The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effect shall not be
violated, and no warrants shall be issued but upon probable cause, supported by oath or affirmation, particularly describing
the place to be searched and the persons and things to be seized."
Originally, it meant no "writs of assistance" , in which judges waived the right in an entire area to allow the king's
men to search everywhere. In Britain today, it meant that victims of illegal searches could sue for confiscated items
and for the search itself.
However, in the United States, the remedy for illegal searches went through a different phase. Although the Fourteenth
Amendment applied to the states, the Fourth itself only referred to the federal government in 1886. When it subpoenaed to
produce incriminating evidence, the Supreme Court would not allow it because it violated the Fifth right against self incrimination.
When federal agents illegally seized evidence in the case of Weeks in 1914, the Supreme Court found its
remedy in the exclusionary rule. All evidence became inadmissible in all parts of the criminal justice system.
The burden fell upon the prosecution to prove that it would have seized the evidence another way legally.
There were three reasons for the exclusion: it is a fundamental right "The right ...shall NOT be violated...", the judge
did not authorize it with a warrant, nor was there exigence (no time for a warrant), and finally, to deter police misconduct.
Keep in mind, at the time, most of the federal agencies, particularly the Federal Bureau of Investigation, did not exist.
At no time did this rule interfere with the administration of justice.
In 1961, the Warren Court extended the rule to the states in state courts. Previous decisions showed that the states
could abuse the fundamental right with impunity, and the federal government refused to punish state officials who abused federal
rights. (cf Irvine vs CA, 1955) Therefore, Mapp vs OH applied the Fourth Amendment
and the exclusionary rule to the states. That should have been the end of the story.
Then Nixon placed his Gang of Four on the Supreme Court, and the excuses to crooked cops began. First, (Calandra
vs US, 1971) began to whittle the exclusionary rule as a remedy SOLELY to deter police misconduct. Once this
nonsense was in place, the rest followed.
There are a few problems with this approach. First, the precedents do NOT support it. Which part of "shall
NOT be violated" did the Nixonites NOT understand? This nonsense led to the "good faith" excuse to the exclusionary
rule, and it reaches ludicrous portions in IL vs Krull (1987). In 'ill and cruel", the Gang of Four and White
refused to use the exclusionary rule when the search law later showed to be unconstitutional. The excuse was that exclusion
would not deter legislatures from passing illegal search laws. They lost O Connor on that one.
How do the cops know that the search laws are unconstitutional until a court so declares it? What it comes down
to is that the entire theory is wrong!
The exclusionary rule has THREE reasons: as a personal right of privacy, to disallow a search which no judge allowed
in the first place, and to deter the police. As Mapp and Weeks before it show, it is absolute because
the Fourth says so. A strict constructionist does not see anything in the amendment about "shall not be violated, unless
it does not deter police".
My take on this is that the Nixon-Burge Court tried to limit the exclusionary rule to replace suing the police.
Now, Hudson seems to limit it even further.