Introduction

The exclusionary rule is perhaps one of the most controversial principles that has ever originated out of the Supreme Court.  In 1914, the Supreme Court created and applied the exclusionary rule to the federal government in Weeks v. U.S.  Epstein and Walker (1995) define the exclusionary rule as “a principle of law that illegally gathered evidence may not be admitted in court” (Epstein and Walker, p. 871).  The exclusionary rule is worthy of being studied for a number of reasons.  First, the exclusionary rule is a relatively recent phenomenon.  Again, it originated out of the 1914 Supreme Court case Weeks v. U.S.  However, it was not applied to the state governments until Mapp v. Ohio (1961).  Second, the exclusionary rule was created by the Warren Court, which was one of the most liberal Courts in U.S. history.  Since the Warren Court, both the Burger and Rehnquist Courts have modified the exclusionary rule.  Therefore, examining the evolution of the exclusionary rule will help determine whether the Burger and Rehnquist Courts have expanded or contracted the principle.  Third, the exclusionary rule is one of the few remedies the court system has to enforce the Fourth Amendment’s unreasonable search and seizure clause.  Finally, the Constitution states nothing in regards to how the Fourth Amendment should be enforced.  Essentially, nine un-elected officials in a democracy created a means to enforce the Fourth Amendment.  Therefore, closer examination of the principle should be warranted because possible alternative means may be available.

The purpose of this paper is to critically review the exclusionary rule and its evolution.  The first part of the paper will analyze the creation and development of the exclusionary rule.  This brief historical and legal analysis will focus on key Supreme Court cases.  The cases were located using Lexis Nexus Academic Universe, a web periodical database found at http://web.lexis-nexis.com/universe/.  The second part of the paper will examine the pros and cons of the exclusionary rule and possible alternatives.  The second section of the paper will primarily utilize various books and articles.

Historical and Legal Analysis

The development of the exclusionary rule and the Fourth Amendment can be traced back to the 1600s and 1700s.  The Framers created the 4^th Amendment out of resentment for England’s writs of assistance.  These writs were granted by the crown to custom officials to deter smuggling.  Essentially, the writs of assistance granted the custom officials unlimited search power to catch smugglers.  The resentment carried over into the 1700’s when Madison wrote the Bill of Rights.  The 4^th Amendment was added in order to restrict searches and seizures.  However, the 4^th Amendment was virtually powerless until the early 1900s.  Before Weeks v. U.S., law enforcement officials faced no federal consequences for conducting illegal searches.  Some states did have limited laws against illegal searches, but the laws were limited   (Epstein and Walker, p. 494-495; 536-537).

The first real indications that the 4^th Amendment might apply to the states came out of the Twinning v. New Jersey (1908) case.  The Court ruled that the 14 Amendment  “might protect against state action similar to those contained in the Bill of Rights.”  The Court indicated that it was willing to enforce those rights that it considers “fundamental and inalienable.”

Twining represents what many scholars call judicial restraint. According to Luban (1994), under this doctrine, the courts and especially the U.S. Supreme Court should adopt an attitude of caution when it comes to voiding legislation on constitutional grounds.  He as other judicial restraint theorists argue that courts should adopt an attitude of deference towards legislation (Luban 1994, p. 450).  Twining fits under judicial restraint because the Court will only strike down legislation and/or parts of state constitutions if the Court feels that some fundamental right has been violated.

Twining is also important in terms of incorporation.  The incorporation doctrine holds “that the Fourteenth Amendment dues process clause incorporates the provisions of the Bill of Rights and applies them to state criminal procedure” (Samaha, p. 612).  In Twining, the Court did not incorporate the 4^th Amendment into the 14^th Amendment.  Instead, the Court chose a less comprehensive approach to enforcing the 4^th Amendment.  Again, the Court would only be willing to enforce those rights it deemed fundamental.

Twining can also be described as a case that adheres to the crime control model.  The crime control model recognizes that police officers occasionally make mistakes.  Furthermore, the crime control model argues that illegal obtained evidence should be admissible in court (Peak, p. 271).  The Court stated in Twining that only violations of fundamental rights would be enforced.  Therefore, police officers could violate rights, just as long as they do not violate fundamental rights.      

