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38 Am. Crim. L. Rev. 1 (2001)
The Case for the Contingent Exclusionary Rule

handle is hein.journals/amcrimlr38 and id is 11 raw text is: THE CASE FOR THE CONTINGENT EXCLUSIONARY RULE Donald Dripps* I. INTRODUCTION Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. Critics have attacked the exclusion of unconstitutionally ob- tained evidence for compromising the pursuit of truth in adjudication,' for exceeding the constitutional authority of the judiciary,2 and for fostering police perjury and judicial hypocrisy.3 Defenders have laid the blame for the cost of exclusion on the Fourth, Fifth, and Sixth Amendments that prohibit the acquisition of reliable evidence when complied with, rather than on the exclusionary rule which operates only when these substantive constitutional provisions are vio- lated.4 Exclusionary rule advocates have insisted on the constitutional necessity for some effective remedy for constitutional violations,5 and maintain that exclu- sion offers a far more attractive remedy than reliance on damage actions under- mined by valuation problems, immunity defenses, and inadequate legal representa- * James Levee Professor of Law and Criminal Procedure, University of Minnesota. B.A., Northwestern, 1980; J.D., Michigan, 1983. I would like to thank Wayne LaFave, Andy Leipold, Bill Stuntz, Chris Slobogin, George Thomas, and the participants at the faculty workshop at the University of Minnesota Law School on February 4, 1999; all supplied valuable comments on an earlier draft. Responsibility for the views expressed in this article is solely the author's. 1. For the classic critique along these lines, see John Henry Wigmore, Using Evidence Obtained by Illegal Search and Seizure, 8 A.B.A. J. 479 (1922). 2. See, e.g., U.S. DFP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATr'Y GEN. ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE, TRUTrH 1N CRIMINAL JUSTICE REP. No. 2 (1986), reprinted in 22 U. MICH. J.L. REFoRM 573, 615-617 (1989) (arguing federal courts have no authority to impose exclusionary rule on states). 3. See id. at 613 (Officers who learn that their searches were improper only after the fact are encouraged to lie about the circumstances under which the evidence was obtained, even to the point of perjuring themselves, to save the evidence.) (footnote omitted); id. at 614 (Because judges are sensitive to the problem of allowing criminals to go free, they have an incentive to find that the basis for police action was sufficient.). 4. Senator Robert Wagner delivered the classic, if not the first, articulation of this argument: Finally, I have no fear that the exclusionary rule will handicap the detection or prosecution of crime. All the arguments that have been made on that score seem to me properly directed not against the exclusionary rule but against the substantive guarantee itself. The exclusion of the evidence is only the sanction which makes the rule effective. It is the rule, not the sanction, which imposes limits on the operation of the police. If the rule is obeyed as it should be, and as we declare it should, there will be no illegally obtained evidence to be excluded by the operation of the sanction. Record of the New York State Constitutional Convention, 559-60 (1938), quoted in Francis A. Allen, The Wolf Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Nw. U. L. REv. 1, 19 n.56 (1950). 5. See, e.g., Wolf v. Colorado, 338 U.S. 25,47 (1949) (Rutledge, J., dissenting) (The Amendment without the sanction is a dead letter.); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.) (stating admissibility reduces the Fourth Amendment to a form of words).

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