The exclusionary rule and its application in criminal proceedings

Exclusionary Rule has become a well-established part of modern criminal law, so much so that many people fail to understand the relatively recent origin of the law and how it has been expanded beyond its initial parameters. The Exclusionary Rule is "the rule that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial" (Hill and Hill). This exclusion is not automatic but is done upon the request of a defense attorney. The Exclusionary Rule extends to evidence covered as an indirect result of illegal actions, as well as evidence discovered as a direct result of illegal acts. However, because it is a rule meant to deter illegal behavior by law enforcement, the Exclusionary Rule only applies in circumstances where law enforcement knew or should have known that their actions were illegal.

It is important to understand that certain behaviors have always been prohibited under the Constitution. Illegal searches and seizures by the police certainly fell under this category. The problem was that such illegal behavior did not give rise to a remedy for the victim of that illegal behavior. Instead, the behavior was prohibited but a criminal suspect had no personal protection. That rendered the exclusionary rule essentially meaningless. Federal courts embraced the Exclusionary Rule before the federal courts were willing to extend those protections to state courts. The Exclusionary Rule only became applicable in all scenarios when the Supreme Court decided Mapp v. Ohio, 367 U.S. 643 (1961).

Background

It is important to understand that in federal proceedings, the Exclusionary Rule had been the rule throughout much of U.S. history. The text of the Fourth Amendment provides that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (U.S. Const. amend. IV). Therefore, the Fourth Amendment directly prohibits unreasonable searches and seizures. However, it fails to specify how those rights are to be enforced. This ambiguity left the Supreme Court with the task of determining the appropriate means of enforcement.

By the turn of the century, the Supreme Court was already willing to provide remedies to people who had suffered Fourth Amendment violations. In Boyd v. United States, 116 U.S. 616 (1886), the Court was called upon to determine whether an illegal search and seizure violated the Fourth Amendment. It determined that that search was illegal. Moreover, referencing an English case that was the inspiration for the Fourth Amendment the Court held that:

The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. 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, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment (16 U.S. 616, 634 -- 35).

However, while Boyd made it clear that such searches or seizures were Fourth Amendment violations, it did not go so far as to establish the remedy for those violations.

In Weeks v. United States, 232 U.S. 383 (1914), the Court expanded upon the Boyd decision. Boyd had simply made the commentary that such behavior was illegal, but it did not offer any guidance as to how governments were to deal with those circumstances. In Weeks, the Court made it clear that the federal government could not use illegally gathered evidence. Weeks did not create the Exclusionary Rule, but cited the Exclusionary Rule. However, the Court was careful to limit the impact of Weeks to federal prosecutions, an unusual decision given that the Fourteenth Amendment theoretically would have expanded any protections in the Bill of Rights to the states, at that point, anyway.

In Wolf v. Colorado, 338 U.S. 25 (1949), the Supreme Court was again asked to consider the appropriate remedy for a Fourth Amendment violation. Once again, the Court seemed willing to recognize that there needed to be a remedy for such violations, but was still unwilling to force such a solution upon the states. The defendant was convicted of conspiracy to perform criminal abortions. The Court was asked to consider whether states were required by the Fourth Amendment and the Fourteenth Amendment to exclude illegally seized evidence from trial. The Court determined that, even though the Exclusionary Rule was a good way to discourage Fourth Amendment violations, because other methods existed to ensure compliance with the Fourth Amendment, the Exclusionary Rule was not necessary. In fact, the Court outright rejected the idea that the Fourteenth Amendment imposed the same limitations on the states as the first eight amendments of the Constitution did on the Federal government.

That is not to say that the Exclusionary Rule never applied to state proceedings prior to Mapp v. Ohio. While the Supreme Court decisions prior to Mapp did not require states to implement the Exclusionary Rule, they also did not prohibit states from enacting their own versions of that rule, and many states did so. However, that may have been even more troubling than some states choosing to enact the rule and others refusing to enact the rule, since it guaranteed that the amount of a process an American citizen would receive would be linked to the state of residency, which was something that the Fourteenth Amendment tried to prohibit, the unequal legal treatment of U.S. citizens.

Mapp v. Ohio

It was not until Mapp v. Ohio, 367 U.S. 643 (1961) that the Exclusionary Rule became required in state criminal court proceedings. In order to understand how Mapp impacted the utilization of the Exclusionary Rule in state courts, it is critical to develop a thorough understanding of Mapp.

