After Justice Samuel Alito’s draft opinion in Dobbs v Jackson Women’s Health Organization was leaked to Politico, I published an article (here) that argued that unless the draft was changed, the final opinion would threaten not just reproductive rights, but a host of substantive due process rights recognized by the Court over the past 70 years. I explained that decisions rendered under the First, Second, Fourth, Fifth, Sixth, and the Fourteenth Amendments were now all in jeopardy. I further cautioned that Justice Alito’s effort to reassure the public that other rights previously recognized by the Court, such as the right of married and unmarried couples to use contraception, the right of persons of the same sex to marry, were not undermined by the decision, should not be taken seriously. And indeed, Justice Clarence Thomas in his concurring opinion made this crystal clear when he invited litigants to now challenge all substantive due process rights previously recognized by the Court.
Now that Justice Alito’s draft has become the opinion in Dobbs, I believe that the Fourth Amendment’s protection of fundamental civil liberties protecting all Americans is certain to fall. Those liberties, guaranteed by the rule excluding evidence that is the fruit of an illegal search or seizure, will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smartphones and computers, stopping and searching us on the streets without probable cause or reasonable suspicion.
There is no empirical evidence that the exclusionary rule has had any appreciable impact on law enforcement efforts to catch and prosecute criminals. In my experience over the past 44 years of practicing law, I have rarely seen evidence suppressed on the grounds that the police violated the Fourth Amendment. In the vast majority of cases where defendants have challenged a search or seizure, the court has held that the police acted pursuant to one of the recognized exceptions to the exclusionary rule or they were otherwise permitted by the Fourth Amendment. The exceptions include: the Good Faith Exception, which upholds the admissibility of evidence obtained pursuant to a defective warrant where the executing officers relied upon the warrant in good faith; the Independent Source Rule, where evidence initially obtained during an unlawful search or seizure is admissible if the evidence is later obtained from a constitutionally valid search warrant; the Inevitable Discovery Doctrine, which allows the admission of evidence that was discovered in an unlawful search or seizure if it would have been discovered anyway by an independent line of investigation that was already being pursued; the Attenuation Doctrine, where the relationship between the evidence challenged and the unconstitutional conduct is too remote and attenuated, to justify exclusion of the evidence.
The Fourth Amendment also gives the police authority to conduct reasonable searches and seizures without a warrant. An officer can lawfully conduct a search and seizure if the officer is given consent to the search; if the officer conducts the search incident to a lawful arrest; if there is probable cause to search and exigent circumstances; and if they see items in plain view and if the officer is lawfully in the place where he sees them.
But what if the police no longer have to show that illegally seized evidence was admissible pursuant to an exception to the exclusionary rule or that their actions were reasonable under the Fourth Amendment.
That question was addressed in Hudson v. Michigan, where the Court sought to reassure the country the Court’s decision to abandon the rule that the police must knock first before entering a building would not lead to violations of civil liberties. According to Justice Scalia:
[W]e now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950–1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed.2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed.1994); E. Thibault, L. Lynch, & R. McBride, Proactive Police Management (4th ed.1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
The flaw in this analysis is that the rules the police are now taught they must follow are no longer going to be the rules they will be taught once the exclusionary rule is overturned. Indeed, the same arguments that will be employed to repeal the exclusionary rule will be invoked to do away with the requirement that the police have probable cause to conduct warrantless searches, which probably account for 95% of all searches and seizures conducted by the police. Instead, the police will be instructed that a search or seizure is reasonable if they believe that a person has or is about to commit a crime or that evidence of criminal activity or contraband will be found at a specific location based upon their training and experience. (Chief Justice Roberts already stated his support for such a position in his dissent from the denial of certiorari in Pennsylvania v. Dunlap: “[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists,” including inferences “that might well elude an untrained person.” [citations omitted])
Why should the police seek a warrant to search a home if there is no penalty for their failure to do so? Why would the police bother to obtain a warrant to download the contents of a person’s smartphone or computer if any evidence they uncover is admissible at trial? If a police officer has a hunch that someone is about to commit a crime, why wait for probable cause or reasonable suspicion before stopping and searching them? What prevents the police from conducting a 50s-style dragnet, entering all the homes in a neighborhood without a warrant or probable cause to look for a suspect?