A few years later in Weeks v. U.S. (1914), the Court applied the exclusionary rule to the federal government.  However, the rule only applied to federal agents and federal judges in federal court.  In Weeks, the Court excluded papers that were obtained through a warrantless search.  The Court reasoned that if the papers were admitted into court, the 4^th Amendment would have no value.  Weeks was relatively insignificant in terms of criminal prosecutions because most prosecution took place a the state level.  Furthermore, Weeks represents what is called judicial activism.  Judicial activism argues that the Justices should be active and pursue policy goals.  According to Cox, judicial activists believe that the law is merely policy, and judges should try to build a good society based on their visions (Cox 1987, p. 121)  Weeks is a perfect example of judicial activism because the Court has essentially created law not found in the Constitution.  The exclusionary rule can be seen as a judge created policy aimed at enforcing the 4^th Amendment.  In terms of incorporation, the question becomes whether or not the Court will apply the exclusionary rule to the states.

The ruling in Weeks took the Court one step closer to the due process model.  The due process model argues that illegal evidence should be suppressed before trial.  Suppressing illegal evidence would serve as a deterrent to law enforcement official (Peak, 272).  The exclusionary rule is a prime example of the idea behind the due process model.

After Weeks, there was an attempt to apply the 4^th Amendment and the exclusionary rule to the states in Wolf v. Colorado (1949).  In Wolf, the Court incorporated the 4^th Amendment into the 14^th Amendment and applied it to the states.  However, it did not incorporate the exclusionary rule into the 14^th Amendment.  The Court reasoned that the exclusionary rule was not a necessary part of the 4^th Amendment.  Wolf is somewhat of a double edged sword.  In terms of incorporation of the 4^th Amendment, Wolf represents judicial activism.  However, when it comes to the exclusionary rule, it represents judicial restraint.

Prior to Wolf and for a time after Wolf, the Court was still attempting to apply its fundamental standard to the states instead of full incorporation of the 4^th Amendment and the exclusionary rule.  Evidence of this can be found in three Supreme Court cases:  Rochin v. California (1952), Irvine v. California (1954), and Breithaupt v. Abram (1957).  However, the Court was unable to clearly articulate a standard that gave clear guidance to the lower courts.  Based on my research, the Court seemed to be all over the place in terms of decisions, and the above three decisions clearly indicate this fact.  For example, in the first case, the Court did not allow evidence to be admitted in court because police officers pumped a man’s stomach and violated the “shock your conscious” standard due to the harsh method of obtaining evidence.  In the second case, the Court allowed the police to hire a lock smith in order to install microphones in a man’s house to obtain evidence.  In the third case, the Court allowed the police to have a man’s blood withdrawn because he was found unconscious at the wheel in his car after an accident.  The Court allowed it because medical technicians were present.

Eventually, the Court was able to get enough strength to apply the exclusionary rule to the states, especially with the 1953 appointment of Chief Justice Warren.  In Mapp v. Ohio (1961), police entered a house without a warrant because they believed that a bombing suspect was hiding out in his friend’s house.  While in the house, the police searched the house and found pornography.  Prosecutors charged the homeowner with possession of pornography.  The case made it all the way to the Supreme Court, and the Court incorporated the exclusionary rule and applied it to the states.  The Court argued that law enforcement officials must “play the game fairly,” and it should not be permitted to “profit from its own illegal acts.”  The Court relied heavily on the “sporting-theory thesis.”  Under this thesis, the Court viewed the law enforcement/suspect chase as a sport, and as stated above, the Court argued that law enforcement officials must abide by the rules of the game.

Mapp is another prime example of judicial activism.  The Court had already created its means for enforcing the 4^th Amendment.  In Mapp, the Court simply applied the exclusionary rule to the states.  Mapp was also a big win for incorporation.  Furthermore, Mapp was a huge step towards the due process model.  Now that the exclusionary rule applied to the states, the 4^th Amendment now had a way of enforcing itself.  The fundamental and inalienable rights of Twining were no longer important.  Since Mapp is the controlling precedent, all illegal acts by police officers to obtain evidence would result in the evidence not being admissible, not just the fundamental and inalienable acts of Twining.  However, the victory of Mapp was relatively short because the Supreme Court has spent the last forty years slowly chipping away at the exclusionary rule.