Facts

The facts of the Mapp case are relatively simple. The police got a tip that Mapp and her daughter were harboring a fugitive. They went to the defendant's residence and demanded entrance to her home. The defendant called her attorney, and, on his advice, refused entry because they did not have a warrant. Later that same day, the police returned to her house and demanded entry, when Mapp continued to refuse to allow them in the home; they forced their way into the home. She confronted them and demanded to see a copy of the search warrant. The police officers waved a piece of paper in the air, claiming it was the warrant. Mapp grabbed the paper from the police and put it down her shirt; the police retrieved it from her. The officers then cuffed her and searched her house for the fugitive. During their search, the police were unable to find the sought-after fugitive or even any evidence that the fugitive had ever been in the house. In the basement, they opened a trunk and found some pornographic material, which was prohibited by law. Mapp was arrested for breaking that law, and convicted of that offense. During her trial, Mapp's attorney asked about the warrant, but the police were unable to produce the warrant or explain its absence. Mapp's conviction was upheld by the Ohio Court of Appeals and the Supreme Court of Ohio. Mapp then took her appeal to the U.S.

Issues

There were multiple issues before the Court. The first issue was whether the evidence against Mapp was seized in violation of the Fourth Amendment. The second issue was whether evidence that was seized in violation of the Fourth Amendment was admissible in state court proceedings. The third issue was whether Ohio's anti-obscenity law violated the First Amendment.

Analysis

The Court did not even consider the First Amendment issue. It was unnecessary for the Court to consider that issue unless Mapp's conviction was otherwise valid, and the Court determined that it was not. Following the Court's policy of not answering unnecessary questions, the Court did not even address the obscenity issue. Therefore, Mapp is known as a Fourth Amendment case, not a First Amendment case, and offers no guidance on the constitutionality of anti-obscenity legislation.

To look at whether Mapp's conviction was valid, the first thing the Court had to do was engage in an analysis of whether the evidence was obtained in violation of the Fourth Amendment. This analysis focused on the issue of whether or not the police had a valid warrant when they forcibly entered Mapp's home. There simply was not credible evidence that the police had a warrant when they searched Mapp's home. The police did not present the piece of paper they claimed was the warrant to Mapp. Moreover, thought Mapp took the warrant from the police, they were able to recover it. However, even at the initial criminal trial, the police were unable to produce the warrants. There was also no other evidence that support that a warrant had ever been issued. The Court had to conclude that there was no warrant. If there was no warrant, then the intrusion into Mapp's home was unconstitutional. Moreover, the circumstances of Mapp's vehement refusal that they search her home and the fact that the handcuffed her in order to effectuate the search only served to exacerbate the egregious nature of the police intrusion into her privacy.

Once the Court was satisfied that the search on Mapp's home did, indeed, violate her Fourth Amendment right to be free from unreasonable searches and seizures, it then had to turn its consideration to the appropriate remedy for such a violation. The majority determined that the Fourteenth Amendment required states to recognize a defendant's Fourth Amendment right to be free from unreasonable search and seizure. They determined that, because the Fourth Amendment's right to privacy was enforceable against the states because of the Due Process Clause, then violations of those rights had to be subject to the same remedy. Therefore, the Court held that the Exclusionary Rule applied to state criminal proceedings.

To reach that decision, the Court looked at the requirements of actually enforcing the provisions of the Bill of Rights. Comparing the Right to Privacy to other rights found in the Bill of Rights, the Court rejected the notion that the Right to Privacy should be differentiated from other rights. At that time, state violation of a person's other rights under the Bill of Rights was treated in the same manner as a federal violation of those rights. Therefore, people really did receive the protections of those rights. The Court rejected the idea that the Right to Privacy was somehow different from those other rights, in a way that would require it to have fewer protections than other rights. The Court stated, "Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as 'basic to a free society'" (367 U.S. 643, 656). It went on to further explain that, "This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability" (367 U.S. 643, 656).

Furthermore, before requiring the states to adopt the same rule, the Court once again examined the wisdom of the Exclusionary Rule. There were arguments that the rule would create too substantial a burden in state criminal proceedings, which may have necessitated a reexamination of the rule as a whole. However, the Court rejected that line of though. It held that:

our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold" (367 U.S. 643, 657).

Conclusion

The Court reversed and remanded the lower court's decision. The Court refused to consider the First Amendment issues before it. The Court concluded that the search of Mapp's home was conducted in violation of her Fourth Amendment rights. Finally, after examining the nature of the case and the history of the Exclusionary Rule, the Court found that it should apply to the states. The Court held that:

Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court (367 U.S. 643, 654-655).

Black's Concurrence

In his concurrence, Justice Black believed that the Fourth Amendment clearly prohibited the type of illegal search and seizure described in the case, but believed that the Exclusionary Rule was a judicially created remedy that Congress could negate. However, he also believed that the Fourth Amendment was not considered alone, but in connection with the other rights in the Bill of Rights, specifically the Fifth Amendment right to be free from self-incrimination. Specifically, Black stated:

I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. Reflection on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule (367 U.S. 643, 661-662).