The Supreme Court has suggested that lawsuits against the police will ensure that they will not violate a citizen’s constitutional rights. But such lawsuits are rarely successful against the police unless the individual sustained significant injuries. And the Court has made it almost impossible to raise such claims in court because of its rulings upholding the right of police officers to raise the bar of qualified immunity.
Will the Supreme Court actually overturn the exclusionary rule—almost certainly. And Justice Alito’s decision in Dobbs will be an important factor in convincing Justice Kavanaugh and Justice Barrett that the exclusionary rule should be struck down.
According to Justice Alito, when determining whether a right is guaranteed by the Constitution, the Court first looks to see whether the right is expressed in the document. When it is not, the Court must determine whether the right is “deeply rooted in [our] history and tradition” and whether and whether it is essential to our Nation’s ‘scheme of ordered Liberty.’” Slip op. 12.
As to whether the exclusionary rule is deeply rooted in our nation’s history and tradition, the Court will find that it is not.
The exclusionary rule did not exist at the time that the Constitution was amended to include a bill of rights. It did not exist as a remedy for an illegal search or seizure until the decision of the Court in 1914 in Weeks v. United States. And it was not until 1961 that the exclusionary rule applied in the states.
On one occasion the Supreme Court held that the exclusionary rule was essential to our nation’s scheme of ordered liberty. But it is unlikely that the conservatives on the Court will hold to that principle now. Chief Justice Roberts and Justices Alito, and Thomas have already expressed their opinion that the exclusionary rule is not sufficiently justified as a deterrence to illegal searches and seizures and these Justices believe that, even if it was ever justified by police practices in the past, it is no longer necessary.
Finally, Justice Alito’s theory of stare decisis will eliminate any concern by fellow Justices that the exclusionary rule must be upheld because of prior precedents. According to Justice Alito:
Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interest of those who have taken action in reliance on a past decision. See Casey, 505 U. S., at 856 (plurality opinion); see also Payne v. Tennessee, 501 U.S. 808, 828 (1991). It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2016). It fosters “evenhanded” decision making by re- quiring that like cases be decided in a like manner. Payne v. Tennessee, 501 U.S. 808, 827 (1991). It “contributes to the actual and perceived integrity of the judicial process.” Ibid. And it restrains judicial hubris and reminds us to respect the judgment of those who grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” N. Gorsuch, A Republic If You Can Keep It 217 (2019).
But none of these reasons matter if the case involves a constitutional right that was decided wrongly. Slip op. 39-40. But as we have seen, the conservative majority need not even decide that the Weeks and Mapp were wrongly decided, only that the exclusionary rule is no longer needed. And that will be the beginning of the end of civil liberties Americans are now guaranteed by the Fourth Amendment.
When Justices say that the Founding Fathers did not see fit to include an exclusionary provision in the Fourth Amendment, they ignore the fact that there was no such thing as a professional police force at the time of the ratification of the Bill of Rights. The exclusionary rule arose as the need arose. When Justices say that we have less to fear today from illegal searches and seizures because police are better trained and more professional than they were in the past, they expect us to ignore the fact that for ten years after the enactment of Section 702 of Foreign Intelligence Surveillance Act (FISA) in 2008, the FBI conducted millions of illegal electronic searches of communications by thousands of U.S. citizens.
The Fourth Amendment is more important today than it has ever been in the history of our nation. The police have at their disposal technology that was unheard of in the early 1960s and before. The police have devices that allow them to see into our homes without committing a trespass; follow our every move through our smart phones; identify our faces wherever we go—to school, to the grocery store, on vacation, everywhere. In the great connected space we now reside, where every aspect of our lives is contained on our smart phones and on our computers, our most personal information can be accessed from servers our information is stored on. Our government has already incorporated the newest technology in its arsenal of crime fighting techniques. To see how these tools can be used in the service of a police state, we need only look to law enforcement in the People’s Republic of China.
The exclusionary rule is not just a means of suppressing evidence obtained in violation of the Fourth Amendment; it is the manifestation of our collective commitment to the rule of law. It is our way of showing that we demand that our government respect our freedom and that we are willing to sacrifice some measure of security in order to preserve our liberty. And that principle is “deeply rooted in [our] history and tradition” and essential to our Nation’s “scheme of ordered Liberty.”