A few short years later, the Supreme Court began creating exceptions to the exclusionary rule.  Two major exceptions originated out of the Warren Court.  These two exceptions can be found in Warden v. Hayden (1967) and the famous Terry v. Ohio (1968) case.  In Warden, the Court created the hot pursuit exception.  In this case, police officers were chasing a man and he ran into a house.  Based on an immediate tip, the police officers entered the house without a warrant and arrested the man.  The Court ruled that the search was “imperative,” and a delay in the investigation would have endangered lives.  The Court relied heavily on the “exigencies of the situation.”  In Terry, the Court allowed a limited pat down search of suspicious people engaging in suspicious behavior.  The Court relied heavily on the argument that police officers should be able to protect themselves.  Both Terry and Warden are examples of judicial restraint.  The Court has began chipping away at its new policy, and it has began deferring back to law enforcement.

Terry and Warden both reflect the series of conservative appointments to the Supreme Court in the 1960s.  In 1969, Chief Justice Warren had retired from the Court, and Chief Justice Burger was appoint by a conservative president Richard Nixon.  Almost immediately, Chief Justice Burger voiced his displeasure in his dissenting opinion in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971).  In his dissent, Burger rejected the whole idea behind Mapp.  He argued against the sporting-theory thesis, and he questioned whether or not the exclusionary rule was deterring illegal police conduct.

Throughout the Burger Court, the Court began handing down decisions that created exceptions to the exclusionary rule.  Some of the major exceptions included:  Cupp v. Murphy (1973) (loss of evidence exception), U.S. v. Calandra (1974) (grand jury exception), Stone v. Powell (1976) (habeas corpus exception), U.S. v. Ross (1982) (car exception), U.S. v. Leon (1984) (Good faith exception), Nix v. Williams (1984) (inevitable discovery exception), New York v. Quarles (1984) (public-safety exception), and California v. Carney (1985) (RV exception).  Each of the above cases are even more significant when they are taken as a whole.  The many exceptions of the Burger Court began to slowly water down the exclusionary rule and the 4^th Amendment one case at a time.  With each new exception to the exclusionary rule, more and more leeway is deferred to law enforcement for their investigations.  Each of the above cases is an example of judicial restraint because the Court is slowly rescinding the exclusionary rule.  The Court is also de-incorporating the exclusionary rule from the 14^th Amendment.  With each new blow to the exclusionary rule, it appears almost as if Court is returning to the fundamental rights standard that can be found in the Twining case without clearly articulating the change.  Also, each exception to the exclusionary rule is another win and a swing in the pendulum back towards the crime control model.

A couple of the above case are worth mentioning.  In U.S. v. Ross (1982), the Court ruled that police officers do not need a warrant to search an automobile.  However, the Court indicated that the police officers needed probable cause.  The Court created the exception because of the mobility of cars.  The Court was concerned with suspects driving off when law enforcement officials were attempting to obtain a warrant.  In California v. Carney (1985), the Court extended Ross to cover recreational vehicles.

U.S. v. Calandra (1974) and U.S. v. Leon (1984) were two more big exceptions to the exclusionary rule.  In Calandra, the Court ruled that prosecutors could use illegally obtained evidence in grand juries.  The Court reasoned that the grand jury was not suppose to determine what evidence is not admissible.  In Leon, the Court allowed for the good faith exception.  In this particular case, the Court allowed evidence seized from a defective warrant to be entered into evidence.  A lower court judged signed a warrant that lacked probable cause, and the Supreme Court reasoned that the police officers and prosecutors should not be punished because they were acting in good faith.

I believe the biggest exception to the exclusionary rule that the Burger Court created came out of the case Stone v. Powell (1976).  The Court ruled that federal courts were not obligated to consider claims of illegal searches and seizures if state courts allowed for sufficient litigation.  Furthermore, the court indicated that collateral reviews from state prisoners were to be considered lightly because such appeals were unlikely to deter police conduct.  This decision is also compounded by the fact that conservative presidents were packing the lower federal courts with conservative judges, who tend to disagree with the exclusionary rule.

It should be noted that the Burger Court did not completely give up on the exclusionary rule.  The Court was enforcing rights in the more extreme cases.  Examples of this can be found in two particular cases- Payton v. New York (1980) and Winston v. Lee (1985).  In Payton, the Court struck down a state law that allowed law enforcement officials to enter and search a home if the police had reason to believe that a felon was hiding inside.  The Court relied heavily on the belief that the home is one of the most Constitutionally protected places.  In Winston, the Court ruled that compulsory surgery on a suspect in order to obtain evidence violates the 4^th Amendment.

