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Exclusionary Rule(procedure in the USA)

Categories: Usa

The exclusionary rule is a legal procedure in the United States, which falls under the constitution. It protects citizens of the country in making sure that law enforcement officers are operating lawfully and that they abide by all search and seizure laws. It goes so far to protect the citizens of The United States that if a law enforcement officer illegally obtains evidence it can and most likely will be thrown out of the court. The purpose of this paper is to analyze the exclusionary rule, exploring its fallacies and importance while also including the history and evolution of the controversial exclusionary rule.

The exclusionary rule is a very important legal principle in the United States and is crucial to keeping law enforcement and the judicial system in a fair balance with accordance to the United States Constitution.

The exclusionary rule was never even thought about or existed until the early 20th century. Samaha (2012) states that before the exclusionary rule ever existed the only remedy for constitutional violations involving the exclusionary rule were private lawsuits.

The framers of the constitution had it in their mind that judges would just handle each case as they see fitting to the nature of the situation. However this seemed not to work for quite some time as there was a police misunderstanding of the 4th and 5th amendments figuratively speaking.

It wasn’t until 1914 when citizens of the United States began to receive their liberty back piece by piece. In the case of _Weeks v U.

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S.,_ federal officials raided his house in order to obtain evidence in a gambling case against Freemont Weeks. They had no warrant and no right to be in his house to seize any of his possessions. So Freemont appealed and he won, in a way. The Supreme Court ruled to give back his belongings. They did not return contraband and this rule only applied to the federal law enforcement. Which is why this is the first hint of a trend towards a prominent and well known exclusionary rule.

There was many Judges and government officials who still refused to side with Justice Edward White in the case of Freemont Weeks. For example, in the case of _People v. Defore_ Judge Cardozo mad his opinion very well-known and famous. According to Kamisar (2003) in the _People v. Defore_ case Judge Cardozo boasts his opinion very loudly and clearly stating that he would not adopt the exclusionary rule within New York. Kamisar (2003) then goes on to quote Judge Cardozo: “excluding illegally seized evidence was not the only effective way to enforce the Fourth Amendment”. Cardozo was not the last Judge or Justice to disagree with the new trend.

The next case to disagree with Cardozo and many other opposing Judges would have to be _Silverthorne Lumber Co. v. U.S._ (1920). Justice Department officers and a U.S. Marshall entered the lumber company’s office and illegally obtained all of the company’s documents. They then went on to make photo copies and subpoenaed the Silverthornes. When they refused to follow court orders they were taken into custody for contempt of court. Samaha (2012) states that “According to Justice Oliver Wendell Holmes, the government’s search and seizure ‘was an outrage'”. This case expanded the exclusionary rule introducing the Fruit of the Poisonous Tree Doctrine. This doctrine bans the use of evidence indirectly based on an illegal government action.

Even after multiple court cases ruled in favor of the exclusionary many state legislatures still were not in agreement with the [exclusionary] rule. Some legislatures found ways around the fourth amendment. In the case of _Coolidge v. New Hampshire_ New Hampshire’s legislature was challenged on their warrant issuing practices. According to Lynch (2000) New Hampshire law was very controversial in the manner of how warrants were issued. The warrant-issuing power was vested in the Justice of the Peace. Now judges must issue warrants; but in the past it was very prominent for Justices of the Peace to fulfill this duty.

In New Hampshire they vested the Justice of the Peace within the executive branch of the government. In other words, according to Lynch (2000) the “police officers had subverted the Fourth Amendment by issuing search warrants to themselves”. The Supreme Court ruled that New Hampshire’s practices were unconstitutional because the executive branch was issuing warrants to themselves. This practice was very opposing to the idea of checks and balances. This court case was a very historical one in which ruled in application with the separation of powers doctrine. It also further supported the exclusionary rule.

One of the biggest cases in the history of the United States and the biggest turning point for the exclusionary rule was in the case of _Mapp v. Ohio._ In this case officers forcibly entered Miss Mapp’s home without a search warrant or consent and provided a false warrant. Before this case not all states adopted the exclusionary rule. In the dissent by Harlan, Frankfurter, and Whittaker (1961) they stated that the “_Weeks_ exclusionary rule should also be enforced against the states”. Lafave (2009) also touches on the case quoting the courts statements: “[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”. Estreicher, S. and Weick, D. P. (2010) make an extremely valid and important point; stressing that the exclusionary rule is “constitutionally required because it was the ‘only effective available way’ to enforce the constitutional guaranty”. This case is so historically significant because of this ruling. Finally, nearly 50 years after the _Weeks_ case, the exclusionary rule applied to all states.

Even though the rule applied to all states we still did not have every aspect of the rule covered. The ‘Knock and Announce’ rule was always under controversy as to if the exclusionary rule was applicable in such situations. It wasn’t until _Hudson v. Michigan_ when the courts clarified the issue. The police had a warrant to enter _Hudson’s_ home and when they knocked and announced their presence they waited a mere three to five seconds before entering the premise. Hudson appealed stating his fourth amendment rights were violated because the officers did not follow ‘Knock and Announce’ procedures. His evidence was suppressed, but later the appeal was reversed by Michigan Court of Appeals. According to Justice Scalia the waiting period of the officers had no connection to the discovery of the illegal drugs and weapons.

