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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?

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  • 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? 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. 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. Jun 28 '16 at 3:12
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    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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Jury deciding Reasonable Search

The issues of whether a search is reasonable, whether it violates the Fourth or Fifth amendments, and whether evidence should be suppressed, have been considered issues of law, or mixed issues of law and fact by US courts. Indeed I can not find a single case where such a decision was given to a jury.

It might be argued that such a decision should be put to a jury, or that the jury should find facts (such as whether a search was "reasonable", or made "in good faith", or whether a police officer was telling the truth about the events of an arrest and search). But the Anglo-American common law system has not historically put such issues to a jury, and it does not do so now. Partly this is to ensure a degree of consistency in the legal decisions, partly it is a relic of a distrust in the ability of a jury to decide any issue more complex than "yes or no", partly it is a matter of procedural convenience: having a separate jury to hear and decide suppression issues during a pre-trial proceeding would add significant time and complication to deciding cases where such issues arise (and they often do) and partly it is just a mater of tradition.

Congress or a state legislature could mandate that such issues be decided by a jury. None have. The federal or state constitutions could confide such issues to jury decision, in whole or in part. None have. So that is just how US law is at this time. It could be changed.

Direct vs Delayed effect of Constitutional Rights

Several Constitutional provisions can operate during trial, indeed any claim that an accused person's constitutional rights must be made at the trial (or in pre-trial motions) or it will be deemed waived, such a claim normally cannot be asserted for the fist tiem on appeal.

What can be confusing is that we only read opinions in which a trial court denied such claims and an appeals court is asked to overturn the conviction because rights were denied.

If the right is upheld either there will be no appeal, or the right will not be an issue in any appeal, which will be on some other ground.

The Fifth amendment rights to Due process and silence, the right not to engage in self-incrimination, and the Fourth amendment right against unreasonable searches and seizure are the most frequently invoked rights in criminal trials. The sixth amendment right to a jury has often been invoked and has led to verdicts being overturned. The right, established in Brady v Maryland for the defense to get all possibly exculpatory informational known to the prosecution also plays a very direct role in many trials. This is also founded on the Due process clause. Eighth amendment rights against excessive bail are also procedural and often come up in pre-trial proceedings, while the right against cruel and unusual punishment tends to appear at a later stage.

The First and Sixth combine to grant the right to an open an public trial, again a procedural right at trial time.

Other rights, such as free-speech and free-exercise rights (1st amendment), right to bear arms (2nd), rights to assemble and petition, free press rights, rights to travel, etc usually come up in a substantive context, that is an accused claims that a law s/he is accused of violating infringed one of these rights. But that claim is still raised at the trial stage.

Again we read case law on such rights only where they were denied at a trial level and there is an appeal challanging such a denial.

Recent Modifications of the Exclusionary Rule

Hudson v. Michigan

In Hudson v. Michigan 547 U.S. 586 (2006) The US Supreme Court overturned, in a 5-4 ruling, the application of the Exclusionary Rule to violations of the "knock and announce" rule. This rule requires police officers, in the absence of a special "no-knock" warrant, to knock and announce themselves before entering a dwelling, even with a search warrant. The majority opinion said that the rule was still valid, and might be the basis of a suit under 18 USC 1983, but that such violations were not frequent enough nor serious enough to justify applying the Exclusionary Rule to them. They asserted that internal police policy enforcement and the possibility of civil (sec 1983) suits would be enough to avoid serious problems. hey did no alter any other aspect or application of the Exclusionary Rule. Justice Kennedy said, in his concurring opinion, that if a pattern of such violations developed, he might change his view. Thr minority asserted that civil suits did not result in significant damages in such cases, and would not serve as an effective deterrent to violations of the "knock and announce" rule.

Utah v. Strieff

In Utah v. Strieff, 136 S. Ct. 2056 (2016), police officers were watching a suspected house. They saw a man (who proved to be Strieff) come out of the house. An officer stopped Strieff on the street and executed an "investigatory detention"; after asking Strieff for identification, officers learned that Strieff had an outstanding warrant for a traffic violation out against him. They arrested him and searched him in connection with the arrest, finding drug paraphernalia and methamphetamine.

At his trial Strieff moved to suppress the evidence on the ground that there was no valid basis for the investigatory detention, because the officers did not have reasonable suspicion. The evidence was not suppressed, Strieff was convicted, and appealed. When the case gor to the Supreme Court, the majority held that the investigatory detention was improper, but because there was a valid pre-existing arrest warrant for Strieff, the arrest was proper, and the search went with the arrest. They held that the improper detention was not a reason to invoke the Exclusionary Rule, because the arrest was proper and that is what triggered the search. This was again a 5-4 decision. It did not change the Exclusionary Rule, but meant that in certain situations it would not apply.

Deterrent Effects

The Exclusionary Rule was created in large measure to deter unlawful and improper police an official actions, particularly interrogation by torture and unauthorized searches without probable cause. It ws also created on the theory that if a court admitted evidence obtained by illegal acts, it became complicit in those acts.

In the absence of such a rule, other methods must be used to prevent or deal with official overreach and the tendency of government to ignore the law in pursuit of those believed to be wrongdoers.

In theory a strong policy and practice of not allowing police to take such actions, and disciplining or dismissing those who violate such laws could achieve this end. In practice it has not done so. While the kind of blatant brutal interrogation found unlawful in Brown v. Mississippi, 297 U.S. 278 (1936) may be less common now than it was in 1936,allegations of police misconduct and clear violations of the rights of the accused continue to be discovered.

