CRS Annotated Constitution

Fourth Amendment -- Table of Contents

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FOURTH AMENDMENT

SEARCH AND SEIZURE

Enforcing the Fourth Amendment: The Exclusionary Rule

A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how one is to translate the guarantee into concrete terms is not specified. Several possible methods of enforcement have been suggested over time; however, the Supreme Court has settled, not without dissent, on only one as an effective means to make real the right.

Alternatives to the Exclusionary Rule.—Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of and participation of police review boards, but again the examples of disciplinary actions are exceedingly rare.159 Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.

Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit for damages and other remedies160 under a civil rights statute in federal courts.161 While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute,[p.1258]the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts.162 While a damage remedy might be made more effectual,163 a number of legal and practical problems stand in the way.164 Police officers have available to them the usual common–law defenses, most important of which is the claim of good faith.165 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

Development of the Exclusionary Rule.—Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States,167 which, as was noted above, involved not a search and seizure but a compulsory production of business papers which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment’s self–incrimination provision to the Fourth Amendment’s protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it.168 The Boyd case was closely limited to its facts and an[p.1259]exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common– law rule that evidence was admissible however acquired.169

Nevertheless, ten years later the common–law view was itself rejected and an exclusionary rule propounded in Weeks v. United States.170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. “The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally–seized evidence would itself violate the Amendment. “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu[p.1260]tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”172

Because the Fourth Amendment did not restrict the actions of state officers,173 there was no question about the application of an exclusionary rule in state courts174 as a mandate of federal consitutional policy.175 But in Wolf v. Colorado,176 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment.177 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, since there were other means to observe and enforce the right. “Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured[p.1261]by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.”178

It developed, however, that the Court had not vested in the States total discretion in regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California,179 evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for the Court, should have been excluded because the police methods were too objectionable. “This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.”180 The Rochin standard was limited in Irvine v. California,181 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Jackson’s plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule.182 Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy.183

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Then, in Mapp v. Ohio,184 the Court held that the exclusionary rule should and did apply to the States. It was “logically and constitutionally necessary,” wrote Justice Clark for the majority, “that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right” to be secure from unreasonable searches and seizures. “To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.”185 Further, the Court then held that since illegally– seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal.186

The Foundations of the Exclusionary Rule.—Important to determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court’s supervisory power over the lower federal courts. It will be recalled that in Boyd187 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self–incrimination. Weeks v. United States,188 though the Fifth Amendment was mentioned, seemed to be clearly based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the self–incrimination clause of the Fifth Amendment.189 Then in[p.1263]Mapp v. Ohio,190 the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the “most important constitutional privilege” of the right to be free from unreasonable searches and seizures, finding that the rule was “an essential part of the right of privacy” protected by the Amendment.

“This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required— even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.”’191 It was a necessary step in the application of the rule to the States to find that the rule was of constitutional origin rather than a result of an exercise of the Court’s supervisory power over the lower federal courts, inasmuch as the latter could not constitutionally be extended to the state courts.192 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court’s supervisory powers in Wolf v. Colorado193 in declining to extend the rule to the States. That the[p.1264]rule is of constitutional origin Mapp establishes, but this does not necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally–seized evidence is itself unconstitutional.194 These were often combined with a rationale emphasizing “judicial integrity” as a reason to reject the proffer of such evidence.195 Yet the Court permitted such evidence to be introduced into trial courts, when the defendant lacked “standing” to object to the search and seizure which produced the evidence196 or when the search took place before the announcement of the decision extending the exclusionary rule to the States.197 At these times, the Court turned to the “basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”198 “Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.”199

Narrowing Application of the Exclusionary Rule.—For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality.200 By the early[p.1265]1980s a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,201 and numerous opinions had rejected all doctrinal bases save that of deterrence.202 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application.203 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well “generat[e] disrespect for the law and administration of justice,”204 as well as free guilty defendants.205 No longer does the Court declare that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”206

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule’s application. Defendants who themselves[p.1266]were not subjected to illegal searches and seizures may not object to the introduction against themselves of evidence illegally obtained from co–conspirators or codefendants,207 and even a defendant whose rights have been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony.208 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because of the costs overweighing the minimal deterrent effect.209 Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence.210 If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible.211 A grand jury witness was not permitted to[p.1267]refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure,212 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant by state authorities.213

The most severe curtailment of the rule came in 1984 with adoption of a “good faith” exception. In United States v. Leon,214 the Court created an exception for evidence obtained as a result of officers’ objective, good–faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White’s opinion for the Court215 could find little benefit in applying the exclusionary rule where there has been good–faith reliance on an invalid warrant. Thus, there was nothing to offset the “substantial social costs exacted by the [rule].”216 “The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates.217 Moreover, the Court thought that the rule should not be applied “to deter objectively reasonable law enforcement activity,” and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.”218 The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been “dishonest or reckless in preparing their affidavit,” if it should have been obvious that the magistrate had “wholly abandoned” his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court[p.1268]applied the Leon standard in Massachusetts v. Sheppard,219 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant.

The Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.220 Justice Blackmun’s opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants.221

It is unclear from the Court’s analysis in Leon and its progeny whether a majority of the Justices would also support a good–faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures.222 It is also unclear what a good–faith exception would mean in the context of a warrantless search, since the objective reasonableness of an officer’s action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation.223 The Court’s increasing willingness to uphold warrantless searches as not “unreasonable” under the Fourth[p.1269]Amendment, however, may reduce the frequency with which the good–faith issue arises in the context of the exclusionary rule.224

Operation of the Rule: Standing.—The Court for a long period followed a rule of “standing” by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases “require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.”225 The Court recently has departed from the concept of “standing” to telescope the inquiry into one inquiry rather than two. Finding that “standing” served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant’s Fourth Amendment rights have been violated. “We can think of no decided cases of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.”226 One must therefore show that “the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.”227

The Katz reasonable expectation of privacy rationale has now displaced property–ownership concepts which previously might have supported either standing to suppress or the establishment of an interest that has been invaded. Thus, it is no longer sufficient[p.1270]to allege possession or ownership of seized goods to establish the interest, if a justifiable expectation of privacy of the defendant was not violated in the seizure.228 Also, it is no longer sufficient that one merely be lawfully on the premises in order to be able to object to an illegal search; rather, one must show some legitimate interest in the premises that the search invaded.229 The same illegal search might, therefore, invade the rights of one person and not of another.230 Again, the effect of the application of the privacy rationale has been to narrow considerably the number of people who can complain of an unconstitutional search.

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Fourth Amendment -- Table of Contents

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