Legal Issues

Donald Dripps, writing in a fairly recent edition of the American Criminal Law Review, proposed and defended a new approach to Fourth Amendment jurisprudence and the exclusionary rule.  This proposal was rooted in the well-established debates that have arisen about the constitutional soundness and the perceived judicial abuses that have occurred as a result of evidence being excluded in criminal trials for violations of Fourth Amendment protections as they pertain to searches and seizures.  Indeed, as noted by Dripps, Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. HYPERLINK httpwww.questia.comPM.qstaod5000980093(Dripps, 2001, p. 1)

Advocates of the exclusionary rule have argued that it is a necessary constitutional remedy, that police will have no incentive to conform to minimum Fourth Amendment restrictions without an effective remedy for violations, and that monetary damage awards are an inadequate remedy in criminal proceedings.  Critics, on the other hand, have argued that the exclusionary rule is a judicially-created doctrine not rooted in the constitutional text, that it creates an incentive for law enforcement and judges to be dishonest in the presentation and interpretation of facts, and that it ultimately threatens the integrity of the criminal justice systems ideal pursuit of truth.  Both sides make important points, one reason the debate has been so bitter and persistent, and it is into this debate that Dripps steps for a new constitutional remedy involving search and seizure violations in a criminal context.

What Dripps proposes is a type of hybrid constitutional remedy, which he terms a contingent exclusionary rule, which combines the exclusionary rule with a monetary damages type of remedy traditionally associated with tort claims.  Specifically, he states that The gist of the proposal is that courts should begin to experiment with suppression orders that are contingent on the failure of the police department to pay damages set by the court. HYPERLINK httpwww.questia.comPM.qstaod5000980093(Dripps, 2001, p. 3)  He suggests this type of exclusionary rule in situations in which police misconduct is not intentional for knowing violations of the Fourth Amendment search and seizure rules, for example, he suggests that the mandatory application of the exclusionary rule should remain in order to deter and punish intentional violations of constitutional restrictions.  Suggesting that many search and seizure violations fall short of intentional violations, perhaps as a result of police ignorance or unusual circumstances, he also argues that the contingent exclusionary rule would apply in the majority of criminal cases.  He supports many benefits in support of this type of reform of the exclusionary rule.  First, he argues that this type of contingent exclusionary rule will serve the interests of justice because truth will be better promoted.  Truth will be promoted because police officers and judges will not be inclined to fudge the facts in order to secure a criminal conviction when there is some viable Fourth Amendment violation that ought to lead to a suppression order specifically, the exclusionary rule sometimes does cost convictions that the Fourth Amendment did not forbid. HYPERLINK httpwww.questia.comPM.qstaod5000980093(Dripps, 2001, p. 7)  

This cost, he believes, will be reduced or eliminated.  Second, he argues that a tort remedy will protect both the innocent and the guilty against unconstitutional searches better than mere exclusion.  This is related to the third perceived benefit which is the function that a tort remedy will serve in the form of a deterrent against unconstitutional searches.  Local and state governments, potentially being liable for Fourth Amendment violations, would demand and enforce better training and education programs for law enforcement agencies and officers within their governmental jurisdiction.  Fourth, noting that Critics claim that low suppression rates reflect police perjury and judicial hypocrisy HYPERLINK httpwww.questia.comPM.qstaod5000980093(Dripps, 2001, p. 9), he argues that this hybrid type of constitutional remedy will encourage ethical police and judicial practices much more effectively than does the current exclusionary rule.  A fifth proffered advantage is that the courts, rather than law-and-order legislatures, can set the damages and therefore remove the constitutional issues from political bickering more particularly, the contingent exclusionary rule solves the political problem because the federal courts would be setting the damages. HYPERLINK httpwww.questia.comPM.qstaod5000980093(Dripps, 2001, p. 2)  Finally, and the heart of the argument, is that the all-or-nothing debate that has attended the exclusionary rule as a constitutional remedy will be mooted in a manner that preserves a constitutional remedy for Fourth Amendment violations in the face of increasing calls for the abolishment of the exclusionary rule.

Facially, the rule seems fairly sound and it also seems to promote a transparent judicial process and a fairer approach to constitutional interpretation in criminal cases.  If governing municipality or state fails to pay damages set by the court for a Fourth Amendment violation then a suppression order will issue on the other hand, if the damages are paid, then the suppression order will not issue.  There are, however, a couple of important problems with such a proposal.  First, law enforcement is to a large extant local.  This means that a police departments budget and the local resources are heavily dependent on local tax bases.  If would hardly be surprising to see, if the contingent exclusionary rule were implemented, rich municipalities like Beverly Hills that could buy out the suppression orders and poor municipalities that did not have the money to pay the damages necessary to buy out the suppression orders.  A Beverly Hills, as a result, could effectively sanction through its wealth the consistent violation of the Fourth Amendment because it could always agree to pay damages in order to politically promote law and order.  This would create more ethical and political problems than it solved.  It would mean, with respect to evidence obtained in violation of the Fourth Amendment, that different constitutional standards would arise depending on a municipality or governmental units tax base and financial resources.  Second, rather than function as a blanket deterrent against Fourth Amendment violations, the contingent exclusionary rule might actually do the reverse that is, because police officers in richer areas know they can violate the constitution and still secure convictions, they may collude with local prosecutors and local politicians in certain cases to intentionally violate the Fourth Amendment and then cover up their intention.  This, in short, is hardly an abstract fear.

In the final analysis, there is no doubt that the exclusionary rule has passionate defenders and fierce critics.  Even a cursory review of the academic literature demonstrates that both sides raise valid points and concerns.  The contingent exclusionary model, while notable for its good intentions, would lead to more problems than solutions most frightening, it might lead to the creation of different constitutional standards in effect because richer areas would be more able to circumvent suppression orders whereas poorer areas would not.  This type of bifurcated approach to the Fourth Amendment is unfair and an unwise path to travel.