History of the Exclusionary Rule and Should it Be Continued

Exclusionary Rule

The Future of the Exclusionary Rule

The first 10 amendments to the U.S. Constitution, otherwise known as the Bill of Rights, were designed to protect citizens against abusive state power. These protections include preventing the government from entering and seizing property without just cause or stripping citizens of their rights without due process (Oaks 665). These protections are encoded within the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.

Enforcing these rights, paradoxically, is also the responsibility of the government. Fortunately, the Constitutional framers created three independent branches of the government, thereby providing a mechanism through which one branch could limit the power and reach of the other two branches. When it comes to the protections encoded in the Bill of Rights, the judicial branch has taken the leading role in checking the powers of the legislative and executive branches of the federal government, as well as state governments.

This essay will examine one of the mechanisms through which the U.S. Supreme Court has tried to protect individual rights, by preventing the introduction of evidence into court that could only have been obtained by violating those rights. This mechanism is called the 'exclusionary rule', otherwise known as the 'fruit of the poisonous tree doctrine.' This essay is divided into two parts, with the first reviewing the long history of the exclusionary rule and the second examining whether it should be discarded in lieu of other mechanisms.

History of the Exclusionary Rule

The first whiff of the exclusionary rule emerged in 1886, when the U.S. Supreme Court held that a U.S. attorney had violated the defendant's Fourth Amendment rights when he ordered him to turn over private documents that could prove the defendant violated custom's laws (Boyd v. United States 1886, 116). The Court equated the compulsory order to produce documents equivalent to entering the defendant's home to seize the documents and was therefore unconstitutional under the Fourth Amendment. Since these documents could be potentially incriminating, the Court held that forcing the defendant to produce them violated Fifth Amendment protections against self-incrimination.

The federal prosecutor in Boyd had been acting in accordance with a recent law that gave the government the right to compel suspected violators to produce private and incriminating documents (Boyd v. United States 1886, 116). This statute also equated failure to produce the papers with guilt. For these reasons, the Court held that the law was unconstitutional. The Court mentioned that if the statute had instead limited its scope to the goods in question, then the Court would have likely sided with the government. It is the private nature of the papers and books that rendered them protected by the Fourth and Fifth Amendments.

The Boyd prohibition against admitting evidence obtained in violation of the Fourth Amendment was partially reversed in Adams v. New York (1904, 192). The Supreme Court upheld the admissibility of gambling receipts seized during a search authorized by a legal warrant. The main point under contention before the Court was whether personal papers also seized during the search could be used in court to identify handwriting on the gambling receipts, thereby linking the defendant to illegal gambling activity. The Court held that doing so did not constitute a breach of Fifth Amendment protections against self-incrimination, because the content of the personal papers were irrelevant to the prosecution's case.

The next major challenge to the warrantless seizure of evidence occurred in 1914, in Weeks v. United States (1914, 232). Police officers searched the defendant's home without an arrest or search warrant and seized papers and other property used to convict the defendant of illegal gambling. The lower court held that the search and seizure was unconstitutional under the Fourth Amendment and the U.S. Supreme Court agreed; however, the lower court and the prosecuting attorney argued that once the papers were in the prosecutor's possession, the illegal nature of the search and seizure were irrelevant to admissibility in a criminal case. Citing Adams, the government also claimed that the competency of the evidence to convict superseded Fourth Amendment protections. The Supreme Court held that both the police officers and the lower court violated the defendant's Fourth Amendment protections and reversed the conviction. The Weeks decision centered on the absence of an arrest or search warrant when the house was searched, thereby discriminating it from the Court's decision in Adams. In other words, the government's need to control crime does not supersede Fourth Amendment protections.

The Supreme Court justices hearing arguments in the Weeks case limited their enforcement of the exclusionary rule to federal jurisdictions. This changed in Mapp v. Ohio (1961, 367), when the court extended Fourth Amendment protections via the exclusionary role to state courts. In the aftermath of a bombing, several police officers demanded entrance into a building housing the accused. When entry was refused, the officers maintained a presence around the perimeter of the building. Several hours later, more officers arrived and forcibly entered the building without an arrest or search warrant. During the subsequent search of the dwelling, pornographic materials were seized and used to convict the accused for a crime unrelated to the bombing.