Payton and Winston are evidence that the court is willing to draw a line, which is in turn evidence that the Court may be returning to the fundamental rights standard in Twining.  Up to this point, the Court has been consistently watering down the exclusionary rule.  However, it seems that the Court is willing to enforce those rights that it considers fundamental.  Again, it appears as the Court is returning to the Twining context without expressly articulating the change.  Evidence will also be put forth that the Rehnquist Court seems to be doing the same thing.

It appears that the Court’s sway from Twining to Mapp back to Twining is largely due to personnel changes on the Court.  Epstein and Walker (1995) examined coalitions on the court in three exclusionary rule cases.  Their analysis found the following:  (1) In Wolf v. Colorado (1949), three justices on the Supreme Court favored broad application of the exclusionary rule and six justices favored limited application, (2)  in Mapp v. Ohio (1961), five justices favored broad application and three favored limited application, and (3) in United States v. Leon (1984), three justices favored broad application and six favored limited application  (Epstein and Walker, p. 555).

Chief Justice Rehnquist was appointed to the Court in 1986, one year after Carney v. California.  Almost immediately, signs of an exclusionary rule attack emerged.  Some of the major exceptions included:  Maryland v. Garrison (1987) (wrong apartment/reasonable mistakes exception), California v. Greenwood (1988) (garbage exception), Florida v. Riley (1989) (expansion of open field doctrine), Wilson v. Arkansas (1995) (no knock warrant), Illinois v. Rodriguez (1990) (reasonable belief exception), and Illinois v. Krull (1987) (illegal statue exception/good faith exception).  Each of the above cases clearly demonstrates judicial restraint.  With each new case, the Justices are deferring back to the states and law enforcement.  Furthermore, like the Burger Court, the Rehnquist Court seems very intent on de-incorporating the exclusionary rule.  All of the above cases clearly demonstrates the Rehnquist Court’s assault on the exclusionary rule.

A couple of the Rehnquist Court cases are worth mentioning in a little more detail.  In particular, Illinois v. Rodriguez (1990), California v. Greenwood (1988), and Illinois v. Krull (1987) are worth mentioning.  In Rodriguez, the police used a girlfriend’s key to enter her boyfriend’s house shortly after the boyfriend beat his girlfriend, and they found drugs.  It was later determined that the girlfriend did not live at her boyfriend’s house.  The Court allowed the evidence into admission citing that the police reasonably believed that they had the authority to enter the house.  In Greenwood, the Court ruled that people do not have an expectation of privacy when it comes to their garbage, and the Court allowed the evidence that police obtained through a person’s garbage into evidence.  In Krull, the Court allowed evidence that was obtained under a statue that was later determined unconstitutional.

Just as with the Burger Court, their is evidence that the Rehnquist Court is willing to draw a line.  Two cases were found that indicate this fact.  The two cases are Arizona v. Hicks (1987) and Minnesota v. Dickerson (1993).  In Arizona, the Court limited the plain view doctrine when police officers went out of their way in a person’s house to determine if a stereo system was stolen based on serial numbers on back of the stereo.  In Dickerson, the Court limited Terry v. Ohio (stop and frisk doctrine) when police officers searched a man based on a lump in his jacket that in no way resembled a weapon.

All of the above cases indicate that the Rehnquist Court is slowly chipping away at the exclusionary rule and the 4^th Amendment.  The many exceptions that the Rehnquist Court has created demonstrates judicial restraint.  Again, the Rehnquist Court, like the Burger Court, is deferring to law enforcement and state legislatures.  The Court is unwilling to impose a strict interpretation of the exclusionary rule, a judge created policy created by the Warren Court.  Furthermore, each new exception of the Rehnquist Court can be described as de-incorporation.  However, the Rehnquist Court is willing to draw the line, just as the Burger Court.  The Rehnquist Court’s exceptions to the exclusionary rule indicates that it is in agreement with the Burger Court.  The Rehnquist Court seems to be returning to the fundamental rights standard that was discussed earlier in Twining v. New Jersey.  Again, the Court seem willing to only enforcing the 4^th Amendment when it determines that some basic right has been violated.

The many exceptions of both the Burger and Rehnquist Court have definitely pushed the pendulum closer to the crime control model.  The many exceptions allow police officers to search for evidence that would have been considered illegal under the Warren Court’s exclusionary rule.

