CONTENTS I. PREVAILING THEORIES OF THE EXCLUSIONARY RULE A. Deterrence 1. Deterring Too Little 2. Deterring Too Much 3. Precedent 4. Legitimacy B. Equitable Restoration C. Judicial Integrity D. Judicial Review II. THE EXCLUSIONARY RULE AS DUE PROCESS A. Due Process as Adherence to Law B. Exclusion as a Due Process Remedy C. The Fourth Amendment as Pre-Trial Procedure D. Historical Change and Interpretive Method III. MAKING SENSE OF EXCLUSIONARY DOCTRINE A. Basic Explanatory Power 1. Personal 2. Evidentiary 3. Newtonian 4. Transsubstantive 5. Incorporated 6. Presumptive B. The Boundaries of Due Process 1. Grand Juries 2. Habeas Corpus 3. Impeachment 4. Civil Proceedings 5. Nonconstitutional Process 6. The Good-Faith "Exception" IV. REVISING AND EXTENDING EXCLUSIONARY DOCTRINE A. Scope Versus Manner 1. Probable Cause and Excessive Force 2. Stops and Warrants 3. Arrest and Extradition B. Authority, Not Causality 1. Attenuation 2. Inevitability and Independence 3. Identity C. Digital Surveillance 1. Data Mining 2. The Mosaic Theory CONCLUSION
The exclusionary rule has entered a new period of crisis. In a pair of 5-4 decisions, the Roberts Court has established the doctrinal basis for radically curtailing the circumstances in which the Fourth Amendment exclusionary rule might apply. The first decision, Hudson v. Michigan, argued at length that the exclusionary rule was a product of a bygone era, when police were unprofessional and egregious Fourth Amendment violations were routine. Because times have changed, the Court reasoned, the exclusionary rule often "forc[es] the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago." The second decision, Herring v. United States, went even further by suggesting the specific form that a twenty-first-century exclusionary rule might take. "To trigger the exclusionary rule," the Court said, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." In other words, the exclusionary rule should apply in Fourth Amendment cases, if at all, only when the police have exhibited "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence."
Read for all they are worth, the sweeping dicta set out in Hudson and
Herring would work a revolution. (1) In 1961, Mapp v. Ohio (2) declared "that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (3) Today, while there are of course many exceptions to the exclusionary rule, the basic default established in Mapp--that unconstitutionally obtained evidence is presumptively inadmissible at trial--remains a cornerstone of American criminal procedure. Yet Herring repeatedly cited and endorsed views that Judge Henry J. Friendly wrote to criticize cases like Mapp and their broad endorsement of exclusionary remedies. (4) Many commentators have noted the Court's "ominous" signals. (5) As if to confirm that suspicion, the Justices have already begun to stake out positions in this divisive and apparently inevitable contest. (6)
Despite the sense of change in the air, debate over the exclusionary rule has become hackneyed, (7) as evidenced by Herring's invocation of Judge Friendly's 1965 article. (8) Indeed, the battle lines seem to have been drawn long ago. On one side are those who believe that a broad exclusionary rule both deters the police from infringing the Fourth Amendment and honors moral values, such as equitable restoration. (9) On the other side are critics who argue that the rule is both inconsistent with historical practice and unnecessary in light of other actual or potential constraints on police behavior. …