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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Supreme Court's Contemporary Silver Platter Doctrine
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.