Title: Reconceiving the Fourth Amendment and the Exclusionary Rule
Abstract: I INTRODUCTION Mapp v. Ohio, decided in 1961, comprised two holdings. (1) The first, and more controversial at time, applied exclusionary rule to states, overruling Wolf v. Colorado, (2) decided just twelve years before. But it was second holding--[A]ll evidence obtained by searches and seizures in violation of Constitution is ... inadmissible in ... court (3)--that has led to revolution. And it is second holding that is currently under attack by Supreme Court. As a result of this second holding, Supreme Court evidently felt compelled to set forth just what it was that Constitution requires so that police could follow and avoid evidentiary exclusion. Thus it was that, in a series of cases through 1960s and continuing to this day, Supreme Court began uniquely American practice of declaring rules of criminal procedure on a case-by-case basis, (4) rather than through a comprehensive code. (5) This is contrary to practice of all other countries of which I am aware, including our common-law mentors, British, who have nationally applicable codes of criminal procedure. (6) It arguably follows from American rulemaking practice, based as it is directly on Constitution, that every search or interrogation violation is necessarily a violation of Fourth or Fifth Amendments--and so Supreme Court has repeatedly assumed. (7) Consequently, any evidence obtained in violation of Constitution should be excluded, for it may seem logical that unconstitutionally obtained evidence should not be available to government at trial. If, however, of criminal are based on a code, it does not seem so obvious that evidence obtained by violating some provision of it should not be available to government at trial. Perhaps that is why, as U.S. Supreme Court has observed, the automatic exclusionary rule applied in our courts is ... 'universally rejected' by other countries. (8) I have long supported American mandatory rule. During my seven years as a federal prosecutor, including time as an Assistant United States Attorney in Washington, D.C., I could see that rule's mandatory nature forced police and federal agents to think about before they acted. It caused both federal and local law-enforcement authorities to train their agents in constitutional in order to afford evidentiary exclusion. In fact, my criminal professor, Charlie Whitebread, was also FBI's criminal professor. Nor was it my impression that any significant number of cases were lost as a result of rule, especially prosecutions of violent felonies. (9) Nevertheless, Supreme Court has made it clear that it is dissatisfied with mandatory aspect of Mapp rule. In two recent cases, Hudson v. Michigan (10) and Herring v. United States, (11) Court has indicated that rule should be changed but has stopped short of mandating a broad alteration. Although I oppose such a change, I do recognize that perfectly civilized and progressive countries in world, as well as European Court of Human Rights, do not feel that a mandatory exclusionary rule for search and seizure violations is necessary. (12) In this article I discuss Hudson and Herring decisions, practices of other countries, and various previous suggestions for exclusionary-rule reform. Then, I set forth a reconception of exclusionary rule, as well as constitutional principles that gave rise to it. These reconceptions suggest a roadmap to exclusionary reform that might reconcile factions on Court (with Justice Kennedy in middle) who strongly support and strongly oppose current mandatory rule. I propose that exclusionary rule apply only in cases in which it can be said not only that police broke Fourth or Fifth Amendment rules, but that their conduct in doing so was negligent, judged case-by-case--in other words, when search was unreasonable, which is all that Fourth Amendment forbids. …
Publication Year: 2010
Publication Date: 2010-06-22
Language: en
Type: article
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Cited By Count: 7
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