Supreme Court

The Fourth Amendment, the Exclusionary Rule, and Illegal Government Searches

Why illegally obtained evidence is generally inadmissible in court.

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Does the U.S. Constitution forbid the government from using illegally obtained evidence against a criminal suspect in court? The U.S. Supreme Court has ruled that it does.

In the landmark 1914 case of Weeks v. United States, the Supreme Court announced the far-reaching legal doctrine that has come to be known as the exclusionary rule, which generally bars the use in court of such illegally obtained evidence. Weeks arose after federal officials kicked down the door of a criminal suspect, scoured his home without a search warrant, and discovered a number of incriminating documents, which were later used against him at his federal trial. The Supreme Court said such evidence must be tossed out.

"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense," the Court ruled, "the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution."

Five decades later, in Mapp v. Ohio (1961), the Court extended the exclusionary rule to criminal trials held at the state level. "Presently, a federal prosecutor may make no use of evidence illegally seized," the Court observed, "but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same [Fourth] Amendment." The Mapp decision put an end to that federal-state discrepancy. "The fruits of an unconstitutional search," the Court declared, are now "inadmissible in both state and federal courts."

Today the exclusionary rule stands as a centerpiece of Fourth Amendment law and as a treasured doctrine among civil libertarians. Yet the rule has its critics. Prominent among them is the respected liberal Yale University law professor Akhil Reed Amar, who has denounced the exclusionary rule as "despicable and dispensable."

In Amar's view, the exclusionary rule should be scrapped because it "draws no strength from the deeply rooted American ideal of protecting innocent Americans from erroneous convictions." Instead, as he wrote in his 2012 book, America's Unwritten Constitution, "the rule perversely benefits the guilty…precisely because they were guilty—precisely because reliable evidence of their guilt had surfaced." Amar insists that "reliable evidence" of guilt should be admitted at trial, no matter how the government happened to obtain it.

He raises an interesting point. By excluding evidence of guilt, the rule does, by design, benefit the guilty. Isn't our system of justice supposed to be designed to protect the innocent?

But questions of guilt and innocence in such matters are not always as simple as Amar would have you believe. Consider the events that led to Mapp v. Ohio. In 1957, Cleveland police were hunting for a bombing suspect and wanted to search a particular two-family residence. Dollree Mapp lived on the top floor of that residence and she absolutely refused to let the authorities enter her home without a search warrant.

After a stand-off of several hours, the police forced the door and proceeded to ransack Mapp's home without a warrant. Among other things, the officers rifled through her dresser, her chest of drawers, her photo album, and her personal papers. Needless to say, the police failed to turn up any bombing suspects hidden inside the photo album or squeezed inside a dresser drawer.

But the police did discover some pornographic materials, and those materials happened to be illegal under state law at that time. Mapp was thus charged with possessing pornography and later convicted of that offense.

Mapp was guilty of possessing pornography. But at the same time, she was entirely innocent of harboring (or being) a bomber, the ostensible reason the police illegally invaded and pillaged her home in the first place. So perhaps the Supreme Court's 1961 ruling in Mapp's favor did protect an innocent American from government malfeasance after all.

As a replacement for the exclusionary rule, Amar suggests other ways to deter government violations of the Fourth Amendment, such as "tort suits against abusive officers, punitive damages to deter future misconduct, [and] proto-class-action devices enabling small-fry search victims to band together."

In theory, that sounds promising. When the cops violate your rights, it would be good to sue the cops for every cent. Unfortunately, there are a few practical impediments. One is a little thing called qualified immunity, which makes it extremely difficult for most victims of police misconduct to actually sue the police for their misdeeds. Another is a little thing called absolute immunity, which basically makes it impossible for most victims of prosecutorial misconduct to sue prosecutors for their misdeeds.

For better or worse, the exclusionary rule is one of the few protections now available against unconstitutional government searches.

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  1. Get rid of all the laws criminalizing things that shouldn’t be crimes and put some severe criminal penalties in place for police and prosecutors who violate constitutional protections of people’s rights and maybe we can talk about losing the exclusionary rule.

