Walker (crackmonkeyjr) wrote in jurisprudentia,

Why Scalia Was Right About the Fourth Amendment

Last month, the Supreme Court handed down their decision in Hudson v. Michigan. This decision was immediately decried by civil libertarians as the first step towards the end of the Exclusionary Rule, at least in the as a tool to protect the rights guaranteed by the Fourth Amendment. It appears to be unlikely that the Court will jettisoned this rule any time soon, since Justice Kennedy, whose vote was necessary to the court’s majority seemed to more focused on the fact that the evidence would still have been found had the police properly executed their warrant. Additionally, Justice Scalia’s majority opinion seemed to rely on the fact that the twenty-second waiting period that the police failed to provide in this case was not sufficiently serious to justify the “substantial social costs” associated with the exclusion of the evidence; members of the majority still may see other Fourth Amendment violations as justifying these social costs.

Whether or not the Hudson case signals the beginning of the end for the Exclusionary Rule, it does provide an opportunity to consider whether the Exclusionary Rule is an appropriate remedy for violations of the Fourth Amendment. While many of us have grown up always thinking that the natural result of an improper search is that that the prosecution may not use that evidence at trial, this has not always been the case. The Constitution does not explicitly spell out the Exclusionary rule, but rather the Supreme Court created it as a tool to protect a defendant’s Fourth Amendment rights in 1914. As Justice Scalia points out, this is not the only available way to protect the Fourth Amendment and it does bring with it certain costs.

II. Why Do We Have the Fourth Amendment?

In order to properly consider the Exclusionary Rule, it is first necessary to determine the purpose of the rights it is meant to protect. The Fourth Amendment was likely a response to the use of writs of assistance by the British prior to the Revolutionary War. These writs acted as universal search warrants, allowing anyone with such a writ to search anyone else’s property and immunized them against any damage they may cause in the process. This writ not only violated the traditional view that “a man’s home is his castle,” but also led to many instances where the holder of these writs would use the power granted by the writ to harass their enemies. The facts that these writs were both transferable and had no set expiration date exacerbated these problems. The Fourth Amendment resolved the problems of these writs by requiring that, prior to a search, the searcher must justify their actions to a neutral party and by then only granting the searcher the right to perform an extremely limited search.

Although the abuses of the writs of assistance were the likely cause of the Fourth Amendment, this amendment also protects against another type of abuse, governmental spying on political opponents. While the government certainly should be allowed to investigate the criminal activities of their opponents, the government has in the past overstepped their authority and sought information simply to discredit through ad hominem attacks or to blackmail their opponents. For example, the FBI used investigated Martin Luther King Jr.’s personal life by, among other things, planting listening devices in his home and his hotel rooms. Once they found evidence of extramarital affairs, they threatened to release this information if he did not disassociate himself with the Civil Rights movement or commit suicide. The Fourth Amendment offers protection against this sort of abuses by limiting the extent to which members of government can use the mechanisms of government to conduct such searches.

The Fourth Amendment can also be seen as having a third purpose, protecting criminals from overzealous law enforcement agents. Unlike the previous two purposes, this is not the sort of protection that we, as a society, would want to provide. At least in theory, the legal system should be designed in such a way that every criminal act should be punished. In practice, there may be situations where we are willing to let a guilty person go free in order to protect an innocent man from being convicted and there may be crimes with which an individual disagrees However, preventing overzealous investigations does not help in either of these situations. On its own, more searches, even unreasonable searches should never increase the number of mistaken convictions. Even unreasonable searches will either be fruitless or bring about additional evidence, never less. The more evidence is available at trial the lower the risk of mistake, including false positives. Therefore, even unreasonable searches should bring down the number of additional convictions. Preventing unreasonable searches can bring down the number of convictions for unjust crimes as far as limiting searches decreases the number of convictions in general, but there is no reason why we should expect that this decrease would be primarily among unjust crimes; it is just as likely that the evidence missed by the unreasonable search is evidence necessary to convict a person of assisting a runaway slave as it that this missed evidence is necessary to convict a person of rape or murder.

III. Does The Exclusionary Rule Help?

Having considered the various justifications for the Fourth Amendment, the next step is to consider whether Exclusionary Rule is useful in supporting these justifications. If the Exclusionary Rule fails to support any of these justifications, or if the extent of the protection it provides for these justifications does not outweigh the costs, then it should follow that we should consider replacing the Exclusionary Rule.

The easier of these two justifications to analyze is the Fourth Amendment as protection against domestic spying. In this case, the goal of the government is strictly extra-judicial. If the government is actually looking for criminal acts, then there is no problem, at least in this regard. Being an opponent of the government should not be a license to break the law; if Martin Luther King, Jr. had been an axe murderer when he was not leading marches, it would make sense to have the government investigate and then arrest him, even if their motivation was just to end his dissent. If, on the other hand, the goal of the government is to uncover blackmail material or information that may tarnish an opponent’s reputation, this evidence is clearly not intended to show up in court, only in the press or in a private threat to the individual. If the evidence is not intended to be used in court, preventing its use in court is pointless. Therefore, the exclusionary rule offers no protection in this case.

