Document Type

Article

Publication Date

2009

Abstract

In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on the rule's survival, and the Court's 2009 opinion in Herring v. U.S., should motivate renewed discussion of what should replace it. But recently published empirical findings cast doubt on the Court's premise in Hudson that the bad old days of search and seizure violations lay behind us. On the contrary, viewing the data conservatively, roughly a third of all search and seizure activity violates the Fourth Amendment. Thus what the situation calls for is a set of proposals that can serve as a substitute for the exclusionary rule if it disappears, but which can also work equally well to brace up the rule if it stays in place.

Fortunately, the law, criminology, and technology can combine to provide a viable set of answers for both possibilities. First, a system for tracking police search and seizure activity, based on successful work on early intervention systems now used to head off police misconduct, holds great promise for advancing the ability of supervising officers to assure that those under their commands obey the law. Second, strengthening the ability of members of the public allegedly subjected to police misconduct to bring suit for redress in federal court would create real incentives for better police behavior. This would do much to address the issue of Fourth Amendment violations that uncover no evidence, making the exclusionary rule an inapplicable remedy. Third, new technologies can enable police departments to make video and audio recordings of nearly all police activity. Coupled with appropriate evidentiary presumptions, these devices can change police behavior, including search and seizure activity. The article will examine these three possibilities, explain their superiority to other substitutes for the exclusionary rule, and will also examine their drawbacks.

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