The Exclusionary Rule: Friend or Foe?

Leadership Applications in Criminal Justice [CRJ565]


The Fourth Amendment holds that people have the right to be secure against unreasonable searches and seizures (U. S. Constitution). The U.S. Supreme Court has determined that evidence obtained in violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial. This restriction has become known as the Exclusionary Rule. There are advocates on both sides of the debate as to whether the rule satisfies the Court’s objective of ensuring our citizens’ Constitutional protections, or if it simply provides an avenue for criminals to manipulate the legal system.

The Exclusionary Rule: Friend or Foe?

In his text, Controversial Issues in Policing, Dr. James Sewell (1999) makes a very astute observation that in no area of criminal law have the changes in court interpretations with respects the scope and authority of the law been as pronounced as the changes that have occurred with regards to the U.S. Constitutions’ Fourth Amendment to the Bill of Rights. The Amendment, in its infancy, was a seldom enforced measure to keep citizens safe from unreasonable invasions of their privacy. These violations were common during colonial rule when British soldiers searched colonist’s homes and offices with impunity. Over the past 200+ years the Courts have provided interpretations of the law that undoubtedly make it one of the most important and most enforced.

The Fourth Amendment holds that people have the right to be secure against unreasonable searches and seizures, and that if a search is to be authorized a warrant must be obtained under oath specifically stating what will be searched for and where (U. S. Constitution). In essence it protects against warrantless invasions of privacy, but made no comment as to what would take place if this violation were to occur. There was also no indication of how judicial authorities should translate that guarantee into a working doctrine. How the courts have enforced the Amendment’s guarantees have changed over time. A search and/or seizure that is conducted in violation of the Amendment may be criminally actionable subjecting the offending government agent to prosecution under both state and federal statutes. The offending officer and their employing agency could also be subject to civil tort actions (Edwards, 1955). However, the occasions where officers have been criminally prosecuted or held personally liable as a result of overzealous law enforcement activities are extremely rare. All law enforcement agencies have internal protocols in place that subject the offending officer to disciplinary action, but with a majority of officers claiming they were acting in good faith the incidents of officers receiving significant discipline is rare. The U.S. Supreme Court has recognized these shortcomings and imposed the exclusionary rule as a deterrent to overly enthusiastic law enforcement officers. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial. The Court adopted the exclusionary rule in Weeks v. United States (1914), applying it to federal law enforcement agencies. Later, in Mapp v. Ohio (1961), the Supreme Court made the rule applicable in state proceedings as well. The Court’s ruling was designed to create a disincentive for law enforcement officers who may have been inclined to violate a citizen’s rights in order to gain an arrest or conviction. The court clearly announced in Mapp their position that if the police know evidence obtained in violation of the Fourth Amendment cannot be used to convict someone of a crime, they will not violate it. In short, the rule ensures the government does not benefit from committing Constitutional violations and it guarantees our citizens are not jeopardized when their rights are violated.

While the Court may have satisfied their desire to provide safeguards against Fourth Amendment violations, opponents of the exclusionary rule correctly point out the obvious weakness, its ability to protect the guilty. With the multiple layers of review placed upon the trial process, it is probably a safe bet that in many criminal trials the accused person is in fact guilty of the crimes the prosecution has alleged. In these matters, the potential for the suppression of evidence may act as a deterrent to police, but it also certainly rewards the criminal. Whether it is a result of misconduct or an honest error made by the officer, the courts have been instructed to not consider the tainted evidence. This can result in a person who is obviously guilty of committing a criminal act to go free. The debate over the exclusionary rule is not new. Justice Benjamin Cardozo’s much quoted ruling that a criminal should not “go free because the constable has blundered" dates back to 1926 when he sat on the New York State Court of Appeals (People v. Defore). Justice Cardozo’s sentiments have been repeated countless times in the effort to moderate the effects of the rule.

While the original intent of the Court was to protect the citizenry against the abuses inflicted as a result of significant, obvious, or intentional violations of the Fourth Amendment by law enforcement, current practices have evolved into a system that facilitates abuses of the system by defense attorneys. In our criminal courts it has become a common practice for every defense attorney to seek the exclusion of every piece of evidence in every case, regardless if they truly believe there has been a Constitutional violation. In this way, the criminal attempts to escape punishment, not by demonstrating that the evidence is flawed or supports their innocence, but by having genuine evidence of their guilt deemed inadmissible because of the way it was gathered. This trend leads to overloaded court dockets and multiple proceedings for those involved.

While the rule’s opponents certainly make a convincing argument, I’m of the opinion it simply does not hold water. While my career in law enforcement has often found me having to orchestrate defenses against efforts to suppress evidence, one might be surprised to find out that I am a staunch advocate of the exclusionary rule. Why would we consider it a burden to require that all evidence be obtained in compliance with the Fourth Amendment? Why is it expecting too much of the police to require that they comply with the Fourth Amendment as interpreted by the courts? After all, it is the Fourth Amendment, not the exclusionary rule that sets the standards for police behavior. The exclusionary rule merely sets the standard for the courts to respond to police indiscretions. Ultimately, the argument that all relevant evidence that is trustworthy and reliable ought to be admissible, even though obtained unconstitutionally, is simply flawed. University of Georgia Professor of Law Donald Wilkes offered an interesting quote in an article supporting the exclusionary rule, "Non refert quomodo veritas habeatur, dummodo habeatur." Translated from Spanish it means, "It matters not how the truth was obtained, so long as it has been obtained." While most opponents of the rule would at first agree with this statement, they might change their position when they learned this was the motto of the Spanish Inquisition and the Inquisition’s principal defense of the use of torture to obtain evidence of guilt (Wilkes, 1984). Are we in America also to adopt the view that the end justifies the means? I would suggest not. The exclusionary rule has no doubt placed additional challenges on the law enforcement community. However, I believe those challenges have only served to enhance our law enforcement professional’s capabilities and have made them expert practitioners in their field, all while abiding by the Constitution that each of us takes an oath to defend.