As noted a week ago here, Mapp v. Ohio is 50 years old today.
See the source of my original post: Slate.com: Mapp v. Ohio turns 50 / If a moderate Texan could love the exclusionary rule, why can’t judicial conservatives?
See also:
American Constitution Society: Chipping Fourth Amendment Away, Let’s Celebrate Mapp v. Ohio, While We Can
Politics 365: Mapp v. Ohio Turns 50: A Look at Warren Court’s Rights of Defendants
Ironically, Thursday came Davis v. United States, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (7-2). Justice Breyer, dissenting with Justice Ginsberg, bemoans that the exclusionary rule is moving toward the violation having to be willful to ever suppress:
Perhaps more important, the Court’s rationale for creating its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to justify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objectively reasonable good-faith belief that their conduct is lawful,” ibid. (internal quotation marks omitted).
If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, Weeks v. United States, 232 U. S. 383, and made applicable to state courts a half century ago through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643? The Court has thought of that rule not as punishment for the individual officer or as reparation for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. Weeks, supra, at 393 (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Constitution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon, 468 U. S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans, 514 U. S. 1 (1995), Herring v. United States, 555 U. S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U. S. 340 (1987). See Herring, supra, at 142 (“good faith” exception inaptly named).
The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. …
But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. See United States v. Julius, 610 F. 3d 60, 66–67 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by Herring” and to consider “whether the degree of police culpability in this case rose beyond mere … negligence” before ordering suppression); United States v. Master, 614 F. 3d 236, 243 (CA6 2010) (“[T]he Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized … unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’” (quoting Herring, supra, at 144)). Today’s decision will doubtless accelerate this trend.
Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See Valdes, supra, at 1728. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, 338 U. S. 25, 41 (1949) (Murphy, J., dissenting) (overruled by Mapp v. Ohio, 367 U. S. 643 (1961)) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); Herring, supra, at 152 (GINSBURG, J., dissenting) (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.
