The Fourth Amendment Exclusionary Rule as an Article of Faith

Search and Seizure Law Report, Vol. 40, No. 1

Posted: 16 Feb 2013

See all articles by Eugene R. Milhizer

Eugene R. Milhizer

Ave Maria University - Ave Maria School of Law

Date Written: January 2013

Abstract

In this article, I seek to demonstrate that the Fourth Amendment Exclusionary Rule can be better described as an article of faith rather than sound public policy based on empirical evidence.

As background, I explain that the contemporary exclusionary rule is a judge-made remedy designed solely to deter future police misconduct. Any other justification for the rule, such as it being constitutionally required or needed to preserve the integrity of the criminal justice process, is beyond the scope of the modern rule. I then illustrate the rule’s true character using a hypothetical involving residential fires and response time. Finally, I contend that a utilitarian remedy, such as the Fourth Amendment Exclusionary Rule, which assumes immediate and certain costs and burdens in hopes of achieving attenuated and indirect benefits, needs to be supported by convincing data and empirical evidence.

Next, I consider the utility proposition that justifies the rule. First, I argue that there is no credible, empirical evidence to support the proposition that the exclusionary rule effectively deters future police misconduct. Second, I present arguments that undermine the assumption that the rule provides meaningful deterrence. Third, I describe some of the adverse costs of the exclusionary rule, again using hypotheticals to illustrate the rule’s burdens. Finally, I argue that balancing the rule’s certain and immediate costs against its speculative and remote benefits leads to the conclusion that the rule cannot be pragmatically justified as sound policy.

In conclusion, I list several alternative remedies that might effectively deter police misconduct while avoiding harmful consequences of the exclusionary rule. I argue that although these proposals present issues and concerns, they should nevertheless be seriously considered given the imprudence and lack of support for the contemporary Fourth Amendment Exclusionary Rule.

Suggested Citation

Milhizer, Eugene R., The Fourth Amendment Exclusionary Rule as an Article of Faith (January 2013). Search and Seizure Law Report, Vol. 40, No. 1, Available at SSRN: https://ssrn.com/abstract=2218524

Eugene R. Milhizer (Contact Author)

Ave Maria University - Ave Maria School of Law ( email )

1025 Commons Circle
Naples, FL 34119
United States

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