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COPYRIGHT 2000 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION
The Fourth Amendment to the United States Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing thy place to be searched, and the persons or things to be seized.(1)
The Fourth Amendment was designed to shield the citizenry from unbridled police power to search and seize. No power of government, short of arrest and incarceration, has such a direct impact upon the life, liberty, and property of individual citizens. As Fourth Amendment scholar John Wesley Hall, Jr. observed:
The raw power held by a police officer conducting a search is enormous. An officer wielding a search warrant has the authority of the law to forcibly enter one's home and search for evidence. The officer can enter at night and wake you from your sleep, roust you from bed, rummage in your drawers and papers, and upend your entire home. Even though the particularity clause of the warrant defines the scope of the search, the search, as a practical matter, will be as intense as the officer chooses to make it.(2)
Indeed, when the police come to a house or business and demand entrance, the individual citizen has only a moment to decide whether to risk violence by withholding consent or, alternatively, to yield to one or more strangers. If police officers gain entrance and then abuse their search authority -- by using profanity in front of young children,(3) pointing their weapons at nonthreatening occupants,(4) damaging family belongings,(5) detaining residents for inordinate periods of time,(6) or using excessive force against the individual or his family(7)--the individual citizen can only stand by helplessly until such time as the police decide to leave. An aggrieved citizen might later hire a lawyer and file a lawsuit, but his likelihood of success would be far from certain, and it could take years to secure any compensation or vindication for such abuse.(8)
Many citizens have lost their very lives during police searches. Here are a few recent examples of the tragic consequences that sometimes can accompany the execution of a police search:
In 1995, sheriff's deputies in Beaver Dam, Wisconsin, burst into a trailer home to execute a search warrant as part of a drug investigation. Moments after the deputies entered the trailer, one of them shot and killed 29-year-old Scott Bryant. Bryant, who was unarmed and offered no resistance, died in front of his eight-year-old son. A search of the residence uncovered a few grams of marijuana.(9) In 1994, a police SWAT team in Boston broke down an apartment door without warning and tackled an elderly occupant. When the search did not turn up any drugs, the police soon realized they had raided the wrong home. The elderly man the police had tackled and handcuffed turned out to be a retired minister. The Rev. Accelynne Williams suffered a severe heart attack during the search and died the same afternoon.(10) In 1992, California law enforcement agents burst into Donald Scott's Malibu ranch at an early morning hour. Scott, who was in the process of getting dressed, thought he was being burglarized, so he retrieved his handgun. When he rushed into his living room carrying his gun, he was shot dead by the police. A subsequent inquiry into this incident by the local district attorney found that drugs never were located on the ranch and that Scott was completely innocent.(11) In 1996, an Iowa City patrolman's suspicions were aroused when he noticed that the door to a business firm was ajar at midnight. The patrolman thought a burglary might be in progress so he requested a backup unit. When another police unit arrived on the scene, officers entered the business to investigate. Moments after entering the building, a patrolman shot and killed 31-year-old Eric Shaw. Shaw turned out to be an artist who frequently worked on his sculptures at his father's business late in the evening because he ran his own small business during the day. Shaw was unarmed, offered no resistance, and had his father's permission to work on the premises.(12)
Given such chilling examples -- regrettably, only a small sample -- fair-minded people from across the political spectrum should agree that the Fourth Amendment's safeguards against unreasonable searches are as important today as they were two hundred years ago.
Like the other amendments that constitute the Bill of Rights, the Fourth Amendment was written and ratified to protect the citizenry against overweening government. But none of these amendments is self-enforcing. Much of the modern debate surrounding enforcement of the Fourth Amendment has focused on the wisdom or constitutional necessity of the exclusionary rule. Under that rule, evidence obtained in violation of the Fourth Amendment is ordinarily inadmissible against a criminal defendant at trial.
