The Due Process Exclusionary Rule

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III. MAKING SENSE OF EXCLUSIONARY DOCTRINE

The due process exclusionary rule draws added normative support from its ability to explain and justify many core features of existing doctrine. Because the law is an interpretive practice, legal theories are on balance more compelling when they maximally fit and justify the law as it is. (225) That interpretive principle cuts in favor of the due process exclusionary rule, since many basic features of current jurisprudence suddenly make sense when deterrence-based arguments are set aside in favor of a focus on due process. Further, many apparently ad hoc limits on the exclusionary rule likewise appear intelligible when understood as efforts to mark the boundaries of due process. Below, section A explores the explanatory power of due process by discussing six basic features of the right to exclusion of evidence. Section B then discusses six limits on due process and their implications for the exclusionary rule.

A. Basic Explanatory Power

The Court has tended to enforce the Fourth Amendment on the often explicit assumption that it constitutes a source of "process" for the acquisition of evidence. (226) That approach has allowed the Court to treat the Fourth Amendment just like any number of other procedural rules for the acquisition of evidence, such as the Self-Incrimination and Confrontation Clauses. (227) Because the Court has generally followed that intuitive approach, the due process exclusionary rule provides a compelling explanation for basic features of current doctrine. For over fifty years the Fourth Amendment exclusionary rule has consistently exhibited the six traits discussed below--each of which is a natural reflection of due process.

1. Personal.--Current doctrine holds that only people who have personally suffered a Fourth Amendment violation can obtain suppression based on that violation. (228) This rule has come in for criticism, and understandably so. (229) If the exclusionary rule were truly meant to deter, then it should apply (at a minimum) whenever evidence directly results from an egregiously unconstitutional search. (230) Imagine for instance that police searched the cell phones of everyone exiting a concert in the hope of finding photos of third parties using illegal drugs. (231) Isn't it obvious that suppression in that situation would deter similar dragnets? The same conclusion follows from principles of restoration, integrity, or judicial review. (232) Under any of those approaches, the government should not gain from, and the courts should not bless, unconstitutional conduct. Yet they do. (233)

The exclusionary rule's personal character suddenly becomes intuitive once it is freed from the supposed obligation to serve abstract values and public policy goals. The Due Process Clauses provide something narrower and more pointed than a generalized guarantee that the government will follow the law--namely, a guarantee that all persons will receive the predeprivation process to which they are entitled. Imagine for example that a witness implicates two defendants in a joint criminal trial, and only one of the defendants is permitted to be in the courtroom. In that situation, only one defendant has suffered a Confrontation Clause violation. As a result, only that defendant could claim a due process violation upon conviction. Fourth Amendment rights work the same way. We might imagine, for example, that the government illegally searched A's house and, in the process, discovered evidence incriminating both A and B. If convicted, the defendant whose house was illegally searched would suffer a deprivation of liberty without due process. The second defendant, by contrast, would have experienced no Fourth Amendment wrong and so would have received all the process to which he was entitled.

But if the due process exclusionary rule corroborates current doctrine, it also suggests a potential avenue for reform. When police search one person's house with the goal of acquiring evidence against the target of their investigation, the critical due process question is whether the target has suffered an invasion of privacy, such that his Fourth Amendment rights have been infringed. …