The Supreme Court's Contemporary Silver Platter Doctrine

By Gray, David; Cooper, Meagan et al. | Texas Law Review, November 1, 2012 | Go to article overview

The Supreme Court's Contemporary Silver Platter Doctrine


Gray, David, Cooper, Meagan, McAloon, David, Texas Law Review


In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials. This "collateral use" exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings. In this Article we argue that these collateral use exceptions raise serious conceptual and practical concerns. The core of our critique is that the collateral use exception reconstitutes a version of the "silver platter doctrine." In the days before the Fourth Amendment and the exclusionary rule were incorporated to the states, the silver platter doctrine allowed federal courts to admit evidence seized by state law enforcement agents during "unreasonable" searches and seizures. The silver platter doctrine was rejected by the Court in 1960 out of concern that it was compromising states' efforts to guarantee constitutional protections because it created incentives for state law enforcement officers to violate the Fourth Amendment. By reconstituting the silver platter doctrine, the Court's collateral use cases have recreated some of those incentives. Our research indicates that these incentives have been successful in altering police practices in ways that threaten the Fourth Amendment rights of all citizens.

I. Introduction

At its inception in 1886,1 and through its incorporation to the states in 1961,2 the Supreme Court regarded the Fourth Amendment exclusionary rule as a remedy required by constitutional principle.3 It was designed to nullify violations,4 to prevent the government from benefitting by its wrongdoing,5 and to preserve the moral integrity of the courts and the government as constitutional torchbearers.6 On this view, the exclusionary rule was bound to the Fourth Amendment itself. The remedy defined the right;7 or, as Justice Holmes put the point in Silverthorne Lumber Co. v. United States,8 "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that . . . it shall not be used at all."9 The alternative, he wrote, "reduces the Fourth Amendment to a form of words."10

The contemporary Court has abandoned all of the principled justifications of the Fourth Amendment exclusionary rule and the conceptual link between that remedy and Fourth Amendment rights. It has instead adopted what William Heffernan calls the "severance principle," which holds that the exclusionary rule is a punitive sanction, not a personal remedy, and that it is justified solely by its ability to deter government agents from violating the Fourth Amendment and not by its potential to vindicate harms suffered by citizens whose rights are violated.11 The severance principle was on prominent display in Davis v. United States.12 In that case the Court held that Davis's Fourth Amendment rights were violated when his car was searched secondary to his lawful arrest and the officers could claim neither emergency nor independent probable cause to believe that evidence of a crime would be found in the car.13 The Court nevertheless held that Davis could not avail himself of the exclusionary rule because the officers who effected that search relied to their detriment on federal law established in their circuit, which, following New York v. Belton,14 permitted police to perform automobile searches as a matter of right incident to a lawful arrest of the driver.15 That rule was revoked by the Court in Arizona v. Gant,16 but only after the search of Davis's car.17 Given this course of events, the Court reasoned that inflicting the exclusionary rule would serve no purpose because it could not have deterred the officers who searched Davis's car or any similarly situated officer who abides the established federal law of her circuit.18

As one of us argues at length elsewhere, the Court's logic in Davis, and other cases where it has developed and applied this "good faith" exception, is deeply flawed and threatens to degrade substantive Fourth Amendment rights. …

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