Academic journal article American Criminal Law Review

The Exclusionary Rule as Fourth Amendment Judicial Review

Academic journal article American Criminal Law Review

The Exclusionary Rule as Fourth Amendment Judicial Review

Article excerpt

Few legal doctrines are cheered, jeered or even thought about as much as the Fourth Amendment exclusionary rule. This is largely because the rule's proponents--who want a robust rule--and opponents--who want to do away with it altogether--are miles apart when it comes to the rule's theoretical underpinnings. For its part, the Supreme Court has charted a middle course, retaining the rule as a quasi-constitutional remedy while limiting its application. But the Court's approach is analytically confusing and unsatisfying to most.

Notwithstanding all of this attention, the natural understanding of the doctrine has been largely overlooked. As a response to another branch's violation of the Constitution, the exclusionary rule is best understood as an aspect of judicial review. This Article offers a new and original comparison of the decision to exclude unconstitutionally obtained evidence with the decision not to apply unconstitutional legislation. The comparison reveals (1) that courts are obligated to exclude unconstitutionally seized evidence for the same reasons that they must refuse to apply unconstitutional legislation, and (2) from a conceptual perspective, the exclusionary rule is simply the form that judicial review takes in the Fourth Amendment context. Thus, the exclusionary rule should be understood not as a circumstances-dependent remedy but as a judicial obligation incumbent on courts to follow.


     A. The Exclusionary Rule
     B. Judicial Review
     A. The Text
        1. The Exclusionary Rule
        2. Judicial Review
           a. The Arising Under Clause
           b. The Supremacy Clause
           c. The Oaths Clause
     B. Constitutional Structure
     C. Original Understandings
        1. The Exclusionary Rule
        2. Judicial Review
     A. Two Steps: Determination and Invalidation
     B. Analytic Objections to the Exclusionary Rule ... and
        Judicial Review
        1. Excessive Restoration
        2. Insufficient Restoration
        3. Punitive Weakness
        4. Criminal Beneficiaries
        5. Innocent Non-Beneficiaries
        6. Lack of Proportionality
        7. Impediment of the Court's Role


Proponents of the exclusionary rule are playing a goal-line defense. (1) Over the last forty years, the Supreme Court has whittled down the circumstances in which unconstitutionally seized evidence is suppressed at trial. It has done so through an elemental reformulation of the rule itself. Once upon a time, the Court characterized the rule as "an essential ingredient of the Fourth Amendment" (2) and applied it "reflexive[ly]" (3) to exclude evidence discovered as a result of unlawful searches and seizures. It now disclaims that approach in no uncertain terms. (4) Insofar as the Fourth "Amendment" says nothing about suppressing evidence," (5) the Court reasons, the exclusionary rule is a "prudential doctrine," the "sole purpose" of which is "to deter future Fourth Amendment violations." (6) Where the costs imposed by the rule--namely, the freeing of criminals--outweigh that deterrent value, exclusion is deemed unwarranted. (7)

But the verdict may not be in. A mere two years ago, a bare minority of the Court urged "a more majestic conception" of the exclusionary rule than is currently applied. (8) Those Justices joined the countless commentators who lament the rule's erosion. (9) Thus, it isn't that the rule wants for supporters. The problem is that those supporters have been unable themselves to reformulate the rule in a manner that persuasively counsels for a more robust doctrine.

From a policy perspective, I personally am conflicted when it comes to the exclusionary rule. There are compelling arguments for and against it. On one hand, the notion that the government could violate a person's civil rights and, to boot, punish him based on what it learned in the process is deeply unsettling and subversive of the rule of law. …

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