In Defense of the EXCLUSIONARY RULE - the need for the fourth amendment is often debated, but its need is rooted in the separation of power principles

Legislative attempts to stop trial courts from excluding illegally seized evidence are a backdoor assault on the judiciary's warrant-issuing powers.

THE FOURTH AMENDMENT to the U.S. Constitution reads: "The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Like other amendments that constitute the Bill of Rights, it was written and ratified to protect the citizenry against overweening government, but none of those amendments is self-enforcing.

Much of the debate surrounding the enforcement of the Fourth Amendment has focused on the so-called exclusionary rule--on whether it is wise or constitutionally necessary. Under that rule, evidence obtained in violation of the Fourth Amendment is ordinarily inadmissable in a criminal trial. A quick example will illustrate how the rule operates. If a policeman got a tip that a particular person was a drug dealer, the officer might launch an investigation to determine if the allegation was true. However, if he decided to break into the suspect's home without a search warrant, his effort would be for naught. Even if the officer found drugs on the kitchen table, that evidence would be useless because the suspect's attorney could demand that the trial judge bar its admission as being illegally obtained. Without that evidence, prosecutors would be unable to prove a crime had occurred.

Conservatives often oppose the exclusionary rule as not grounded in the Constitution, not a deterrent to police misconduct, and not helpful in the search for truth in criminal proceedings. They believe there are more sensible ways to handle law enforcement abuses. Liberals, on the other hand, generally have defended the exclusionary rule, both as an appropriate judicial remedy for Fourth Amendment violations and because it can operate to deter police misconduct. A closer examination of the issue will show that the rule is fundamentally sound, although for somewhat different reasons than liberal legal scholars typically offer.

The exclusionary rule can be justified on the basis of separation-of-powers principles. When agents of the executive branch (the police) disregard the terms of search warrants or attempt to bypass the warrant-issuing process altogether, the judicial branch can respond by checking such misbehavior, when it is able to do so. As it happens, the most opportune time to check that kind of executive branch mischief is when executive branch lawyers (prosecutors) attempt to introduce illegally seized evidence in court. Because the exclusionary rule helps the judiciary to uphold the integrity of its warrant-issuing process, it is an inestimable weapon against executive branch transgressions.

One way in which the executive branch has sought to expand its search and seizure powers has been to deny the legal necessity of search warrants. Regardless of the reasons offered, it is a fact that police officers frequently choose to proceed with a search without applying for a warrant. Because judges and judicial magistrates are not on the scene when such searches take place, only much later does the judicial branch become aware of the circumstances surrounding a warrantless search--when prosecutors are in court seeking to present the evidence the police acquired during it. If the attorney for the accused contends that the search was unlawful and objects to the admission of illegally seized evidence, how should a trial judge respond? Should the evidence be excluded or admitted?

The Supreme Court addressed those questions in Weeks v. United States (1912). Weeks, who was suspected of illegal gambling activity, was taken into custody at his place of employment, while a separate group of police officers went to his home and entered it without his permission and without a search warrant. The police seized various books, papers, and letters and turned those items over to prosecutors. When prosecutors tried to introduce some of those incriminating papers at Weeks' trial, the defense attorney cited the peculiar circumstances of the search and lodged an objection. The trial court overruled the objection, allowing the prosecution to introduce the seized papers. Weeks was convicted, but he appealed his case all the way to the Supreme Court, arguing that the trial court's failure to exclude the incriminating papers was a legal error.

Because a warrant is not required for every search, the Court began its analysis by reviewing the limited instances whereby police may conduct searches without warrants. Finding none of those exceptions applicable to the case under review, the Court concluded that the search was unlawful and that the trial court should not have allowed prosecutors to introduce illegally seized evidence at trial:

"The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the thing for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action.... To sanction such [methods of evidence gathering] would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action."

The Weeks precedent makes sense. The Fourth Amendment manifests a preference for a procedure of antecedent justification that the police must follow before they can invade American homes or businesses. The exclusionary rule is a logical and necessary corollary to the principle of antecedent justification. Enforcement of the rule puts executive branch agents in the position they would have been in had there been no violation of the warrant clause. Thus, the exclusionary rule restores the equilibrium that the Fourth Amendment established.

