The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law 70 Georgetown Law Journal 1981-1982

70 Geo. L. J. 365 (1981-1982)
The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law

handle is hein.journals/glj70 and id is 375 raw text is: The Good Faith Exception to the Exclusionary
Rule: Deregulating the Police and
Derailing the Law
WILLIAM J. MERTENS*
SILAS WASSERSTROM**
For many years, courts and commentators have criticized the fourth
amendment exclusionary rule as being both a device for Yreeing the
guilty, and an ineffective deterrent of illegal police conduct. Recently,
this criticism has assumed a more tangible form; in United States v.
Williams, an en banc majority of the Fi/th Circuit endorsed a good
faith exception to the rule. In this article, Professor Wasserstrom and
Mr. Mertens examine the exclusionary rule as a deterrent, and suggest
that through a variety of methods the rule sufficiently discourages police
misconduct to justify its retention. In addition, they use the Williams
decision to illustrate the theoretical limitations of the goodfaith excep-
tion, and to demonstrate the problems it will cause in practice. They
conclude that the exception will both dilute substantive fourth amend-
ment standards and impede the development offourth amendment law.
Rinaly, the authors suggest that the current attack on the exclusionary
rule may actually mask its critics' dissatisfaction with the requirements
of the fourth amendment itself
I. INTRODUCTION
In 1914, the Supreme Court unanimously held in Weeks v. United States'
that evidence seized in violation of the fourth amendment2 is inadmissible in
federal criminal prosecutions.3 From its inception, this doctrine, which came
to be known as the exclusionary rule,4 was bitterly attacked by many commen-
* Chief, Appellate Division, Public Defender Service for the District of Columbia. B.A. 1970, Yale
University; J.D. 1975, Georgetown University Law Center.
* Associate Professor of Law, Georgetown University Law Center. A.B. 1964, Amherst College;
LL.B 1967, Yale University. Professor Wasserstrom formerly was Chief of the Appellate Division of
the Public Defender Service for the District of Columbia.
The views expressed in this article are solely those of the authors, and do not necessarily reflect those
of the Public Defender Service for the District of Columbia.
1. 232 U.S. 383 (1914).
2. The fourth amendment provides:
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 the place
to be searched, and the persons or things to be seized.
U.S. CONsT. amend. IV.
3. 232 U.S. at 388.
4. Justice Frankfurter was the first member of the Supreme Court to use the term exclusionary
rule. United States v. Johnson, 319 U.S. 503, 520 (1943). Justice Black, however, was responsible for
popularizing it as a term to describe the doctrine that evidence obtained in violation of the fourth
amendment is inadmissable in a criminal prosecution. See, e.g., United States v. Rabinowitz, 339 U.S.

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