The Magazine

End of a Supreme Court Blunder?

The exclusionary rule hangs on by one vote.

Aug 21, 2006, Vol. 11, No. 46 • By WILLIAM TUCKER
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The exclusionary rule was adopted for federal cases in a 1914 decision, Weeks v. United States. Fremont Weeks had been convicted of participating in a lottery through the mails, based on evidence seized from his Kansas City home without a warrant. Investigators had borrowed a key from a neighbor and searched his house, seizing evidence and other prop erty. Weeks sued to have his property returned and the evidence excluded from the case. The Supreme Court, breaking with common law tradition, ruled in his favor. The "exclusionary rule" was promulgated as a remedy to deter violations of the Fourth Amendment. Benjamin Cardozo, then a New York state judge and soon to be on the Supreme Court, spotted the flaw right away: "The criminal goes free because the constable has blundered," he famously wrote. (The traditional remedy for a warrantless search was a civil suit for damages. See Stanley C. Brubaker's discussion in these pages, "The Misunderstood Fourth Amendment," March 6, 2006.)

Over the next four decades, federal agents skirted the new rule by having state and local police gather evidence, handing it over in what became known as the "silver platter doctrine." While the FBI was circumscribed, state and local police forces were unrestrained by the Fourth Amendment. And so the Supreme Court decided to crack down. By a 5-to-4 vote, Mapp v. Ohio applied both the Fourth Amendment and the exclusionary rule to the states. Law enforcement has never been the same.

Mapp was the first of the Warren Court decisions that introduced the phrase "overturned on technicalities" into our language. Miranda v. Arizona, governing criminal confessions, is better known for introducing the phrase "you have the right to remain silent" and excluding numerous seemingly authentic confessions. But the exclusionary rule has had a greater effect on policing. Even today, many a criminal will confess to a crime to "get it off his chest." Even if he later thinks better of it, and claims he was coerced, the jury will usually be allowed to hear the confession and sort out the truth.

Mapp, however, involves physical evidence. Murder weapons, drug caches, even dead bodies turned up in police searches can be excluded from a case forever. In such instances, prosecution becomes impossible. Before Mapp, the "fundamental fairness" of a trial was viewed as the ultimate standard for deciding procedural issues. Since the decision, the courts have become endlessly bogged down in technicalities--such as how many seconds the police must wait before entering a home after knocking.

One of the first people to recognize this profound difference was Alan Dershowitz, who was clerking for Justice Goldberg when Mapp was decided. In his book The Best Defense (1983), Dershowitz recounts how as a defense attorney he learned to "put the state on trial" so that the conduct of the police, rather than the criminal, becomes the focus of the trial. Candidly admitting that nearly all his clients were guilty, Dershowitz told how he was able to spring numerous clients by arguing the minutiae of searches and seizures. His greatest triumph came in 1984, when he got a reversal of the conviction of socialite Claus von Bülow for the attempted murder of his wife. The family of Sunny von Bülow, who was left in a coma from an insulin overdose, had hired a private detective to search their home, uncovering a "black bag" containing hypodermic needles and other incriminating evidence. Dershowitz successfully argued that Rhode Island police should have obtained a warrant in order to accept evidence from the private detective. Without the evidence, von Bülow was acquitted at a second trial.

In the early years of the Mapp era, countless search warrants were overturned because of a misspelled name, a faulty street address, or transposed license plate numbers. In New Hampshire, a child murderer was freed because his wife had allowed police to search the house without his permission. "Evidentiary hearings" became the standard opening round of any criminal prosecution, and countless cases collapsed when technical violations by the police made key evidence inadmissible. A particular favorite of defense lawyers was the Fourth Amendment phrase "describing the place to be searched, and the persons or things to be seized." What constitutes an accurate "description" of evidence? Such a question could occupy philosophy students for whole semesters. If the warrant specifies a 9mm Smith & Wesson and the gun turns out to be a .357 Magnum, is it admissible? Police over time learned ways to fudge such details, but the result was constant hair- splitting.