The 'New' Exclusionary Rule Debate: From 'Still Preoccupied with 1985' to 'Virtual Deterrence'

The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court's cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent's more majestic view of the exclusionary rule, because the dissent's approach (1) cannot account for the law's response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages of justice. The government's option to refuse to undertake remedial measures and thereby acquiesce in a suppression order provides a strong safeguard against overdeterrence.