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Exclusionary Rule

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The principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.

The exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant's Fourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures by law enforcement personnel. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial.

The exclusionary rule is a court-made rule. This means that it was created not in statutes passed by legislative bodies but rather by the U.S. Supreme Court. The exclusionary rule applies in federal courts by virtue of the Fourth Amendment. The Court has ruled that it applies in state courts although the Due Process Clause of the Fourteenth Amendment.(The Bill of Rights—the first ten amendments— applies to actions by the federal government. The Fourteenth Amendment, the Court has held, makes most of the protections in the bill of rights applicable to actions by the states.)

The exclusionary rule has been in existence since the early 1900s. Before the rule was fashioned, any evidence was admissible in a criminal trial if the judge found the evidence to be relevant. The manner in which the evidence had been seized was not an issue. This began to change in 1914, when the U.S. Supreme Court devised a way to enforce the Fourth Amendment. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent had conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search. Weeks's conviction was reversed, and thus was born the exclusionary rule.

The exclusionary rule established in Weeks was constitutionally required only in federal court until Mapp v. Ohio 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp, Cleveland police officers had gone to the home of Dollree Mapp to ask her questions regarding a recent bombing. The officers demanded entrance into her home. Mapp called her attorney and then refused to allow the officers in without a warrant. The officers became rough with Mapp, handcuffed her, and searched her home. They found allegedly obscene books, pictures, and photographs.

Mapp was charged with violations of obscenity laws, prosecuted, convicted, and sentenced to seven years in prison. The Ohio Supreme Court affirmed the conviction, but the U.S. Supreme Court overturned it.

In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment. Before the Mapp ruling, not all states excluded evidence obtained in violation of the Fourth Amendment. Since Mapp, a defendant's claim of unreasonable search and seizure has become a matter of course in most criminal prosecutions.

A criminal defendant's claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding judge. This hearing is conducted before trial to determine what evidence will be suppressed, or excluded from trial.

The exclusionary rule is still regularly invoked by criminal defendants, but its golden age may have passed. Since the 1980s, the U.S. Supreme Court has severely limited its application. According to the Court, this rule was not devised to cure all Fourth Amendment violations. Rather, it was designed primarily to deter police misconduct. This construction led to the good faith exception to Fourth Amendment violations established in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

In Leon, police officers searched the Burbank, California, home of Alberto A. Leon, and arrested Leon after they found a large quantity of drugs in his possession. The search was executed pursuant to a warrant that was later determined to be invalid. The information provided by the police in their affidavit in support of the warrant had been stale, which meant that too much time had passed between the observations that prompted it and the application for the warrant. No evidence suggested that a police officer had lied about facts. Rather, the staleness of the affidavit had simply been overlooked by the magistrate.

The drug evidence seized from Leon's home was excluded from trial by the U.S. District Court for the Central District of California, and the Ninth Circuit Court of Appeals affirmed the ruling. On appeal, the U.S. Supreme Court reversed, holding that evidence gathered in a search executed pursuant to a warrant later found to be defective should not be excluded from trial.

The majority in Leon opened its analysis by noting that the Fourth Amendment "contains no provisions expressly precluding the use of evidence obtained in violation of its commands." The exclusionary rule, according to the majority, was not designed to be a personal right. It was created by the Court "to deter police misconduct rather than to punish the errors of judges and magistrates." Under this interpretation, excluding evidence obtained through an honest mistake would serve no purpose. The Court's ruling in Leon meant that evidence obtained in violation of a person's Fourth Amendment rights would not be excluded from trial if the law enforcement officer, although mistaken, acted reasonably.

Justice John Paul Stevens dissented, arguing that the facts of the case did not warrant such a sweeping exception to the exclusionary rule. In a separate dissenting opinion, Justices William Joseph Brennan, Jr. and Thurgood Marshall conceded that, "as critics of the exclusionary rule never tire of repeating," the Fourth Amendment does not contain an express provision calling for the exclusion of evidence seized in violation of its commands. Brennan and Marshall dismissed this argument by noting that the Constitution is stated in general terms, and that the U.S. Supreme Court regularly creates doctrines designed to enforce its simple terms.

Brennan and Marshall maintained that "the chief deterrent function of the [exclusionary] rule is" far beyond the simple prevention of police misconduct, "the tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally." In other words, if a search warrant is found defective at any point in the prosecution, the evidence should be excluded, even if the defect is due to an honest mistake. This, according to Brennan and Marshall, would preserve the integrity of both law enforcement and the Fourth Amendment. Brennan and Marshall concluded that the majority's reliance on the deterrence rationale "robbed the [exclusionary] rule of legitimacy."

