New law review article: “The Fourth Amendment’s Exclusionary Rule as a Constitutional Right”

Thomas K. Clancy, The Fourth Amendment’s Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012), posted on SSRN. Abstract:

I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.