The "New" Exclusionary Rule Debate: From "Still Preoccupied with 1985" to "Virtual Deterrence"

Donald Dripps, University of San Diego

Abstract

This is a working draft, please do not cite or distribute without the author's permission.

The exclusionary rule for evidence found in violation of the Fourth Amendment is, again, in play. In Hudson v. Michigan, the Court held that the exclusionary rule does not apply to violations of the Fourth Amendment's knock-and-announce requirement. This by itself was not surprising. Justice Scalia's majority opinion, however, joined by the Chief Justice, Justice Thomas, Justice Kennedy, and Justice Alito, contained language, gratuitous to the result, lamenting the "substantial social costs" of the exclusionary rule, questioning the need for the "massive remedy" of exclusion, and claiming the effectiveness of alternative remedies. The phrase "substantial social costs" appears three times in the majority opinion. Justice Breyer's stout dissent, joined by Justices Stevens, Souter, and Ginsburg, replied that exclusion would deter violations, and threw cold water on the claim of effective alternatives. One of those in the majority, Justice Kennedy, filed a concurrence including the assertion that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." He was the only justice to express this particular view.

Just this January, in Herring v. United States, the justices divided into the same blocs. This time, however, Justice Ginsburg's dissent raised the ante, by arguing that the familiar cost-benefit approach to applying the exclusionary rule is misguided. For the first time since Justice Brennan left the court, members of the Court appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior.

The ideas in this "new" debate, however, are about as fresh as the musty air of an antique shop. The justices have added nothing to the stock arguments of their predecessors on the Burger Court. I find myself wearing the remains of my hair long, putting on wide ties, reading dismal economic news, and seeing in the latest pages of the supreme Court Reporter the Leon decision being countered by appeals to 1983 law review articles and prior dissenting opinions by Justice Brennan It could be 1985 all over again.

This essay has two objectives. The first is to discredit both the majority and dissenting positions in Herring. The loss of evidence is a cost of the exclusionary rule, as distinct from the Fourth Amendment, only in a precise technical sense. It is conceptually possible that the rule might deter borderline but legal police activity. While that cost is conceptually possible, the empirical evidence does not suggest that it is significant.

Notions of a right to exclude illegally obtained evidence based on unitary-transaction theories or judicial integrity are equally unsound. They rest on a conception of substantive Fourth Amendment rights that goes beyond personal security and informational privacy to include a constitutional right to private crime. Moreover, right-to-exclude accounts indeed threaten the good-faith immunity defense in tort, with the attending risk of overdeterrence. If Justice Ginsburg invoked the Brandeis and Brennan views of exclusion because she believes that the cost-benefit cases have shortchanged deterrence (a correct apprehension), the Herring dissent is less than candid as well as less than logical--a red Herring, as it were.

My second objective is more constructive. I have previously suggested the suppression of evidence contingent on the failure to pay damages. If damage actions really were a good remedy for typical violations I would stand by this idea. Assessing the damages, however, is difficult and dangerous. If damages are set too high they will overdeter; if set too low they will underdeter. Using the administrative machinery of the motion to translate suppression into damages therefore takes an interesting road to the wrong destination.

Whether achieved by suppression or by damages, deterrence operates by giving the police incentives to prevent future violations. There are different administrative means to this end. If the violation was negligent, retraining the officer or instituting more intensive training programs for the wider force are plausible options. If the violation was reckless or intentional, discipline as well as retraining may be appropriate.

If the point to exclusion is deterrence, why exclude now and hope the police take preventive action later? Why not, in other words, suppress tainted evidence, then give the prosecution the opportunity to prove the precise, concrete steps the department has taken to prevent recurrence? If the court finds the corrective action adequate, the evidence could be received; if not it would be suppressed.

Part I locates the current controversy in historical context, as a prelude to Part II's attack on the Herring majority's concept of the exclusionary rule's costs and Part III's attack on the Herring dissents turn to theories other than deterrence. Part IV makes the case for my revised contingent exclusionary rule, an approach I call, in keeping with my plea for modernity, "virtual deterrence."