The U.S., however, is the only industrial democracy, common law or otherwise, in which courts must throw out tainted evidence in criminal trials. The U.S. Supreme Court decisions establishing and expanding on this principle have collectively come to be known as the "exclusionary rule." Although the rule had its origins in arguments about the morality of obtaining a conviction while relying on improperly obtained evidence, its primary modern justification is that it deters illegal conduct by the state. However, an unexamined premise of this belief is that if illegally acquired evidence may be thrown out, decreasing the probability of conviction, then the police, prosecuting attorneys and other law-enforcement officials have an increased incentive to obey the rules.... improper conduct is assumed to be socially costly. Illegal searches, fabricated confessions, and other violations subject to the exclusionary rule are assumed to be worthy of deterrence in their own right. (Osborne 1999:381)
Osborne then goes on to argue that even though the exclusionary rule is unique, constitutionally founded and in many ways effective it is not effective enough to resolve the issues in a complicated criminal court system that is purportedly tough on crime.
The question to be answered is how the rule performs in deterring such misconduct. The answer, based on principal-agent analysis, is that absent a carefully crafted compensation rule for those personnel, it performs poorly. The rule is questionable not just because of any costs associated with lost convictions but because it does not sufficiently deter law-enforcement violations. (Osborne 1999:381)
Osborne would have the exclusionary rule amended to include a compensation rule, where in the accused is compensated in some way for any found violations to the fourth amendment. This clearly begs the question, how much and by who, if Osborne has his way the individual(s) officers and departments who committed the alleged violation. As torte is challenged in every other arena of law, and now in an area where it has never been an issue, would it be wise to allow torte under certain conditions? DO officers and departments not already feel as if the defendants they work so hard to arrest already have more rights than the victims they harm, or even law enforcement itself?
In Pennsylvania -- another state whose courts had admitted illegally seized evidence prior to Mapp -- a young Philadelphia assistant district attorney (and a future U.S. Senator), Arlen Specter, left little doubt that in this state, too, the so-called alternative remedies to the exclusionary rule had had virtually no effect. Commissioner Murphy had likened Mapp to a "tidal wave" and an "earthquake"; Mr. Specter compared it to a revolution: Police practices and prosecution procedures were revolutionized in many states by the holding in... Mapp v. Ohio that evidence obtained from an illegal search and seizure cannot be used in a criminal proceeding.... [There are indications] that the imposition of the exclusionary rule upon the states is the most significant event in criminal law since the adoption of the fourteenth amendment.... Mapp has rewritten the criminal law treatise for states which had admitted evidence regardless of how it was obtained. (28) (Kamisar 2003:119)
Historically speaking the rule has a long history and as this expert points out the original intent was not to deter criminal behavior on the part of the state but simply to uphold the fourth amendment rights of the accused.
Although the rule can be traced back over 80 years, deterrence was not always an important part of its jurisprudence. The principle of excluding evidence that was obtained in violation of constitutional rights can be traced to Weeks v. U.S. [232 U.S. 383 (1914)]. The Supreme Court overturned the conviction of the defendant, ruling that government efforts to convict a defendant could not be "aided" by evidence obtained through a warrantless search of the defendant's home by a federal marshal. The principle was extended to illegal searches entered into evidence in state courts in Mapp v. Ohio [367 U.S. 643 (1961)], to verbal evidence obtained in the course of a warrantless search by Wong Sun v. U.S. [317 U.S. 417 (1963)], and to confessions obtained without informing the defendant of his constitutional right not to incriminate himself in Miranda v. Arizona [384 U.S. 436 (1966)]. The deterrence principle was completely absent in Weeks, with the Court deriving the rule as necessary to make the Fourth Amendment meaningful, but was included as a rationale for the rule in Mapp and subsequent decisions. 1In 1974 deterrence became the centerpiece of exclusionary-rule jurisprudence in U.S. v. Calandra [414 U.S. 338 (1974)]. 2 The putative trade-off between deterrence benefits and costs of erroneous trial results has motivated the recent carving out of "good faith" exceptions. U.S. v. Leon [468 U.S. 897 (1984)) established the principle that excluding evidence obtained with a facially valid search warrant that was later ruled invalid served no purpose because no additional deterrence could be obtained by such a rule. The same logic is found in Nix v. Williams [467 U.S. 431 (1984)], in which the Court held that evidence that would have been inevitably discovered absent constitutional violations should be admitted. In Arizona v. Evans [514 U.S. 1 (1995)], the Court's rationale for expelling evidence was that the court clerk whose error was challenged by the defendant was unlikely to be deterred by such an action because of his tenuous relation to frontline law enforcement. 3 (Osborne 1999:381-382)
The effect on law enforcement can clearly be seen in the above brief historical outline of the exclusionary rulings. The development of just cause, the merandizing of the arrested party, the obtaining of warrants to search person or property and more recently the development of allowable or non-allowable exemptions such as security guards or media crews presence during the serving of a search warrant.
Protecting Good Faith Exemptions:
Protecting newly enacted good faith acts for those who sometimes walk a grey line between legal and illegal, in law enforcement investigations an arrests, is a crucial part of the exemptions that have most recently been enacted. Under political pressure from the elected officials and the voting public to maintain a system that is tough on crime, without unduly burdening law enforcement or letting guilty defendants walk because evidence obtained falls into a grey area, is a crucial part of the current law.
Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. (1) Leon instructs courts to admit evidence obtained on the basis of a potentially invalid search warrant, so long as the executing law enforcement officers "acted in good faith'" and "in objectively reasonable reliance on... [the] warrant." (2) According to Leon, conduct of the judge or magistrate who issued the warrant cannot provide grounds for suppression of evidence unless the defendant can show that the issuing judge or magistrate "wholly abandoned his judicial role." (3)The scope and application of the exclusionary rule have always bred disagreement. (4) For some, the rule is an unnecessary impediment that allows guilty criminals to escape conviction on procedural technicalities. For others, it is an indispensable substantive component of the Fourth Amendment's protections against unnecessary search and seizure. Set against the backdrop of this historic conflict, Leon can be seen as a great achievement, one that has freed courts from "a difficult dilemma." (5) Yet nearly twenty years later, Leon remains an uneasy compromise -- and a source of enduring controversy. (6)Reforming appellate review of the good faith exception to the exclusionary rule along the lines suggested in United States v. Koerth (7) would eliminate a significant problem: the failure of post-Leon jurisprudence to reach underlying probable cause issues in exclusionary rule cases. (Bray 2004:1143)
Regardless of the sense they make to the average person or even the judges and politicians who petitioned for them, good faith exemptions will likely continue to be a point of contention, almost as large a debate as the exclusionary rulings themselves as in some eyes they are seen to weaken a system that is already far to lenient. (Cossack 1996: 1169-1191)
Is it Time for Change?:
Having previously discussed the issue of compensation, offered by Dripps and offered a volley of questions regarding the establishment of torte with regard to violations of the fourth amendment, responded to with the exclusionary rule I will now establish a response to Dripps proposal.
After putting the issue nicely in context, Dripps rejects the tired ideological arguments that have been offered on both sides; he puts forth an original solution by paying close attention to what is at stake and the costs of various approaches. Perhaps most importantly, his solution is a discerning one -- it does not apply a meat axe to a filet mignon when a small steak knife will do just fine. Dripps understands what courts have yet to acknowledge openly in this context: the exclusionary rule can be made subject to the same…