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Background: I am a lay person with some passing interest in the law.

The Supreme Court recently decided Utah v. Strieff, 579 U.S. ___, in which it held that the attenuation exception to the exclusionary rule was satisfied by the discovery of an arrest warrant following an unconstitutional stop. After reading the opinion, and especially Justice Sotomayor's dissent, I went looking for the various ways in which the 4th Amendment is applied in criminal cases. As pointed out by Justice Thomas in his opinion, the exclusionary rule requires that "its deterrence benefits outweigh its substantantial social costs," Hudson v. Michigan, 547 U.S. 586, 591 (2006). As I see it, this prevents the exclusionary rule from being a legal remedy to police misconduct: it seems that simply showing that the evidence was obtained illegally is not sufficient to guarantee suppression, but that the courts can weigh the costs and benefits of individual applications of the exclusionary rule on a case-by-case basis.

Moreover, the correctness of the exclusionary rule itself seems to be a matter of contention among judges: Scalia was a notable opponent of the rule, contending that modern "police forces across the United States take the constitutional rights of citizens seriously," and therefore "it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect." Hudson, slip op. at 12.

There are statutory provisions for civil suits against the police for violation of these 4th Amendment rights under 18 U.S.C. 1983; however, they are unable (I assume) to overturn convictions obtained by such illegally-obtained evidence. Seeing as such evidence may lead to very severe sentences despite stemming from egregiously unconstitutional police misconduct, I doubt I'm alone in thinking that this is a rather unsatisfactory result for the criminal defendant; even more so considering as damages awarded may easily not be enough to noticeably impact the police department: for instance, I imagine the Department of Justice has quite the fiscal buffer against cases like this. Moreover, simply losing a civil suit does not (as far as I know) guarantee that any police force, no matter how corrupt, will be persuaded to police their use of searches and seizures to what is constitutionally permissible.

So, seeing as the appropriateness of the exclusionary rule is a matter of contention, and civil action seems to be the only other remedy that I could find, what are the prevailing opinions of the legal community as to either's effectiveness as a deterrent? Having a constitutional right mostly applicable in criminal cases have a civil action as its primary set of "teeth", with its procedural dentures becoming more and more limited in scope, seems odd. The 6th Amendment, for instance, allows for the vacation of a conviction based on violations of its guarantees; is the 4th Amendment significantly different in modern American law?

Clarification, as requested: Is there a recognized, fundamental difference between the rights and protections granted by the 4th Amendment and the rights granted by the rest of the Bill of Rights, such that the 4th Amendment's power over criminal proceedings is captured only by a rule which the Supreme Court as described as only "deterrent" in nature?

  • This sounds like a very interesting question. However, your first question ("what are prevailing legal opinions") is answered by the Supreme Court opinions in the case you cite. Could you clarify your second question? – feetwet Jun 28 '16 at 1:58
  • Sorry for the confusion! I don't mean opinions as in court opinions, I mean the state of legal scholarship and of criminal advocacy groups, etc., i.e. are there groups attempting to codify/strengthen the exclusionary rule in this way, and/or is there any legal scholarship supporting/rejecting the rule on cases other than these and (for instance) Mapp? – Actorclavilis Jun 28 '16 at 3:01
  • As to the second question, I suppose the crux of it is that most amendments in the Bill of Rights, when applied to a criminal case, offer defenses or procedural protections in that case: convictions can be overturned for (generally, although I haven't read into the nuances of the interpretation of these amendments) being based on over-broad speech restrictions (1st), being based on unconstitutionally broad regulations on firearms (2nd), being a second prosecution for the same offense (5th), use of out-of-court testimonials (6th), (usually) disregard for jury findings (7th), &c. – Actorclavilis Jun 28 '16 at 3:10
  • However, the exclusionary rule seems to be the only means for a criminal defendant to have a protection during the prosecution based on the rights granted by the 4th Amendment. Given the controversy over the rule, and its continued weakening since Mapp, it seems incongruous with the various ways that courts of appeals have used the other amendments to vacate convictions based on violations of these rights. – Actorclavilis Jun 28 '16 at 3:12
  • I still only have a feel for your question. It sounds like you're pointing out that most Bill of Rights protections can only be used as a basis for appeal. I.e., "You're guilty of violating this law, but the law is unconstitutional," or, "You were convicted of this crime, but your rights were violated during the process and so we must overturn the conviction." But not only 4th but also 5th Amendment rights are frequently invoked during process. If they aren't properly applied then they also form a basis for appeal. As for "deterrence," is that more than a semantic distinction? – feetwet Jun 28 '16 at 16:20

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