This article presents an overview of the exclusionary rule and then discusses in detail the nevitable discovery exception to that rule. This exception allows evidence to be admitted, even though it was seized in violation of the Constitution. Most constitutional rights, by their terms, do not provide as a remedy the exclusion of evidence at trial. For example, the Fourth Amendment prohibits the government from conducting unreasonable searches or seizures but does not expressly provide for the exclusion of evidence if the government violates that prohibition. Prior to the adoption of the exclusionary rule, courts usually admitted items into evidence that were seized in violation of the Fourth Amendment.(1)
The Exclusionary Rule
In order for the rights listed in the Constitution to have substance, there must be enforceable remedies imposed on the government for violations of those rights. In 1914, the U.S. Supreme Court, in the landmark case of Weeks v. United States,(2) introduced the exclusionary rule as a remedy for violations of the Fourth Amendment.(3) The Weeks Court felt that the only effective way to enforce the Fourth Amendment right to be secure from unreasonable searches and seizures was to adopt a rule that evidence seized in violation of the Fourth Amendment could not be used by the government against a defendant at trial. The Weeks Court further stated that a court should not sanction illegal government conduct by admitting into evidence the fruits of that illegal conduct. Later, in Silverthorne Lumber v. United States,(4) the Supreme Court not only prohibited introducing into evidence those items directly seized during an illegal government search but also any evidence indirectly derived from that search.
Originally, the exclusionary rule announced in Weeks did not apply to the states because at that time the Supreme Court limited the application of the Fourth Amendment to the Federal Government. Then, in 1949, the Supreme Court decided Wolf v. Colorado,(5) wherein the Court applied the Fourth Amendment to the states through the Fourteenth Amendment due process clause. The Court considered the prohibition against unreasonable searches or seizures to be a right basic to a free society and implicit in the concept of ordered liberty. The Wolf Court, however, did not view the exclusionary rule as a necessary component of due process and refused to apply the exclusionary rule to the states as a remedy for a violation of the Fourth Amendment.(6)
In 1961, the Supreme Court decided Mapp v. Ohio,(7) which in part overruled Wolf and applied the exclusionary rule to the states. The Mapp Court viewed other remedies, such as criminal sanctions, as being ineffective in ensuring compliance with the Fourth Amendment.(8) Although the Mapp Court stated that the exclusionary rule was an essential part of both the Fourth and Fourteenth Amendments, subsequent Supreme Court decisions have abandoned that position. For example, in United States v. Leon(9) the Supreme Court stated that "[t]he Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its commands and purposes makes clear that using fruits of a past unlawful search or seizure `works no new Fourth Amendment wrong'"(10) In United States v. Calandra,(11) the Supreme Court stated:
The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim.... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable search and seizures: `The rule is calculated to prevent, not to repair.'... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. …