{"id":5667,"date":"2011-10-07T17:06:16","date_gmt":"2011-06-19T00:01:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-06-18T16:24:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5667","title":{"rendered":"Today is the 50th Anniversary of Mapp v. Ohio<\/em> and the exclusionary rule, what’s left of it"},"content":{"rendered":"

As noted a week ago here<\/a>, Mapp v. Ohio is 50 years old today.<\/p>\n

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?<\/a><\/p>\n

See also:<\/p>\n

American Constitution Society: Chipping Fourth Amendment Away, Let\u2019s Celebrate Mapp v. Ohio, While We Can<\/a><\/p>\n

Politics 365: Mapp v. Ohio Turns 50: A Look at Warren Court\u2019s Rights of Defendants<\/a><\/p>\n

Ironically, Thursday came Davis v. United States<\/a>, 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:<\/p>\n

Perhaps more important, the Court\u2019s rationale for creating its new \u201cgood faith\u201d 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 \u201cinnocent.\u201d Ante, at 10. But the Court then finds this fact sufficient to create a new \u201cgood faith\u201d exception to the exclusionary rule. It reasons that the \u201csole purpose\u201d of the exclusionary rule \u201cis to deter future Fourth Amendment violations,\u201d ante, at 6. The \u201cdeterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue,\u201d ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to justify exclusion where \u201cpolice exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,\u201d ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with \u201csimple, isolated negligence\u201d or an \u201cobjectively reasonable good-faith belief that their conduct is lawful,\u201d ibid. (internal quotation marks omitted).<\/p>\n

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\u2019s commands. Weeks, supra, at 393 (without the exclusionary rule, the Fourth Amendment would be \u201cof no value,\u201d and \u201cmight as well be stricken from the Constitution\u201d). This Court has deviated from the \u201csuppression\u201d norm in the name of \u201cgood faith\u201d 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 (\u201cgood faith\u201d exception inaptly named). <\/p>\n

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. … <\/p>\n

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\u2019s bounds is no more culpable than an officer who follows erroneous \u201cbinding precedent.\u201d Nor is an officer more culpable where circuit precedent is simply suggestive rather than \u201cbinding,\u201d 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\u2019s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was \u201cdeliberate, reckless, or grossly negligent,\u201d then the \u201cgood faith\u201d exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring\u2014dicta the Court repeats and expands upon today\u2014may already be leading lower courts in this direction. See United States v. Julius, 610 F. 3d 60, 66\u201367 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to \u201cperform the cost\/benefit analysis required by Herring\u201d and to consider \u201cwhether the degree of police culpability in this case rose beyond mere … negligence\u201d before ordering suppression); United States v. Master, 614 F. 3d 236, 243 (CA6 2010) (\u201c[T]he Herring Court\u2019s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized … unless the officers engage in \u2018deliberate, reckless, or grossly negligent conduct\u2019\u201d (quoting Herring, supra, at 144)). Today\u2019s decision will doubtless accelerate this trend.<\/p>\n

Any such change (which may already be underway) would affect not \u201can exceedingly small set of cases,\u201d 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 \u201cunreasonable searches and seizures.\u201d 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, \u201cthere is but one alternative to the rule of exclusion. That is no sanction at all\u201d); Herring, supra, at 152 (GINSBURG, J., dissenting) (the exclusionary rule is \u201can essential auxiliary\u201d 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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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