Talk:Exclusionary rule/Archive 1

--Curtailment of Exclusionary rule in Herring--
Surely this page should be updated with the significant limitations on the principle introduced in the Herring decision last year ...? http://www.nytimes.com/2009/01/15/washington/15scotus.html

http://www.npr.org/templates/story/story.php?storyId=99361700

http://www.scotusblog.com/2009/01/the-surpassing-significance-of-herring/

Mikalra (talk) 12:27, 14 February 2010 (UTC)

--Perspectives on the Exclusionary rule--
07 Nov 2009

Added something about jus tertii standing exception to exceptions portion, because it is so little known yet can be so useful when available. -tbonge

20 Jul 2006

The "disputed" tag has been removed. The exclusionary rule applies in many other contexts besides "knock and announce" issues, e.g. when a defective affidavit premises a search in violation of the Fourth Amendment. Thus, so long as "the dispute" concerns the existence of the Exclusionary Rule, it is settled, regardless of Hudson.

The Hudson decision does, as original commentators suggest below, concern the "knock and announce" rule and not the "exclusionary rule." If every decision applying or not applying a rule were "a decision about that rule," we would have lots of, e.g., "jurisdiction decisions"! Hudson is merely left in the article to demonstrate a limitation on the rule: utility balancing. The discussion is still overly lengthy, a lingering result of "the dispute."

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Attempted Accurate Changes To Article (7 Jul 2006)

I have updated this page to reflect (my understanding of) the statements of the law made by the U.S. Supreme Court in Hudson, etc., in my preparation for the bar exam. I hope it clarifies the issues and will assist subsequent users, as my studies have been assisted by other Wiki articles.

The "dispute" on this page is generated by the below commentator, who fails to understand the basic concept of American jurisprudence that a dissent is not the law; the majority opinion is the law. What the dissent thinks, that is their opinion; just as what the below commentator thinks of the dissent (that it is right), that is his/her/its opinion.

The exclusionary rule surely may apply after Hudson. In fact the Court goes to great lengths to say just when it will apply: when the deterrence benefit outweighs the social cost of its application, as determined on a case by case basis. In the Hudson decision, the Court held that violation of a knock and announce requirement does not intone the rule. Thus I put the whole Hudson discussion under "Limitations," because the exclusionary rule is limited to those situations when its deterrence benefit outweighs its cost.

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REPLYING TO LOGICIAN AND WHOEVER KEEPS VANDALIZING THIS PAGE:

As Breyer's dissent says, citing Mapp: “[a]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Mapp, 367 U. S., at 655. “To hold otherwise,” the Court added, would be “to grant the right but in reality to withhold its privilege and enjoyment.” Id., at 656.

In Hudson, the Court is doing just that: A clear case for exclusion yet the evidence isn't excluded. Given that, to say that the exclusionary rule survives is essentially just a false statement; the rule does not "in reality", Id., exist.

If Wikipedia users wish to pretend that the rule survives, great; go write a law review article about it. But using the Wikipedia platform for such an opinion is inappropriate, since encyclopedias discuss what is rather than what you wish were.

FURTHER: If Justice Kennedy proclaims in a concurring opinion that there are now 10 justices on the Court, that doesn't make it so. Similarly, if the exclusionary rule does not exclude illegally obtained evidence, Kennedy's strange proclamation that the rule survives somehow does nothing to change the fact that the exclusionary rule doesn't exclude and is therefore no longer exclusionary.

Whoever wrote this paragraph below truly needs to develop some basic reading skills:

"Hudson v. Michigan has no bearing whatsoever on the exclusionary rule."

Umm, what are you talking about? The evidence is exactly that which the exclusionary rule excludes: illegally obtained evidence. That's why the Court was hearing it in the first place. And that's why the rule no longer exists: because illegally obtained evidence -- as conceded by the state in this case -- that is inculpatory is no longer excluded.

I'm trying to imagine how much more plainly that statement can be stated.

