As noted briefly this morning, the U.S. Supreme Court decided a case on the Fourth Amendment exclusionary rule, Utah v. Strieff
, No. 14-1373. The Fourth Amendment exclusionary rule is the rule that an item of evidence -- regardless of how reliable it may be and much value it may have in guiding the trier of fact to the truth of the matter to be decided in the criminal case -- must be excluded if it is found that the police violated the complex rules governing search and seizures under that Amendment.
The exclusionary rule has no basis in the text of the Fourth Amendment. It was unknown to American law at the time the Amendment was adopted and for a century thereafter. It was unknown to the pre-Independence law of England, from which our legal tradition was derived. The rule was created by the Supreme Court out of whole cloth in the twentieth century and the tail end of the nineteenth, a century after Amendment was adopted. The question appears in few court decisions before that time because there obviously was no such rule, and the few defendants to raise the proposition merely got decisions stating flatly that there was no such rule. This history is traced in CJLF's brief in Strieff
, along with a rebuttal of the lone academic to advance a contrary proposition. For an originalist, that is enough to dispose of any case where the Fourth Amendment is relied on as the sole authority for the exclusion of evidence. There is no such legitimate rule.
However, the Supreme Court decided to the contrary in Mapp v. Ohio
(1961), a decision which Justice Harlan noted in dissent was so far in excess of the limits of the Supreme Court's legitimate constitutional powers as to make the Court's voice "only a voice of power, not of reason." In later years, varying majorities of the Court have been unwilling to overrule Mapp
, but Justice Harlan's description of the rule as "so unwise in principle and so inexpedient in policy" was never far below the surface, and numerous limitations and exceptions have been devised to reduce the harsh effects of the rule in its bare form.
Today's decision in Strieff
is specifically on the "attenuation" exception, but the influence of the "good faith" cases is also evident, making a clear connection between the two branches of Fourth Amendment jurisprudence.