Exclusionary Rule

I. Should Evidence obtained in violation of the 4th Amendment be excluded from a Jurys consideration under the exclusionary rule or should some other remedy be used

The question requires that the concepts of Fourth Amendment and the Exclusionary Rule to be dissected and explained thoroughly.  The Fourth Amendment affirms the right of the people against unreasonable searches and seizures.  Under this constitutional provision, the police officers are required to obtain search warrants before they conduct searches and seizures.  The constitutional mandate also requires prior warrant of arrest before police officers make their arrest.

In effect, the Fourth Amendment limits the power of the state to make searches and seizures and conduct arrest.  Police officers are enjoined to comply with this requirement for the protection of the peoples right to privacy.  However, the Fourth Amendment is not a self-executory provision.  The Fourth Amendment does not state the legal effect and implication should police officers violate the constitutional mandate.  As a consequence, the United States Supreme Court adopted a legal doctrine known as the Exclusionary Rule that allows the party who has been wronged by the police officers who conducted unreasonable searches and seizures to suppress the evidence recovered.  The rule applied even if the evidence recovered from the defendant was illegal such as guns or illegal drugs.  The exclusion of evidence as a remedy for violation of the Fourth Amendment right was first enunciated in the case of Boyd v. United States 116 US 616 (1886).   (Enforcing the Fourth Amendment The Exclusionary Rule, 2010, p.1)

Prior to the adoption by the Supreme Court of the Exclusionary Rule, a private individual whose Fourth Amendment right was violated could only sue the persons responsible for the tort of trespass but the illegally seized evidence was still admitted in court (Tinsley, Kinsella  Block, 2004, p.65).  At the time, persons who adjudged guilty of trespass into another persons property were made to pay damages for their misconduct.  However, over time the courts realized that many of the cases involving violation of the Fourth Amendment right did not involve the affluent individuals but defendants who do not have the financial means to pay for a private lawyer to prosecute the act of trespass.  Consequently, the filing of the case for the tort of trespass became ineffective as a means to remedy the abuse.  As cases involving violation of the right against unreasonable searches and seizures involving financially handicapped defendants increased in number, there was a realization that the filing of the civil suit of trespass was not enough to enforce the requirements under the Fourth Amendment.

Thus, the Exclusionary Rule was created by the Supreme Court of the United States.  The Exclusionary Rule is the rule that excludes evidence recovered in violation of the right against the unreasonable searches and seizures.  It must be stressed that the Exclusionary Rule is not a Constitutional right but it is a rule of evidence.  It prohibits the admission in court of any evidence obtained in violation of the Fourth Amendment.  It serves to give meaning to the Fourth Amendment by giving the courts the authority to render inadmissible any evidence that is illegally obtained.

Judge Guido Calabresi (2003) once said that the Exclusionary Rule should be blamed for the steep decline in the privacy rights in the United States (p.2).  The exclusion of the evidence in court depends on the issue of whether the search was reasonable or unreasonable.  However, speaking from experience, Judge Calabresi stated that judges are not inclined to release a known criminal loose in the streets based on the mere ground of technicality.  Because there is no hard-and-fast rule in determining whether a search was reasonable or not the judge who knows that the defendant has committed the crime despite the violation of his Fourth Amendment right is more likely to decide in favor of the reasonableness of the search or seizure.  In fact, in many border-line cases, a judge will decide that the search, seizure or the invasion of privacy was reasonable (Guido Calabresi, 2003, p.1).

Moreover, Calabresi found that the Exclusionary Rule is not effective in deterring police officers from violating the Fourth amendment requirement.  Rather, police officers will continue with their ways and justify their actions as the correct and proper one.  In fact, many officers now think that placing a known criminal behind bars regardless of the means is a noble cause.  

However, there are those uphold the effectiveness of the Exclusionary Rule as the only remedy in protecting the Fourth Amendment right.  Prior to the decision in the cases of Mapp v. Ohio 367 US 643 (1961), the prevailing view was that evidence even if illegally obtained should be admitted in court.  In fact, the illegally seized evidence was even used to justify the violation of the Fourth Amendment (Tinsley, Kinsella  Block, 2004, p.65).  The majority opinion as penned in the earlier rulings of the Supreme Court before this case was that there are other means and methods by which the constitutional guarantee of the right to privacy may be protected, but it should not sacrifice the ends of justice.

Thus, the Exclusionary Rule was initially not favored because it was feared that it will significantly impair the duty of the law enforcement officers to secure evidence from the suspect that will be used for his conviction.  In the case of Wolf v. Colorado 338 US 25 (1949), the Supreme Court said that Indeed, the exclusion of evidence is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, therefore, regard it as a departure from basic standards to remand such persons, together with those who emerge scatheless from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford. Granting that, in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a States reliance upon other methods which, if consistently enforced, would be equally effective. (338 US 25, 31)

In the recent case of Mapp v. Ohio 367 US 643 (1961), the Supreme Court explained that it is only by making the fruits of an unconstitutional search inadmissible in evidence that the non-compliance with the requirements of the Fourth Amendment may be avoided.  Police officers normally would not want their effort to go to waste.  As a result, they go to great lengths to ensure the conviction of their defendant.  In their zealousness to place behind bars known criminal offenders they violate the right of the individuals against unreasonable searches and seizures.  If it is the intention of the police officers to ensure the arrest and imprisonment of the defendant the courts require them to comply with the Fourth Amendment requirement.