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Perhaps there should be note about this "technicality" that is oft criticise by police and prosecuters. The creation of the exclusionary rule was really a compromise that favors the prosecution and police, because alternatively the evidence could have been decided to be admissable, and instead the rememdy could have been punishing the police or prosecuters perhaps with imprisonment.--Silverback 20:54, 28 Mar 2005 (UTC)

The exclusionary rule, on its face, is hardly supportive of police and government work. Its inception does not preclude prosecution against government officials who act unlawfully to violate the rights of others. Rather, it serves as an additional disincentive. What police officer will violate the constitutional rights in order to affectuate a search if the results of the search won't be admissible? In this sense, the E.R. places a tremendous burden on law enforcement, and is chiefly responsible for defendants being released on "technicalites" wherein police failed to follow a particular procedure, and evidence was discounted. Ultimately, the rule is indicative of America's continuing belief in Blackstone's comment that we would rather set 10 guilty men free than see one innocent man suffer imprisonment.

The numerous "exceptions" to the exclusionary rule are in place to prevent the use of the defense in cases where government agents could not have been deterred from their actions. Not all of the rules have been listed, as there are actually quite a few, but it has extended so far as allowing not only the "good faith" excuse, as exemplified in US v. Leon, but also the "honest mistake" exception, as shown in Maryland v. Garrison. 480 U.S. 79 (1987). In Garrsion, police officers had a warrant to search an apartment on the third floor of an apartment building. Expecting to find a drug dealer, then actually raided the apartment across the hall from the one they intended to raid. While they realized their mistake, they also found a bag of marijuana on a dresser in the apartment they accidentally raided. The Supreme Court based its decision in part in the inability to deter such actions. So long as the officers didn't intend to violate the rights of their victims, their findings cannot be precluded from being used as evidence in a criminal trial.

The exclusionary rule thus began as a powerful tool in the preservation of constitutional rights. It provided a powerful disincentive for police overzealousness while also offering defendants some recourse if their rights were violated by law enforcement officials. However, the Supreme Court, reflecting both a more conservative membership and a public outcry against "technicality" acquittals, has chipped away at the foundation of the rule's effectiveness by carving away several exceptions to the rule. --JoeKinzel 12:03, 13 November 2005 (UTC)

A graduated system of criminal penalties for law enforcement from parking ticket fine to 25 years would probably be healthier. Indeed the 'exclusionary clause' is NOT explictly the required solution to violations of due process under the US Constitution. That is not unless you also belong to the group who feels that all evidence which directly connects a person to crime, such as Fingerprints and DNA, is prohibited by the terms "no person shall be compelled to be a witness against themselves". In fact it has been noted that the 'exclusionary clause' favors "intelligent" or "well funded" crime in a very elitist or Darwinistic manner. The argument that the "exclusionary clause" compromise favors law enforcement and prosecution due to the lack criminal penalties is appalling for two reasons. First, because it is not entirely true. Regulatory, professional, and in some states criminal penalties do exist for violations of civil rights...but are often not pursued due to political balancing against the 'exclusionary clauses'. Second because bad law enforcement and prosecution are allowed to continue which means the actual violators may repeatedly go unpunished, criminal go free, and civil lawsuits gain enhanced awards in the absence of criminal punishment.

The most important impact is that legal defense in general is a lot better paid than it would be without this law. 69.23.121.19 (talk) 18:52, 18 August 2009 (UTC)


 * Interesting quote of Blackstone. However, the exclusionary rules NEVER protects an innocent person from being sent to jail. The validity of the evidence is NOT at stake. For the innocent the principle is to prevent harassment, intimidation, and violation of privacy including revealing legal but embarrassing personal information by law enforcement with illegal searches. It is the ultimate triumph of the civil court over criminal court proceedings in that rather than have a later lawsuit against the government, we attempt to short circuit the process by voiding the whole event. Frankly I expect the exclusionary rule to be extended into double jeopardy in the future.


 * When quoting precedent, remember that precedence is of the body of law, but only as prior accepted argument in its conclusion. It is not law in itself, nor is all included wording necessarily endorsed...even when made famous or infamous outside the original case. Precedent may be found inapplicable or modified over time by later courts or occasionally invalidated and overturned, as loathe as courts are to admit to mistakes in their lesser siblings.


