The case for the contingent exclusionary rule

American Criminal Law Review

Volumn 38, Issue 1, 2001, Pages 1-

  Dripps, Donald ^a  

^a NONE

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EID: 0042911539     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (7)

1. For the classic critique along these lines, see John Henry Wigmore, Using Evidence Obtained by Illegal Search and Seizure, 8 A.B.A. J. 479 (1922).
2. See, e.g., U.S. DEP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATT'Y GEN. ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE, TRUTH IN CRIMINAL JUSTICE REP. No. 2 (1986), reprinted in 22 U. MICH. J.L. REFORM 573, 615-617 (1989) (arguing federal courts have no authority to impose exclusionary rule on states).
3. See, e.g., U.S. DEP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATT'Y GEN. ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE, TRUTH IN CRIMINAL JUSTICE REP. No. 2 (1986), reprinted in 22 U. MICH. J.L. REFORM 573, 615-617 (1989) (arguing federal courts have no authority to impose exclusionary rule on states).
4. See id. at 613 ("Officers who learn that their searches were improper only after the fact are encouraged to lie about the circumstances under which the evidence was obtained, even to the point of perjuring themselves, to save the evidence.") (footnote omitted); id. at 614 ("Because judges are sensitive to the problem of allowing criminals to go free, they have an incentive to find that the basis for police action was sufficient.").
5. Senator Robert Wagner delivered the classic, if not the first, articulation of this argument: Finally, I have no fear that the exclusionary rule will handicap the detection or prosecution of crime. All the arguments that have been made on that score seem to me properly directed not against the exclusionary rule but against the substantive guarantee itself. The exclusion of the evidence is only the sanction which makes the rule effective. It is the rule, not the sanction, which imposes limits on the operation of the police. If the rule is obeyed as it should be, and as we declare it should, there will be no illegally obtained evidence to be excluded by the operation of the sanction. Record of the New York State Constitutional Convention, 559-60 (1938), quoted in Francis A. Allen, The Wolf Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Nw. U. L. REV. 1, 19 n.56 (1950).
6. Senator Robert Wagner delivered the classic, if not the first, articulation of this argument: Finally, I have no fear that the exclusionary rule will handicap the detection or prosecution of crime. All the arguments that have been made on that score seem to me properly directed not against the exclusionary rule but against the substantive guarantee itself. The exclusion of the evidence is only the sanction which makes the rule effective. It is the rule, not the sanction, which imposes limits on the operation of the police. If the rule is obeyed as it should be, and as we declare it should, there will be no illegally obtained evidence to be excluded by the operation of the sanction. Record of the New York State Constitutional Convention, 559-60 (1938), quoted in Francis A. Allen, The Wolf Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Nw. U. L. REV. 1, 19 n.56 (1950).
7. See, e.g., Wolf v. Colorado, 338 U.S. 25, 47 (1949) (Rutledge, J., dissenting) ("The Amendment without the sanction is a dead letter."); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.) (stating admissibility "reduces the Fourth Amendment to a form of words").