UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 2WINTER 1986
Dismantling The Exclusionary Rule: United States v. Leon and the Courts of Washington-Should Good Faith Excuse Bad Acts?
Catherine Cruikshank
I. Introduction
Traditionally, when the government has obtained evidence by a method that violates the fourth amendment of the United States Constitution, that illegally obtained evidence has been excluded from use in both state and federal criminal prosecutions.(fn1) This exclusionary rule has been the sanction employed to enforce the fourth amendment right of citizens to be secure in their homes against unreasonable intrusions by the government;(fn2) without enforcement, the fourth amendment right is an empty promise.(fn3) The exclusionary rule, however, has come under increasing scrutiny and criticism in recent years.(fn4) The Supreme Court has developed a fourth amendment jurisprudence that greatly limits the application of the rule by narrowly construing its purpose. The rule has come to be regarded solely as a method by which to deter illegal police conduct.(fn5) Thus, the Court now excludes illegally obtained evidence only when exclusion will deter police misconduct. Increasingly, the Court discounts or entirely ignores the other policy interests the exclusionary rule has been thought to protect.(fn6)
One way in which the Supreme Court has limited application of the exclusionary rule is through its recent adoption, in United States v. Leon,(fn7) of a good faith exception. Even when viewed in light of the Court's growing reluctance to apply the exclusionary rule, the good faith exception represents a dramatic retreat from the rule's historical justifications.(fn8) Traditional policy objectives have included deterring, on a system-wide basis, violations of the fourth amendment's privacy guarantee,(fn9) preserving judicial integrity,(fn10) and carrying out the mandate of the fourth amendment.(fn11) Now, after Leon, evidence obtained through the use of an illegal search warrant will not be excluded under the fourth amendment if the officers acted in objectively reasonable reliance on a warrant issued by a neutral and detached magistrate.(fn12) The fourth amendment requires that search warrants be based on probable cause and that the area to be searched and things to be seized be adequately described. A violation of these requirements no longer suffices to exclude illegally obtained evidence.(fn13) This decision is significant because Leon and the line of cases on which it rests define a sharp shift in the Court's direction.(fn14) The inquiry no longer is whether the fourth amendment was violated,(fn15) but whether the deterrent effect of the exclusionary rule outweighs the potential cost of losing valuable evidence.(fn16)
State courts that continue to regard the rule's primary purpose as the protection of personal privacy interests need not and should not follow the Supreme Court's policy of restricting application of the exclusionary rule when these state courts interpret state law.(fn17) Each state has its own constitutional provision that historically has been understood to protect the same types of interests that the fourth amendment protects.(fn18) Independent interpretation of these state constitutional provisions can provide citizens with greater protections than are available to them under the federal constitution.(fn19) Specifically, state courts are free to promote the several purposes served by application of the exclusionary rule in light of their own constitutional guarantees.(fn20)
In Washington State, the trend toward providing individuals with greater protection under state law is well established.(fn21) Thus, the Washington Constitution's privacy provision, article I, section 7,(fn22) will not support a "good faith" exception such as the one created by the Supreme Court in United States v. Leon. Although the issue has not been expressly decided by the state supreme court, the court's general commitment to the protection of privacy rights(fn23) and its specific rejection of the deterrence rationale as the sole justification for application of the exclusionary rule compel this conclusion.(fn24)
This Note will review briefly the history of the exclusionary rule under fourth amendment jurisprudence, with special emphasis given to the purposes the rule has traditionally been thought to serve. The significance of the Leon decision then will be examined in light of the emergence in Washington of an interpretation of article I, section 7 that diverges from the Supreme Court's interpretations of the fourth amendment. This Note will conclude by discussing how article I, section 7 continues to embody the several purposes traditionally served by the exclusionary rule.(fn25)
II. History of the Exclusionary Rule
The fourth amendment does not explicitly require exclusion of illegally obtained evidence.(fn26) At common law, the legality of the method of obtaining evidence was unrelated to the admissibility of that evidence.(fn27) In 1886, the Supreme Court laid the foundation for the exclusionary rule in Boyd v. United States.(fn28) In Boyd, the Court struck down a section of a Customs and Revenue law that compelled the production of a businessman's private papers.(fn29) The Court held that the seizure of the papers was unconstitutional because their use in evidence violated the merchant's fifth amendment right against self-incrimination.(fn30)
Although Boyd was a civil case with no clear fourth amendment violation,(fn31) the Court articulated a principle of construction that set the stage for the exclusionary rule and the rule's application to federal criminal prosecutions. The Boyd Court observed that unconstitutional practices often begin as only slight deviations from accepted procedures.(fn32) To guard against these infractions, the constitutional provisions for the security of person and property must be construed liberally.(fn33) This principle of liberal construction formed the foundation for creation of the exclusionary rule twenty-eight years later in the landmark case of Weeks v. United States.(fn34)
In Weeks, a United States Marshall who had no warrant either for the arrest of Mr. Weeks or for the search of his home seized evidence from the home in Weeks' absence and without his consent.(fn35) The Court reasoned that if evidence seized in this manner could be held and used against a defendant, "the protection of the Fourth Amendment . . . is of no value . . . ."(fn36) The Weeks Court insisted that the fourth amendment puts "the courts of the United States and Federal officials . . . under limitations and restraints as to the exercise of . . . [their] power and authority . . . ."(fn37) Therefore, the unanimous Court established that evidence obtained by federal agents in violation of a defendant's fourth amendment rights should be excluded in a federal criminal prosecution.(fn38)
The Weeks decision often is cited as the authority for the proposition that the exclusionary rule is an essential part of the fourth amendment.(fn39) But regardless of whether the rule is acknowledged as constitutionally mandated or judicially created-by no means a settled question in 1914 or now-the Weeks decision left some doubt in the minds of federal prosecutors as to the reach of the judicial remedy of exclusion.
Assuming that the Weeks Court was concerned only with the government's possession of illegally obtained evidence, prosecutors in New York examined some illegally seized papers and then returned the papers to their owner.(fn40) The owner subsequently was subpoenaed and ordered to produce the papers. This case was brought before the Supreme Court in Silverthorne Lumber Co. v. United States.(fn41) Justice Holmes, writing for the Court, rejected the government's distinction between introducing the evidence that actually was seized unlawfully and other evidence derived from the unlawful seizure. The fourth amendment forbids the use in federal criminal prosecutions of any evidence obtained illegally by federal officials.(fn42)
The Court in these decisions implicitly rejected any distinction, for fourth amendment and exclusionary rule purposes, between prosecutors and police. Neither group is permitted any advantage from illegally obtained evidence. It was on the basis of this principle that Justice Holmes, dissenting in Olmstead v. United States,(fn43) argued that a distinction should not be made between prosecutors and judges. The Weeks Court overthrew the common law mandate that courts will take no notice of the method by which evidence is acquired.(fn44) The holding in Weeks thus supports Justice Holmes' conclusion: "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed."(fn45)
The common law rule and the Weeks doctrine, as embellished by Silverthorne, suggest two different models of criminal prosecution. The common law model envisions a fragmented process in which courts are merely neutral conduits of evidence.(fn46) The most important function of a court under this model is to ensure a fair trial by bringing before the trier of fact all the available, reliable evidence.(fn47) The court is separate from the rest of government. The court's presumed neutrality enables the judge to admit evidence obtained in...
