Reconceiving the Fourth Amendment and the Exclusionary Rule

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I

INTRODUCTION

Mapp v. Ohio, decided in 1961, comprised two holdings. (1) The first, and more controversial at the time, applied the exclusionary rule to the states, overruling Wolf v. Colorado, (2) decided just twelve years before. But it was the second holding--"[A]ll evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in ... court" (3)--that has led to the "criminal procedure revolution." And it is the second holding that is currently under attack by the Supreme Court.

As a result of this second holding, the Supreme Court evidently felt compelled to set forth just what it was that the Constitution requires so that the police could follow the rules and avoid evidentiary exclusion. Thus it was that, in a series of cases through the 1960s and continuing to this day, the Supreme Court began the 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 the practice of all other countries of which I am aware, including our common-law mentors, the British, who have nationally applicable codes of criminal procedure. (6)

It arguably follows from the American "rulemaking" practice, based as it is directly on the Constitution, that every search or interrogation violation is necessarily a violation of the Fourth or Fifth Amendments--and so the Supreme Court has repeatedly assumed. (7) Consequently, any evidence obtained in violation of the Constitution should be excluded, for it may seem logical that unconstitutionally obtained evidence should not be available to the government at trial. If, however, the rules of criminal procedure 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 the government at trial. Perhaps that is why, as the 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 the 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 the rule's mandatory nature forced police and federal agents to think about the rules before they acted. It caused both federal and local law-enforcement authorities to train their agents in the constitutional rules in order to afford evidentiary exclusion. In fact, my criminal procedure professor, Charlie Whitebread, was also the FBI's criminal procedure professor. Nor was it my impression that any significant number of cases were lost as a result of the rule, especially prosecutions of violent felonies. (9)

Nevertheless, the Supreme Court has made it clear that it is dissatisfied with the mandatory aspect of the Mapp rule. In two recent cases, Hudson v. Michigan (10) and Herring v. United States, (11) the Court has indicated that the 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 the world, as well as the 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 the Hudson and Herring decisions, the practices of other countries, and various previous suggestions for exclusionary-rule reform. Then, I set forth a reconception of the exclusionary rule, as well as the constitutional principles that gave rise to it. These reconceptions suggest a roadmap to exclusionary reform that might reconcile the factions on the Court (with Justice Kennedy in the middle) who strongly support and strongly oppose the current mandatory rule.

I propose that the exclusionary rule apply only in cases in which it can be said not only that the police broke the Fourth or Fifth Amendment rules, but that their conduct in doing so was negligent, judged case-by-case--in other words, when the search was "unreasonable," which is all that the Fourth Amendment forbids. …