Prior to this point, the paper has approached the analysis from a case by case method.  However, an aggravate view of the Court’s behavior in terms of cases involving criminal rights from the Warren era to the Rehnquist era illustrates that the case by case analysis does have merit.  The study examines the percentage of Supreme Court cases that favored the accused through the Warren, Burger, and Rehnquist Courts.  During the Warren Court, at its highest level, 75% of the criminal rights cases favored the criminally accused, at its lowest level, 40% favored the criminally accused.  The Burger Court’s highest level was 61%, and its lowest levels was roughly 18%.  The highest level in terms of percentage of cases that favored the criminally accused during the Rehnquist Court was around 46%, and its lowest level was about 20% (Epstein et al, 1994, p. 168).  The above evidence illustrates that the Warren Court handed down more decisions that favored the criminally accused followed by Burger and Rehnquist Court.  It also illustrates the Rehnquist and Burger Court’s unwillingness to favor the criminally accused in criminal cases.  The above evidence and the case by case analysis clearly shows the de-incorporation of the exclusionary rule.

In sum, before the Warren Court and Wolf v. Colorado, the 4^th Amendment did not apply to the states, and it was largely not enforced.  The Supreme Court was using a standard that only protected fundamental rights as dictated in Twining, which were relatively few rights.  The justices displayed judicial restraint in terms of the 4^th Amendment.   Through time, the 4^th Amendment was incorporated into the 14^th Amendment and applied to the states.  As more liberal justices were appointed to the Court, the Court eventually received enough votes to incorporate and apply the exclusionary rule, created in Weeks, to the states governments.  The judicial activism of the Warren Court was short lived as more conservative justices were appointed to the Court.  Over the next 30 years, the Burger and Rehnquist Courts have returned to judicial restraint and de-incorporation.   Evidence of this can be illustrated through the many exceptions that the two Courts have created to the exclusionary rule.  In fact, so many exceptions have been created, one could argue that the Court has almost return to the fundamental rights standard that was articulated in Twining.

There is no doubt that the Burger and Rehnquist Courts are chipping away at the exclusionary rule.  However, should a judge created rule that originated from political appointees in a democracy be allowed to remain law?  At one end, we have a Court that created the exclusionary rule, at the other end, we have had two Courts chipping away at the exclusionary rule.  The following section of the paper will examine the pros and cons of the exclusionary rule and possible alternatives will be explored.

Arguments For and Against the Exclusionary rule

There are a wide array of arguments for and against the exclusionary rule.  This section of the paper will critically analyze various journal articles and legal arguments to identify broad arguments for and against the exclusionary rule.

In U.S. v. Weeks, the Court wrote that “a right without a remedy is a hollow right.”  In Weeks, the Court basically argued that the right or protection from unreasonable searches and seizures must be enforceable.  If the right is not enforced, then there would be no reason to have the right in the first place.  I believe that this is perhaps one of the most compelling arguments for the exclusionary rule.  However, the major weakness in the above argument has to do with the remedy.  There are other possible remedies the Court could have explored (Markman, p. 426).  The exclusionary rule was not the only remedy the Court could have picked.

Another major argument for the exclusionary rule has to do with judicial integrity.  Some argue that the exclusionary rule is a means for preserving judicial integrity.  (Amar, p. 460).  This is a fair argument.  If the judicial branch wishes to maintain its reputation as fair, just, and equal, then it is reasonable that the Court would create the exclusionary rule.  If a court of law is unwilling to enforcing the law, then the credibility of the court will suffer over time.  Some critics have attacked the judicial integrity argument.  Two major attacks on the judicial integrity argument include:  (1) the judicial system has not extended the exclusionary rule to civil cases, and (2) when evidence is suppressed that represents the truth, the integrity of the court must be called into question (Amar, p. 460).

Some supporters of the exclusionary rule argue that the rule deters law enforcement from committing illegal behavior (Amar, p. 461).  If a police officer knows that his or her illegal behavior will cause evidence to be thrown out of court, then he or she will not engage in the behavior.  The police officer will either look for a constitutional way to obtain the evidence, or the officer will simply ignore the situation because he or she has no constitutional way to intervene.

The next major argument I found goes hand in hand with the above argument.  Some argue that the exclusionary rule is effective because members of society actually gets to witness the criminal walk out of the courtroom (Stuntz, p. 446).  Not only does law enforcement officials see the criminal walkout of the courtroom, everyone sees him or her walk out.  Society gets to see that the exclusionary rule does work.  However, this argument can be easily turned upside-down.  As stated above, when the truth is suppressed the judicial system will lose integrity.