Because of this case the ‘Knock and Announce Rule’ was clarified by stating that the rule did not have any interest in preventing the government from taking evidence described in a warrant. Tomkovicz (2008) believes that this case was intended to further the restrictions on the exclusionary rule. I have to agree with Tomkovicz in this statement. Gittins (2007) also makes a valid argument in concerning the argument. He [Gittins] states that during the night hours residents will have a longer period of time in which they will be able to open the door. However the courts have found that very short periods of time (five seconds) can be “reasonable wait times”. Courts are still in the process of clarifying the exclusionary rule; although _Hudson v. Michigan_ added some amount of clarity to the issue.

Lastly, and the most recent court case concerning the exclusionary rule is _Herring v. U.S._ in which a recalled arrest warrant was executed accidently. The Coffee County Sheriff’s Department were executing a warrant in which the county clerk found to be accurate. Upon arrest they soon learned the warrant was recalled some five months ago. Herring moved to suppress the evidence on the motion that his warrant was rescinded. Josephson (2009) states that the courts generally exclude the exclusionary rule when there are negligent errors amongst recordkeeping.

The court denied Herring’s motion for suppression because of the Good Faith Clause established in _U.S. v. Leon._ This is a significant case because of how it furthered the interpretation of the exclusionary rule. Josephson (2009) explains how this case interpreted the exclusionary rule’s main goal which is “the deterrence of unconstitutional police conduct”. Therefore by the police unknowingly executing what they thought to be an accurate warrant left the evidence applicable in courts.

The exclusionary rule is intended to keep law enforcement and federal officials in check with the constitution. But often there is the controversial topic of whether or not the framers of the constitution intended for such a rule. The framers never had any motion to include an “exclusionary rule” into the fourth amendment. However, Geller (1975) makes an excellent observation stating that the framers didn’t provide any remedies for a violation of the fourth amendment.

Which brings me to my next topic of the controversy. Because the framers left no remedies for violations of the fourth amendment, the courts were left to create the exclusionary rule to deter law enforcement from violating citizen’s rights. Many argue that this does not effectively deter officers. Geller (1975) argues that there is no significant evidence to support such claims. Geller (1975) also comments on alternatives declaring that “Until data [is] available concerning the effect of these alternatives, it is impossible to state with any degree of certainty that these alternatives are either more effective or less effective than the exclusionary rule.”

The last major issue I found in Geller’s (1975) journal came from a group called Americans for Effective Law Enforcement (AELE). They seem to believe the exclusionary rule is no longer necessary due to the high degree of police professionalism. AELE believe police violations are unintentional and because of their high degree of professionalism they act in “Good Faith”. Therefore petty mistakes allow evidence to be excluded and free criminals.

Until there is a significant study that entails multiple well rounded solutions to the exclusionary rule; I do not see any possible alternatives.

The exclusionary rule was created almost one hundred years ago. The rule will continue to be reformed and transformed as time goes on. Although there may be a substantial argument pertaining to the issue, we need the exclusionary rule. Undoubtedly the rule has an abundance of justifications compared to its fallacies. It was stated loud and clear by the framers some two hundred years ago what rights we as American people possess. The exclusionary rule is a major backbone of the judicial system of our country, it maintains the system of checks and balances keeping the American people’s rights prevalent and intact.

The exclusionary rule is in working order, being reformed every day to protect our civil liberty and keep the integrity of our constitution set out by our own framers.


Estreicher, S. and Weick, D. P. (2010) Opting for a legislative alternative to the Fourth

Amendment exclusionary rule. UMKC Law Review. 78, 949.

Gittins, J. (2007). Excluding the exclusionary rule. Brigham Young University Law Review,

2007, 451-481.

Josephson, M. (2009). To exclude or not to exclude: The future of the exclusionary rule

after Herring v. United States. Creighton Law Review, 43, 175-203.

Kamisar, Y. (2003). In defense of the search and seizure exclusionary rule. Harvard Journal

of Law & Public Policy, 26(1), 119.

Lafave, W. (2009). Recent developments: The smell of Herring: A critique of the

Supreme Court’s latest assault on the exclusionary rule. Journal of Criminal Law &

Criminology, 99(3), 757-787.

Lynch, T. (2000). In defense of the exclusionary rule. Harvard Journal of Law & Public

Policy, 23(3), 711. Samaha, J. (2012). Criminal procedure (8th ed.). Belmont, CA: West/Wadsworth.

Tomkovicz, J. (2008). Hudson v. Michigan and the Future of Fourth Amendment Exclusion Iowa Law Review, 93. Retrieved October 29, 2013, from

Geller W. ,Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Wash. U. L. Q. 621 (1975).

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Exclusionary Rule(procedure in the USA). (2016, Aug 07). Retrieved from

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