Hooray Exclusionary Rule
The recent ruling regarding the NSA's warrantless wiretapping has led to a lot of discussion about the warrant requirement in the Fourth Amendment, including a debate over at the Volokh Conspiracy about the originalist interpretations of the amendment. I'm not a big fan of originalism, since I subscribe to the idiotic belief that individual rights were not frozen in time in 1791, but this post by Randy Barnett raises some interesting issue. The post is a synopsis/commentary regarding Akhil Amar's originalist interpretation (which Orin Kerr refutes via Thomas Davies in this post). Although the Conspirators seem to be discussing the warrant requirement itself, I'm more interested in the exclusionary rule, which is the rule that evidence obtained by law enforcement in violation of the Fourth and/or Fifth Amendments is inadmissible against the person whose rights have been violated (which means, by the way, that if the police violate someone else's constitutional rights and find evidence that inculpates you, they can use it against you).
The exclusionary rule is a judge-made doctrine, which leaves it open to criticism of this sort. And with the Supreme Court having recently ruled, in Hudson v. Michigan, that the exclusionary rule does not apply to a police officer's failure to "knock and announce" before executing a warrant, some are saying that the exclusionary rule may soon be a thing of the past. This would be very bad. A rule is only as effective as its consequences -- and excluding key evidence that was obtained illegally is quite a consequence. Not having an exclusionary rule may have made sense in colonial times when, according to Amar, law enforcement officials could be sued for trespass for violating the Fourth Amendment. However, since the advent of sovereign immunity interpretation of the Eleventh Amendment (another Supreme Court-made doctrine, despite the fact that we fought a whole revolutionary war to rid ourselves of this kind of monarchistic nonsense), such civil suits are no longer available as a remedy. The only realistic way to give the protections of the Fourth and Fifth Amendments any teeth at all is to invalidate the illegal investigative conduct by barring the illegally obtained evidence.
The Supreme Court dug a hole for itself by reading the Eleventh Amendment to say that "TheKing State can do no wrong." Eliminating the exlusionary rule would mean that the Eleventh Amendment repealed the Fourth and Fifth.
As for the warrant requirement itself, it seems clear to me that the warrant clause and the unreasonable search and seizure clause are two different things. The Court has mashed them together by holding that a warrantless search is per se unreasonable (unless it falls into one of a number of clearly defined exceptions). A better rule might be that a search supported by a warrant is per se reasonable, while a warrantless search is subject to some sort of reasonableness inquiry by the court. I'm not afraid of a little judicial discretion here and there, so that kind of rule would be fine by me.
The exclusionary rule is a judge-made doctrine, which leaves it open to criticism of this sort. And with the Supreme Court having recently ruled, in Hudson v. Michigan, that the exclusionary rule does not apply to a police officer's failure to "knock and announce" before executing a warrant, some are saying that the exclusionary rule may soon be a thing of the past. This would be very bad. A rule is only as effective as its consequences -- and excluding key evidence that was obtained illegally is quite a consequence. Not having an exclusionary rule may have made sense in colonial times when, according to Amar, law enforcement officials could be sued for trespass for violating the Fourth Amendment. However, since the advent of sovereign immunity interpretation of the Eleventh Amendment (another Supreme Court-made doctrine, despite the fact that we fought a whole revolutionary war to rid ourselves of this kind of monarchistic nonsense), such civil suits are no longer available as a remedy. The only realistic way to give the protections of the Fourth and Fifth Amendments any teeth at all is to invalidate the illegal investigative conduct by barring the illegally obtained evidence.
The Supreme Court dug a hole for itself by reading the Eleventh Amendment to say that "The
As for the warrant requirement itself, it seems clear to me that the warrant clause and the unreasonable search and seizure clause are two different things. The Court has mashed them together by holding that a warrantless search is per se unreasonable (unless it falls into one of a number of clearly defined exceptions). A better rule might be that a search supported by a warrant is per se reasonable, while a warrantless search is subject to some sort of reasonableness inquiry by the court. I'm not afraid of a little judicial discretion here and there, so that kind of rule would be fine by me.
posted by aj at 12:09 AM
1 Comments:
I think government immunity in general is Bad for America. But it hadn't occurred to me previously that government immunity made the exclusionary rule that much more important.
Regarding federal officers, can they be sued in tort for violating the Fourth Amendment? Even if they technically could, would such a case have any legs?
Post a Comment
<< Home