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How We Got the Fourth Amendment Exclusionary Rule and Why We Need It

NCJ Number
Criminal Justice Ethics Volume: 1 Issue: 2 Dated: (Summer/Fall 1982) Pages: 4-15
Y Kamisar
Date Published
12 pages
The exclusionary rule evolved because of the ineffectiveness of the warrant procedure in preventing illegal searches and seizures, and it remains effective as a means of preventing the government from achieving the ends of its illegal activity and as a symbol of the justice system's commitment to the citizen rights mandated in the fourth amendment.
The fourth amendment provides for a warrant system intended to prevent unreasonable searches and seizures; however, there is no specific constitutional provision for the exclusion of evidence illegally acquired. The framers of the Constitution exaggerated the effectiveness of the warrant procedure, but it does not follow that they were not serious about preventing the evils the warrant procedure was designed to address. The exclusionary rule was adopted by the courts as a rule of evidence to deal with the failure of the warrant system to address after-the-fact fourth amendment violations. Opponents of the exclusionary rule argue that it is not an effective deterrent for police misconduct, particularly where evidence is not obtained and used against the defendant, and that civil remedies are available for citizens abused by police practices. An effective civil remedy against the government for damages for unlawful searches or seizures should be used as a supplement to but not as a basis for abolishing or narrowing the scope of the exclusionary rule. Should the civil remedy prove reasonably effective in deterring police misconduct, then the case for significantly narrowing the scope of the exclusionary rule would become stronger. Meanwhile, the exclusionary rule should stand as the justice system's priority commitment to depriving the government of the fruits of illegal action. Eighty-two notes are listed. For related material see NCJ-92355.