Rights, Remedies, and the Quantum and Burden of Proof

It is tempting to commemorate the 2014 centenary of the exclusionary rule by celebrating our historically progressive role in constitutional rights protection, but those familiar with the facts know that Fourth Amendment violations persist unabated. As New Yorkers consider Judge Scheindlin's damning assessment of police stop-andfrisk practices, and the country erupts in protests following fatal police encounters, are legal scholars who continue to pontificate on constitutional bona fides addressing "real" Fourth Amendment questions? Traditional academic abstraction and artificial doctrinal divides obscure the fact that rights and remedies are defined by their operation. Constitutional rights have no value if after they have been violated, meaningful remedies are unattainable. This Article focuses instead on the functional relationship between rights and remedies and on *Jolle Anne Moreno is the Associate Dean for Faculty Research & Development and a Professor of Law at Florida International College of Law. For my mother, who is of course not Tina Fey, but might once have shared the same hopes for her daughter: Lead her away from Acting but not all the way to Finance. Something where she can make her own hours but still feel intellectually fulfilled and get outside sometimes And not have to wear high heels. Tina Fey, BOSSYPANTS 262 (2011). 2015] Virginia Journal of Criminal Law new constraints imposed by judicial recalibrations of the quantum and burden of remedial proof The Roberts Court's recent shotgun wedding linking exclusion to defense evidence stablishing police officer "bad faith" or systemic police negligence illustrates the centrality of proof and evidence questions. Over the past few years, the Court has increased the quantum of defense suppression proof while simultaneously eliminating burden shifting to the prosecution. These shifts make most Fourth Amendment violations irremediable. It is not feasible to demand that defendants aggregate data establishing systemic police negligence. Defendants who seek, in the alternative, to prove that an illegal search was committed knowingly, recklessly, or with gross negligence invariably lack direct evidence of police officer intent. By changing the rules governing suppression under the guise of a narrow focus on deterrence, the Roberts Court has ensured that nearly all illegally seized evidence will be admitted. The only time evidence will be suppressed is when a defendant can prove circumstantially that police misconduct was so patently egregious that defense evidence supports a judicial inference ofpolice "bad faith. " In theory, the Roberts Court has quietly erased a century of exclusion jurisprudence while eliding accountability for more overt action. In practice, if suppression is only available to defendants who can prove flagrant police "bad faith," the Court has effectively resurrected the old due process "shocks the conscience" exclusion standard. New decisions illustrating the type of police behavior that can support an inference of bad faith under include patently race-based seizures, near-suspicionless repeated rectal searches, and (in a truly unforgettable case) the curbside [Vol. 3:89 2015] Exclusionary Rule 91 excision of contraband from a suspect 's penis performed by the arresting officer. The full impact of increasing the quantum and reallocating the burden of proof is fully revealed in recent empirical studies demonstrating that illegally seized evidence is now routinely admitted. Prosecutors' new, easy access to this evidence following warrant-based and warrantless searches will transform not just the small number of cases that go to trial, but plea calculations in every case where evidence was previously excludable on Fourth Amendment grounds. 92 Virginia Journal of Criminal Law [Vol. 3:89