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88 Univ. Colorado L. Rev. F. 1 (2017)

handle is hein.journals/uvsyocd88 and id is 1 raw text is: JzJAUPTMAN FINAL FORMATTED (Do NOT DELETE) 4/24/20 17 1:49 PM WHAT REMAINS OF THE EXCLUSIONARY RULE? WILL HAUPTMAN* INTRODUCTION The Fourth Amendment exclusionary rule is experiencing death by a thousand cuts. Since the Supreme Court created the rule,1 its opinions have whittled away at the rule's application with various exceptions and limitations.2 So it is today that the Court only finds exclusion appropriate where the benefits of suppressing evidence outweigh its costs.3 That rarely happens, says the Court. After all, what benefit could outweigh the cost of letting the guilty go free? Apparently not the benefit of deterring the violation of an elementary Fourth Amendment principle: that no officer may conduct an investigatory stop absent reasonable suspicion of criminal wrongdoing.4 At least not in Utah v. Strieff.5 In that case, decided last summer, the Court held admissible drug- related evidence that an officer obtained after a concededly unconstitutional stop.6 Why? Because the officer, immediately after stopping Edward Strieff, discovered that Strieff had an outstanding arrest warrant, and this discovery sufficiently * J.D. Candidate 2017, University of Colorado Law School. 1. The Court first established the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914). See Olmstead v. United States, 277 U.S. 438, 462 (1928); William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 GEO. L.J. 799, 799 (2000). Yet the remedy applied only against the federal government. Weeks, 232 U.S. at 398. The Court later expanded the scope of the exclusionary rule, reasoning that the Fourteenth Amendment's Due Process Clause made the Fourth Amendment privacy right enforceable against the states. Mapp v. Ohio, 367 U.S. 643, 654-55 (1961). 2. See Orin S. Kerr, Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 GEO. L.J. 1077, 1080 (listing exceptions and limitations); Lyle Denniston, Opinion Analysis: The Fading Exclusionary Rule, SCOTUSBLOG (Jun. 25, 2011, 8:58 AM), http://www.scotusblog.com/2011/06/opinion-analysis-the-fading- exclusionary-rule/ [https://perma.cc/MT63-F52M] (A constitutional concept that increasingly seems to contradict its own label, the 'exclusionary rule,' is fading further as a restraint on police evidence-gathering.). 3. Davis v. United States, 564 U.S. 229, 237 (2011). 4. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). 5. 136 S. Ct. 2056 (2016). 6. Id. at 2064. HAUPTMANFINALFORMATTED (DO NOT DELETE) 4/24/2017 1:49 PM

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