Fourth Amendment — Excluding Evidence

Amdt4.7.1 Exclusionary Rule and Evidence

The Fourth Amendment declares a right to be free from unreasonable searches and seizures, but how this right translates into concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule—has been applied with any frequency by the Supreme Court, and Court in recent years has limited its application.

Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.¹ A police officer who makes an illegal search and seizure is subject to internal departmental discipline, which may be backed up by the oversight of police review boards in the few jurisdictions that have adopted them, but, again, the examples of disciplinary actions are exceedingly rare.²

Civil remedies are also available. Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law, or against the Federal Government under the Federal Tort Claims Act.³ Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit in federal court for damages and other remedies⁴ under a civil rights statute.⁵ Although federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has held that a right to damages for a violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts upon proof of injuries resulting from agents’ violation of the Amendment.⁶

Although a damages remedy might be made more effectual,⁷ legal and practical problems stand in the way.⁸ Law enforcement officers have available to them the usual common-law defenses, the most important of which is the claim of good faith.⁹ Such “good faith” claims, however, are not based on the subjective intent of the officer. Instead, officers are entitled to qualified immunity “where clearly established law does not show that the search violated the Fourth Amendment,”¹⁰ or where they had an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.¹¹ On the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to sue. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

Amdt4.7.2 Adoption of Exclusionary Rule

Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States,¹ which, as noted above, involved not a search and seizure but a compulsory production of business papers, which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment’s self-incrimination provision to the Fourth Amendment’s protections to derive a rule that required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it.² Boyd was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common-law rule that evidence was admissible however acquired.³

Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States.⁴ Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers such as those sought to be compelled in Boyd. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice William Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. “The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”⁵ The basis of the ruling is ambiguous, but seems to have been an assumption that admission of illegally seized evidence would itself violate the Fourth Amendment. “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”⁶

Because the Fourth Amendment does not restrict the actions of state officers,⁷ there was originally no question about the application of an exclusionary rule in state courts⁸ as a mandate of federal constitutional policy.⁹ But, in Wolf v. Colorado,¹⁰ a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the Due Process Clause of the Fourteenth Amendment.¹¹ However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, because there were other means to observe and enforce the right. “Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.”¹²

It developed, however, that the Court had not vested in the states total discretion with regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California,¹³ evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Felix Frankfurter for the Court, should have been excluded because the police methods were too objectionable. “This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.”¹⁴ The Rochin standard was limited in Irvine v. California,¹⁵ in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Robert Jackson’s plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule.¹⁶ Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy.¹⁷

Then, in Mapp v. Ohio,¹⁸ the Court held that the exclusionary rule applied to the states. It was “logically and constitutionally necessary,” wrote Justice Thomas Clark for the majority, “that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right” to be secure from unreasonable searches and seizures. “To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.”¹⁹ The Court further held that, because illegally seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal.²⁰

Important to determination of such questions as the application of the exclusionary rule to the states and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court’s supervisory power over the lower federal courts. It will be recalled that in Boyd²¹ the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. In Weeks v. United States,²² though the Fifth Amendment was mentioned, the holding seemed clearly to be based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the Self-Incrimination Clause of the Fifth Amendment.²³ Then, in Mapp v. Ohio,²⁴ the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the “most important constitutional privilege” of the right to be free from unreasonable searches and seizures, finding that the rule was “an essential part of the right of privacy” protected by the Amendment.

“This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.’”²⁵ It was a necessary step in the application of the rule to the states to find that the rule was of constitutional origin rather than a result of an exercise of the Court’s supervisory power over the lower federal courts, because the latter could not constitutionally be extended to the state courts.²⁶ In fact, in Wolf v. Colorado,²⁷ in declining to extend the exclusionary rule to the states, Justice Frankfurter seemed to find the rule to be based on the Court’s supervisory powers. Mapp establishes that the rule is of constitutional origin, but this does not necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally seized evidence is itself unconstitutional.²⁸ These suggestions were often combined with a rationale emphasizing “judicial integrity” as a reason to reject the proffer of such evidence.²⁹ Yet the Court permitted such evidence to be introduced into trial courts when the defendant lacked “standing” to object to the search and seizure that produced the evidence or when the search took place before the announcement of the decision extending the exclusionary rule to the states.³⁰ At these times, the Court turned to the “basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”³¹ “Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.”³²

For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality.³³ By the early 1980s, a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,³⁴ and numerous opinions had rejected all doctrinal bases other than deterrence.³⁵ At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application.³⁶ Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well “generat[e] disrespect for the law and administration of justice,”³⁷ as well as free guilty defendants.³⁸ No longer does the Court declare that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”³⁹

Although the exclusionary rule has not been completely repudiated, its use has been substantially curbed. For instance, defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,⁴⁰ and even a defendant whose rights have been infringed may find the evidence admitted, not as proof of guilt, but to impeach his testimony.⁴¹ Further, evidence obtained through a wrongful search and seizure may sometimes be used directly in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining the evidence.⁴² Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because, the Court found, the costs outweigh the minimal deterrent effect.⁴³

