Say Goodby to the Exclusionary Rule?

  Recently Professor Tim O’Neil of John Marshall Law School wrote…..”Be afraid. Be very afraid.”

He was writing about the impact that Justices’ Scalia, Thomas, Roberts and Alioto were having on criminal procedure.

The quartet were in the majority in two recent Supreme Court decisions that had placed the Fourth Amendment Exclusionary Rule firmly on the endangered species list. (See  Professor O’Neil’s, “Exclusionary Rule Hanging On By a Thread,” Feb. 13, 2009). In 2006, the Roberts Court refused to exclude evidence recovered in a search following the failure of the police to properly “knock and announce.” Hudson v. Michigan, 547 U.S. 586. Conceding that the search violated the Fourth Amendment, Justice Antonin Scalia’s majority opinion for a 5-4 court claimed that “Suppression of evidence … has always been our last resort, not our first impulse.” And so, for the first time since the Exclusionary Rule was incorporated against the states in 1961, the Supreme Court refused to exclude evidence where the Fourth Amendment violation was caused solely by improper police behavior. Last year the Roberts Court took a second poke at the Fourth Amendment pi?ata. In another 5-4 decision, the Court appeared to raise the bar of police misbehavior that would justify exclusion. Herring v. U.S., 129 S.Ct. 695 (2009). Chief Justice John Roberts for the majority wrote that exclusion of evidence only “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”

These decisions led Judge Richard A. Posner to opine that “[T]he exclusionary rule is bound some day to give way to [civil remedies].” U.S. v. Sims, 553 F.3d 580 (7th Cir. 2009).

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