Justice Cardozo was right in saying that The criminal is to go free because the constable has blundered. It is in fact still the best argument against the use of the Exclusionary Rule.  Necessarily, without the evidence the defendants who may be criminals shall be allowed to go free because of this technicality.  However, Bernard Swartz (1996) has eloquently refuted this argument by saying that Nowadays, the criminal does not go free because the constable has made an honest blunder or a technical one.  The post-Mapp cases have provided the police with so much room to operate without fear of the Exclusionary Rule that nowadays the criminal only goes free if the constable has flouted the Fourth Amendment  if and when he has blundered badly. (p.137)

It must however be clarified that decades since Justice Cardozo issued that statement the police are still engaged in acts which violate the Fourth Amendment.  Until now, defendants are still deprived of their right against unreasonable searches and seizures.  In fact, many defendants still go to jail even if the Fourth Amendment right was violated.  After the decision in the case of Mapp v. Ohio, police officers still violate the important requirements of the Fourth Amendment.  Indeed, on many cases only those defendants whose Fourth Amendment rights have been seriously and blatantly violated are allowed to go free.

It must be stressed that the requirements of search warrants and warrants of arrest are not simply technical requirements.  These are constitutional requirements which are necessary to ensure that the police officer who is conducting a search or is arresting an individual has reasonable cause to believe that he has committed a crime.  In many cases, the criminals shall be released.  However, this is a necessary consequence of preserving the judicial integrity. (367 US 643, 659) The criminal goes free, if he must, but it is the law that sets him free.  Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. (367 US 643, 659)

The Exclusionary Rule was also criticized for restricting the development of meaningful alternative to violation of Fourth Amendment rights.  In the case of Stone v. Powell 428 US 465 (1976), Chief Justice Burger once said that the continued existence of the Exclusionary Rule inhibits the development of rational alternatives. (428 US 465, 500)  It is easy to be dissuaded by this argument.  However, according to Bernard Swartz (1996), around twenty four (24) states which admitted illegally seized evidence prior to the promulgation of the Mapp v. Ohio case (p.144) also failed to develop a meaningful alternative to Exclusionary Rule.  It can be concluded that the Exclusionary Rule should not be blamed for the lack of any alternative to it.  In fact, it can be argued that their adherence to the Exclusionary Rule after the Mapp case can be interpreted as a sign that they have failed to come up with anything better than the Exclusionary Rule.
The exclusionary rule was never intended to restrict the application of other alternatives intended to punish the law enforcement officers.  Critics of the Exclusionary Rule argue that it inhibits the development of other alternatives.  This argument however is not logically sound since it does not follow that the exclusion of evidence illegally obtained was intended as an only alternative to protect the peoples constitutional right.  Exclusionary Rule may be used together with the filing of suits for damages or the imposition of internal sanctions against the law enforcement officer found to have violated the constitutional guarantee of the Fourth Amendment.    Moreover, theoretically speaking, there are other alternatives that will ensure the protection of the Fourth Amendment.  However, it is not the Exclusionary Rule which thwarts the development of these.  The problem stems from the lack of political will among many lawmakers.  

Other alternatives have likewise been suggested.  One of these alternatives is the filing of the criminal case or the filing of the administrative case against the erring police officers.  However, though the Exclusionary Rule does not prohibit these alternatives, the filing of or criminal or administrative case against police officers for violating the Fourth Amendment is rare.  Even if a case if filed against the erring police officer many of these police officers escape punishment because of the claim of good faith.  They can always allege that they thought their actions were justified under the exception to the Fourth Amendment allowing warrantless searches, seizures and arrest.  In addition, even if the police officer clearly and deliberately did not comply with the Fourth Amendment requirement, it is also a fact that judges are unsympathetic against criminals.

Based on the arguments presented, it follows that as of this time the Exclusionary Rule is still the best alternative that will ensure the protection of the right of the people against unreasonable searches and seizures.  Without this rule, there is nothing else that could prevent the law enforcement officers from its practice of violating the rights of privacy of individuals and from using illegally obtained evidence as a means for apprehending the accused.   If the police officers know that they have a strong case against the accused then the administration of justice demands that they comply with the proper safeguards under the Fourth Amendment.  On the other hand, if the police officer violated the Fourth Amendment the only inference is that he has no solid case against the defendant.

 The filing of administrative or criminal case against the erring police officers is an ineffective alternative to the Exclusionary Rule.  In the first place, the defendants who are victims of these illegal practices have no means to hire private lawyers and file cases against erring police officers.  Moreover, even if the defendant has the means to file cases against the erring police officers, the police officers may always claim good faith.  Even if there was a deliberate omission in securing search warrant and warrant of arrest, the judge will always be sympathetic to the police officer who is merely doing his job as against a known criminal.


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