Douglas' Concurrence

Justice Douglas also concurred in the Court's decision. Douglas focused on the egregious nature of the police treatment of Mapp. He also went into a more practical discussion of the remedies that would be available to Mapp to remedy the constitutional violation. "The only remaining remedy, if exclusion of the evidence is not required, is an action of trespass by the homeowner against the offending officer…The truth is that trespass actions against officers who make unlawful searches and seizures are mainly illusory remedies" (367 U.S. 643, 670). Douglas found it untenable that a citizen would be left without a real remedy if the government violated a basic guarantee found in the Bill of Rights.

Stewart's Memorandum

Justice Stewart neither concurred with nor dissented from the Court's decision. Instead, he filed a Memorandum in which he agreed with part of Harlan's dissent. However, he agreed with the Court's decision to reverse the decision. Stewart believed that the case could have been decided on the underlying validity of the obscenity statute in question.

Harlan's Dissent

Justices Harlan, Frankfurter, and Whittaker joined in a dissent, suggesting that the Court abandoned the rule of judicial restraint by extending the Exclusionary Rule to state proceedings. Harlan believed that the Court had chosen to characterize the case as a Fourth Amendment case, rather than a First Amendment case. To Harlan, "the new and pivotal issue brought to the Court by this appeal is whether 2905.34 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material,

Not only did Harlan disagree with the Court's decision to consider the Fourth Amendment issues, but he also disagreed with the decision to overrule Wolf and to require states to recognize the Exclusionary Rule. There was no evidence that Ohio was in any way affirmatively sanctioning the type of illegal police activity described in the case. Because the only reason the Exclusionary Rule exists is to discourage future instances of improper conduct, and there is no evidence that the police regularly engage in such improper contact, Harlan did not see any reason to require the states to adopt the federal remedy for such violations. Moreover, he did not believe it was a question of whether the Exclusionary Rule was a desirable or good rule. Specifically, he stated:

Our concern here, as it was in Wolf, is not with the desirability of that rule but only with the question whether the States are Constitutionally free to follow it or not as they may themselves determine, and the relevance of the disparity of views among the States on this point lies simply in the fact that the judgment involved is a debatable one. Moreover, the very fact on which the majority relies, instead of lending support to what is now being done, points away from the need of replacing voluntary state action with federal compulsion. (367 U.S. 643, 680).

Because of the individual needs of each state could vary tremendously, Harlan felt that it was critical that states retain the flexibility to adjust their criminal legal systems accordingly.

Fruit of the Poisonous Tree

In the wake of Mapp, the Court has continued to define the parameters of the Exclusionary Rule. Even prior to Mapp, the Exclusionary Rule prohibited the introduction of evidence that was discovered as an indirect result of an illegal search. The fruit of the poisonous tree determined that if the original evidence was tainted, then anything gained from that evidence was tainted as well. For example, if a suspected murderer's home is subject to an illegal search and the police find paperwork with a map to the body, not only is the map inadmissible against the defendant at trial, but there is a good likelihood that the body will be inadmissible as well. There are four significant exceptions to the fruit of the poisonous tree doctrine; (1) independent source; (2) inevitable discovery; (3) attenuation of the taint; and (4) good faith mistake. For many years, it appeared the Exclusionary Rule would continue to expand. However, in Wong Sun v. U.S., 371 U.S. 471 (1963), the police illegally entered a premises to get verbal evidence and narcotics from a drug dealer that Sun was supplying with drugs. The dealer made a deal implicating Sun. Sun went to the police station and made a deal of his own, offering a confession in the process. When Sun was convicted, he sought to establish that his confession was the product of a Fourth Amendment violation. However, the Court held that the taint was attenuated. Moreover, the Fourth Amendment violation did not occur against Sun. What the case makes clear is that a Fourth Amendment violation may be necessary to invoke the protections of the Exclusionary Rule, but it is not sufficient to do so. Instead, Courts will have to examine the factual scenario behind the claim of taint.

Conclusion

The Exclusionary is not a new rule, nor is it strictly an American rule. Like many of the country's legal ideals, the roots of the Exclusionary Rule can be traced back to British law. However, in the United States, the Exclusionary Rule was not the governing law for federal or state prosecutions for much of the country's history. While the Fourth Amendment absolutely prohibited illegal searches and seizures, the courts struggled with developing the appropriate remedy for when violations of the Fourth Amendment occurred. The clear problem with the Exclusionary Rule is that it allows factually guilty defendants to go free on the basis of a legal technicality, which is difficult for many citizens to accept. As such, the Exclusionary Rule is not a proper rule. However, the Courts have determined that it is more appropriate to forgive wrongdoing by a citizen than wrongdoing by the nation or the state. When a factually guilty defendant is freed because of the Exclusionary Rule, it is a miscarriage of justice, and the police can refine procedures to ensure that similar mistakes are not made in the future. In contrast, when a person is convicted because of illegally obtained evidence, the very bedrock of American rights and freedoms, the Bill of Rights, is under attack. The United States can withstand the occasional criminal who is freed on a technicality much more than it can withstand attacks on its very principles. For that reason, the Exclusionary Rule is likely to remain in effect in American courts.