A simple example will illustrate how the exclusionary rule can affect a criminal investigation. If a policeman gets a tip that a local cab driver, Tom Smith, has been moonlighting as a cat burglar, the officer might launch an investigation and search for evidence that would enable him to arrest and prosecute Smith. If the policeman decided that the fastest way to find evidence was to break into Smith's home without a search warrant, however, his effort would be for naught. Even if the police officer discovered seven stolen TV sets in Smith's living room, a judge would almost certainly throw the case out of court -- at least under current law. Smith's attorney could have the trial judge bar the admission of the stolen goods as evidence because the officer obtained the evidence through an illegal search.(13) Without that illegally obtained evidence, the district attorney probably would be unable to prosecute successfully a case of theft.
The exclusionary rule is very controversial. Conservatives often oppose the rule as not grounded in the Constitution, not a deterrent to police misconduct, and not helpful in the search for truth in criminal proceedings.(14) They believe more sensible ways exist to handle law enforcement abuses.(15) Thus, when Republicans gained control of Congress in 1995, conservative legislators immediately set their sights on the exclusionary rule.(16) Although that "reform" effort did not succeed, similar efforts will likely resurface in the future.
Liberals, on the other hand, generally have defended the exclusionary rule, both as an appropriate judicial remedy for Fourth Amendment violations and as a mechanism to deter police misconduct. This Article will conclude that the exclusionary rule is fundamentally sound, but for somewhat different reasons than liberal legal scholars typically offer.
The drive to abolish the exclusionary rule is fundamentally misguided on constitutional grounds, for the rule can be justified on separation of powers principles, which conservatives generally support. When agents of the executive branch (the police) disregard the terms of search warrants or attempt to bypass the warrant-issuing process altogether, the judicial branch can and should respond by "checking" such misbehavior when it can. The most opportune time to check such unconstitutional behavior is when lawyers for the executive branch (prosecutors) attempt to introduce illegally seized evidence in court. Because the exclusionary rule is the only effective method the judiciary has to preserve the integrity of its warrant-issuing authority, any legislative attempt to abrogate the rule should be declared null and void by the Supreme Court.
II. FIRST PRINCIPLES: THE SEPARATION OF POWERS DOCTRINE
Before examining the constitutional merits of the exclusionary rule in detail, it will be useful to begin with first principles and then proceed, through deduction, to the narrow question of whether use of the exclusionary rule can be justified in criminal proceedings.
One might say without overstatement that the central organizing principle of the U.S. Constitution, as distinct from its substantive principles, is the separation of powers doctrine. Although the phrase "separation of powers" does not appear in the constitutional text, no one can deny that the Constitution's structure centers on that maxim. Article I vests certain "legislative Powers" in Congress;(17) Article II vests the "executive Power" in the President;(18) and Article III vests the "judicial Power" in the Supreme Court.(19) As Justice Joseph Story observed:
The first thing, that strikes us, upon the slightest survey of the national Constitution, is, that its structure contains a fundamental separation of the three great departments of government, the legislative, the executive, and the judicial. The existence of all these departments has always been found indispensable to due energy and stability in a government. Their separation has always been found equally indispensable, for the preservation of public liberty and private rights. Whenever they are all vested in one person or body of men, the government is in fact a despotism, by whatever name it may be called, whether a monarchy, or an aristocracy, or a democracy.(20)
Because two hundred years have passed since the ratification of the Constitution, modern day Americans tend to forget that the Constitution of 1787 represented a bold new experiment in political science. In England, the balance of power would shift back and forth between the King and Parliament.(21) The judiciary was not known as a separate power, but was in both theory and practice a part of the executive.(22) While the Framers of the U.S. Constitution did incorporate those aspects of the British Constitution they deemed worthwhile, the separation of powers principle and an independent judiciary are distinctively American innovations in political science.(23)
To guard against the danger of one branch seizing the powers and prerogatives of the others, the Framers devised a sophisticated series of "checks and balances." Congress has the power to pass and repeal laws,(24) but the President can check those measures by vetoing bills.(25) Congress can, in turn, override a veto if it can muster a two-thirds vote.(26) The Supreme Court has the power of judicial review,(27) but the President has the power to nominate judges and justices and Congress can confirm or reject executive nominations.(28) The House of Representatives has the power to impeach executive and judicial officers who engage in misconduct,(29) but the Senate tries all impeachments, and the constitutional threshold for conviction is high--concurrence of two-thirds of the members present.(30) By equipping each branch with powers of self-defense, the Framers believed they could prevent the concentration of all governmental power in any one branch.
