{"id":7169,"date":"2012-05-22T14:07:13","date_gmt":"2012-05-22T14:07:13","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-05-22T14:07:13","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7169","title":{"rendered":"New law review article: “Is the Exclusionary Rule Dead?”"},"content":{"rendered":"

Craig M. Bradley, Is the Exclusionary Rule Dead?<\/a> 103 J. Crim. L & Criminology 1 (2012):<\/p>\n

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term\u2019s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in \u201csimple, isolated negligence\u201d or where negligence is \u201cattenuated\u201d from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon.<\/p>\n

The Court\u2019s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police\u2019s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that \u201creckless\u201d behavior can be deterred more readily than negligent behavior, but that is not obvious.<\/p>\n

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of \u201csubstantial\u201d as opposed to \u201csimple isolated\u201d negligence\u2014that is, when negligence has substantially interfered with a suspect\u2019s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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