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The Exclusionary Rule: Seismic Shift or Minor Blip?

The U.S. Supreme Court today decided the Fourth Amendment exclusionary rule case of Herring v. United States. At SCOTUSblog, Tom Goldstein's "preliminary reaction is that we will at some point soon regard today's Herring decision as one of the most important rulings in that field in the last quarter century." Meanwhile, back at the Volokh Conspiracy, Orin Kerr "thought it might be worth explaining why I disagree and why I think Herring is a minor case."

I think Tom is basically right, with one large caveat. Herring is a 5-4 decision, and it is a good bet that any new Justices appointed in the next several years will be likely to side with the dissenters. If President Obama appoints a successor to any of the 5, then Herring could be overruled or it could be relegated to the minor category of Supreme Court precedents that are never overruled and continue to control on their unusual facts but are never extended to their logical conclusion. If he does not, then the Holy Grail may be within grasping distance.
In the beginning, there was the Fourth Amendment, a rule of substantive law that had absolutely nothing to do with the admissibility of evidence in criminal trials for 123 years. Then the Supreme Court decided Weeks v. United States, 232 U.S. 383 (1914), discovering a rule excluding evidence obtained in an illegal search, notwithstanding the uniform understanding to the contrary before and long after the enactment of the Fourth Amendment. The rule only applied to federal criminal prosecutions. Few states followed suit, and legal giants including Benjamin Cardozo and John Henry Wigmore denounced it.

In these circumstances, the rule did not do too much damage, because federal jurisdiction was limited, and most crimes against ordinary folks were prosecuted in state courts where Weeks did not apply. Then in 1961, the Supreme Court seized on a case that had been briefed and argued as a First Amendment case, Mapp v. Ohio, 367 U.S. 643, to extend the Weeks rule to the states as a matter of federal constitutional law.

By 1976, the Court realized it had gone too far. The cure was worse than the disease. Of all the rules letting criminals free on "technicalities," the Fourth Amendment exclusionary rule was the most glaring and the most obviously unjust in the eyes of the general public. A criminal trial is supposed to be a search for the truth, and this rule excludes evidence for reasons having nothing whatever to do with its reliability. Stone v. Powell, 428 U.S. 465 (1976), effectively removed the Mapp rule from federal habeas review of state convictions. United States v. Leon, 468 U.S. 897 (1984), was the biggest leap. That case created a good faith exception in search warrant cases. Evidence could no longer be excluded on the ground that the judge should not have issued the warrant, so long as it was not so obviously invalid that the police had no reason to rely on it. A number of other decisions chipped away at the exclusionary rule, but the most relevant to today's decision was Arizona v. Evans, 514 U.S. 1 (1995). In that case, the police arrested defendant in the belief there was an outstanding warrant. Due to an error by court employees, they had not been informed the warrant had been quashed.

In all of the cases where the issue was the exclusionary rule and not the substantive Fourth Amendment question, the Court has engaged in weighing costs versus benefits of exclusion and has almost always decided that the cost is too high. All of the cases so deciding, though, have made that analysis for a discrete, definable category. In most of these cases, the Fourth Amendment violation was caused in large part by someone outside law enforcement. In Leon and Evans, it was the judicial branch or its employees. In Illinois v. Krull, 480 U.S. 340 (1987), it was the legislative branch that had enacted a statute authorizing the search, and the statute had not been declared unconstitutional at the time of the search, although it was the next day.

What the Supreme Court has not done is create a general good-faith exception for inadvertent violations of the Fourth Amendment by the police in the absence of contributing causation by an outside agency. Further, the Court has always done its cost-benefit analysis for particular categories without implying that such an analysis should apply across the board.

Herring jumps a firebreak and extends cost-benefit analysis to new ground. As in Evans, the police officer thought the warrant was outstanding when it actually was not, but this time the error was that of an employee of another law enforcement agency.

Chief Justice Roberts' opinion first restates what the Court has said many times since Stone: the exclusionary rule exists as deterrence for future cases, not as a right of the individual defendant. He then goes on to imply that the cost-benefit analysis has broader scope than the Court has ever given it before, and he quotes Judge Friendly's proposal from 1965 that the drastic remedy of exclusion be limited to flagrant violations.

After noting that Weeks and Mapp both involved flagrant violations,* he drops this bombshell:

To trigger the exclusionary rule, 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. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.
Wow. Is that a rule generally applicable to all motions to suppress? Must a defendant seeking to suppress evidence establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was no "deliberate, reckless, or grossly negligent conduct"?

A lower court that wishes to be bold could certainly apply Herring this way. To do so would be no more violative of precedent that the state court decision affirmed in Roper v. Simmons, 543 U.S. 551 (2005). We could expect certiorari to be granted, and then we would find out if Herring really does have this sweeping scope.

But if the exclusionary rule only applies to egregious violations, why not just get rid of Mapp altogether? The standard rationale for the exclusionary rule is that civil remedies are not available due to the immunity doctrine. But the immunity doctrine is only qualified immunity; it does not cover egregious violations. This is the reason that I think Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio.

I'll add a few notes on the dissent. Tom Goldstein thinks that Justice Ginsburg's dissent is too restrained and does not see the implications of the majority. I disagree. Restraint is Justice Ginsburg's style, and it is an effective style. Her dissent is one of the best defenses of the exclusionary rule I have seen. I don't agree with it, but I know a good piece of work when I see one.

In its own way, the dissent is as sharp a break with precedent, at least recent and semi-recent precedent, as the majority. She reasserts the reasons for the rule other than deterrence, reasons the Court discarded decades ago. She worries that Herring has no other remedy, apparently unconcerned that in a great many exclusionary rule cases the remedy of getting away with a crime (even murder) is grossly disproportionate to the offense. She reasserts the long discarded rationale that the judiciary is somehow tainted by receiving reliable evidence in a search for the truth without questioning how it was obtained. This is a four-justice dissent, meaning that one short of a majority is willing to reassert reasons for the exclusionary rule that the Court has rejected in deciding a long string of precedents.

So, we have potentially revolutionary propositions on both sides and a razor-thin division between them. The jurisprudence of the Fourth Amendment could break sharply in either direction in the not-too-distant future.

* For this purpose, the "facts" of Mapp are the ones stated in the opinion. Whether the Mapp Court's statement of the facts was accurate is disputed, but that dispute is for historians. The precedent set by a case is based on the facts as the opinion states them, even if they are fiction.


I have a good deal of sympathy (though not necessarily support) for the exclusionary rule. I have a huge problem with its imposition by the judiciary.

As for the "judicial system is tainted" rationale, that seems highly problematic when we're talking about the judicial systems of sovereign states. The federal courts don't have some mandate to monitor the purity of state judicial systems.

The dissent seems to at least raise the possibility that the search was tainted as the investigating officer had an identifiable animus towards the petitioner; it is not so far fetched to believe that collusion among local enforcement agencies is at least a possibility. Therefore the "Bright Line" standard of Police vs Judicial or Legislative error as advocated by Justices's Breyer and Souter should set the standard for exclusionary rulings.

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