The constitutional system of separation of powers also operates within the criminal justice system. At a general level, the legislature passes criminal laws; the executive enforces the laws; and the judiciary interprets and applies the laws. Often the relations between the three branches of government are cordial and cooperative, but sometimes they clash. Under a system of separate and coordinate powers, however, each branch is expected to remain within its sphere and to respect the powers that the Constitution has assigned to the other branches. Acrimonious disagreements about the scope of their respective powers were both expected and tolerated; encroachment, on the other hand, was proscribed because the usurper essentially would be declaring itself above the fundamental law of the Constitution.
A few hypothetical situations in which one branch of government blatantly disregards the separation of powers principle may illustrate the potentially disastrous consequences of encroachment or usurpation in criminal cases. For example, police officers would act outside their sphere if they executed prisoners based upon their own assessment of the evidence. Even if California state authorities had acquired ironclad proof that Charles Manson and his cohorts were killers, summary executions would have violated the Constitution. The U.S. Constitution expects executive officers to present their evidence in court and to respect judicial processes.(31)
Nor can the legislature bypass the judicial branch. Any law that called for the immediate arrest and execution of certain citizens would be null and void because of the Constitution's prohibition against bills of attainder(32) and its requirement that citizens be given an opportunity to defend themselves.(33) Even if Congress had unanimously passed a resolution declaring Julius and Ethel Rosenberg guilty of espionage in 1950, the couple still would have had the right to a trial by a jury in a court of law.(34)
The separation of powers doctrine also applies to the judiciary. If a judge were to order prosecutors to file criminal indictments against certain citizens, for example, he would be acting outside of the judicial sphere. The power to prosecute is an executive power that cannot be assumed by any judge or judicial officer.(35)
Modern academics sometimes disparage the Framers' idea of checks and balances as a formula for "gridlock,"(36) but such criticism misses the point. The primary purpose of the Constitution is to safeguard the freedom of the American people, not to facilitate government programs or operations. As Judge Frank Easterbrook has noted, "Separation of powers--the inability of any one person or branch to have its way--was thought to be an essential component of a free Republic, not a hindrance to good government."(37)
III. SEPARATION OF POWERS AND THE FOURTH AMENDMENT
In his famous treatise, Commentaries on the Constitution of the United States, Justice Story wrote that the provisions of the Fourth Amendment were "doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution."(38) Story also remarked that the Fourth Amendment is "little more than the affirmance of [the] great constitutional doctrine of the common law."(39)
On first blush, Story's statements about the Fourth Amendment may seem inconsistent and implausible. After all, why would the American Revolutionaries revolt against Great Britain and its general warrants only to turn around and incorporate English legal principles into their own Bill of Rights? The answer to that question lies in the distinction between common law (judge-made law) and statutory law (legislative law). The early Americans admired English common law with respect to searches and seizures, but they detested the statutory laws of Parliament, precisely because those legislative acts flouted common law principles.(40)
Under common law, the courts issued only special warrants, which carefully circumscribed the power of Crown officers.(41) Parliament, however, had the discretionary power to authorize nonjudicial officials to issue the much-despised general warrant, which was notorious for its sweeping and open-ended terms.(42) Against that background, Story's commentary on the Fourth Amendment makes perfect sense. The Fourth Amendment "constitutionalized" the common law principles of search and...
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