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22 Am. Crim. L. Rev. 85 (1984-1985)
The Exclusionary Rule on the Scaffold: But Was It a Fair Trial

handle is hein.journals/amcrimlr22 and id is 93 raw text is: THE EXCLUSIONARY RULE ON THE SCAFFOLD:
Silas Wasserstrom*
William J. Mertens**
In this Article, the authors present a critical analysis of the Supreme
Court's recent decisions regarding the good faith exception to the exclu-
sionary rule and the inevitable discovery doctrine. The article focuses on
United States v. Leon, its companion case Massachusetts v. Sheppard,
and Nix v. Williams . The authors analyze these cases in the context of
Court precedent, and provide their insights on what these decisions por-
tend for the development of these critical areas of the criminal justice
Seventy years ago,' the Supreme Court unanimously held that evidence seized in
violation of the fourth amendment2 is inadmissible in federal criminal prosecutions.3
When it was first formulated, this doctrine, which later became known as the exclu-
sionary rule, rested on a constellation of related, but not very clearly articulated
principles: (1) that it is simply unfair to convict a defendant on the basis of evidence
unlawfully seized from him;4 (2) that it is an additional unlawful invasion of his
*Associate Professor of Law, Georgetown University Law Center. A.B. 1964, Amherst College; LL.B
1967, Yale University.
**Visiting Assistant Professor of Law, Georgetown University Law Center. B.A. 1970, Yale Universi-
ty; J.D. 1975, Georgetown University Law Center.
1. Weeks v. United States, 232 U.S. 383 (1914). See also Boyd v. United States, 116 U.S. 616 (1886),
where, almost thirty years before Weeks, the Court held that private papers subpoenaed by the govern-
ment could not be used in a quasi-criminal proceeding because their seizure violated the defendant's
fourth and fifth amendment rights.
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. Weeks v. United States, 232 U.S. at 398.
4. See generally, Schrock & Welsch, Up from Calandra: The Exclusionary Rule as a Constitutional Re-
quirement, 59 MINN. L. REV. 251, 257-60 (1974); White, Forgotten Points in the Exclusionary Rule
Debate, 81 MIcH. L. REV. 1273, 1283-84 (1983). Justice White reasons that the historical roots of the ex-
clusionary doctrine lie in a concept of property. This traditional concept held that even if a search is pro-
cedurally reasonable, the government has no right to seize the property for use against the owner in a
criminal proceeding. Id. at 1274.

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