Phl 347
Lecture 8: The Exclusionary Rule

Functions of Punishment

• Deterrence, behavior control
• Quarantining of dangerous people
• Expression of collective anger, outrage
• Substitution of public penalty for private vengeance
• Moral education, both of offender and public
• Sustaining a conventional practice, by cancelling unfair advantages to violators

I. The Fourth Amendment in its Original Context

• Primarily concerned with general warrants issued to tax and customs officials.
• Assumed that people would not tolerate warrantless searches.
• No organized police forces: victims brought charges against their attackers.

I. History of the Exclusionary Rule

• Weeks v. U. S. (1914): exclusionary rule applied to illegal searches by federal officers.
• Wolf v. Colorado (1949): 4th amendment, but not the exclusionary rule, applied to states.
• Mapp v. Ohio (1961): exclusionary rule applied to states
• Linkletter v. Wallace (1965): exclusionary rule not to be applied retroactively

III. Deontological Defenses of the Exclusionary Rule

• Seizing the evidence and accepting the evidence in court are parts of a single governmental action: illegality of first part contaminates the second.
• Admitting the evidence is inevitably to condone and encourage illegal searches.
• The government must set an example of scrupulous abiding by the law.
• The courts honor and underscore the value of the 4th amendment by paying such a high price to protect it.
• Exclusion asserts judicial independence from the executive branch.

IV. Consequentialist Defenses

• Deters illegal searches and seizures. Forces police and prosecutors to develop procedures and training regimens that make violations rare.
• No other alternative is available to the courts. The Bill of Rights is addressed to the courts -- they have no other control over activities of police.

V. Objections to the Rule

• Little or no empirical evidence that it actually deters police illegality. Most police work is not intended to result in prosecutions.
• Causes considerable delay and waste of judicial resources. Between 20-35% of court time is spent on motions to suppress evidence.
• Provides absolutely no protection to innocent victims of illegal searches.
• Encourages perjury on the part of police, to cover up technical violations.
• Grants police the unlimited ower to grant immunity to any criminal, by deliberately engaging in an illegal search. Could lead to corruption.
• Forestalls the development of alternative protections of 4th amendment rights.

VI. Alternatives to the Exclusionary Rule

• Prosecution of police for trespass. Prosecutors, juries are reluctant.
• Civil tort action against officers. In many states, they enjoy immunity.
• Administrative discipline by police internal affairs. Not objective?
• Independent, citizen review board, with disciplinary powers. No experience in U. S.
• Charging police under federal civil rights statutes. No experience.

VII. The Leon Decision: "Good Faith" Exceptions

• Evidence is admissible if a "reasonably trained" police officer would have had good reason to believe that the search was legal (e.g., that the warrant was valid).
• Standard is objective: doesn't depend on what the officer actually believed.
• Objection: encourages a "see-no-evil" approach on part of officers: they are OK so long as they don't encounter any evidence or advice that the search will not be legal.
• Encourages "magistrate shopping". Can use evidence, no matter how unreasonable the judge was in granting the warrant.

VIII.Interpreting the Bill of Rights

• Learned Hand argued, in using history, we look for "general purposes, not specific practices."
• Profound differences in historical context. When the Bill of Rights was passed, there were no police, no wiretapping, no eavesdropping devices.
• What is the appropriate level of generality? Anti-federalists were primarily concerned with revenue collectors, not crime investigators.
• What to do when the Constitution provides no enforcement mechanism, or relies (implicitly) on one (popular resistance) that has proved inadequate?
• Compare the 5th Amendment ban on self-incrimination. If taken literally, it refers only to testimony in "criminal cases", not to grand juries, congressional committees, police interviews.
• Is there an ideological aspect? Contrast expansive interpretation of 4th and 5th amendments with restrictive interpretation of the 2nd or 10th.

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