Criminal Procedure Commons^™

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …

Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Chicago-Kent Law Review

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the Court must take …

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Journal Articles

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Vagrants In Volvos: Ending Pretextual Traffic Stops And Consent Searches Of Vehicles In Illinois, 40 Loy. U. Chi. L.J. 745 (2009), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, David A. Harris

Articles

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 …