Origin of the Exclusionary Rule

Origin of the Exclusionary Rule

The exclusionary rule developed in two stages, and a complete answer needs both. In the first, courts decided that a guarantee against unreasonable searches means little unless it carries an evidentiary consequence, and the Supreme Court eventually required every state court to apply that consequence. In the second, the Court changed its account of why the consequence exists, and the new account supplies the shape of nearly every limit taught later in this chapter. The first stage centers on a single case in which police broke down a door in Cleveland.

Mapp and the Basic Rule

In Mapp v. Ohio three Cleveland police officers came to Dollree Mapp's home in 1957 on information that a person wanted for questioning about a bombing was hiding there and that illegal numbers-game paraphernalia was inside. Mapp consulted her attorney and refused to admit them without a search warrant. The officers came back with additional officers, broke a door, and searched the house room by room, including her bedroom, her child's bedroom, the living room, the kitchen, and the basement. The search turned up obscene materials, on which she was convicted of possession, and no warrant was ever produced at trial.¹

The Supreme Court held that the exclusionary rule applies to state criminal proceedings through the Fourteenth Amendment's Due Process Clause, so that all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state court, just as it is in federal court.² Federal courts had enforced the rule since Weeks v. United States in 1914, while the states had been free to admit such evidence under Wolf v. Colorado, which Mapp overruled on that point.³ The Court described the least that the Fourth and Fifth Amendments together assure as the guarantee that "no man is to be convicted on unconstitutional evidence."⁴ The trial judge's question is therefore narrow: did the government obtain this evidence in violation of the Constitution? How damning or how trustworthy the evidence is does not enter that inquiry.

The rule protects the person whose rights were violated and no one else. Courts have limited suppression to cases in which the prosecution uses the fruits of an illegal search or seizure against the victim of the police misconduct, because letting other defendants invoke the rule would add the full cost of losing reliable evidence without enough added deterrence to justify it.⁵

The rule also presupposes an actual constitutional violation, since evidence gathered lawfully gives a court nothing to exclude.⁶ The fact that decided Mapp was the officers' forced entry without any warrant, and changing that one fact reverses the result.

Why Mapp Enforced the Rule

The Court gave three separate reasons for extending exclusion to the states. They answer different problems, and the distinction matters because later cases treat them very differently.

Exclusion, first, makes the guarantee enforceable. If an officer could search unlawfully and still use whatever the search produced, the officer would lose nothing by ignoring the warrant requirement, and the Fourth Amendment would restrain only those officers who chose to be restrained. The Court pointed to the way the Constitution already treats coerced confessions, which are excluded however relevant and reliable they are and regardless of how often the police engage in such conduct. It then asked why the same rule should not govern what amounts to coerced testimony by way of unconstitutional seizure of papers and effects.⁸ Terry v. Ohio later restated the point: experience has shown exclusion to be the only effective deterrent to police misconduct in the criminal setting, and without it the guarantee against unreasonable searches would be empty words.⁹

The double standard between federal and state courts supplied a second, practical reason. Before Mapp a federal prosecutor could make no use of illegally seized evidence, but a state's attorney across the street could, even though both were supposedly bound by the same Amendment. In states without an exclusionary rule, federal officers were invited to carry unconstitutionally seized evidence over to the state prosecutor, and they did.¹⁰ The incentive is easy to trace: an officer who wants a conviction, and who knows a federal court will reject the evidence, has every reason to find a courtroom that will not, so long as one exists. A single rule in both court systems removes the reason to hand the evidence over, and it also removes the friction between federal and state courts that the practice had produced.¹¹

Judicial integrity supplies the third reason. A court that admits unlawfully seized evidence does more than receive information, because admitting evidence at a criminal trial has the necessary effect of legitimizing the conduct that produced it, while applying the exclusionary rule withholds that approval.¹² Courts sitting under the Constitution therefore refuse to become parties to lawless invasions of constitutional rights by allowing the government unhindered use of their fruits.¹³ A related purpose is to assure the public that the government will not profit from its own lawless behavior, which protects popular trust in government.¹⁴

The standing objection to all three reasons is Judge Cardozo's, that under the rule "[t]he criminal is to go free because the constable has blundered."¹⁵ Mapp conceded that this will sometimes be the result and answered that "[t]he criminal goes free, if he must, but it is the law that sets him free."¹⁶ Critics have pressed a sharper version of the objection. Chief Justice Burger, dissenting in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, repeated the complaint that rejecting the evidence does nothing to punish the offending official while it may release the offending defendant, and does nothing for innocent persons whose homes are searched without result.¹⁷ That criticism is aimed at the way the rule works, and it is the pressure that moved the Court toward the modern account.

From Integrity to Deterrence

Modern decisions keep the rule but rest it almost entirely on one of those grounds. In United States v. Leon the Court described the rule as a judicially created remedy meant to safeguard Fourth Amendment rights generally through its deterrent effect, and it denied that the rule is a personal constitutional right of the party aggrieved; it added that the rule's application is restricted to instances where its remedial objectives are thought most efficaciously served.¹⁹ Herring v. United States states the same idea in working terms: the rule is not an individual right, and it applies only where its deterrent effect outweighs the substantial social costs of excluding reliable evidence.²⁰ The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, so the rule is a creature of the Court's own decisions, and its reach follows the purpose the Court assigns it.²¹

Changing the rationale changes the question a court asks in each case. Under the integrity rationale a court's complicity is the same whether the officer acted flagrantly or carelessly, because in either event admitting the evidence ratifies the search. Under the deterrence rationale the court looks forward and asks whether suppressing this evidence will make officers more careful, and it weighs that gain against the loss of reliable proof. That inquiry turns on the officer's state of mind, because exclusion can teach care only to officers who acted willfully or negligently, and where an officer acted in complete good faith the deterrence rationale loses much of its force.²² The history fits the calibration. The abuses that produced the rule were intentional and patently unconstitutional: in Weeks the officers broke into the defendant's home, took papers, and came back with a marshal for more, and in Silverthorne Lumber Co. v. United States federal officials with no authority at all swept up every paper in the defendants' office.²³ For that reason the Court treats the flagrancy of the police conduct as an important step in deciding whether exclusion is justified.²⁴

Setting Mapp beside Leon makes the difference visible. The Mapp officers had no warrant and forced their way in after the occupant, on her lawyer's advice, demanded one, so excluding the fruits answered deliberate disregard of the warrant requirement. The Leon officers searched under a facially valid warrant issued by a neutral magistrate, a court later held the supporting affidavit insufficient to show probable cause, and the Court held the evidence usable in the prosecution's case in chief because the officers had relied on the warrant in objective good faith.²⁵ In both cases the search lacked the support the Fourth Amendment requires, yet only the first led to exclusion. Students lose points on this chapter when they treat a proven violation as automatic suppression, because the fact that a violation occurred does not by itself mean the exclusionary rule applies.²⁶ The next section begins with how far the rule reaches once a violation is established, namely to evidence the police found only by following leads the violation produced.