Numerous arguments were also found that argue against the exclusionary rule.  In fact, based on my research, most articles I found attacked the exclusionary rule.  The first and most basic argument against the exclusionary rule has to do with the Constitution.  The United States Constitution does not explicitly or implicitly mention the exclusionary rule (Markman, p. 425).  Therefore, one must question the constitutionality of the exclusionary rule.  As discussed earlier, there are other possible remedies the Court could have adopted (Markman, p. 426), which will be discussed in the next section of the paper.

Another argument against the exclusionary rule is utilitarian in nature.  Some critics argue that the exclusionary rule places an enormous burden on human suffering.  Many criminals are allowed to walk out of the courtroom because of the exclusionary rule (Markman, p. 427).  I believe this is a very compelling argument against the exclusionary rule.  However, I believe that it is a potentially dangerous argument too.  The argument’s utilitarian nature runs the risk trampling on individuals’ rights to justify a greater cause.

Another practical and compelling argument against the exclusionary rule relies heavily on the criminal justice system’s needs.  Some critics argue that the exclusionary rule delays the administration of justice and increases plea-bargains (Moneymaker and Janikowski, p. 108).  This compelling argument does have one major problem.  The argument presents itself as a cost analysis.  Society would have to determine if a right or money is more important.

The above arguments are compelling for both sides.  When I started this paper, I was in complete favor of the exclusionary rule.  Based on my research, I have begun to question the exclusionary rule.  I do not believe any person would simply say that police departments should have unregulated search and seizure power.  Therefore, some rule or law definitely needs to limit/govern police behavior.  I question whether or not the exclusionary rule is the best possible remedy the courts/society can use to regulate search and seizure.  Therefore, other possible remedies should be explored.

Alternatives to the Exclusionary Rule

Many different alternatives to the exclusionary rule have been proposed since its creation in Weeks v. United States.  This section of the paper will attempt to briefly present some of the major proposals that have been found in the literature.  Many people have suggested that civil actions against police officers and departments are one possible alternative (Markman, p. 426).  The civil action would allow both compensatory and punitive damages against police officers and police departments.  This suggestion makes sense because it punishes the wrongdoer(s) specifically.  It can be argued that the exclusionary rule does not specifically punish anybody.  A civil action against the police officer(s) would punish the search and seizure violator(s), and the criminal will still go to jail.

Civil actions against the police is a very potentially powerful remedy for violations of the 4^th Amendment.  However, there are a few problems that immediately come to mind.  First, I do not believe juries would take the civil actions very series due to the nature of the plaintiff.  If the plaintiff has been convicted of some crime or is in jail, a jury does not seem like it would be very sympathetic to the plaintiff’s cause.  Furthermore, plaintiffs in civil actions are not guaranteed a lawyer under the Constitution [Lassiter v. Department of Social Services of Durham County (1981)].  The civil action remedy would definitely favor the upper class and hurt the poorer classes.  Also, my best guess indicates that there are not too many attorneys that would be willing to represent a plaintiff suing a police officer or police department, especially if the plaintiffs are in jail with no steady income.

Another possible remedy would to strengthen the internal disciplinary procedures within the police departments (Markman, p. 426).  Strengthening the disciplinary procedures would allow police departments to more effectively handle misbehavior by police officers.  However, there is one major problem with reliance on internal disciplinary procedures.  The whole idea, by itself, seems to undermine the idea behind checks and balances.  Essentially, the executive branch would be policing itself.  Since 4^th Amendment violations can be rather profound, it seems almost appropriate that another branch should keep a watchful eye on the police.  On possible remedy would be to allow members outside of  police organizations and perhaps members of other branches to sit on the disciplinary boards.

Various process remedies have also been proposed.  Some of these remedies include:  dismal, the entrapment defense, reversible error, and expungement (Samaha, p. 122).  Each of the preceding remedies are potentially useful.  However, they each have their own faults.  Dismal seems to be rather extreme.  Instead of excluding the evidence, dismal will throw the case out of court.  Dismal seems as if it should be reserved for the more extreme cases.

The entrapment defense could also be a potential remedy to the exclusionary rule.  However, not all illegal searches can be clearly equated to entrapment.  Also, entrapment is an affirmative defense in many jurisdictions, which means the burden of proof falls on the defendant (Samaha, p. 126).  Such a remedy in a criminal justice system where defense attorneys’ case loads are high would severely limit the effectiveness of entrapment defenses.

