I’ve speculated about this before, and here’s a new article on the topic: Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Gonzaga Law Review 1 (2010). It’s very interesting stuff.
I’ve speculated about this before, and here’s a new article on the topic: Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Gonzaga Law Review 1 (2010). It’s very interesting stuff.
J. Aldridge says:
One reaction from reading the article is I don’t think you can compare today’s 4A with the 4A of the framing area. The original purpose of the 4A was to protect against general warrants, e.g., in tax collection, while today it is viewed more as protection against acts of law enforcement. General law codes dictated what officers might do and not do on the job and not the 4A!
March 15, 2011, 5:09 amtamerlane says:
IANAL but after skimming the article it seems to me that the assertions made are not supported by the evidence produced. To cite three problems with the article: (1) It’s quite a jump from using HC to obtain the release of a person arrested with an improper warrant and the exclusion of improperly obtained evidence. (2) The author admits that the criminal justice operations in the period where he is searching for precedent are utterly different than those that have obtained since even before Holmes constructed the exclusionary principle. (3) Finally, there are a lot “may”s and “one might suspect”s in this article but I didn’t see one case cited by the author that unequivocally supports the original statement of his case.
March 15, 2011, 8:26 amJoseph S says:
Seems interesting, although I’m not sure I’m convinced yet.
March 15, 2011, 9:11 amAndrew says:
A more general question is whether the Constitution authorizes the judiciary to remedy procedural violations of the specificly enumerated rights in the Bill of Rights. I think the answer is “yes”, because the Due Process Clause clearly says that no one can be jailed or fined without the exact process (e.g. a warrant) that is legally required.
March 15, 2011, 11:57 amOrenWithAnE says:
Sounds like a good read to add to the (ever expanding) list. Thanks!
March 15, 2011, 2:29 pmDan Simon says:
Orin, I didn’t read the paper, but I did read your previous post, and I’m having trouble understanding your notion of “originalist basis”. You seem to be saying that while neither the original authors of the Constitution, nor their contemporaries, would have understood the Constitution to imply the Exclusionary Rule, one can argue a line of reasoning to it from what they understood at the time. In what sense, then, is “originalist basis” distinct from “spirit”, “emanations of penumbras”, or any of those other phrases by which other scholars–including “living Constitution” scholars–connect their preferred readings of the Constitution with the document itself?
(Note: I’m not an originalist of any flavor, so perhaps this sort of thing is now considered perfectly kosher among originalists. If so, then my question would be directed at originalists generally, rather than to you.)
March 15, 2011, 3:14 pmOrin Kerr says:
Dan,
You are taking a “living Constitutonalist” approach to interpreting my 2008 blog post, which does not actually say (and did not intend to say) what you claim it says.
March 15, 2011, 3:41 pmDan Simon says:
Orin–Well, that’s why I said “you seem to be saying”, rather than just “you say”…
So, to clarify–were you claiming in the earlier post that Framers’-era defendants suing to have seized evidence returned before it could be used against them, did in fact succeed? Or that they would have succeeded, had they thought to try? Or simply that a judge might have so reasoned at the time? Or that he should have?
March 15, 2011, 3:59 pmBob says:
This looks like a good place to ask a question that came to me a while ago, but it wasn’t the proper time to ask:
Suppose stolen or contraband goods are found as a result of an unreasonable search. Does the thief or violator then get to keep the goods?
If the answer is no, then why don’t authorities, all the time and everywhere, simply search everyone and every place for stolen and contraband goods, and forget about prosecutions, since clearing violations is obviously of greater importance than punishment, and since there doesn’t appear to be any remaining penalty against unreasonable searches or seizures?
If the answer is yes, then does the person whose property was stolen have to await a more reasonable search independent of the unreasonable one?
March 15, 2011, 5:31 pmOrenWithAnE says:
I would wager that such a blanket policy in violation of the 4A would trigger civil liability under 18USC1983 or Bivens if not criminal liability under 18USC241-242 for conspiracy to violate the civil rights and/or deprivation of rights under color of law.
March 15, 2011, 5:54 pmBob says:
Tbanks, but I forgot to also ask, if the answer is no, why is the answer no?