    1. Pretty much.

      It’s hard to argue that the rule only “protects the guilty” when it’s in fact the only protection innocent people have from illegal search and seizure.

      1. But what protection do they get when they’re innocent? Not even an apology AFAIK.

        1. A la Bastiat, there is what is seen and then there is what is unseen.

          If not for the exclusionary rule, cops would be searching everyone they come across who doesn’t have the wealth or political connections to make problems for them.

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          2. There are lots of exceptions to the exclusionary rule and more all the time. The problem is that the innocent cannot challenge an unlawful search; the exclusionary rule does not apply to them.

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  2. Don’t hold your breath.

  3. He raises an interesting point. By excluding evidence of guilt, the rule does, by design, benefit the guilty. Isn’t our system of justice supposed to be designed to protect the innocent?

    WTF??? The Constitution and Bill of Rights about limiting government power / authority to a few specific tasks, not “protecting the innocent”. The Weeks ruling gets it clearly, simply right, anything else is based on twisted logic or premises.

    This could have used a good edit. How about ‘ He raises and interesting point. He misses the point. By excluding evidence of guilt…. ‘?

    1. So much this. WhoTF cares if it “benefits the guilty”.

      1. The guilty also shouldn’t get to hide behind the 5th and 6th Amendments.

        1. I know, right! And it would be so much easier if we could just assume guilt and make people prove their innocence.

    2. This could have used a good edit.

      The entire preceding paragraph from the article thoroughly convinces me that Amar’s book would make excellent kindling.

      Amar insists that “reliable evidence” of guilt should be admitted at trial, no matter how the government happened to obtain it.

      I’d be interested to know how Amar arrives at “reliable evidence” without grand juries and preliminary and evidentiary hearings; where evidence would be excluded from the trial whether the Exclusionary Rule applied/existed or not. I’m sure the “Chain of Custody Rule” is similarly onerous to the decisions he disagrees with.

  4. What’s the difference between cops entering your home without a warrant and a home invasion by armed criminals?

      1. Or maybe it’s something to do with the social contract. We can ask Tony whenever he wakes up.

        1. “greater good”

          1. You forgot Top Men.

    1. No collective bargaining agreement?

    2. Badges and uniforms. Also, more bureaucracy.

    3. The armed criminals normally do not wear cute, matching outfits?

    4. What is the difference between a home invasion by armed criminals and a home invasion by a SWAT team? I don’t know. Looking for answers…

    5. Criminals are less likely to shoot your dog?

    6. When criminals take your stuff, they usually leave you behind.

    7. Armed criminals spend more time casing your home, confrontation is the rarity rather than the norm. They are more likely to engage in something resembling a fair fight, and are more objectively willing to bail on a fight they can’t win. I’m not directly privy to gang or organized crime recruiting techniques but none of them (in this country anyway) carry a hallmark of kicking in doors, displays of force, and making examples of people like the police.

      1. I’m not directly privy to gang or organized crime recruiting techniques but none of them (in this country anyway) carry a hallmark of kicking in doors, displays of force, and making examples of people like the police.

        Baloney. Street gang initiations commonly involve more hideous acts of violence than the police are capable of in Reason’s wettest dreams.

        In Pittsburgh they sometimes push a random person into traffic on a busy street. Or grab an old man off the sidewalk and drag him down the street bashing his forehead into side mirrors of parked cars until he passes out.

        So don’t give me this noble criminal stuff. The Orwell quote about valuing the men ready to visit violence on those who would do you harm is abused, but it is quite true.

    8. 1. You can shoot armed criminals.
      2. You don’t have to pay armed criminals out of your tax dollar.
      3. Armed criminals at least admit they are in the wrong and don’t act all butt-hurt.

    9. 1. The armed criminals don’t give two shits about bad press, so will do this whenever they think they can get away with it.

      2. The cops entering your home without a warrant can’t possibly benefit from that act.

      3. You know who the cops are and who they work for, so you have recourse against them.

    10. The armed criminals are more honest in not expecting the sanction of their victims.

  5. it seems that the rule is blind to guilt or innocence and is merely an evidentiary rule.

