The Phantom Exclusionary Rule

Sunday, July 20th, 2008

Adam Liptak, the New York Times’ new Supreme Court reporter, writes on the exclusionary rule, explaining that in U.S. criminal courts, evidence “is routinely and automatically suppressed where police misconduct is found.”

Except that it isn’t. It takes particularly egregious conduct on the part of police to get evidence suppressed. And it’s vanishingly rare. The often-propagated idea that child rapists and multiple murderers are getting released because judges are suppressing the evidence against them is a canard.

As for the broader debate on the rule itself, I understand the arguments against it, and I’d be fine with doing away with it–if I were certain there were adequate measure in place to deter police misconduct and protect our Fourth Amendment rights. There aren’t. Police are rarely if ever disciplined for improper searches. Compensation for someone wrongfully searched is even rarer.

Let’s assume there’s no exclusionary rule. You’re a cop, and you believe there’s a career-making narcotics bust at the home of someone you’re investigating. There’s always going to be the temptation to take a shortcut. If you screw up and get the wrong house, you’re at worst looking at a slap on the wrist, and possibly a small settlement paid for by the taxpayers. Get the right house and make a big bust, and no one’s going to care much at all what tactics you used to get in there.

The vague, small possibility that the entire investigation could get tossed is about the only check we have right now. This isn’t saying all cops are corrupt. It’s saying that cops are human, and respond to incentives.

I know conservatives hate the exclusionary rule, because they feel it protects criminals. Tell you what. If you want to get rid of it, then step up to the plate with ideas that will offer real discipline for cops who routinely disregard the Fourth Amendment, and come up with a system that compensates the people wrongly searched.

Even with the exclusionary rule, we’re perilously close to having an enumerated right that offers no remedy for those who have been violated, and no sanction for the state actors who violate it.

That’s not really much of a right at all, is it?

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20 Responses to “The Phantom Exclusionary Rule”

  1. #1 |  TGGP | 

    From Bruce Benson’s The Enterprise of Law, p. 120:
    “A significant consequence of exclusionary rules is that the inteded goal of protecting civil liberties has not been effectively achieved, particularly where the rights if the innocent are concerned. For instance, if the police enter a person’s home, destroy or damage his property, and find nothing incriminating, exclusionary rules do not protect him. His only recourse is to file a damage suit with its accompanying costs to recover. Furthermore, such damage suits are frequently not successful, as many states require proof of vicious intent or prior knowledge of innocence before damages will be paid. Thus, “there is little effective remedy against the police available to those who are not guilty,” and “for every search that produces contraband there are untold scores that do not.”* The exclusionary rule protects criminals, not innocent victims.”
    *Barnett, “Public Decisions and Private Rights,” p. 54
    Wrong-door raids, anyone?

  2. #2 |  Radley Balko | 

    I’d argue that that indicates that (a) the E.R. isn’t used nearly enough, and (b) it needs to be coupled with a real system of punishing police who conduct improper searches–including the misuse and misjudgment of the integrity of informants.

  3. #3 |  Edintally | 

    “As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”

    Translation: “We don’t know jack shit.”

    Scalia further argues, “I know not what people speak of when they refer to a “police state” or overly aggressive policing. I’ve never been harassed by a police officer! If there is the remotest possibility that a citizen’s civil rights are violated, and again I doubt it happens, then they are perfectly capable of filing suit whereby the courts will make them whole again.”

  4. #4 |  Michael Pack | 

    Radley,the rule died when it was decided people could be pulled over at random to fight ‘the war on drunk driving’.The target has moved so much even readers on your site(all in all a seemingly smart lot} can’t agree on who IS a drunk.Anything to get the drucks and druggies.

  5. #5 |  Andrew Williams | 

    IMO, Orson Welles said it best in Touch of Evil:

    “A policeman’s job is only easy in a police state.”

  6. #6 |  Dave Krueger | 

    I hate it when someone says, “he beat the rap” or “he got off on a technicality” or “he got off because of a loophole in the law.” If the most powerful entity in the country with nearly limited resources (ie: the government) can’t follow its own rules when arresting, charging, and prosecuting a citizen, they don’t deserve a conviction.

  7. #7 |  Helmut O' Hooligan | 

    #5 Andrew Williams:
    Just had to give you props for using the Orson Welles quote. It is a simple sentiment, but a quote that law enforcement officers should know by heart. This potential police recruit thanks you for the reminder; I promise to keep this in mind. Human behavior is quite unpredictable and an officer must be prepared for anything. But, good police work doesn’t necessitate throttling the constitution.

  8. #8 |  Nick T | 


    Nice post. I think another effective argument is that civil liability as the only deterrent is unfair to the police themselves. Imagine knowing you could put a terrible criminal away by conducting an illegal search. The benefits, in your police officer mind, would be staggering: protecting the people from an awful criminal, and yet the drawback would only apply to you personally. Is it fair to put polcie in a position to decide between risking their career and finances in an effort to catch a terrible criminal?

    Of course the flip side of this argument also makes civil liabilty nearly impossible because of the likely willingness of a jury to side with an “heroic” cop.

  9. #9 |  Lior | 

    I hate the exclusionary rule not because I want to be tough on criminals, but because to me excluding relevant information from consideration in legal proceedings completely undermines the integrity of the proceedings.

