Conservative views: Hyperventilating About the Exclusionary Rule

Hyperventilating About the Exclusionary Rule, by Matthew J. Franck
Bench Memos/NRO, Feb 16, 2009

For the second time in a little more than a fortnight, writers named Adam at the New York Times are getting altogether too excited about the grim fate that awaits the Fourth Amendment exclusionary rule under the Roberts Court. First there was Adam Liptak, successor to Linda Greenhouse in covering the Court, who suggested on January 31 that "the exclusionary rule itself might be at risk" thanks to a January 14 ruling in Herring v. United States. Today it's editorial writer Adam Cohen sounding the same alarm, saying that "Chief Justice John Roberts's conservative majority on the Supreme Court is working to undo the exclusionary rule." Both Adams remind us that, as a young lawyer working in the Reagan Justice Department, Roberts wrote a memo critical of the exclusionary rule.

Breathe into the paper bag, boys. The Herring decision is really pretty ordinary, and simply applies a principle established a quarter century ago in United States v. Leon: that when law enforcement officers rely in good faith on what they believe to be a valid warrant, and that warrant is subsequently found to be invalid, the evidence the officers obtain by virtue of it will not be excluded. The exclusionary rule is not, the Court emphasized in the Leon case, a command of the Constitution itself. It is a remedial rule the Court itself invented as a deterrent to police misconduct. When its application would have no deterrent effect, its use is inappropriate. Leon and Herring are practically indistinguishable. In the 1984 case, an evidentiary hearing long after the search resulted in the warrant being invalidated because an affidavit was held insufficient to establish probable cause. In last month's case, an unintended failure to keep computer records up to date across local jurisdictions resulted in officers acting on a warrant they had no way of knowing had been withdrawn. No police misconduct occurred in either case, and it's hard to see how future deliberate misconduct could slip under the umbrella of either ruling, so long as courts remain interested in the validity of warrants and the honesty of policemen.

I would not be sad to see the exclusionary rule go. It is a perverse instrument for vindicating the Fourth Amendment, and was wholly unknown to the founding generation. But there's no sign that the Roberts Court has lost its interest in maintaining it. Neither is there any reason to suppose that Herring, which like Leon involved a case where there was a warrant (apparently) at the time the officers acted, will lead to a broad approval by the Court of searches where no warrant was ever in existence at all.

But facts are no deterrent to New York Times writers. In today's piece, Cohen even has the gall to write that "in the last few years" while a supposedly terrible (but actually nonexistent) erosion of the rule has been happening, "the federal government engaged in an illegal domestic wiretapping program." Is there some requirement that writers for newspapers keep up with the news? As we learned last month, the Foreign Intelligence Surveillance Court of Review held last August that the Fourth Amendment warrant requirement does not apply "when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States."

Time to take the bag away from one's face and look around, don't you think?