  6. The cops have more rights than either the homeowner or the freelancer?

  7. professor amar sounds like he needs to find the retirement chair. cities get sued all of the time for police misconduct to no avail whatsoever to future conduct. they would rather pay a million here and there for the freedom to operate at will. getting rid of the exclusionary rule would be a free-for-all and a blank check for them.

  8. Also, cops never, never plant “evidence”.

    1. You’ve been watching too much TV

      1. I haven’t had one for nearly ten years.

  9. “He raises an interesting point. By excluding evidence of guilt, the rule does, by design, benefit the guilty. Isn’t our system of justice supposed to be designed to protect the innocent?”

    Our system of justice is supposed to be designed to protect our rights.

    We have a police force to protect our rights from criminals.

    And, yes, we have courts to protect our rights from the police.

    The Fourth Amendment protects the rights of criminals, but it also protects the rights of the innocent, too. It isn’t about whom it protects; it’s about what–and what it protects is our rights.

    Why is it so hard for people to believe that criminals also have rights? Should we only believe in the rights of bunnies with big, sad eyes? Infantile adults are infantile. Give them puppies to play with. The justice system is supposed to be designed by grown ups. Let’s grow up. Rapists, murderers, arsonists, terrorists, racists, anti-fa, even millennials–they all have rights, and our entire government (much less the justice system) is supposed to be designed to protect our rights.

    Is it because people have lost their connection to Christianity? “If you have done so unto the least of these, you have done so unto me”. “Do unto others as you would have done unto you”. “Thou hast heard it said ‘an eye for an eye and a tooth for a tooth’, but I say unto thee, . . . ”

    You motherfuckers need some Jesus in your lives.”

    *H/T HM

    1. Equal protection under the law? Blasphemy!

      If there were a presumption of innocence then LEO would have to proceed as though they were potentially trampling on the rights of the innocent rather than riding in on their white chargers to vanquish those scary criminals thus saving the innocent from harm.

    2. The Fourth Amendment protects the rights of criminals, but it also protects the rights of the innocent, too.

      The Fourth Amendment doesn’t protect the rights of the innocent. Unlawful searches are deterred by exclusion of evidence which is not a remedy available to the innocent.

  10. My primary (and only) gripe with exclusion is what if the evidence had been a dead body and not articles of pornography?

    1. So what’s your point?
      Exclusion is exclusion. Even a dead body would not be admissible without a warrant.
      She could not have been arrested for littering if they found a dead body without a warrant.

    2. Give it a few days, either the neighbors would complain about eh smell or she’d be spotted disposing of the body.

      All this assuming that the dead body was illegally generated of course.

      1. “Legally generated” dead body is NOT a phrase I want the courts to hear about or I promise you that there will be many passive-voice firearms that “generate” dead bodies or simply convert, using legal means, a citizen to a “legally generated corpse.”

  11. “Unfortunately, there are a few practical impediments”

    Like the actual cost of litigation?
    Like having to go through all the necessary harassment before being able to even have a chance at recompense rather than establishing doctrine that prevents in int he first place. A half hour of misconduct by a cop can create years of hassle, hardship and expense for an average citizen who is most likely ill equipped to pursue litigation.

    To suggest that a person can just sue is an elitist position. It isn’t that surprising a position to hear from a liberal scholar.

    Our legal system is a lot like buying a car. Even savvy customers who may buy a car every few years are far less prepared and equipped than the salesmen who sell multiple cars a week. The key difference being that buying a car has become more transparent while our legal system has become much less so.

    1. That’s why we need “loser pays” in **all** civil **and** criminal cases.

  12. Hes right to criticize the exclusionary rule as ineffective at protecting rights. It offers zero protection-no incentive to not violate rights-when what is being sought is not intended to be used in a criminal trial. e.g. the utah nurse/blood draw incident from a few months back as the police were (probably) securing evidence for a civil trial and the exclusionary rule would have had no effect. In future such cases will the incentive to not violate rights be the exclusionary rule or the possibility of job loss, civil damages, and loss of reputation?

    Further, often the LEOs just don’t give a damn, or aren’t very knowledgeable about search and seizure law. Its pretty complicated stuff, and they aren’t lawyers. Unless its a major case, the LEOs will just shrug their shoulders and move on if evidence gets excluded; its really no skin off their back.

