<< News Scan | Main | A Schizophrenic, a Slain Worker, and Long-Term Beds >>

Another Chunk Out of the Exclusionary Rule

Like chopping down an oak tree with a hatchet, the Supreme Court today took another chunk out of the abominable rule that courts must blind themselves to valid, probative evidence as a means of enforcing the Fourth Amendment.  The vote was 7-2 overall.  Justice Alito wrote the opinion, joined in full by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and, interestingly, Kagan.  Justice Sotomayor wrote a separate opinion concurring in the judgment and noting that the rule established was not as broad as the dissent implied, but she did not express any disagreement with anything in the majority opinion.  The opinion in United States v. Davis is here.  CJLF's amicus brief is here.

The Supreme Court established nearly thirty years ago in United States v. Leon that evidence should not be suppressed when the police rely on a magistrate's decision to issue a search warrant.  If good-faith reliance on a magistrate's assessment of probable cause is good enough, shouldn't reliance on a decision of law by a United States Court of Appeals be good enough?  Obviously, so the defendant had to get creative to argue to the contrary.  One argument was that applying the good-faith exception to this circumstance would effectively return to the old framework for retroactivity law abandoned in Griffith v. Kentucky and Teague v. Lane.  Another was that suppression of evidence was needed to create the incentive and standing needed to bring cases questioning precedent to the Court for review.
The second argument was the primary focus of our brief, and it got no votes at all today.  The majority opinion dismisses the argument of insufficient incentive by noting that the wide variety of courts deciding Fourth Amendment questions insures a sufficient diversity of opinions that even a widely accepted rule will not be firmly established in every jurisdiction.  Further, lawyers will argue that their cases are distinguishable from a precedent, creating an opportunity for a court to reexamine the precedent itself.  The standing argument is brushed off rather perfunctorily.

The two dissenting justices bought the retroactivity argument, but the majority correctly notes that retroactivity of a rule and availability of a remedy are conceptually different, and they also have a practical difference.  Again, the diversity of jurisdictions is noteworthy.  If a search is conducted in a jurisdiction that has gone the other way or simply not taken a position yet, the new rule would apply but the exception created today would not, and the evidence would be suppressed.

Perhaps more important than the holding of today's opinion is the tone.  It continues the theme of Herring v. United States expressing hostility to the exclusionary rule generally and an understanding of the gross injustice of letting one wrongdoer get off unpunished because of a marginally related wrong committed by someone else.  Giants of the law including John Henry Wigmore and Benjamin Cardozo explained the wrongness of this rule long ago.

Justice Breyer, in dissent, writes,

Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer's conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was "deliberate, reckless, or grossly negligent," then the "good faith" exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring--dicta the Court repeats and expands upon today--may already be leading lower courts in this direction.
He thinks that is a bad thing because the exclusionary rule is presently the only effective means of deterring Fourth Amendment violations.  But if the exclusionary rule did not exist, there would be political pressure to create alternate remedies.  Chief Justice Burger threw down the gauntlet 40 years ago in his Bivens dissent.  No legislature has picked it up because (1) there is no assurance that an alternate remedy which actually replace the exclusionary rule, which remains a constitutional doctrine for the time being; and (2) as long as the rule exists, there is insufficient pressure to create another remedy.  So the practical political reality is that the exclusionary rule has to get the heave-ho first, or at least be greatly reduced in scope first.

It is interesting that the two Justices appointed by President Obama were in the majority today, one joining the opinion in full and one concurring in the result with no expressed disagreement.  The two dissenters were appointed by President Clinton.  Perhaps the exclusionary rule is considered less important by a younger generation of liberals. 

Justice Breyer writes, "In sum, I fear that the Court's opinion will undermine the exclusionary rule."  I hope it does.

Leave a comment

Monthly Archives