Reversible error is another potentially powerful remedy to the exclusionary rule.  If police officers violate someone’s rights, then judges could reverse the judgment.  However, the question then becomes whether or not judges should reverse and remand back to trail or simply reverse.  If judges simply reverse the decision, then the defendant gets to walk free.  If judge reverse and remands back to trail, then the defendant would be penalized for a longer period of time.  The defendant might have to stay in jail longer, pay more expenses for attorney fees, and/or deal with the stresses and embarrassments of another trial.

Expungement of records, in my opinion, is one of the weakest process remedies.  The accused would have to make it through trial before he or she would even worry about his or her criminal record.  Expungement would definitely be a plausible option for individuals who survive the criminal proceedings.  If the individual’s rights have truly  been harmed by an illegal search and seizure, then his or her record should be expunged.

Improving police training is another possible remedy (Markman, p. 426).  Law enforcement officials’ training should be increased/improved to encompass a better understanding of the law behind 4^th Amendment’s unreasonable search and seizure clause.  There is one major problem with this remedy.  Police officers are not lawyers, and they should not have to be trained as lawyers to become police officers.  Some of the best lawyers in the United States disagree on the various meanings and practical application of the law.  Evidence of this can be found in the 4^th Amendment’s search and seizure case law.  Nine intellectual individuals on the Supreme Court have wrestled and disagreed on how the 4^th Amendment should be enforced.

The various remedies proposed above are all potential remedies to the exclusionary rule.  However, I do not believe that that any one remedy should replace the exclusionary rule.  The above remedies have major holes in each of them.  State governments should experiment and combine possible alternatives to the exclusionary rule to develop the best possible alternatives (Marksman, p. 426).

Conclusion (Discussion and Implications)

Since the application of the 4^th Amendment to the states and the creation of the exclusionary rule, the Supreme Court has been slowly chipping away at both, moving from the due process model to the crime control model.  The exclusionary rule is truly a controversial issues due to its judge created nature.  It has been around for approximately 80 years.  However, it has only been applied to the state governments for approximately 40 years. Shortly after the exclusionary rule was applied to the states, the Supreme Court began chipping away at the exclusionary rule.  This paper roughly identified/examined approximately 15 major exceptions to the exclusionary rule.  Even though the Court, especially the Burger and Rehnquist Court, have stopped short of declaring war on the exclusionary rule, they have been willing to uphold the exclusionary rule the cases involving fundamental rights.  The many exceptions to the exclusionary rule has almost brought the Court back in a full circle.  Even though the Court has not stated the fact, I would argue that the Court has almost returned to the fundamental rights standards that was articulated in Twining v. New Jersey.

The Court’s current trend is rather alarming because the exclusionary rule is a very powerful weapon the government has to control itself.  The exclusionary rule is a means for preserving judicial integrity.  (Amar, p. 460).  The exclusionary rule allows the courts to watch law enforcement officials and their investigations.  Many ideas like fairness, justice, integrity, and equality are conjured up when a person thinks of the judicial system.  One has to ask, “if the judicial system were to allow the other branches to run rampant, then how can the judicial system maintain its sense of fairness, justice, and equality.  Furthermore, as stated in Weeks v. U.S., “a right without a remedy is a hollow right.”  I believe that some remedy does need to be in place to protect the rights of people, but the question becomes “should it be the exclusionary rule as laid out in Mapp and Weeks?”

Despite the need to have a remedy for illegal searches and seizures, one has to question whether or not the exclusionary should exist in the first place.  I believe that the above arguments against the exclusionary rule are compelling enough to question whether or not the exclusionary rule should exist.  I believe the following two arguments  are compelling arguments against the exclusionary rule.  First, the exclusionary rule is not expressly found anywhere in the Constitution (Markman, p. 425).  Second, when evidence is suppressed that represents the truth, the integrity of the court must be called into question (Amar, p. 460).

In sum, I do not believe that the exclusionary rule as applied in Weeks and Mapp should remain in law.  Instead I believe that the Burger and Rehnquist Court have created the proper balance between the crime control model and the due process model. The proper balance between the two models allows for police officers to have the power they need to do their investigations, while protecting citizens from unreasonable searches and seizures. However, I do question some of the more extreme exceptions the two Courts have created.  Some of the more extreme exceptions include Stone v. Powell (1976) (habeas corpus exception) and Illinois v. Krull (1987) (illegal statue exception/good faith exception.  The preceding exceptions to the exclusionary rule threatens the rights we are protected under the Constitution.  Therefore, other possible solutions and remedies need to be explored.

