creates conceptual and practical problems for the Court's larger exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

TABLE OF CONTENTS INTRODUCTION I. THE SPECTACULAR NON SEQUITUR A. Bentham's Spectacular Non Sequitur B. The Supreme Court's Spectacular Non Sequitur II. A BRIEF HISTORY OF THE FOURTH AMENDMENT EXCLUSIONARY RULE A. The Principled Origins of the Exclusionary Rule B . The Punitive Turn and the Rise of Consequentialism C. The Court's Contemporary Deterrence-Only Approach D. The Exclusionary Rule's Retributivist Roots E. A Hybrid Theory of the Exclusionary Rule III. THE CONSEQUENCES OF THE SPECTACULAR NON SEQUITUR A. The Good Faith Exception B. The Cause Requirement C. The Standing Requirement IV. CONCLUSION INTRODUCTION

Much of the Supreme Court's contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a "spectacular non sequitur." (1) That path to irrelevance is paved by the Court's insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers from committing future violations. (2) This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. (3) More worrisome, however, is that deterrence considerations are conceptually insufficient by themselves to justify core components of the Court's Fourth Amendment exclusionary rule doctrine, including the good faith exception and the cause and standing requirements. (4) Faced with this conclusion the Court has two options: It can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions, or it can preserve and clarify the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory that embraces retributive principles derived from the constitutional imperatives historically dominant in the Court's exclusionary rule cases. (5) This Article contends that the Court should take the latter road. There are tolls to be paid, of course, but they are modest and few. Principal among them is that the Court must again endorse the exclusionary rule as a "necessary consequence of a Fourth Amendment violation" (6) rather than as a mere judicial construction contingently supported by speculative deterrence calculations. This Article therefore stands in opposition not only to the contemporary Court, but also to proposals by Guido Calabresi, (7) Christopher Slobogin, (8) Akhil Amar, (9) Randy Barnett, (10) Richard Posner, (11) and others that would jettison the exclusionary rule in favor of alternatives such as sentencing reduction and civil enforcement. (12)

The charge of spectacular non sequitur requires explanation and elaboration. Part I makes the initial case. Part II traces the doctrinal history in order to highlight the central role of constitutional principle in the Court's construction and elaboration of the Fourth Amendment exclusionary rule and its more recent decision to justify the rule as a form of punishment designed to deter officers from violating the Fourth Amendment. (13) Although subject to criticism on and off the Court, this "punitive turn" (14) raises the question of what theory of punishment should guide courts when applying the exclusionary rule.

Part II draws connections between the Court's historical concerns with constitutional principle and retributivist theories of punishment to propose a hybrid theory committed to retributivist principles and to utilitarian concerns. This proposal is offered not as an ideal defense of the exclusionary rule but as a conceptually coherent account of the Court's exclusionary rule jurisprudence after taking the punitive turn as a given. Others may prefer to turn back the clock, but that is not the agenda here. (15)

Part III discusses major components of the Court's exclusionary rule jurisprudence including the good faith exception, the cause requirement, and the standing requirement, and offers three principal reasons why this hybrid approach is novel and more powerful than prior attempts to theorize the Fourth Amendment exclusionary rule. First, as Christopher Slobogin has pointed out, all the non-utilitarian defenses of the exclusionary rule that have been offered so far turn on the claim that suppression is an individual right of the defendant. (16) The hybrid approach proposed here does not; rather, it frames exclusion as a retributively justified public response to illegal searches. Second, as Akhil Amar has argued, all of the Court's attempts to justify the exclusionary rule and its doctrinal components after the punitive turn are "wholly inadequate to the task at hand" and "cannot explain where [the exclusionary rule] comes from ... why it applies only in criminal and not civil cases ... [or the] Fourth Amendment standing doctrine." (17) The hybrid approach is up to this task. Third, in answer to frequent complaints about the Court's contemporary deterrence-only approach, renewed again recently in Messerschmidt v. Millender, (18) the hybrid approach promises welcome predictability by providing lower courts with clear guidance based on familiar common law rules governing criminal responsibility. Part IV concludes.

1. THE SPECTACULAR NON SEQUITUR

   Jeremy Bentham famously attempted to rationalize familiar culpability excuses such as infancy and insanity based solely on utilitarian considerations, (19) and without relying on the retributivist principles traditionally deployed to defend common law conditions of criminal responsibility. (20) H.L.A. Hart later argued that Bentham's efforts amount to a "spectacular non sequitur." (21) This Part contends that the charge Hart levels against Bentham applies with equal force to the Supreme Court's efforts to justify the Fourth Amendment exclusionary rule based solely on deterrence considerations. It begins by elaborating Hart's critique of Bentham.

   1. Bentham's Spectacular Non Sequitur

      The common law has long excused those who act from infancy, insanity, or honest mistake of fact. Retributivists endorse these excuses in light of their principled commitment to punish only those who are culpable for their conduct. (22) Bentham rejected retributivism but was nevertheless interested in preserving these common law excuses. He therefore attempted to reconstruct them based solely on utilitarian considerations. (23) Bentham's efforts turn on his claim that it would be "inefficacious" to punish inculpable offenders because the threat of penal sanction did not and could not reach them, and therefore did not and could not have played a role in their decisions to act. (24) From a utilitarian point of view, Bentham reasons, punishing the inculpable simply serves no crime-control purpose because they could not have been deterred. Bentham therefore concludes that the insane, the infantile, and those who act from mistake should qualify for a general excuse from criminal responsibility because punishing them would cause pain without generating compensatory reductions in future disutility as a product of deterrence. (25)

      The substance buttressing Hart's charge of "spectacular non sequitur" is that Bentham's attempted reconstruction of common law excuses falls well short of justifying a general prohibition against, for example, punishing the insane. Rather, "all that [Bentham] proves," Hart writes, "is the quite different proposition that the threat of punishment will be ineffective so far as the class of persons who suffer from these conditions is concerned." (26) Hart continues:

      Plainly it is possible that though (as Bentham says) the threat of punishment could not have operated on them, the actual infliction of punishment on those persons, may secure a higher measure of conformity to law on the part of normal persons than is secured by the admission of excusing conditions. (27) It is a straightforward but powerful point with echoes in the distinction between specific deterrence and general deterrence. Punishing an insane offender may not serve to deter that offender or others who are insane. However, punishing all offenders, including the insane, may well aid in deterring other potential offenders who would be inclined to violate the law were it not for the clear and...