The exclusionary rule also is appropriate where executive branch agents have obtained a search warrant, but then disregard its terms and conditions. Such misconduct is more common than many people think. In 1994, for example, a state judge in Oklahoma issued a warrant that authorized a search of the residence of Albert Foster. Consistent with the particularity requirement of the Fourth Amendment, the warrant specifically identified the items to be searched for and seized--four firearms (one Remington shotgun, one Taurus .38 special, and two .22-caliber Rugar carbines) and any marijuana they might find. Despite that, the officers executing the search seized the following items: several VCR machines; miscellaneous video equipment; a socket set; two bows and a sheath containing six arrows; a pair of green coveralls; a riding lawn mower; three garden tillers; a brown leather pouch containing miscellaneous gun shells; a holster; several stereo systems; a CB radio base station; two soft-tip microphones; several television sets with remote controls; a Dewalt heavy-duty drill; a Vivitar camera tri-pod; a Red Rider Daisy model BB-gun; a Corona machete in brown leather case; an Asahi Pentex Spotmatic Camera; a Bowie-type knife in a black sheath; a Yashica camera MAT-124; a black leather bag with tapes; a metal rod; a Westinghouse clock radio; five hunting knives; a box of pellets; a screwdriver set; three vehicles; and a small box containing old coins, knives, a watch, and jewelry.

When a court heating was held to determine the legality of the search, one of the police officers admitted that it was standard practice for his department to conduct open-ended searches. Here is a telling excerpt from the transcript of the hearing:

Counsel: Would it be a fair statement that anything of value in that house was taken?

Martin: Yes, sir....

Counsel: And would it be a fair statement that as long as you have been deputy in Sequoyah County that when you all do a search that this is the way in which it is conducted?

Martin: Yes, sir.

Counsel: You go in and look for everything that's there, for any leads or anything that might lead to something being stolen, or whatever?

Martin: Yes, sir.

Foster's defense attorney moved to suppress as evidence all of the property seized during the search. The trial court granted the defense motion because the police had "exhibited flagrant disregard for the terms of the warrant by conducting a wholesale seizure of Foster's property [which amounted] to a fishing expedition for the discovery of incriminating evidence."

Separation of powers

The executive branch cannot be permitted to make a mockery of the search warrant. When law enforcement officers disregard the terms of a warrant, the Fourth Amendment's particularity requirement is undermined and a valid, specific warrant is transformed into a general warrant. The sole way the judiciary can maintain the integrity of its warrant-issuing process is by withholding its approval. The judicial branch cannot--and should not--rely on the executive branch to discipline its own agents.

The exclusionary rule fits neatly within the Constitution's separation-of-powers framework. The men who framed and ratified the Constitution recognized "the insufficiency of a mere parchment delineation of the boundaries" among the three branches of government. "The great security," wrote James Madison, "against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack."

The exclusionary rule is a "commensurate" judicial response to the executive branch's attack on the judiciary's warrant-issuing prerogative. As the California Supreme Court has noted, since "the very purpose of an illegal search and seizure is to get evidence to introduce at trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced." Withholding such "aid" in appropriate cases is a measured response to executive branch encroachment.

The exclusionary rule always has been controversial. The most contentious question is whether it is grounded in the Constitution or is merely a "judicially created remedy" for Fourth Amendment violations. The resolution of that question has very important policy implications. If the exclusionary rule is grounded in the Constitution, the executive and legislative branches must live with it--no matter how much they may dislike it. If the exclusionary rule is not grounded in the Constitution, Congress could try to abrogate the rule.

The Supreme Court has wavered on the question of whether the exclusionary rule is embedded in the Constitution. Some of its interpretations have suggested that the rule is an inseparable corollary of the Fourth Amendment. Others have suggested that it is merely a judicially created rule of evidence that Congress might negate. The latter view seems to be the dominant position of the modern Court.

