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October 29, 2008


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I'm not a lawyer, but what has always bothered me about the exclusionary rule as the primary, perhaps sole, remedy for an unreasonable search is that it provides no remedy to those who are innocent of any crime, and it deters police only insofar as they wish to genuinely catch lawbreakers. That said, I have no idea how a court would try to impose an actual penalty for violations. Ideally, though, some remedy would be available that would deter police equally whether the improper search found anything or not, and ideally that deterrence would extend to the employment of careless clerks.

Uzair Kayani

The exclusionary rule seems to address two unrelated concerns: (i) the defendant's constitutional rights and (ii) checks and balances. When the police negligently procures evidence, it threatens both the defendant and the warrant issuing judge.

Extending the good faith exception to negligent searches seems to focus on the latter concern (judicial power over the police), and not on the Fourth Amendment right. Maybe the constitutional right question drops out altogether.

After all, it probably does not matter to the defendant whether the illegal search was part of a pattern or an isolated event. It does, however, matter to the judiciary whether a police department exhibits a pattern of disregarding the warrant issuing judge.


Is it "wither" or "whither"?

Richard McAdams

Either word works. "Whither" asks where the exclusionary rule is going. "Wither" asks if the rule is losing its force or vitality.


A few thoughts. There are other remedies for innocent victims of police misbehavior in the form of Section 1983 and Bivens civil rights suits. Akil Amar some years ago said these civil suits should be the sole remedy and we should be done with the exclusionary rule b/c it punishes the whole community in a sense for the mistake of a single police officer.

As for the records mistake, I can't agree. While I think there should perhaps be a schedule of fines for people wrongfully imprisoned even in good faith and even for one night, the harm addressed by the exclusionary rule is the danger of an armed and authorized agent of the state, clothed with that state's authority, abusing his power by intimidating, overstepping, or otherwise misusing his grant. Honest mistakes by clerks, while regrettable and hopefully compensable are on a different order. The harm is not the same.

Incidentally, and for what it's worth, about 99% of criminal defendants arrested on warrants will claim "They took care of that warrant months ago." Watch an episode of COPS if you don't believe me. There is some value in people "having their day in court" and addressing their complaints and defenses in the more orderly judicial realm rather than punishing cops for bringing them before the courts to do so. In other words, a night in jail is not ideal, but we don't want cops to second-guess clerical systems, not to search incident to arrest, nor to encourage "resistance to unlawful arrest" which is allowed in some jurisdictions and likely would be allowed in this case.

Joshua Dilger

It certainly feels like this issue could be resolved by readressing the issue of where the mistake came from. You point out that past judges have refused to differentiate between problems stemming from clerks employed by the police and problems stemming from sources outside the police. While on the one hand it does seem narrow to depend on who employs the mistake maker, on the other hand, where the mistake maker is employed makes a world of difference. Making such a differentiation diffuses the problems presented in your well-written article.

Joshua Dilger

In response to Uzair Kayani, I disagree. While it may not matter so much to any one defendent whether the illegal search was part of a pattern, it definitly matters to society-at-large. In fact, such is the primary concern of the fourth amendment (the secondary concern being the relationship between the officer and the warrant issuer).

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