    And if no incriminating evidence is found, then the exclusionary rule offers no benefit. Excluding non-existent evidence is meaningless. It doesn’t undo the inconvenience, humiliation, and property damage that an illegal search and seizure can cause, and offers no compensation otherwise.

    So yeah, the exclusionary rule is not very effective at protecting rights, and we’ve known this since it was first implemented. Money damages and job loss are much better incentives against violations. I don’t know that I’d scrap it all together, as without it theres an incentive to violate rights, but it certainly does not go far enough.

    1. Further, often the LEOs just don’t give a damn, or aren’t very knowledgeable about search and seizure law.

      Why should they? They face no consequences for breaking the law. They do whatever they want. Literally. Who is going to stop them? The cops? Cops don’t stop cops. That is one of the rules.

      If they illegally collect evidence, beat homeless people to death, shoot someone who is begging for their life, etc, doesn’t matter.

      The king’s men do whatever they want.

      1. What I don’t understand is what incentive police have to do their jobs at all. If I were a cop, I’d do 0 all day; what are you going to do, fire us? We’ve got the guns & the means to get back at anyone who complains.

        Yet, bizarrely, we have cop misconduct. Not only are they doing stuff to hurt us, but also it’s of no benefit to them!

        1. This!

          Maybe the same argument should be used against having a standing police force as is used regarding a standing army. Whether the force is turned inward or outward, it wind up getting misused if it’s just sitting around; cause, you know, well, it’s there, so why not? (Sort of a corollary of “never let a crisis go to waste” ?).

    2. That’s something I’ve pointed out too.

      Why don’t the cops spend all day searching all the persons & premises they can as a form of crime stopping? They couldn’t have you prosecuted, but they’d stop crimes in progress, to the extent your having something is a crime. (It could even be an actual victimful crime, like stealing stuff.) Nobody would have privacy, nobody would go to court, nobody would be guilty, nobody would be innocent.

      1. & that’s if they wanted to be nice & do society a favor instead of cynical like me.

      2. That’s exactly what “Stop & Frisk” is.

    3. Hes right to criticize the exclusionary rule as ineffective at protecting rights. It offers zero protection-no incentive to not violate rights-when what is being sought is not intended to be used in a criminal trial.

      Well it’s not a panacea in all cases, but to call it ineffective is going overboard. Without the exclusionary rule there would be far more warrantless searches conducted.

      e.g. the utah nurse/blood draw incident from a few months back as the police were (probably) securing evidence for a civil trial and the exclusionary rule would have had no effect.

      You sure about that? Can illegally-obtained evidence be used in a civil trial?

      Money damages and job loss are much better incentives against violations.

      Careful how far you go with that. If you make the job of a cop riskier, you’re going to have to pay them more to get decent recruits, with money taken at gunpoint from taxpayers.

      With Reason’s portrayal of cops as having the easiest job in the world with early retirement and the privilege to break every law in the book, it’s surprising the commenters and writers here aren’t flocking to get law enforcement jobs. Wouldn’t that be the free market thing to do?

  13. It would be nice if when government agents illegally collect evidence, that they would be charged with a crime for that illegal activity.

    As it is they engage in criminal activity by illegally collecting evidence, and the worst that can happen is that their victim’s lawyer figures it out and gets the evidence excluded. If the victim can’t afford a lawyer, or if their lawyer doesn’t figure out that the prosecution is breaking the law, then the cops win.

    So there is no incentive for the cops to follow the law. Quite the opposite.

  14. “For better or worse”, that’s a bold statement, Damon! Not!

  15. The Constitution guarantees that we won’t be subjected to illegal searches. It does not guarantee that illegally obtained evidence won’t be used against us. The court’s interpretation of the 4th amendment is essentially that 2 wrongs make a right. If you commit a crime and then someone from the government commits a crime by performing an illegal search, then we just pretend like no crimes have occurred. That’s wrong. Two crimes have occurred and both should be prosecuted. If we want people from the government to stop performing illegal searches, then we need to punish government agents who perform those searches. Letting some other criminal go free is not an effective deterrent to government agents. Sticking government agents in jail would be an effective deterrent.

