Is the Exclusionary Rule Consistent With Originalism?: Does an originalist approach to constitution interpretation require the exclusionary rule? Or did the Supreme Court simply invent the doctrine without any constitutional basis? Critics of the exclusionary rule usually say that the doctrine was invented out of thin air, and that it is not constitutionally mandatory. My own view is that the exclusionary rule is much more consistent with originalism than its critics believe. Although it has evolved over time, there is a reasonable originalist basis for some version of it. In this post, I want to explain why.

  It is widely agreed that at common law, the primary way of enforcing search and seizure rules was through civil trespass suits. There were no professional police in those days, but agents of the King could get a warrant permitting them to lawfully search a home for a warrant. If an agent of the King broke into your house and searched it without a valid warrant, your remedy was to sue the agents for trespass into your home. A valid warrant provided a defense against the trespass suit: It authorized the entry. On the other hand, an agent of the King who entered without a valid warrant was not officially acting as an agent of the King He was just a private person who was a trespasser, and therefore could be subject to a trespass suit. As a result, at common law, the remedies for illegal search and seizure were enforced by civil trespass suits. The Fourth Amendment then embraced this common law heritage.

  That's the usual history. Critics of the exclusionary rule generally rely on this history to say that the U.S. Supreme Court invented the exclusionary rule out of thin air. The exclusionary remedy is not found or hinted at in the common law trespass cases, the argument runs, and it does not appear in the Constitution itself.

  I'm less sure of that. I tend to think there's actually a reasonable originalist basis for a modest form of the exclusionary rule — and that the modest form helps explain the rule's origins.

  To see why, we need to understand that the Fourth Amendment protects against two distinct things: searches, like entry into a home, and seizures, such as the taking away of a person's property. In early Fourth Amendment law — and at least as I understand it, at common law, as well, although I am less sure of that — a seizure was permitted if and only if the government had a superior property interest in the item seized. The notion was that the government's power to search and seize was premised on a superior property interest in items a person possessed. Thus, the government could get a warrant to search a home for stolen property or contraband — items that the person did not and could not legally own — but the government could not get a warrant to search for and seize mere evidence of crime. Mere evidence could not be seized because a person's property is still their property. The government only had a right to take that which a person had no right to retain. See generally Warden v. Hayden (discussing this history).

  Why does this matter? Well, I think it explains the origin of the exclusionary rule. If the government can only obtain a warrant to search for and seize property if it has a superior property interest in the item seized, then a proper remedy for a Fourth Amendment violation is the return of property unlawfully seized. And a return of property from the government to the defendant keeps the government from having it in a way it can use in court.

  Thats' just what happened in Weeks v. United States, 232 U.S. 383 (1914), the case that is generally understood as having introduced the exclusionary rule. The police in Weeks broke into Weeks's home without a warrant and took his papers away. Although the timing of events isn't exactly clear, Weeks was charged with a crime based on the papers and he filed suit seeking return of the papers on the ground that the government had no right to possess them. That is, Weeks wasn't seeking "suppression" of the evidence: He was seeking a return of his stuff that the government had unlawfully stolen from him. The trick was that by getting the property back, Weeks could keep it away from the government: The government needed to possess the property to move for its admission in court.

  It seems to me that for an originalist judge, letting Weeks have his property back doesn't require any judicial rulemaking or living constitutionalism. After all, the government has no right to the property: It was literally stolen from Weeks. What are you supposed to do when Weeks wants his property back? Say "no"? Or maybe say, "Sorry bud — your property was stolen from you and you deserve it back, but first we want to let the thief hold on to it for a few months to prosecute you"? In that setting, it seems pretty reasonable to give the property back to Weeks. And interestingly, the result in Weeks was 9-0.

Response to Paul on Originalism and the Exclusionary Rule: In his response to my post on originalism and the exclusionary rule, Paul responds, "Originalism sometimes cannot resolve interpretative questions. But on the exclusionary rule, it seems to me there is little room for debate: Originally speaking, the Constitution does not contain an exclusionary rule." I think this response misunderstands my post a bit, so I wanted to offer some follow-up thoughts.

  First of all, Paul is absolutely correct that the common law rule permitted an officer to testify about evidence illegally obtained. You bet. This is not only correct, it was specifically acknowledged and accepted by the majority in Weeks. The Weeks Court expressly distinguished the case from the cases covered by the usual common law rule that officers could testify about evidence illegally obtained:

What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not . . . the case of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained . . . . The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well or other property.

Weeks, 232 U.S. at 392-93.

  Put another way, Weeks was handed down as a return-of-property case, not a suppress-evidence-because-the-law-was-broken case.

  To be fair, the Weeks Court may have added some innovation in the remedy: The Court undid the conviction on the ground that if the trial court had ruled properly on the motion to return property, there would have been no conviction. In other words, the Supreme Court restored Weeks to the position he should have been in if the lower court had ruled properly in his motion to return property; it did not simply order the property restored to him (maybe sent to his jail cell?) or offer him damages for the wrong.

  Perhaps some would argue that the trial court should have returned the property before the conviction, effectively suppressing the evidence, but that after the conviction the Supreme Court should't have tried to return Weeks to that position. That seems possible to me. But even if that's right, I tend to think the key point survives: The ability to to have the return of property that was unlawfully seized did seem to authorize a pre-trial remedy in a particular type of common law case that was surprisingly suppression-like.

  Or at least it looks that way to me based on a reading of Weeks. I admit that I was surprised when I read Weeks again recently and saw its traditional grounding; I had never thought about the connection between suppression and return of property before. But reading Weeks closely made me think that I was overlooking something in following the usual story that suppression was invented out of thin air as a remedy.

  One additional point. Paul states in his post that "There's a lot of history between 1789 and 1914 — virtually all of it squarely opposed to an exclusionary remedy." There may be a lot of history, but I think it's worth noting that there is astonishingly little Fourth Amendment case law from that period. There were only 3 or 4 significant Fourth Amendment cases in that period: Ex Parte Jackson, Boyd v. United States and Hale v. Henkel were the most significant, I think, and none of them shed light on the issue. Adams v. New York from 1905 was the only really relevant precedent, and it it was then minimized 9 years later in Weeks.