The exclusionary rule is inapplicable in parole revocation hearings,⁴⁴ and a violation of the “knock-and-announce” rule (the procedure that police officers must follow to announce their presence before entering a residence with a lawful warrant)⁴⁵ does not require suppression of the evidence gathered pursuant to a search.⁴⁶ If an arrest or a search that was valid at the time it took place becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, the Court has held that evidence obtained thereby is nonetheless admissible.⁴⁷ In other cases, a grand jury witness was required to answer questions even though the questions were based on evidence obtained from an unlawful search and seizure,⁴⁸ and federal tax authorities were permitted in a civil proceeding to use evidence that had been unconstitutionally seized from a defendant by state authorities.⁴⁹

A significant curtailment of the exclusionary rule came in 1984 with the adoption of a “good faith” exception. In United States v. Leon,⁵⁰ the Court created an exception for evidence obtained as a result of officers’ objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice Byron White’s opinion for the Court could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the “substantial social costs exacted by the [rule].”⁵¹ “The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates.⁵² Moreover, the Court thought that the rule should not be applied “to deter objectively reasonable law enforcement activity,” and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.”⁵³ The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been “dishonest or reckless in preparing their affidavit,” if it should have been obvious that the magistrate had “wholly abandoned” his neutral role, or if the warrant was obviously deficient on its face (for example, lacking in particularity).

The Court applied the Leon standard in Massachusetts v. Sheppard,⁵⁴ holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant. Then, the Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held to violate the Fourth Amendment.⁵⁵ Justice Harry Blackmun’s opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants.⁵⁶ Finally, the Court has held that the exclusionary rule does not apply if the police conduct a search in objectively reasonable reliance on binding judicial precedent, even a defendant successfully challenges that precedent.⁵⁷

The Court also applied Leon to allow the admission of evidence obtained incident to an arrest that was based on a mistaken belief that there was probable cause to arrest, where the mistaken belief had resulted from a negligent bookkeeping error by a police employee other than the arresting officer. In Herring v. United States,⁵⁸ a police employee had failed to remove from the police computer database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed that the arrest warrant remained in effect. The Court upheld the admission of evidence because the error had been “the result of isolated negligence attenuated from the arrest.”⁵⁹ Although the Court did “not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” it emphasized that, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”⁶⁰

Herring is significant because previous cases applying the good-faith exception to the exclusionary rule have involved principally Fourth Amendment violations not by the police, but by other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police employee other than the arresting officer, the introduction of a balancing test to evaluate police conduct raises the possibility that even Fourth Amendment violations caused by the negligent actions of an arresting officer might in the future evade the application of the exclusionary rule.⁶¹

For instance, it is unclear from the Court’s analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures.⁶² It is also unclear what a good-faith exception would mean in the context of a warrantless search, because the objective reasonableness of an officer’s action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation.⁶³ The Court’s increasing willingness to uphold warrantless searches as not “unreasonable” under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule.⁶⁴

Amdt4.7.3 Standing to Suppress Illegal Evidence

The Court for a long period followed a rule of “standing” by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases “require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.”¹ Subsequently, the Court departed from the concept of standing to telescope the inquiry into one inquiry rather than two. Finding that standing served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant’s Fourth Amendment rights have been violated. “We can think of no decided cases of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.”² One must therefore show that “the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.”³ The Court has clarified that this “concept of standing in Fourth Amendment cases . . . should not be confused with Article III standing,” emphasizing that “Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine” and is not a preliminary “jurisdictional question.”⁴

The Katz reasonable-expectation-of-privacy inquiry largely supplanted property-ownership concepts that previously might have supported either standing to suppress or the establishment of an interest that has been invaded—but has not entirely replaced or “repudiate[d]” the Fourth Amendment’s “concern for government trespass.”⁵ In the 1960 case Jones v. United States, the Supreme Court held that a person could establish standing to challenge a search or seizure where that person was “legitimately on [the] premises” as a guest or invitee of the owner of the premises.⁶ This statement about legitimate presence was later limited by the Court in Rakas v. Illinois,⁷ which emphasized that to challenge a search, a person must assert a personal interest protected by the Fourth Amendment.⁸ And while prior case law had seemed to suggest that ownership of a seized item would alone suffice to establish standing, the Court clarified in Rakas that under Katz, “capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”⁹ Under the reasonable-expectations-of-privacy test, a person may “have a legally sufficient interest” to implicate the protections of the Fourth Amendment even if that interest “might not have been a recognized property interest at common law.”¹⁰ Nonetheless, a “property” or “possessory interest” in the premises searched remains relevant to the inquiry.¹¹

Amdt4.7.4 Good Faith Exception to Exclusionary Rule

Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the “causal link” between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.¹ In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.² Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.³

More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.⁴ As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving “an independent act of a defendant’s ‘free will.’”⁵ Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,⁶ to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the “temporal proximity” between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.⁷ On the whole, the Strieff Court, reiterating that suppression of evidence should be the courts’ “last resort, not our first impulse,”⁸ concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,⁹ the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,¹⁰ and in the Court’s view, there was no indication that this unlawful stop was part of any “systematic or recurrent police misconduct.”¹¹ In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant “broke the causal chain” between the unlawful stop and the discovery of the challenged evidence.¹² As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, “predat[ing the] investigation” and “entirely unconnected with the stop,” generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.¹³