    1. *taps sarcometer

    2. Correct. Most of us learn in grade school that “two wrongs don’t make a right,” but in this case they do, with the wrong of an illegal search (whether intentional or accidental) making “right” the wrong of the original crime. Worse, there is no common-sense judgment in the false equivalence of the criminal’s offense and that which made the search “tainted.”

      “Now now, Mr. Smith, you were VERY NAUGHTY to have kidnapped and raped that little girl to death, VERY NAUGHTY INDEED! However, since the word “Aerostar” was misspelled in the search warrant for your “Free Candy & Puppies” van, the evidence obtained via that warrant (the candy, the rope, the chloroform, and the little girl’s body) are hereby excluded. You are free to go.”

  16. This prof is trying to make a splash with a radical(ly stupid) thesis. What Will calls “the survival of the shrillest.” I think it’s also called “trolling” but I’m not up on the kids’ lingo these days.

  17. Seems like someone is having trouble with ex ante and ex post.

    The rule protects neither guilty nor innocent. It protects the suspect.

  18. Criminal law is bizarre & fucked thru & thru, & the exclusionary rule is just one example of how. How long would it take for us to get rid of all criminal law, politically? It seems so entrenched. So weird that it’s “the people vs. you” as if you weren’t one of the people too! How could you have a case vs. yourself?

    If you steal goods & they’re seized illegally, why aren’t they returned to you? Isn’t that an admission by the law that they were really stolen?

  19. As a replacement for the exclusionary rule, Amar suggests other ways to deter government violations of the Fourth Amendment, such as “tort suits against abusive officers, punitive damages to deter future misconduct, [and] proto-class-action devices enabling small-fry search victims to band together.”

    Because such suits have done a bang-up job protecting people from the depredations of trigger-happy, militarized police. Ask Daniel Shaver.

    1. So why do we still tolerate cops? Why do cops tolerate us? It looks like an unstable equilibrium. Seems we could either get rid of all cops, or all become cops, & then everybody’s happy.

  20. “By excluding evidence of guilt, the rule does, by design, benefit the guilty. Isn’t our system of justice supposed to be designed to protect the innocent?”

    Yes, it does protect the innocent. This is just about the only area of law where the “two wrongs DO make a right” doctrine is in force.

    Certainly we should prevent police and other authorities from conducting illegal searches. But the right way to do that is in the same way that we discourage any illegal activity, by inflicting punishment on those who break the law, not by voiding someone else’s criminal culpability. By all means, make the penalty for conducting an illegal search as stiff as necessary, and see to it that it’s enforced: fire the cop, fine him, imprison him. But do not let OTHER criminals go free because evidence collected against them is somehow “tainted.”

    1. Mistyped in my first sentence. I meant to say it protects the GUILTY.

    2. How does it protect the innocent? If incriminating evidence is found during an unlawful search, then exclusion prevents it from being used in court. If nothing is found during an unlawful search, then the innocent have no recourse because exclusion does not apply.

  21. Every time I read an article about the 4th Amendment, I shake my head with disbelief as our Federal and State Governments seize property and cash under ‘probable cause’ theft. Last year, 55,000 people had cash taken from them by the police because ‘it was a lot of money’ and the citizen could not provide what the cops thought was a reasonable explanation for having it. In some cases, people were ‘driving don to LA to visit family and look to buy a truck’ and had $10,000 in cash to do so. Some people have fought and taken the police to court which takes money and sometimes years to get their cahs back. I find that outrageous.. Unfortunately, the SCOTUS has supported these seizures, and recently Trump’s Keebler Elf AG, Sessions has issued guidelines to make it even easier.

    1. Agreed absolutely that these practices are outrageous and obscene but they really have little or nothing to do with the exclusionary rule. The exclusionary rule prevents the items from being used as evidence. The police seek only to possess these items, not use them in court. The policies allowing these practices simply condone theft (a 5th Amendment violation since there is no due process). Nothing more.