March 15, 2011, 6:25 pmDave N. says:
The police are not required to return the evidence to the crook if there is an illegal search. They will usually return such items to their rightful owner.
OrenWithAnE explained why doing as you propose might get the cops in trouble. Additionally, I would suspect that most people who have their things stolen want the thief to be punished in addition to getting their things back.
March 15, 2011, 7:57 pmBob says:
What I quoted left the previous msg unclear. What I meant was, if the article in question was found via unreasonable search, then if it isn’t returned to whomever they got it from, why not? If the idea is, but for the search — which was unreasonable — the person would still have the fruit of some sort of violation (theft or contraband), does that person get to keep it, and if not, why not?
March 15, 2011, 8:01 pmBob says:
Why are they allowed to do so, if it was unreasonably seized or searched for to begin with?
But isn’t that already the case with items excluded from evidence in criminal prosecutions? In other words, if their desire for revenge isn’t honored in one case, why is it in the other?
March 15, 2011, 8:07 pmDave N. says:
Bob,
Because title to the stolen object does not pass to the thief by the happenstance of an illegal search.
For that matter, if the seized item is contraband (drugs, an illegal weapon, whatever), the fact the police illegally seized it does not immunize the holder and allow him to reclaim it.
March 15, 2011, 8:23 pmBob says:
But that still doesn’t answer the question of why, unless the item is discovered in a later reasonable search, it is not returned to the last person who had it, since that is the proximate error to be rectified. Why is only criminal prosecution affected?
March 15, 2011, 8:27 pmDave N. says:
Bob,
Because the police are not required to ignore the fact that the item is, in fact, stolen. The fact that the courts won’t let the government use the stolen item as evidence doesn’t change this in the least.
March 15, 2011, 8:32 pmDave N. says:
Bob,
Let’s put it this way: Defendant has stolen item suppressed. Defendant demands stolen item back. Police know item is stolen. They tell him to come down to the police station to get it.
As he walks out the door, after retrieving the stolen item, they arrest him for possession of stolen property. They cetainly know he is in possession of it. They have probable cause to arrest him for the new possession. There is no illegal search involved at all at this point.
Sound silly? Of course. But it is equally silly to tell police that they have to assist a thief after the fact in regaining his stolen property.
March 15, 2011, 8:37 pmBob says:
But this whole business of exclusion seems equally silly to me. I don’t see why the same thinking doesn’t apply to both cases.
And I don’t think the analogy above is quite correct. There’s been no judicial determination that the item is stolen, and if not for the unreasonable search, it would not even be in police possession. If the idea of exclusion is to put things back the way they were absent the unnecessary search, doesn’t it demand the authorities make free delivery back to where it was seized from?
March 15, 2011, 8:55 pmDave N. says:
Bob,
The reality iin Fourth Amendment jurisprudence is that the purpose of the Exclusionary Rule is to deter police misconduct. The benefit to the defendant is secondary.
I would note also that this is a rule of court procedure: something that has been illegally seized can’t be admitted into evidence. It is not a rule about the police having to pretend that something didn’t happen, which is what you propose.
I am sorry you don’t see the distinctions. I’m not sure I can be of much more assistance.
March 15, 2011, 9:09 pmBob says:
If it’s to deter police misconduct, then it would seem the idea is that whatever the police intended to accomplish by it, it should preclude. What if the police just want to stop people from possessing contraband or goods they’ve stolen? Would it not be just as much, or an even greater deterrent, to unreasonable searches if the property in question were returned to the defendant (who then may or may not be a defendant, depending on other circumstances)?
And if benefit to the defendant is only secondary and not the aim of the exclusionary rule, why by now hasn’t there been devised a rule to deter unreasonable searches without benefiting the defendant? How long has it been now? I guess if you go by the article, even how long that’s been so is in dispute. The article did give one case in which putative contraband was returned, but it wasn’t clear whether it was contraband or not.
March 15, 2011, 9:27 pmShelbyC says:
As I’ve learned on this blog, the exclusionary rule is supposed to be a remedy to society generally for the general constitutional violation, and not to the defendant for the specific violation against him. It seems odd that the courts would have the power to impose such a “remedy” but they say that they do. Bob’s argument makes sense if the exculsion is a remedy for the defendant, which it probably should be.