When the conviction was appealed before the Ohio Supreme Court, the justices offered the opinion that it could be argued that the manner in which the search and seizure was conducted is offensive to a sense of justice (Mapp v. Ohio 1961, 367). However, the Ohio attorneys in Mapp argued that under Wolf v. Colorado (1949) state courts can admit illegally seized evidence in criminal proceedings. With respect to this argument, Mapp partially reversed Wolf, thereby imposing Fourth Amendment protections on state courts. The Court then expounded at length on its Weeks ruling to emphasize its ruling that any evidence seized without the authority of a warrant cannot be admitted as evidence during criminal proceedings.

The Court in Mapp then began to dismantle all the tactics police officers had been using to get around the Weeks rule (exclusionary rule), an action the justices justified by the 'reasonableness' clause contained within in the Fourth Amendment (Mapp v. Ohio 1961, 367). For example, admitting evidence illegally obtained by state law enforcement officers into federal criminal trials, and vice versa, violated Fourth Amendment protections against unreasonable searches and seizures. In summary, the Court stated that "… all evidence obtained by searches and seizures in violation of the Constitution are, by that same authority, inadmissible in a state court." (367, end of Section III).

The Supreme Court's ruling in Mapp has been interpreted as a Constitutional mandate to prevent any attempt by the state to weaken or circumvent Fourth Amendment protections (Srinivas 180). This sentiment is clearly stated in the quote above; however, during the decades since the Mapp decision the exclusionary rule has been weakened by a number of Court rulings. As Srinivas notes, rather than a Constitutional mandate, the Supreme Court has shifted to a more literal position by declaring that the Fourth Amendment provides no guidance on enforcement. This sentiment was expressed by Justice Samuel A. Alito, Jr. In the first line of the majority opinion in Davis v. United States (2011, 564). This contemporary approach to Fourth Amendment jurisprudence has resulted in an increasingly complex formula for deciding when and if a police officer can conduct a search.

A good example of how complex the exclusionary rule has become is the ruling in Davis (2011, 1-5). The issue brought before the U.S. Supreme Court was whether a police officer can search a car incident to an arrest and under what circumstances. While writing the majority opinion in Davis, Justice Alito reviewed a series of decisions which attempted to give officers some leeway in searching a vehicle coincident to an arrest. One of the first examples he gave was Chimel v. California (1969), which allowed police officers to search vehicles if there was a danger the arrestee could attempt to destroy evidence. This was affirmed in New York v. Belton (1981), when a police officer arrested four individuals and lined them up next to the car, un-handcuffed, and discovered cocaine in a jacket laying on one of the car seats that lead to the owner's conviction.

What seemed like a clear cut 'Belton' rule for determining whether a warrantless search of an automobile was legal or not, has instead led to different interpretations by the lower courts (Davis v. United States 2011, 2-4). Justice Alito laid out this history when discussing Thornton v. United States (2004), in which a conviction was upheld even though the police had already subdued the occupant of the vehicle. In Arizona v. Gant (2009), four Supreme Court justices agreed with the Arizona Supreme Court's ruling that a search cannot be conducted if the arrestee has been subdued by the police. In Justice Alito's view, this opinion implied that if an arrestee has no opportunity to destroy evidence located in the vehicle, then a warrantless search is unconstitutional.

The Court's majority opinion in Gant favored applying the Belton rule, but opted instead to create a more complex two part rule (Davis v. United States 2011, 2-4). The 'Gant' rule states that a vehicle search is constitutional if it meets either of two conditions: (1) the arrestee is within reach of the vehicle or (2) the police suspect the vehicle criminal evidence.

In Davis (2011, 4-5), two occupants of a vehicle were arrested for driving while intoxicated and providing a false name. They were handcuffed and placed into two separate patrol cars before the police searched the vehicle. During the search, the police discovered a handgun in the jacket of the male arrestee (Davis) and convicted him of illegal firearm possession by a felon. At the time of Davis' arrest, the 11th Circuit was applying the bright-line Belton rule and upheld the conviction. Davis' attorney was savvy enough to raise a Fourth Amendment challenge that could prove useful on appeal and the case was eventually reviewed by the U.S. Supreme Court. The Court held that the Gant rule did not exist at the time of the arrest. To render the search unconstitutional would therefore be unfair to the arresting officers who had acted in good faith. This good faith exception to the exclusionary rule was first articulated in United States v. Leon (1984), as mentioned by Justice Alito when writing the Davis opinion.

