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What is the exclusionary rule, and why does it exist?

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.

UT vs Strieff: More Coddling Crooked Cops
Clarence Thomas somehow managed to get Stephen Breyer join the Reagan-Bush Court to allow the police to conduct illegal stops to check for arrest warrants, or to harass pedestrians whenever they want. At issue is the exclusionary rule, which the Nixon-Burger Court perverted its original intent in Weeks in 1914, Silverthorne Lumber in 1920, and Mapp vs OH in 1961 as the absolute remedy of illegal searches. At that time, the exclusionary rule had three purposes:
1. Part and parcel of the Fourth Amendment
2. Judicial integrity
3. Deterring illegal searches

The rights of the people to be secure in their persons, houses , papers, and effects against unreasonable searches and seizures shall NOT be violated…

Not only does this rule be absolute, but the Fourth also provides the right of privacy. What part of “shall not” does the Court not understand?

Then the Nixon-Burger Court limited the remedy in 1971 (Calandra) to deterring police misconduct. Thus, the Nixon Gang of Four (Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist) decided to insult the police and make them the target of the exclusionary rule. Eventually, the Court decided to get into the heads of the police and figure out what deters them.

Back to Stieff, Thomas then brings up the three-pronged test for allowing illegally-seized evidence:

1. The Independent Source Doctrine
2. The Inevitable Discovery
3. The Attenuation Doctrine

The Independent Source Doctrine would pass in the Warren Court. The exclusionary rule does not extend to any legally seized evidence, even though it might have been seized illegally earlier. The prosecution may use it if it would have been obtained legally otherwise.

The Inevitable Discovery is more nebulous, but it also follows that the prosecution may prove that the fruits of an illegal search may have been obtained otherwise legally.

The Attenuation Doctrine resulted from the perversion of the exclusionary rule as solely to deter the police. The exclusionary rule did not substitute for lawsuits to return illegally-seized evidence. The most comical application of the deterrence doctrine came in 1987 under IL vs Krull (ill and cruel) in which the Nixon-Rehnquist Court allowed illegally-seized evidence under search laws later proved unconstitutional because the exclusionary rule did not deter legislators! They lost Sandra Day O Connor, a former legislator, but they still had five for the vote. So how are the police going to know a search law is unconstitutional? Blackmun dodged the answer, so legislators may pass illegal search laws and get away with them until the laws are declared unconstitutional. This time police may make illegal stops, and should there be an arrest warrant, they can get away with the illegal stop?

So Thomas plods alone to allow the seized evidence (Search incident to arrest is not in question.) because there had been a legitimate arrest warrant on the defendant, even though the stop had lacked “an articulable suspicion” under Earl Warren’s opinion in Terry vs OH (1968). Not only does it violate the Terry rule of “stop and frisk”, but also the longstanding rule of not allowing “the fruit of the poisonous tree”. The stop was illegal; therefore, no admissible evidence.

Sonia Sotomayor wrote the major dissent and hints of going back to the original meaning of the exclusionary rule, which predates the FBI. Elena Kagan simply argues along the test of attenuation. The Court finds some excuse to allow evidence obtained from an illegal “stop and frisk” when there is no articulable suspicion.

To paraphrase the jargon of Nixon and Reagan, the Court has decided to “coddle crooked cops”. There’s yet another reason we push the Court from its lean to the right since 1970. Overriding this case – going back to Silverthorne and Mapp and an absolute rule would help – and while we’re at it, reversing Citizens United would be a fine start toward reversing the trend economically since 1970 as well.

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supremecourt1967.jpg

My favorite Supreme Court from 1967, going the same way as above:
Chief Justice Earl Warren in center
Hugo Black to his right. (1937)
William O Douglas to his left (1939)
John Marshall Harlan right of Black (1955)
Willaim Brennan left of Douglas (1956)
Potter Stewart (1958)
Byron White (1962)
Abe Fortas (1965)
Thurgood Marshall (1967)
Although I'd prefer Arthur Goldberg instead of Fortas.