In Defense of the EXCLUSIONARY RULE - the need for the fourth amendment is often debated, but its need is rooted in the separation of power principles

USA Today (Society for the Advancement of Education), July, 1999 by Timothy Lynch

Legislative attempts to stop trial courts from excluding illegally seized evidence are a backdoor assault on the judiciary's warrant-issuing powers.

THE FOURTH AMENDMENT to the U.S. Constitution reads: "The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Like other amendments that constitute the Bill of Rights, it was written and ratified to protect the citizenry against overweening government, but none of those amendments is self-enforcing.

Much of the debate surrounding the enforcement of the Fourth Amendment has focused on the so-called exclusionary rule--on whether it is wise or constitutionally necessary. Under that rule, evidence obtained in violation of the Fourth Amendment is ordinarily inadmissable in a criminal trial. A quick example will illustrate how the rule operates. If a policeman got a tip that a particular person was a drug dealer, the officer might launch an investigation to determine if the allegation was true. However, if he decided to break into the suspect's home without a search warrant, his effort would be for naught. Even if the officer found drugs on the kitchen table, that evidence would be useless because the suspect's attorney could demand that the trial judge bar its admission as being illegally obtained. Without that evidence, prosecutors would be unable to prove a crime had occurred.

Conservatives often oppose the exclusionary rule as not grounded in the Constitution, not a deterrent to police misconduct, and not helpful in the search for truth in criminal proceedings. They believe there are more sensible ways to handle law enforcement abuses. Liberals, on the other hand, generally have defended the exclusionary rule, both as an appropriate judicial remedy for Fourth Amendment violations and because it can operate to deter police misconduct. A closer examination of the issue will show that the rule is fundamentally sound, although for somewhat different reasons than liberal legal scholars typically offer.

The exclusionary rule can be justified on the basis of separation-of-powers principles. When agents of the executive branch (the police) disregard the terms of search warrants or attempt to bypass the warrant-issuing process altogether, the judicial branch can respond by checking such misbehavior, when it is able to do so. As it happens, the most opportune time to check that kind of executive branch mischief is when executive branch lawyers (prosecutors) attempt to introduce illegally seized evidence in court. Because the exclusionary rule helps the judiciary to uphold the integrity of its warrant-issuing process, it is an inestimable weapon against executive branch transgressions.

One way in which the executive branch has sought to expand its search and seizure powers has been to deny the legal necessity of search warrants. Regardless of the reasons offered, it is a fact that police officers frequently choose to proceed with a search without applying for a warrant. Because judges and judicial magistrates are not on the scene when such searches take place, only much later does the judicial branch become aware of the circumstances surrounding a warrantless search--when prosecutors are in court seeking to present the evidence the police acquired during it. If the attorney for the accused contends that the search was unlawful and objects to the admission of illegally seized evidence, how should a trial judge respond? Should the evidence be excluded or admitted?

The Supreme Court addressed those questions in Weeks v. United States (1912). Weeks, who was suspected of illegal gambling activity, was taken into custody at his place of employment, while a separate group of police officers went to his home and entered it without his permission and without a search warrant. The police seized various books, papers, and letters and turned those items over to prosecutors. When prosecutors tried to introduce some of those incriminating papers at Weeks' trial, the defense attorney cited the peculiar circumstances of the search and lodged an objection. The trial court overruled the objection, allowing the prosecution to introduce the seized papers. Weeks was convicted, but he appealed his case all the way to the Supreme Court, arguing that the trial court's failure to exclude the incriminating papers was a legal error.

Because a warrant is not required for every search, the Court began its analysis by reviewing the limited instances whereby police may conduct searches without warrants. Finding none of those exceptions applicable to the case under review, the Court concluded that the search was unlawful and that the trial court should not have allowed prosecutors to introduce illegally seized evidence at trial:

"The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the thing for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action.... To sanction such [methods of evidence gathering] would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action."