Masthead Logo Fordham Urban Law Journal Volume 37 | Issue 3 Article 6 2010 INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDMENT EXCLUSIONARY RULE Todd E. Pettys University of Iowa College of Law, [email protected] Follow this and additional works at: https://fordham.bepress.com/ulj Recommended Citation Pettys, Todd E. (2010) "INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDMENT EXCLUSIONARY RULE," Fordham Urban Law Journal: Vol. 37 : Iss. 3 , Article 6. Available at: https://fordham.bepress.com/ulj/vol37/iss3/6 This Article is brought to you for free and open access by DigitalResearch@Fordham. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of DigitalResearch@Fordham. For more information, please contact [email protected]. Pettys: INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDME [Draft: Please do not distribute or cite without the author’s permission.] INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDMENT EXCLUSIONARY RULE Todd E. Pettys∗∗∗ In this symposium contribution, Professor Pettys contends that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, he argues that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, he contends that the best approach might be to abandon the exclusionary rule entirely. He suggests that the Supreme Court might already be willing to abandon the rule, provided that Congress enacts reforms aimed at making the threat of financial liability for Fourth Amendment violations more robust. He closes by identifying several ways in which Congress could help pave the way for the exclusionary rule’s demise. INTRODUCTION Ever since the Fourth Amendment exclusionary rule emerged on the scene roughly a century ago,1 judges and scholars of formidable intelligence and towering reputations have disagreed about the rule’s merits. Prior generations found Justice Potter Stewart declaring, for example, that “the exclusion of illegally obtained evidence” is the only effective means of “ensur[ing] that the government does not violate the fourth amendment at its pleasure,”2 while Judge Benjamin Cardozo condemned the notion that ∗ Professor of Law and Bouma Fellow in Trial Law, University of Iowa College of Law. 1 See Weeks v. United States, 232 U.S. 383, 393 (1914) (“If letters and private documents can . be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment . is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”); see also Boyd v. United States, 116 U.S. 616, 630-33 (1886) (giving early life to the possibility of an exclusionary rule by suggesting that using a defendant’s illegally seized documents in a criminal prosecution is tantamount to forcing the defendant to testify against himself or herself in violation of the Fifth Amendment). See generally U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . .”); id. amend. V (“No person . shall be compelled in any criminal case to be a witness against himself . .”). 2 Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REV. 1365, 1384, 1389 (1983). Published by DigitalResearch@Fordham, 2010 1 Fordham Urban Law Journal, Vol. 37 [2010], Iss. 3, Art. 6 2 INSTRUMENTALIZING JURORS “[t]he criminal is to go free because the constable has blundered.”3 Today, Wayne LaFave painstakingly defends the exclusionary rule4 and calls the Fourth Amendment his “cheval de bataille,”5 while Akhil Amar insists that “[t]he exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens.”6 The core reasons for the rule’s divisiveness are not difficult to perceive. Without the exclusionary rule or any other deterrent mechanism, one can reasonably fear that government officials will sometimes behave like totalitarian bullies, brazenly disregarding the Fourth Amendment’s demands and securing criminal convictions on the strength of illegally obtained evidence. With the exclusionary rule, one can reasonably fear that guilty and possibly dangerous individuals will sometimes be released due to technical-seeming Fourth Amendment violations, thereby frustrating many citizens’ conceptions of justice and good sense. Both of these countervailing fears have powerfully influenced the Supreme Court’s Fourth Amendment jurisprudence. With respect to the fear of totalitarian behavior, the exclusionary rule traces its birth to cases in which government officials evinced no regard whatsoever for citizens’ Fourth Amendment rights. In the landmark case of Weeks v. United States,7 for example, state and federal law enforcement officers searched the defendant’s home without a warrant and seized numerous items of evidence while the defendant was away, after a neighbor showed the police where a key to the defendant’s residence was hidden.8 In Silverthorne Lumber Co. v. United States,9 federal officials entered the defendant’s office “without a shadow of authority . and made a clean sweep of all the books, papers and documents found there.”10 In Agnello v. United States,11 one group of federal officials took the defendant to the local police station while another group simultaneously searched the defendant’s home without a warrant and seized incriminating evidence.12 In Mapp v. Ohio,13 police officers forced their way into 3 People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). 4 See 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.2, at 26-54 (4th ed. 2004). 5 Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. CRIM. L. & CRIMINOLOGY 757, 757 (2009). 6 Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994). 7 232 U.S. 383 (1914). 8 See id. at 386-87; see also id. at 392 (“The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution . .”). 9 251 U.S. 385 (1920). 10 Id. at 390; see also id. at 392 (stating that admitting the illegally seized evidence would “reduce[] the Fourth Amendment to a form of words”). 11 269 U.S. 20 (1925). 12 See id. at 29; see also id. at 32 (“The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.”). 13 367 U.S. 643 (1961). https://fordham.bepress.com/ulj/vol37/iss3/6 2 Pettys: INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDME INSTRUMENTALIZING JURORS 3 the defendant’s residence, physically restrained the defendant, and searched the defendant’s residence without a warrant, all despite the defendant’s vociferous objections.14 The Court created the exclusionary rule with the hope that, stripped of the incentive to obtain evidence illegally for use in criminal prosecutions, law enforcement officers would not commit such abuses again.15 With respect to the fear that guilty and possibly dangerous defendants will escape punishment due to non-egregious violations of the Fourth Amendment, the Court has identified numerous occasions when the exclusionary rule need not be applied. In United States v. Leon,16 for example, the Court held that the exclusionary rule does not “bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.”17 The Court found that applying the exclusionary rule in such cases would provoke “‘disrespect for the law and administration of justice.’”18 In Illinois v. Krull,19 the Court held that the exclusionary rule does not apply when an officer acts in objectively reasonable reliance upon a statute that is later held unconstitutional.20 For the officer who is complying with a statute in an objectively reasonable manner, the Court found, the exclusionary rule is likely to have “little deterrent effect.”21 In Hudson v. Michigan,22 the Court held that the exclusionary rule does not apply when the police arrive at a residence to execute a search warrant but enter the residence before giving the defendant adequate time to answer the officers’ knock on the door.23 To apply the exclusionary rule on these facts, the Court concluded, “would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.”24 Most recently, in Herring v. United States,25 the Court held that the exclusionary rule does not apply when “an officer reasonably 14 See id. at 644. 15 See United States v. Calandra, 414 U.S. 338, 347 (1974) (“The purpose of the exclusionary rule is . to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.”). 16 468 U.S. 897 (1984). 17 Id. at 900. 18 Id. at 908 (quoting Stone v. Powell, 428 U.S. 468, 491 (1976)). 19 480 U.S. 340 (1987). 20 See id. at 349-50. 21 See id. at 349. 22 547 U.S.