 * Because in practice the exclusionary rule is most consistently the triumph of the powerfully connected over the common man. America likes a smart and successful criminal in very Darwinistic manner -- any route to power is good. Remember most the forefathers might have given polite to all, but few would ever have put up with being treated like an ordinary citizen in any formal or business context...almost all held indentured servants and not a few held slaves. A society where every man has an equal vote, but outside the voting booth some are more equal than others.   69.23.121.19 (talk) 19:08, 18 August 2009 (UTC)

Exclusionary rule is still good law.
Just because you do not agree with a Court ruling-do not post bad information on Wikipedia. Hudson v. Michigan has no bearing whatsoever on the exclusionary rule. It merely states that police do not have to wait 15 seconds before entering. Does it mean police will probably not knock anymore, yes. Does it mean that we are back to the Mapp v. Ohio days of warrantless searches, not by any stretch of your imagination. Illegally obtained evidence is still just that-illegal and inadmissable in court.
 * This characterization misrepresents the facts. The statement "police do not have to wait 15 seconds" implies that it was not a violation of law for the police to enter without knocking and announcing, because they "do not have to."  But in fact Michigan in its pleading conceded that its officers' failure to knock and announce was a violation.  The dissenting opinion specifically criticizes the prosecutor in Hudson for failing to argue that the unannounced entry was justified under existing Constitutional principles.  (The police had a reasonable belief that Hudson, a drug trafficker, possessed firearms -- indeed, the search warrant specified guns as well as drugs as objects of the search.  A reasonable officer could conclude that if the police had announced themselves, Hudson would fire upon them, and that a no-knock-no-announce entry was therefore warranted.)  Had Michigan made this argument, the legality of the search could have been upheld, and the exclusionary rule would not have come into play.  The state made no attempt to argue that the entry was valid; instead it conceded the illegality of the entry, but argued that the exclusionary rule should not apply to this violation.  This certainly "has bearing on the exclusionary rule."  It is of course true that the rule still has the same effect it did before, where it applies, but Hudson v. Michigan has narrowed the rule's range of application.
 * The rationale for denying the applicability of the exclusionary rule in Hudson bears mention: it was argued that in cases where the only illegality is the failure to properly announce, no evidence is discovered that would not have been discovered anyway if the police had properly announced, therefore the suppression of evidence is not the proper remedy. (In cases where there is reason to believe that a proper announcement would permit evidence to be destroyed, existing law already held that no announcement is necessary; the purpose of the exclusionary rule never was to give suspects license to destroy evidence.  Therefore the requirement to announce, and the failure to do so, is relevant only when there is no reasonable fear of destruction of evidence, and in such a case, no evidence is going to be found in an unannounced search that would not have been found in a properly announced search.)  This line of thought stresses the need for a causal connection between the specific nature of the illegality in an illegal search and the specific manner of dicovering evidence in the course of executing that search.  In this view, evidence uncovered by a search is tainted only when the search was illegal and the illegality was material to obtaining the evidence.  This reasoning downplays the punitive or deterrent effect of the exclusionary rule to incent police officers to comply with statutory and Constitutional requirements.  I think I'll add one sentence to the main article to express this connection. -- Logician1989 16:19, 16 June 2006 (UTC)

In view of Justice Kennedy's assertion in his tie-breaking concurrence that the exclusionary rule is "good law", I do not agree with the repeated edits to put the verbs in this article into the past tense. As long as the conservative wing needs Kennedy to get a majority, and Kennedy says that the rule survives, I am not willing to consign it to the dustbin. But the past-tense edits have been applied twice now by (apparently) the same user. Can we please have some civil discussion on this, before we get into an edit war? I am not any happier about the Hudson holding than anyone else, but I do not think that Wikipedia is the place to vent our frustrations. 66.245.212.xxx, I am addressing you. Thanks. -- Logician1989 23:55, 17 June 2006 (UTC)

Followup: rather than change all the "was"s back to "is"s, presumably only to see them changed a third time, I have applied the "NPOV" tag. Note that this does not say that the article has violated the NPOV rule, but only that the neutrality is disputed. Can we agree to leave the tag in place until discussion (on this page) has produced a consensus? I hope so. -- Logician1989 00:08, 18 June 2006 (UTC)

Probative value
take a look at probate. I've added some information on canada. --CyclePat 00:07, 6 January 2007 (UTC)

Exclusion of legal non-iimmigrant visa holders?
"The Exclusionary Rule applies to all citizens or aliens (illegal or documented) who reside within the United States."