Exclusionary Rule: Dead, Dying, or Irreplaceable?

This shift in Supreme Court jurisprudence can be emphasized by contrasting the Mapp and Davis decisions. The court stated in Mapp that "… all evidence obtained by searches and seizures in violation of the Constitution are, by that same authority, inadmissible in a state court." (367, end of Section III). In Davis, the Court stated that "… penalizing the arresting officer for following binding appellate precedent would do nothing to deter Fourth Amendment violations" (Davis v. United States 2011, 5). The shift from a rights-based justification to one of deterrence is readily apparent.

University of Illinois law professor, Kenworthy Bilz, examined the support for each view of the exclusionary rule (149). In the absence of a literal Constitutional mandate, the Court has ruled that it should be applied only when it could potentially deter future illegal searches and preserve court legitimacy. Bilz called the two competing views of the exclusionary rule the integrity (Mapp) and deterrence (Davis) justifications. The validity of a deterrence justification has not been consistently supported by empirical studies (150). In contrast, the integrity justification has been viewed as a way to keep the government's hands 'clean' by forbidding the 'fruit of the poisonous tree.' A more pragmatic view was offered by Justice Ginsberg in Herring v. United States (2009),[footnoteRef:2] who suggested the government should not profit from illegal searches. [2: As cited by Bilz 150. ]

A number of empirical studies have examined social psychology questions relevant to an integrity justification and discovered significant support (Bilz 151-152). These findings have revealed people tend to attach moral meanings to objects. With respect to the exclusionary rule, this implies that evidence obtained in violation of the Fourth Amendment is irrevocably tainted as 'dirty.' Should a prosecutor or court allow such evidence to enter criminal proceedings, then the perception of legitimacy and thus the criminal justice system as a whole would be undermined. However, the definition of what constitutes dirty evidence is determined to a significant extent by social norms and expectations.

Indiana University law professor Craig M. Bradley calls the more recent approach a negligence approach, regardless of how strenuously Supreme Court justices object to this interpretation (1-2). The problem with this approach is that it requires the court to retroactively peer into the minds of officers at the time of the search and divine what their intentions were. In Herring v. United States (2009),[footnoteRef:3] the Court suggested that simple, isolated negligence by an officer conducting the search was insufficient grounds to exclude evidence (Bradley 3). However, having to discriminate between 'simple' and 'substantial' negligence creates a more subjective, and thus complex, exclusionary rule. [3: As cited in Bradley 3.]

Bradley points out that recent Fourth Amendment cases have not provided the type of challenge that could help courts and the public better understand how a contemporary exclusionary rule works (3). What is needed, is a case that forces the Court to apply the exclusionary rule to a situation where officers acted negligently, Fourth Amendment protections were violated, and the negligence was not 'attenuated' by external circumstances.

The attenuation of negligence came to the forefront of the exclusionary rule debate when the California Supreme Court upheld a lower court conviction in People v. Robinson (2009) (Kaye para. 2-4). A blood sample was incorrectly obtained while Robinson was incarcerated for burglary. After running the sample through a database and getting a hit, he was convicted of sexual assault. Since Robinson's conviction depended on a clerical mistake, the California Supreme Court ruled the negligence attenuated and upheld the conviction.

Given how weak the exclusionary rule seems to have become, maybe it should be dispensed with altogether. Oaks argued that there are a number of good reasons for trashing the rule. The exclusionary rule provides no relief for victims of illegal searches if no criminal charges result (736-737). Nor does it punish the wrongdoer. The only persons who benefit are those charged with a crime, whether innocent or guilty. Since it is safe to assume that the guilty are charged more often than the innocent, then the group receiving the greatest benefit from the exclusionary rule is the guilty. From this perspective, the main effect of the exclusionary rule is to frustrate justice.