In theory civil suits could penalize officers who act lawlessly, but in the US the defense of qualified immunity has made this of limited value, and in any case a successful section 1983 suit will not overturn a conviction.

No other device for restraining official zeal has yet been found so effective.

Those who favor restricting or eliminating the Exclusionary Rule claim that modern training and the increased professionalism of the police have obviated the need for teh Rule. Those who favor maintaining the Rule point to instances were police misconduct nonetheless occurred, and civil suits did not provide an effective remedy. They aklso claim that with proper police work many of those whose rights have been violated could and would have been convicted without such violations. (For example, Miranda was convicted on a retrial without the excluded confession.) There seems little prospect of agreement between those who hold such differing views.

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    I wish that any downvoters would leave a comment indicting what they think is wrong with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. Nov 5 '21 at 17:05
  • If a cop claims that he saw something that would have justified a search, but a defendant claims that the cop is lying, I see no way of separating the validity of the search from the factual question of whether the cop is telling the truth. I am well aware that judges have appointed themselves the sole arbiters of such questions, but properly protecting people's rights should require not merely that a cop's actions not be so patently outrageous that no reasonable person could believe they might have been reasonable and legitimate, but instead upon a test of whether a jury would...
    – supercat
    Nov 8 '21 at 19:05
  • @supercat I can understand that point of view, but US courts have never taken that position, nor did British courts prior to to formation of the US, insofar as they dealt with such issues. Nor has any US legislature passed a law making such decisions jury issues. Nor has any US constitution, state or federal, so provided. That makes it a question of "why is the law as it is?" In can only say that many of the rules on when evidence should be excluded are quite technical, even when they depend on facts, and making such decisions has not usually been entrusted to a jury. Nov 8 '21 at 19:14
  • ...find that it was in fact the case. An important principle which gets lost when such issues are evaluated purely by judges is that there is a fundamental difference between a cop making an honest effort to respect a citizen's rights, versus trying to limit the infringement the citizen's rights to just below the threshold that would merit judicial sanction. Imagine how much more effective Fifth Amendment protections would be if a finding that a cop was trying to make a suspect believe he had no choice but to confess would be sufficient to throw out the confession, regardless of...
    – supercat
    Nov 8 '21 at 19:16
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    @supercat Long before Marbury v. Madison common-law judges felt free to make new law unless a statute specifically said otherwise. That is the whole basis of the common-law system. In many cases the law does change to match what the court says, because the court makes the law The US Supreme Court is more willing than most to say that prior decisions were wrong, see among others Brown v Board of Ed, Barnett v W Virginia, Hardwixk v Bowers, Virginia v Loving, and Mapp v Ohio. But they are reluctant to do so. See my edits to the answer above today. Nov 8 '21 at 19:39
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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.

The exclusionary rule is not the only remedy for a violation of the 4th Amendment (in the case of state and local governments, as incorporated against them under the 14th Amendment). One can also bring a civil lawsuit for money damages under 42 U.S.C. § 1983 (the statutory citation is the question is inaccurate) against the law enforcement officers involved or against a governmental entity with a policy or practice that violates the 4th Amendment and causes you damages, although this is a much less common remedy and is subject to many procedural limitations.

Moreover, the correctness of the exclusionary rule itself seems to be a matter of contention among judges

This is a bit misleading (by Justice Scalia's own design). While there have always been some conservative judges opposed to the exclusionary rule it is about as settled law as a rule of constitutional criminal procedure gets, and there probably isn't even majority support within conservative judges to repeal it. Constitutional criminal procedure, on balance, is much less partisan and divided than many other parts of constitution law.

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.

A court can also order injunctive relief against a government that has a policy that violates or tends to give rise to violations of the 4th Amendment, and often because this is possible, governments enter into consent decrees with civil rights plaintiffs to address these issues.

what are the prevailing opinions of the legal community as to either's effectiveness as a deterrent?

It is without a doubt a powerful influence on police behavior. It is widely acknowledged, however, that the exclusionary rule is a compromise, and is not a perfect solution.

Basically, the exclusionary rule is useless to people about whom nothing incriminating is discovered causing no charges to be pressed. For them, the § 1983 action is the preferred remedy.

For those charged with a crime relying on evidence discovered in a search, the exclusionary rule is usually the preferred remedy.

Combined they are the main legal limitations (in addition to the political limitations that are also omnipresent) that prevent gross abuses in search and seizure by law enforcement and allow individual victims of violations of this right to vindicate this right, but reforms are often proposed.

The exclusionary rule is a policy that forces us to choose between punishing people who are guilty of crimes and creating an incentive for law enforcement to obey the law which protects everyone when it happens. But, it is an uncomfortable tradeoff, and there are some "safety valves" in the law, like the "inevitable discovery rule" to prevent people guilty of crimes from being confident that they can evade criminal liability entirely because a cop made a bad search.

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?

Not really. There is a 6th Amendment prohibition on self-incrimination is an exclusionary rule as well, and the 6th Amendment exclusionary rule is the most common way that it is applied. Convictions are vacated when this exclusionary rule is erroneously not applied, just as they are in the 4th Amendment case. (Often, both kinds of exclusionary rule issues are adjudicated with interlocutory appeals before trial due to double jeopardy issues). When the constitution regulates criminal procedure, it isn't surprising that issues related to this come up mostly in criminal cases.

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?

No.

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