Opinion analysis: The fading “exclusionary rule”

By Lyle Denniston
on Jun 25, 2011 at 8:58 am

Analysis

A constitutional concept that increasingly seems to contradict its own label, the “exclusionary rule,” is fading further as a restraint on police evidence-gathering.  A solid majority on the Supreme Court that is deeply skeptical of the rule appears to be adding new Justices.  In the latest ruling, Davis v. United States (09-11328), what had been a five-vote majority in prior recent cases has expanded to six, and maybe even “six and a half. ‘  The two newest Justices are not voting as their predecessors did — so far, at least.

The Court majority, whatever its current size, does not yet seem ready to cast aside altogether the “exclusionary rule” — a Fourth Amendment interpretation that dates back 97 years (although Justice Antonin Scalia, in particular, has questioned the need to retain it).  The rule, in its simplest form, bars evidence from being used in criminal trials if the police obtained it illegally.  What has  been happening lately — and continued full force in Davis — is that the Court majority is sharply narrowing the definition of police conduct that it considers illegal, and is seeking to assure that more evidence gets in.  As a result, the “exclusionary rule” is, case by case, excluding less and less evidence from trials.

That, of course, is part of the goal of the Court majority.  Increasiingly, it has dwelled upon the “social cost” of excluding evidence that can be strong proof of guilt, resulting in the release of actual or potentially dangerous criminals.  The majority’s concern over that cost has led it, for example, to bring into the analysis a form of cost/benefit analysis, with the weight heavier on the cost side.

This had been a trend that now-retired Justices David H. Souter and John Paul Stevens regularly resisted, and in recent years they and Justices Stephen G. Breyer and Ruth Bader Ginsburg predictably were joined in dissent.  When the Davis decision emerged on June 16, Souter’s and Stevens’ replacements did not dissent.

Stevens’ replacement, Justice Elena Kagan, joined without qualification the majority opinion written by Justice Samuel A. Alito, Jr.   Also joining were the same four who have also been in the majority in the recent trend, Justice Scalia, Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas.

Souter’s replacement, Justice Sonia Sotomayor, did not sign onto the Alito opinion, but did vote to support its result — allowing the use of evidence that was obtained by police using a method that was legal at the time, but that was later ruled a Fourth Amendment violation by the Supreme Court.  Justice Sotomayor made an effort, in her separate opinion, to try to cut back on the sweep of the Alito opinion, but since no one joined her writing and Alito had six votes for his opinion anyway, her views took nothing away from the sweep of the ruling.

Dissenting alone were Justices Breyer and Ginsburg.  In an opinion written by Breyer, the dissenters argued that the majority had now gone too  far to excuse police techniques that turn out to be illegal, because of the “good faith” belief of the officers that they were acting legally.  The trend, the dissent said,  “will swallow the exclusionary rule.”

Lower courts, the dissenters added, are already reacting to prior Court rulings in this trend against the “exclusionary rule” by permitting the use of evidence that, at an earlier time, would have been kept out.  The new ruling in Davis, Breyer wrote, “will doubtless accelerate this trend,” resulting in “a watered-down Fourth Amendment.”

Without embracing the dissenting opinion’s rhetoric, the Davis decision clearly does narrow the scope of the “exclusionary rule” in the following ways — some of which are merely hardening earlier notions:

First, it defines the kind of police misconduct that justifies excluding the evidence they obtained as “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” — phrasing that was used by Chief Justice Roberts in a ruling two years ago (Herring v. United States) that also had cut back on the concept of exclusion.  Justice Alito noted that “isolated” and “nonrecurring” police misconduct would not justify excluding evidence.

Second, it put strong new emphasis on the notion that the only function of the “exclusionary rule” is to deter police conduct that is “culpable,” something considerably more blameworthy than mere negligence or carelessness.  (One of the main points of Sotomayor’s concurrence was to try to reduce the importance, in the exclusion context, of examining the degree of police “culpability,” or blameworthiness.)

Third, borrowing further from the Herring opinion, the decision made it appear that the cost/benefit calculus would more often lead to the conclusion that the exclusion of evidence was too high a price to pay for police conduct that did not meet the standard of really bad conduct that now must be found to exist.   Justice Alito wrote of “the harsh sanction of exclusion” and of its “high cost to both the truth and the public safety.”

Fourth, the Alito opinion made a special point of discrediting prior Supreme Court precedents that had suggested that the “exclusionary rule” was an automatic rule necessary under the Fourth Amendment, barring evidence whenever there was illegal police conduct.  “In time,” the Davis opinion remarked, “we came to acknowledge the exclusionary rule for what it undoubtedly is — a ‘judicially created remedy’ of this Court;’s own making. …We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits….We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct’ at issue.”

And, fifth, the decision refused to apply to the case before it a Supreme Court precedent that made the police technique in the case unconstitutional, even though this case was pending on appeal when that ruling came down.  The decision crafted a new and sharp distinction between when a new Supreme Court rulng would be applied to pending cases, and when evidence would be excluded as a remedy for police techniques that turned out to have been illegal.

In the Davis case itself, the Court concluded that the police in Greenville, Ala. — who searched a car and found a gun that its owner could not have legally — came nowhere near satisfying the rigorous tests now used for exclusion of evidence.  The officers involved, the opinion said, followed exactly a precedent that controlled in their area allowing just such a search even though that precedent had been cast aside by the Supreme Court.  (Justice Sotomayor, in concurring, sought to stress that the police had followed a Circuit Court precedent that explicitly authorized the techique they used.  She said the ruling did not deal with police actions when their legality was unsettled at the time.)

If the gun were excluded as evidence in this case, Justice Alito said for the majority,  the only effect it would have would be to punish “conscientious police work.”