Conservative critics of the exclusionary rule have seized upon the notion that the rule is nothing more than a judicially created remedy. In the mid 1980s, the Department of Justice issued a report that urged Attorney General Edwin Meese and Pres. Ronald Reagan to pursue policies that would "result in the abolition of the exclusionary rule." In 1994, the Republicans' Contract with America featured various reforms for the criminal justice system--including a curtailment of the exclusionary rule.

When Republicans gained control of Congress in 1995, conservative legislators immediately set their sights on the exclusionary rule. Sen. Orrin Hatch (R.-Utah), chairman of the Senate Judiciary Committee, crafted the Republican crime bill, section 507(b) of which sought to completely eliminate the exclusionary rule in Federal criminal prosecutions. The new section of title 18 of the U.S. Code would have read:

"... Evidence obtained as a result of a search or seizure that is otherwise admissible in a Federal criminal proceeding shall not be excluded in a proceeding in a court of the United States on the ground that the search or seizure was in violation of the Fourth Amendment to the Constitution."

That legislative attempt to stop trial courts from excluding illegally seized evidence was a backdoor assault on the judiciary's warrant-issuing prerogative. The legislature has been unable to vest the warrant-issuing power in the executive branch. It also has been unable to diminish that power by converting the warrant-issuing procedure into a rubber-stamping process for executive branch agents. Its latest effort, therefore, is to negate the power by stripping the judicial branch of the one tool--the exclusionary rule--that has been most effective in thwarting encroachment by executive branch agents. Yet, even that effort has failed thus far to win enough votes to succeed.

Despite those setbacks, many people in the legislative and executive branches are relentlessly pressing to limit the judicial role in searches and seizures by short-circuiting the warrant-issuing process. Abolishing the exclusionary rule would give executive branch agents a license to bypass the warrant application process and disregard the terms of search warrants. After collecting evidence in warrantless searches, police and prosecutors could enter court confident that the judge's hands would be tied by the new law, which says illegally seized evidence cannot be excluded in Federal proceedings.

A substitute remedy

Critics of the exclusionary rule often stress that they wish to replace it with "a more effective remedy" for illegal police searches. The substitute remedy typically offered is a civil damages action that would enable victims of unlawful searches to sue police departments for monetary damages. There are at least two responses to such a proposal.

First, it begs the central constitutional question. In order to accept the suggestion that the judiciary ought to surrender its exclusionary rule in exchange for enactment of a civil damages action, one must first accept the proposition that the rule has no constitutional dimension. For all of the reasons outlined above, that proposition is not acceptable. The exclusionary rule can be justified on the basis of separation-of-powers principles. That means Congress cannot negate the rule with legislation.

Second, history shows that, where courts do not employ the exclusionary rule, the problem of police lawlessness gets worse. When the exclusionary rule was not in effect in the state of Ohio, for example, the Cincinnati police force rarely applied for search warrants. In 1958, the police obtained three warrants; in 1959, none. Although civil trespass actions were available to victims of unlawful searches, the potential threat of a lawsuit had a negligible effect on police behavior. The pervasive attitude among police officers was that, if illegally seized evidence could be used in court, there was no reason to bother with the search warrant application process.

Since many, opponents of the exclusionary rule take the Constitution's text, structure, and history seriously, they would be well-advised to step back and rethink misguided initiatives--such as the Hatch bill--in light of separation-of-powers principles. Again, the general thrust behind the separation-of-powers doctrine "is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other." Legislative rules that seek to curtail or abolish the exclusionary rule represent an invasion of the judicial province.

On the surface, such proposals may appear to be simple rules of evidence. Beneath the surface, however, they are an attempt to transfer judicial power to the executive branch. That may not be the underlying motivation of some of the proponents, but that would unquestionably be the practical effect of a legislative abolition of the exclusionary rule. The legislature accomplishes that end by "directing" judicial officers and "restraining" them from exercising their constitutionally assigned responsibilities. Any legislative attempt to abrogate the exclusionary rule, therefore, should be declared null and void by the judiciary.

Timothy Lynch is associate director of the Cato Institute's Center for Constitutional Studies, Washington, D.C.

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