So this wouldn't apply to a person on a non-immigrant visa who commits a crime in the United States while visiting? —The preceding unsigned comment was added by 219.77.2.219 (talk) 13:44, 8 March 2007 (UTC).


 * The Exclusionary Rule is a Due Process right, and therefore applies to any person tried in a court of the United States or of one of the states, regardless of their status, although there is a case establishing an exception so that it doesn't apply if the illegal activity from which the evidence was derived occurred outside the United States, so it has little application when the United States exercises extraterritorial criminal jurisdiction.71.202.183.50 (talk) 15:14, 21 April 2010 (UTC)

There are over 10 exceptions to the exclusionary rule, many being procedural that someone should include.

United States v. Alvarez-Machain
The reference to this case is completely incorrect. First, the exclusionary rule was not at issue, as the rule applies only to suppression of evidence, not to a court refusing to exercise jurisdiction over a person brought before it illegally, as was at issue in that case. Second, the Ker-Frisbie doctrine already made it clear that illegally seized people could still be tried, the exception to the Ker-Frisbie rule at issue in that case was the rule that a person cannot be tried when their procurement was in violation of a treaty. The (controversial) holding of that case was that the terms of the extradition treaty the United States had with Mexico did not expressly prohibit the United States from kidnapping Mexican nationals and the Court declined to infer such a provision as implied.71.202.183.50 (talk) 15:36, 21 April 2010 (UTC)

Merge?
Someone has suggested merging Fruit of the poisonous tree here. I think that's probably sensible as that topic is a sub-set of this one. Any objections? Fences &amp;  Windows  15:22, 24 May 2010 (UTC)

Don't know what became of the above, but I propose, and have newly tagged, four articles for merging: Exclusionary rule, Fruit of the poisonous tree, and Taint (legal), which all appear to the untrained eye (mine) to be the same concept; and Inevitable discovery, which is a subtopic. Any reason not to merge them, or to write new prose at Exclusionary rule and redirect the rest? (I have put the discussion here because this section already existed, and because Exclusionary rule appears to have the longest and best-written text of the four articles.) --Closeapple (talk) 09:55, 19 March 2011 (UTC)

They are related concepts but in no way are they the same thing. They mostly have different origins and different histories. You would create a massive wiki entry that would be hard to follow. If you want to fix this article, remove Exclusionary rule from the list of "rights" in the side bar as it's not a right. It is a mechanism to enforce a right, not a right itself. i.e.; You have a right to a jury trial, not to a jury itself. You have a right to be free from unreasonable searches and seizures along with the due process to protect that right, but have no right to an exclusionary rule. May be Taint and Fruit of the poisonous tree are merge able. But if you are going to merge those 4, why not good faith exception? Tbolioli (talk) 13:09, 16 December 2011 (UTC)tbolioli
 * Agree with Tbolioli. The remedy here is to remove the exclusionary rule from the list of 'rights.'  The Exclusionary rule definitely deserves its own article.  Malke 2010 (talk) 05:01, 20 April 2012 (UTC)

Removal of text in "applications" section
I removed the following from the section headed "Applications": "A strict interpretation of the Fourth Amendment says that a search without a warrant is unreasonable.  This interpretation is favored by civil liberties advocates". This overly simplistic and as a result inaccurate. Almost nobody out there argues that ALL searches without a warrant are unreasonable under the Fourth Amendment. Most "civil liberties advocates" accept that SOME exceptions are necessary from a practical point of view; the real debate focuses on the scope and nature of the exceptions. The law review article cited may make that argument (the link provided was not publicly accessible and did not cite any particular section of the lengthy article, so I don't know), but if so, that's more an example of a law professor making an idiosyncratic historical argument irrelevant outside of academia than the position a civil liberties advocate involved with defending the Fourth Amendment on a practical basis would take. Something more nuanced would be nice but I don't have that sort of time, so removing the misinformation is better than nothing.

NO. The rule should not be merged because it is a very common concept discussed in college business law classes.

—Preceding unsigned comment added by 98.154.93.83 (talk) 04:27, 2 February 2011 (UTC)