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

Separation of powers

The executive branch cannot be permitted to make a mockery of the search warrant. When law enforcement officers disregard the terms of a warrant, the Fourth Amendment's particularity requirement is undermined and a valid, specific warrant is transformed into a general warrant. The sole way the judiciary can maintain the integrity of its warrant-issuing process is by withholding its approval. The judicial branch cannot--and should not--rely on the executive branch to discipline its own agents.

The exclusionary rule fits neatly within the Constitution's separation-of-powers framework. The men who framed and ratified the Constitution recognized "the insufficiency of a mere parchment delineation of the boundaries" among the three branches of government. "The great security," wrote James Madison, "against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack."

The exclusionary rule is a "commensurate" judicial response to the executive branch's attack on the judiciary's warrant-issuing prerogative. As the California Supreme Court has noted, since "the very purpose of an illegal search and seizure is to get evidence to introduce at trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced." Withholding such "aid" in appropriate cases is a measured response to executive branch encroachment.

The exclusionary rule always has been controversial. The most contentious question is whether it is grounded in the Constitution or is merely a "judicially created remedy" for Fourth Amendment violations. The resolution of that question has very important policy implications. If the exclusionary rule is grounded in the Constitution, the executive and legislative branches must live with it--no matter how much they may dislike it. If the exclusionary rule is not grounded in the Constitution, Congress could try to abrogate the rule.

The Supreme Court has wavered on the question of whether the exclusionary rule is embedded in the Constitution. Some of its interpretations have suggested that the rule is an inseparable corollary of the Fourth Amendment. Others have suggested that it is merely a judicially created rule of evidence that Congress might negate. The latter view seems to be the dominant position of the modern Court.

Conservative critics of the exclusionary rule have seized upon the notion that the rule is nothing more than a judicially created remedy. In the mid 1980s, the Department of Justice issued a report that urged Attorney General Edwin Meese and Pres. Ronald Reagan to pursue policies that would "result in the abolition of the exclusionary rule." In 1994, the Republicans' Contract with America featured various reforms for the criminal justice system--including a curtailment of the exclusionary rule.