First, attempts should be made to appoint somewhat more liberal judges to the Court.  It is no secret the Burger and Rehnquist Courts can be described as conservative.  Re-balancing the Court with a few pro-exclusionary rule justices will resurrect the weakening exclusionary rule.

Second, since the exclusionary rule’s strength is in question, it is only proper to explorer other possible remedies.  I believe increasing the strength of police disciplinary boards, civil actions, and increased training hold the greatest chances of aiding the weakened exclusionary rule (Markman, p. 426).  However, the other above remedies should not be discounted.  The state governments should experiment with the various remedies and apply them in various combinations to find the most effective means of enforcing the 4^th Amendment (Markman, p. 426).  Considering some of the more extreme exceptions and the conservative nature of the Court, action needs to be taken to guarantee every citizen the right “against unreasonable searches and seizures” as laid out in the United States Constitution.

 

Cases Cited

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Breithaupt v. Abram, 352 U.S. 432 (1957)

California v. Carney, 471 U.S. 386 (1985)

Cupp v. Murphy, 412 U.S. 291 (1973)

Florida v. Riley, 488 U.S. 445 (1989)

California v. Greenwood, 486 U.S. 35 (1988)

Illinois v. Krull, 480 U.S. 340 (1987)

Illinois v. Rodriguez, 497 U.S. 177 (1990)

Irvine v. California, 347 U.S. 128 (1954)

Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981)

Mapp v. Ohio, 367 U.S. 643 (1961)

Maryland v. Garrison, 480 U.S. 79 (1987)

New York v. Quarles, 467 U.S. 649 (1984)

Nix v. Williams, 467 U.S. 431 (1984)

Rochin v. California, 342 U.S. 165 (1952)

Stone v. Powell, 428 U.S. 465 (1976)

Terry v. Ohio, 392 U.S. 1 (1968)

Twinning v. New Jersey, 211 U.S. 78 (1908)

U.S. v. Calandra, 414 U.S. 338 (1944)

U.S. v. Leon, 468 U.S. 897 (1984)

U.S. v. Payton, 445 U.S. 573 (1980)

U.S. v. Ross, 456 U.S. 798 (1982)

Weeks v. United States, 232 U.S. 383 (1914)

Warden v. Hayden, 387 U.S. 294 (1967)

Wilson v. Arkansas, 514 U.S. 927 (1995)

Winston v. Lee, 470 U.S. 753 (1985)

Wolf v. Colorado, 338 U.S. 25 (1949)

References

Amar, Akhil, R.  1997.  “Against Exclusion (Except to Protect Truth or Prevent Privacy Violations).”  Harvard Journal of Law & Public Policy (Winter 1997):  Vol. 20, Issue 2.

Cox, Archibald.  1987.  “The Role of the Supreme Court:  Judicial Activism or Self-Restraint.”  Maryland Law Review (Fall 1987): Vol. 47.  (LEXIS/NEXIS)

Epstein, Lee, and Walker, Thomas.  1995.  Constitutional Law for a Changing America:

Rights, Liberties, and Justice.  Washington D.C.:  Congressional Quarterly, Inc.

Epstein, Lee, Segal, Jeffrey, Spaeth, Harold, and Walker, Thomas.  1994.  The Supreme Court Compendium:  Data, Decisions, and Development. Congressional Quarterly, Inc.  Washington D.C.

Luban, David. 1980.  “Justice Holmes & the metaphysics of Judicial Restraint.” Duke Law Journal (December 1994):  Vol. 44.  (LEXIS/NEXIS)

Markman, Stephen, J.  1997.  “Six Observations on the Exclusionary Rule.”  Harvard Journal of Law & Public Policy (Winter 1997):  Vol. 20, Issue 2.

Moneymaker, James, M., and Janikowski, Richard, W.  1990.  “The Diminishing Scope of the Exclusionary Rule.”  Criminal Justice Policy Review Vol. 4, No. 2.

Peak, Kenneth, J.  1997.  Policing America:  Methods, Issues, Challenges. 2^nd Ed. Prentice-Hall, Inc.:  Upper Saddle River:  New Jersey.

Samaha, Joel.  1993.  Criminal Procedure.  2^nd Ed.  West Publishing Company.  Minneapolis, St. Paul.

Stuntz, William, J.  1997.  “The Virtues and Vices of the Exclusionary Rule.” Harvard Journal of Law & Public Policy (Winter 97):  Vol. 20, Issue 2.