March 16, 2011, 12:02 amDave N. says:
ShelbyC,
As I tried to explain to Bob, the defendant gets a windfall in that illegally seized evidence cannot be used against him in Court. There is no point that I can see in giving him a double windfall — and no interest at all to society in saying, “Well the Court suppressed the evidence, so we have to give you back the C4, please don’t use it to blow anything up./ Here’s your kiddie porn, please don’t use it groom a child for you to molest./ Here’s the Widow Perkins’ family jewels that you stole which left her destitute, please fence them elsewhere.”
March 16, 2011, 12:32 amJay says:
Just as a practical note, the number of cases where “stolen property” gets suppressed via the exclusionary rule is vanishingly small, to the point where this is basically a law school hypothetical. Almost all such cases involve some sort of contraband per se (drugs, child porn), or perhaps contraband based on the defendant’s status (felon in possession of a firearm).
I actually think Bob’s question isn’t all that crazy, if you’re talking about really fungible, non-contraband, allegedly stolen property, such as cash. If it’s suppressed but then retained by the gov’t, does the defendant get some opportunity to contest the seizure/prove his non-guilt? In the federal system, at least, the answer is yes, but only through very pro-government civil asset forfeiture rules. Not sure how it would work in various state systems.
March 16, 2011, 12:55 amDave N. says:
Jay,
I have no problem with what you propose. I had a big problem with Bob’s suggestion that a defendant automatically be restored to the status quo ante (contraband, stolen property, et al.) because evidence is suppressed.
March 16, 2011, 1:11 amShelbyC says:
The best example I’ve heard is the TSA giving the terrorist his bomb back and letting him get on the airplane. But the point is that, to the extend a judicially created exclusionary rule makes sense at all, it makes sense as a remedy for the defendant, and not this weird remedy for society as a whole thing. And of course, the defendant doesn’t get a windfall, he’s restored to the position the would have been in but for the seizure. Of course the remedy should be limited to exclusion, but it’s hard to explain why.
March 16, 2011, 1:12 amDavid Schwartz says:
Because the government’s power to imprison people for violation of criminal laws really is different.
March 16, 2011, 8:58 amMuskrat says:
96 comments on why Obama is or isn’t History’s Greatest Monster for passing on the chance to start his very own war, and 27 on a critical issue of government power and citizen’s rights, one that has real world implications multiple times a day across the United States. Read the article. It is in fact very interesting, and I think it makes a strong case. I also think it will be ignored, because part of the argument is that the modern non-exclusionary movement is founded on bad scholarship and ethically questionable advocacy by an icon in the field. [bias: I work for a criminal defense office]
March 16, 2011, 9:16 amBob says:
So evidence couldn’t be excluded if the penalty was a fine, or death, or boiling in oil, or loss of a driving license, or just loss of reputation?
March 16, 2011, 12:37 pmBob says:
That may be an important reason why, as the article points out, for a long time after the adoption of the 4th amendment, physical evidence hardly ever came up as evidence, but it frequently does now. There are many more things now that can be prosecuted as activity involving contraband. Back then, what was contraband? Smuggled goods (to avoid tariffs)? Anyway, it would seem my question applies a fortiori if stolen goods are hardly ever suppressed, because if the whole exclusion business is a societal remedy, then it would seem that returning them to the putative violator would not burden the victim of theft more than once in a blue moon, and that the “burden” of allowing someone unauthorized possession of an article would fall entirely on “society”. And if that’s too great a burden to bear, the person could always be awarded the monetary equivalent of his heroin stash, kiddie porn collection, sawed-off shotgun, or whatever.
March 16, 2011, 12:47 pmzuch says:
That was my take on the “TTB” ["ticking time bomb"/torture] problem: If your main impetus for an arguably illegal action is (ostensibly) something other than prosecuting, convicting, and punishing a perp, then go ahead and do it to effect the ‘good’ it will do you … and be prepared to take any legal sanction and/or punishment for your violation of the law.
Cheers,
March 16, 2011, 3:37 pmBob says:
Then considering all the att’n paid to exclusion as currently practiced, it would seem the authorities consider prosecutions to be more important than public safety and clearing violations. Is this because lawyers are in charge?
March 16, 2011, 6:10 pm