Those situations would not implicate the 4th Amendment until the warrant application stage becuase the 4th Amendment only involves intrusion upon your person or property by *government* agents.

It’s very important to remember that nearly ever single right we have under the Bill of Rights is only with respect to the government. Of course the home-owner would have rights in tort law against Bob, but he could not assert his 4th Amendment rights in that case. Don’t worry though, the police can’t just tell private citizens to search someone’s house and get around the exclusionary rule. Those private citizens would then become agents of the government agents (the police) and then 4th Amendment protections would be effected.

So in both cases, the police’s ability to get a search warrant would merely depend on whether they could show probable cause. Surely in #1, probably would need more facts for #2.

The second scenario is the one I’m more interested in, though. Certainly one would hope that Bob would be able to avoid having the murder rap pinned on him (whether or not one cares about Bob, pinning the murder rap on him would end the search for the real killer), but allowing defendants to potentially conduct fishing expeditions on people they don’t like would be dangerous. I’m not sure how those interests would best be balanced, though if government personnel could be relied upon to exercise the sort of ‘clean room’ procedures required in some intellectual-property settings, that might be a good approach. Unfortunately, I doubt such procedures would work in practice.

-1- Suppose Bob the Burglar breaks into a house with the intention of stealing things, and discovers a bunch of dismembered corpses. He decides that the crime implied thereby is sufficiently heinous that he’s willing to turn himself for the burglary and testify as to what he saw. Should the police be able to get a search warrant, on the basis of Bob’s testimony, even though Bob’s presence in the house and ability to see the evidence was in no way whatsoever legally justifiable?

-2- Suppose Bob the Burglar broke into the house, with similar intention. He gets some blood on his sleeve, and leaves without calling the police. He is caught for some other reason, however, and the police are able to match the DNA on the shirt with one of the victims. Standing accused of the murders, Bob tells the police what he saw. What would be the search-warrant ruling then?

In the former case, the principled argument would be that a warrant should not be issued, since any evidence Bob might give would be ‘fruit of the poison tree’. Further, nothing would prevent cops from letting crooks know that they wouldn’t prosecute burglaries of certain addresses if the burglars let them know what they found there. Thus, allowing the issuance of a warrant based upon criminals’ reports would risk opening a significant loophole in the Fourth Amendment (yes, I know courts have opened worse ones, but that doesn’t mean they’re really Constitutional).

The latter case is more interesting, because rather than balancing the rights of the property owner versus the state, it balances the rights of one criminal against another. Joe may be a thief, but that doesn’t mean he shouldn’t have a right to use the best available evidence in his defense. Joe having a victim’s DNA on his sleeve would be bad, but if evidence at the crime scene would tie the killings more strongly to someone else that would tend to exculpate Joe of murder (he’d still be culpable for burglary, of course).

Any thoughts?

Nick, that’s a good point. But maybe if police were sued and penalized as often as evidence is suppressed, people wouldn’t view cops as heros all the time.

Most Defense attorneys will factor the likelihood of a suppression into their plea bargaining and can and will wait until AFTER a suppression hearing to reach a potential deal. I mean, isn’t it clear that the exclusionary rule affects plea bargains even where the evidence is not officially suppressed because a plea bargain is largely based on what the lawyers expect will happen at trial? Just like any other unknown occurrence that can be predicted affects any other type of negotiation.

And as has been addressed on this site, the exclsuionary rule protects everyone, particularly the innocent, because it teaches the cops that they don’t want to make illegal searches because the search will be fruitless. Innocent people can be wrongfully invaded just as the guilty can. Any other solution may deter illegal searches to an extent, but I doubt any as effectively. Criminal and civil penalties tell cops to go ahead and conduct that search that’s *probably* illegal, then take theirr chances with a jury at least a year (guaranteed minimum) down the road where you get to play the heroic cop who caught a bad man.

The single most important factor is what will get police to make dilligent efforts to not illegally search individuals, all of us. And obviously the 4th Amendment not being a joke of a protection is more important than a single criminal go free because the police screwed up.

… but it’s no secret that Scalia and other Federalist Society types want to do away with the Exclusionary Rule altogether.

Isn’t this a perversion of what the Founders initially believed in? Keeping the power of the State in check? Seems like illegal searches would be right there at the top of the list…at least in the top 5 if not top 3.

But, just so there’s no mistake, I don’t think much of the Supremes, either. The only thing they’ve proven themselves to be masters at is carving out exceptions to the Bill of Rights.

I know why the rule is used. But it doesn’t seem to go far enough and doesn’t really help the innocent. Also, by the time it is used, months or years have gone by, and illegal police practices have continued to be used so that by the time the rule suppresses evidence, it doesn’t provide enough of a corrective remedy to the police officers. Furthermore, since almost 90% of cases are plea bargined to lesser offenses, many trials are never held and people plea to crimes based on illegally collected evidence. That, again, prevents any hope that the exclusionary rule would serve as a reforming agent for police.