In 1995, the U.S. Supreme Court revisited the good faith exception to the exclusionary rule. In Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995), the error of a court employee mistakenly listed Isaac Evans as the subject of a misdemeanor arrest warrant. A police officer had stopped Evans for a traffic violation, searched Evans pursuant to the faulty warrant information, and found marijuana.

On trial for possession of marijuana, Evans moved to suppress the marijuana evidence. The Maricopa County Superior Court granted the motion. The state of Arizona appealed, and the Arizona Court of Appeals reversed. The Supreme Court of Arizona then heard the case and held that the evidence should be excluded.

On appeal by the state of Arizona, the U.S. Supreme Court reversed, holding that evidence seized in violation of the Fourth Amendment as a result of clerical error need not be excluded from trial. In so holding, the Court emphasized that the Fourth Amendment exists only to guard against unreasonable police intrusions. According to the Court, "[The] use of the fruits of a past unlawful search or seizure 'works no new Fourth Amendment wrong'" (Evans, quoting Leon, quoting United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974]).

The good faith exception established in Leon is just one exception that renders the exclusionary rule inoperable. Evidence seized by private parties is not excluded from trial if the search was not at the direction of law enforcement officers. If a criminal defendant testifies in her or his own defense, illegally seized evidence may be used to impeach the defendant's testimony. Evidence seized in violation of a person's Fourth Amendment rights may be used in grand jury proceedings and civil proceedings. In a grand jury proceeding, however, illegally seized evidence may not be used if it was obtained in violation of the federal wire tapping statute (18 U.S.C.A. § 2510 et seq.).

Few legal observers express complete satisfaction with the exclusionary rule. Some commentators criticize the U.S. Supreme Court for limiting the scope of the rule with the good faith exception. Others contend that the rule should be abolished because it impedes law enforcement. Some members of Congress have even proposed legislation to abolish the exclusionary rule in federal court. To date, no such legislation has been adopted.

The U.S. Supreme Court has continued to look at the application of the exclusionary rule to various types of searches and seizures. In Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999), the Court gave police more discretion to search and seize without violating the Fourth Amendment's warrant requirement and thereby triggering the exclusionary rule. In that case, police did not need to obtain a warrant before seizing an automobile from a public place under laws that require forfeiture of property tied to crime. The Court rejected the argument that absent "exigent circumstances," police must obtain a warrant before seizing property that has been used in violation of the state forfeiture act. It pointed to its tradition of allowing police "greater latitude in exercising their duties in a public place." Although a warrant is generally required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where police have probable cause to believe that a felony has occurred.

In a surprising departure from its Fourth Amendment jurisprudence, the U.S. Supreme Court ruled that an anonymous tip by itself does not give police officers the authority to stop and frisk a person for a weapon. Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). A police officer may stop and frisk a person for a firearm if the officer reasonably concludes that criminal activity may be contemplated and that the person may be armed and dangerous. However, if the search is based only on a anonymous tip, the seized weapon may not be offered into evidence, due to the exclusionary rule.

The U.S. Supreme Court also invoked the exclusionary rule in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). It set out a new rule for police when they want to use new types of electronic surveillance, including thermal imaging, to examine the inner workings of a home. The Court held that police must apply for a warrant from a court before using a device that can obtain details of a private home that would have been unknowable without physical intrusion. If police fail to secure a warrant, the search will be regarded as "presumptively unreasonable" and the evidence that the search produced will be inadmissible at trial under the exclusionary rule.

The Court noted that the degree of privacy guaranteed by the Fourth Amendment had been affected by technological developments. The question became "what limits there are upon this power of technology to shrink the realm of guaranteed privacy?" Individuals had a "minimum expectation of privacy" that the interiors of their homes were not subject to warrantless police searches. Thus, the use of "sense-enhancing technology" that could obtain information that would otherwise only be obtainable by a physical search was a "search." This meant that any information obtained by the thermal imager was the product of a search, and a search was unreasonable and could only be justified if it was made pursuant to a warrant.

Further Readings

Calabresi, Guido. 2003. "The Exclusionary Rule." Harvard Journal of Law and Public Policy 26.

"Criminal Procedure." 1993. The Conviser Mini Review. Orlando, Fla.: Harcourt Brace Jovanovich Legal & Professional Publications.

Eiben, Valerie L. 1987. "The Good Faith Exception to the Exclusionary Rule: The New Federalism and a Texas Proposal." St. Mary's Law Journal 18.

Glasser, Larry. 2003. "The American Exclusionary Rule Debate." George Washington International Law Review 35.

Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993. Criminal Procedure and the Constitution. St. Paul, Minn.: West.

Kamisar, Yale. 2003. "In Defense of the Search and Seizure Exclusionary Rule." Harvard Journal of Law and Public Policy 26.



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