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Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence

NCJ Number
American Criminal Law Review Volume: 50 Issue: 1 Dated: Winter 2013 Pages: 1-57
David Gray
Date Published
57 pages
This article examines the reasoning behind the U.S. Supreme Court's fourth amendment exclusionary rule doctrine.
Much of the Supreme Court's contemporary fourth amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H. L. A. Hart described in another context as a "spectacular non sequitur." The Court's non sequitur is a consequence of its recent insistence that the sole justification for excluding evidence seized in violation of the fourth amendment is the prospect of deterring law enforcement officers. This exclusively consequentialist approach ignores or rejects the principled foundations of the rule. It also creates conceptual and practical problems of the Court's larger exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or second, the Court can preserve the bulk of its fourth amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for fourth amendment violations rather than a contingently justified judicial doctrine. Although some justices and their academic supporters may think this a steep price to pay, this article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and accountability. (Published Abstract)