  22. Is that your argument, Damon? We need to release dangerous criminals to defend these inexcusably stupid immunities?

    How about this: we get rid of qualified immunity and absolute immunity and the exclusionary rule? Seems like a win-win-win.

  23. Amar’s views are nothing new. They go back all the way (at least) to Cardozo who scorned the notion that a “guilty” person should go free “because the constable erred”. Since then the idea of all sorts of tort liability or departmental discipline would be sufficient.

    Only it is not. What Amar overlooks is that once the unconstitutional search has happened there is no ready means to put the toothpaste back in the tube. Neither a tort remedy somewhere down the road nor a departmental sanction that grants nothing to the victim of the search avail anything. The idea of the exclusionary rule is precisely that the state is denied the use of the unconstitutionally obtained evidence for the one purpose that it was seized: in order to win a guilty verdict at trial.

    And the rule has been in effect now for over 50 years. Any police department paying any attention at all knows the rule and should by now also know how to educate its officers as to what it means (as well as, inevitably, how to skirt it). It’s ridiculous to pretend that after all this time application of the rule is a shock of cold-water to police or prosecutors.

  24. I’ve also thought that the exclusionary rule is a less-than-optimum remedy for 4th Amendment violations. Some possibilities would be to allow states to escape the exclusionary rule *if* they waive qualified immunity. Or we might go further: a state may escape 4th Amendment exclusion if it consents to strict liability in civil actions for violations. That is, the government entity in question must pay damages even if the violation was accidental, or based on a good-faith belief that the officer(s) were entitled to make the search/seizure, or any other excuse the state might cook up.

    Another thing that might deter misuse: statutory minimum penalties. That is, in an action for illegal search/seizure, the government is liable for actual damage, but there is also a statutory minimum for personal damages. The plaintiff doesn’t have to prove that he was injured, he can just ask for the minimum without proving any damages. Or he can provide evidence of actual damage (loss of work, being treated for psychological damage, etc) and collect for his actual losses.
    (to be continued)

    1. (continued) Note that statutory penalties would also provide an incentive to sue even if the cops haven’t trashed your home (for example). This is important because such lawsuits are the only way to measure how frequent violations are in a given state (or municipality). If we could get reliable statistics, we could provide a *real* incentive for local governments to improve: if you have fewer violations per capita than the median, you can escape the exclusionary rule, provided that you don’t backslide. Any significant increase in your per capita violations puts you back on the exclusionary rule.

      It might also be possible to PARTIALLY apply this to violations of the 5th amendment rule against self-incrimination. *NOT* that I’m advocating the use of coerced confessions (including those that are taken without Miranda warnings or after the accused is represented by a lawyer, but without the lawyer present). Those are inherently suspect and should not be introduced. But what about the “fruit of the poisonous tree”? I would suggest that outside evidence (obtained because of the confession, but more reliable than the confession) should be admissible, again *if* the state does better than the median in terms of violations per capita and does not backslide.

  25. The point of the 4th amendment is not to protect the innocent in particular or the guilty in particular. It is to prevent government harassment and fishing expeditions against all Americans, be they guilty or innocent — and the exclusionary rule has proven to be the only effective disincentive against violating it. Without the exclusionary rule the cops would be performing searches and seizures constantly, except perhaps against the wealthy or politically connected. Even the innocent would have a beef with that.

  26. The Exclusionary Rule was created by the Supreme Court to provide the illusion of 4th Amendment protection, while maintaining continued protection from liability for law enforcement agents who violate that constitutional provision. Without the Exclusionary Rule, victims of illegal searches and seizures would be demanding relief in court against officers who violated their rights, and courts and lawmakers would have to stop providing immunity protection for law-breaking cops.

    The purpose of the 4th Amendment is not to protect the innocent, but to protect all of our rights to be free from “unwarranted” government intrusion into our private lives. The Framers were aware from experience that tax evasion and smuggling could be protected by requiring that searches be authorized by search warrants based on probable cause. They wanted that protection precisely because of the way the British used warrantless searches to enforce their oppressive laws.

    Judges have largely emasculated the Exclusionary Rule, though, because there is very little in the way of government search and seizure that they find unreasonable.

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