I think that the police should be legally liable for money damages or other penalties for violations of constitutional/statutory rights. The exclusionary rule (if statutorily passed by our representatives) can be ONE tool to protect a person who goes to trial based on illegal evidence, but it cannot be the ONLY tool. There has to be a remedy to protect people who plea, and for innocent people as well.

Thanks for responding to my comment. Let me also say that 1) your blogs are terrific, 2) I’m glad that “Overkill”, Cory Maye and the MS ME debacle, tragic though their origins, are bringing you well-deserved attention.

As to your question, I’ll ‘fess up to not knowing how a poll of FS members would turn out when it came to repealing the exclusionary rule. I expect that there would be would be three camps and, on the basis of nothing more than anecdote and friendships, I’d say they’d be roughly equal in size: 1) One made up of “law and order” types that don’t like the policy implications of the exclusionary rule (i.e., the obviously guilty go scot-free). 2) one made up of those who like the fact that, despite the guilty going free, the exclusionary rule provides a theoretically strong incentive for police to behave properly). 3) And one made up of people who are both uncomfortable with much of what poor policing puts the innocent through while also uncomfortable with judges inventing out of whole cloth a suppression remedy that does have the effect of permitting some who are demonstrably guilty, sometimes of truly heinous acts, to go free.

I suspect that, if the majority of FSers want the exclusionary rule repealed, it’s because camps 1 and 3 together make up a majority, but that doesn’t mean that they are on the same side when it comes to the reasoning behind their desire to get rid of the exclusionary rule. I suspect that my groups 2 and 3 together would be happy to do away with the drug war, cause of so many of the troublesome searches.

If a former-prosecutor turned criminal court judge ignores that precedent/test or misapplies it, they will certainly be overturned on appeal.

By excluding the evidence it is as close as we can get to having a trial where the illegal search had never occurred.

It is a necessary legal fiction.

The other option is to make criminals out of the police who conducted the illegal search, but that does nothing to remedy the violation of the defendant’s rights.

I’m all fo catching thieves and those who adversely affect other people but I get angry reading this and other sites that highlight the abuses our gov. perpetrates on us at an alarming rate.

I’m not really a big Scalia fan. I’m occasionally with him on the ultimate judgement, but rarely on his reasoning. I tend to be more of a Clarence Thomas kind of guy.

I’m in favor of overturning the exclusionary rule, for 2 principled reasons:

1. I don’t think it works at all. It certainly doesn’t help the innocent against police violations, and it doesn’t help to reform police procedures because by the time the rule is applied, it’s years after the police have broken the law and in the meantime they’ve probably been breaking it again and again for years. Also, people don’t get to rely on it unless they go to trial, and since most people plead guilty for lesser offenses, it’s never used.

2. It’s extra-legal, created by judges and not by democratically elected representatives. I’d have no problem with a statute or a constitutional amendment that permits exclusions like this, but I have a strong, strong distaste for judicial legislation because it’s the same thing that brought about Roe v. Wade and 40 million dead babies. I also feel the same way about Miranda, because it’s completely ludicrous that for 150+ years, police were arresting unconstitutionally people without reading them a little speech. Again, I’d be in favor of a Miranda-style thing if it were imposed by statute or by a constitutional amendment, but I cannot stand judges legislating. If we go down that road, it leads to abuses like Scalia haughtily saying that police professionalism protects us. His opinion is no different from anyone elses’ who creates law like that.

But don’t you think it’s a pretty fair statement to say that a huge majority of the Federalist Society’s members would favor repealing the Exclusionary Rule?

I’m happy to be wrong. But I’d be quite surprised if I am.

LT reader; FT commenting. I’m disappointed whenever a little-L libertarian presumes that the “Federalist Society” as a whole wants some particular outcome, especially when that outcome is more statist than libertarian. This is all the more so when the writer is familiar with the robust nature of the conservative DC scene. As you surely know, FS members generally fall on a conservative spectrum, with one end of that spectrum firmly in the libertarian camp. I think your blog and writings, such as “Overkill” get a sympathetic reading from many, if not most FS members. Additionally, I think that many, if not most, FS members are critical of Supreme Court decisions such as Kelo, Hiibel and Raich, regardless of Justice Scalia’s positions. Yes, there are some FS’ers who broadly support the so-called “law enforcement” positions on the drug war and 4th Amendment matters, but by no means do those positions deserve to be labelled as belonging to “FS types”, at least without the disclaimer “some.” Even so, I’d still find the characterization unfair.