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The Future of the Exclusionary Rule

Orin Kerr has a Q & A post at SCOTUSblog with Tracey Maclin, author of The Supreme Court and the Fourth Amendment's Exclusionary Rule.  The post is titled "Ask the author: Tracey Maclin on the Court and the Fourth Amendment."  But it's not about the Fourth Amendment.  It's about the exclusionary rule, a judicial invention conjured up almost a century after the ratification of the Fourth Amendment.  Here is the question on the future of the rule:

Based on my reading of your book, it sounds like you expect the Justices to narrow the exclusionary rule in the future so that it will apply only in egregious cases - the kinds of cases that would not trigger qualified immunity. Can you elaborate on where you think the exclusionary rule is headed?

I believe four of the Justices (Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) want to abolish the exclusionary rule. Justice Scalia's majority opinion in Hudson v. Michigan has prepared the foundation for that result. If abolition is unobtainable, the Court will confine exclusion to cases of deliberate and culpable forms of illegal searches or seizure. Chief Justice Roberts's majority opinion in Herring v. United States has already achieved that result, although many of the lower courts have yet to follow suit. (By the way, my view of Herring and its impact on the rule was reaffirmed in Davis v. United States. I explain all of this in Chapter 8 of the book.)

Let's hope so.

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