The analysis in the case of harassing searches is a little more complicated. There are two main ways that unreasonable searches can be used to harass. The first is simply to pester an individual; the second is to mount a fishing expedition for reasons to charge the person with a crime. In the first case, it is unlikely that the Exclusionary Rule would serve any purpose. If all the searcher is planning on doing is to make the person’s life miserable by showing up once a month, interrupting their life and making a mess of their home under the guise of a search, there never will be any evidence to exclude and so the Exclusionary Rule would offer no benefit; the harm is in the search itself.

On the other hand, if the goal is to harass a person by looking for some minor offense to charge them with, the Exclusionary Rule can be useful. This sort of harassment rests on the idea that very few people are ever in complete compliance with the law. Often, there are crimes and violations that remain in place despite the fact that they are never enforced and are often violated. A prime example of such a law is adultery. Although adultery remains a crime in many states, somewhere between 10-20% of all spouses will be unfaithful at some point in their marriage and they is rarely, if ever, prosecuted. Given free reign, a disgruntled law enforcement agent would likely to be able to find evidence that one or two of this sort of offense has been committed by anyone they choose to investigate. This problem can be reduced via the Exclusionary rule though, because the Fourth Amendment requires that the law enforcement agent have some grounds for conducting such a search. With the exclusionary rule, if they have no grounds, any evidence they find will be inadmissible and the search would be pointless.

IV. Is the Exclusionary Rule The Best Remedy?

As discussed in Section III, the Exclusionary Rule often fails to support the purpose of the Fourth Amendment. If the goal of the search is to discover blackmail material, embarrassing information or just put the subject of the search through the trouble and embarrassment of the search, excluding the evidence found from court will clearly not be the best rule, since the evidence found is not intended to ever be presented as evidence in court. In each of these cases, there are three significantly better remedies. The first is to provide the subject of the search a civil cause of action, as is already the case. This will allow the subject to be compensated for any harm done to them by the search as well as potentially deter the searcher. In order to prevent the government, which often has near limitless resources from minimizing the deterrent factor of a civil lawsuit, there could be separate causes of action against the government and the actual searcher, with a rule preventing the government from indemnifying the searcher. Problems of de minimus harms discouraging enforcement of this right can be solved, as Justice Scalia suggests, by awarding legal fees under statutes such as 42 U.S.C §1988(b). The second remedy would be to hold those responsible for the search criminally liable for violating the civil and property rights of the subject. This could present problems in cases where the district attorney’s office was involved in the unlawful search, but there are several ways around this problem; examples include private prosecutions, special prosecutors, or, in the case of violations at the state level, federal prosecutions. Finally, if there is a continuing problem, the subject of the search could prevent future searches by seeking an injunction.

In the case of fishing expeditions, the exclusionary rule would be helpful, but there is a better solution, preventing malicious prosecutions in general. This could either be based on a subjective test, allowing a judge to dismiss charges that appear to be brought simply out of a desire to harass the defendant, or based on an objective test in which judges can dismiss cases brought for violations of archaic or infrequently enforced statutes. This rule would have the added advantage of preventing harassment in cases where the government was able to gather the information legally, either because they were able to get a warrant or because the evidence could be gathered without violating the defendant’s right to privacy. In addition to dismissal, the defendant could also have all of the remedies described in the previous paragraph.

The above remedies all share in a common advantage over the Exclusionary Rule in that they do not provide any windfall for genuinely guilty defendants who just happened to have been the subject of sloppy or overzealous police work. These defendants should, of course, still have access to the aforementioned remedies in the same way that a victim of police brutality can still file charges and bring a civil suit against their arresting officer, but they would not be allowed to circumvent the truth-seeking function of the court by suppressing material evidence.

V. Additional Analysis

It is important to contrast the use of the Exclusionary Rule to enforce the Fourth Amendment with its use to enforce the right against self incrimination found in the Fifth Amendment. The goal of the Fifth Amendment right is not so much to protect a suspect from a malicious or overzealous government, as it is an evidentiary rule. The idea behind this rule is that confessions and testimony obtained through threats, torture or deceit is likely to be unreliable. By ensuring that a suspect is aware that they have a right not to speak and to have an attorney present during any interrogation, you can ensure that any confessions are voluntary and therefore more reliable. Confessions obtained without a Miranda Warning should therefore be suppressed because they harm the truth seeking function of the court for the same reasons that hearsay testimony is not allowed.
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