    That said, until there is meaningful discipline against police officers who violate the law (at the very least, they should be subject to the same laws everyone else is subject to), I don’t see any better solution than the exclusionary rule.

  10. #10 |  Greg N. | 

    I tend to think the ER is absolutely the worst way to enforce the 4th Amendment. Defendants aren’t the only ones with an interest in a criminal trial; victims have a strong interest in seeing their interests well represented by the state, armed with all relevant facts. There really is something awful about letting a criminal go free because the evidence was gathered inappropriately.

    Abolishing sovereign immunity and allowing victims of 4th Amendment violations sue for redress seems like the only just way to enforce the 4th while properly balancing all relevant interests and creating the right disincentives for police misbehavior.

    All of that said, Radley is right: until there are effective deterrents and the laws are reformed to allow such suits, the exclusionary rule might be the only way to give the 4th Amendment teeth (often at the expense of justice).

  11. #11 |  Nick T | 


    Your point is a fair one, but what does it do for the integrity of our free society, and our rule of law, when the government can violate your fundamental rights and use the fruits of their unlawful acts to deprive a person of freedom?

    Should a person not be made whole when the government violates their rights? Seems like undoing the violation is the most straight-forward way to make someone whole whenever possible.

  12. #12 |  Jimi G | 

    There are no rights in America. There are only privileges.

    How you gonna beat the State?

  13. #13 |  Tom | 

    I think the ER is a great thing. If police are going to break the rules to get someone, are they just gonna stop at breaking just minor rules? Why should we trust evidence collected by someone who we can’t trust to do it legally?

    Speaking of incentives in general, do we really want to trust police departments that have a financial incentive to bust someone for drugs? Financial benefits for confiscations are an abomination of justice and just too much of a temptation for corruption.

  14. #14 |  Episiarch | 

    If you void the ER, what is to stop cops from breaking into places where they are “sure” that the person is, say, a drug dealer, and planting evidence?

    If you don’t have a good enough reason for a judge to issue a warrant, you have no case.

  15. #15 |  Lior | 

    Greg: Victims are decidedly not supposed to be a side to the criminal proceeding. Society has subsumed their interests so that trials are not personal — they are between society and the defendant. The question should be whether the ER is in society’s interests or not.

    Tom & Episiarch: in theory, cops (and prosecutors) are supposed to obey the law. Mostly they do. Moreover, in theory, failure to obey on their side should lead to discipline, potential loss of their job, and potential criminal sanctions. In practice the laws regarding the police are not enforced at all. As the NYT article points out, this has led judges to step in devise a rule (the ER) which is supposed to counteract illegal behaviour by the police. It’s not the best solution to the problem of police misconduct, but at the moment it’s the only one available.

    Nick T: If the government violates your rights, then you should be compensated. But withholding pertinent evidence from the court that is trying you is not a good form of compensation. Moreover, this form of compensation screws the rest of society — since it causes little hardship to the government that violated our rights, and to the wrong part at that. If a cop violates your rights I want the city to pay you a large compensation, because otherwise they’re going to violate my rights tomorrow. The prosecutor’s office potentially losing the criminal case against you is simply not enough of a sanction, and is not something the police really care about.

  16. #16 |  Greg N. | 


    Give me a break. You’re telling me that the victim of a crime doesn’t have a legitimate interest in seeing the criminal convicted? You’re right that the victim isn’t a party to the trial; the state assumes the responsibility of charging the defendant. But among the various interests the state assumes is the duty owed to the victim of a crime to punish the perpetrator.

    Here in Florida (where, in full disclosure, my wife was the victim of an armed robbery), the state sends letters and makes phone calls updating the victim on every stage of the prosecution, and the prosecutors work closely with the victims (beyond their role as witnesses).

    Yes, the question is whether the ER is in society’s interest, but the set of “society’s interests” includes the subset “victim’s interest in the prosecution and conviction of criminals.”

  17. #17 |  Gabriel | 

    “step up to the plate with ideas that will offer real discipline for cops who routinely disregard the Fourth Amendment, and come up with a system that compensates the people wrongly searched.”

    Simple. Make officers *personally* liable for damages caused by entering or searching a property if a) there was no valid warrant for that property AND b) the property owner is not convicted of any crime using evidence obtained in the search.

    This lets them off the hook if there was a warrant, and it lets them off the hook if they were in the right house anyway- but it’ll make them think twice.

  18. #18 |  DaveW | 

    Gabriel (#17): So you want the officers to have an extra incentive to make sure that the homeowner is convicted of a crime if they conduct a bad search? I’m sure that no officer facing such personal liability would consider the idea of planting evidence to get himself/herself off the hook – that never happens, right?

  19. #19 |  Gabriel | 

    Darn unintended consequences. OK, what happens if we make officers personally liable for damages during unwarranted raids even if they were in the right house? I’d like to leave a little room for “this was obviously the guy and we had everything BUT the warrant”, but perhaps there’s no way to leave that room without making it a haven for abuse.

  20. #20 |  Bill Ayers: rapist « Entitled to an Opinion | 

    […] I already thought he was an awful person who should be in jail and would be were it not for the exclusionary rule, and there is an additional reason untampered by Mark Felt’s J. Edgar Hooverism. Since this […]