Fixing the Constable's Blunder: Can One Trial Judge in One County in One State Nudge a Nation Beyond the Exclusionary Rule?

I. INTRODUCTION The American Exclusionary Rule is like the weather; everybody talks about it but nobody does anything. Despite the rule's wholesale damnation,1 its disproportionate windfall to the accused,2 its disregard of probative and often compelling incriminatory evidence,3 and its wide variance from the goals that gave rise to its creation,4 the rule is now in its forty-fifth year.5 Even the United States Supreme Court has beaten and battered6 the rule out of frustration at its draconian and odious remedy. And yet, we still only talk about it. Associate Supreme Court Justice Harry Blackmun talked about the rule in his 1984 concurring opinion in United States v. Leon: If a single principle may be drawn from this Court's exclusionary rule decisions, from Weeks through Mapp v. Ohio, to the decisions handed down here today, it is that the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom.7 Like the weather-everybody talks about it, but nobody does anything. The great irony of the American justice system is that we cling to a rule that we are at best uncertain of and pay a tremendous cost for the privilege.8 Small wonder all the talk. Justice Blackmun prognosticated that the rule is "subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom."9 Has our understanding of the rule's effects therefore changed? Do we know more now than we did in 1961?10 Do we know more now than when Blackmun set forth his remarks in 1984?n Do we have a better grasp as to whether the rule fulfills the very goals for which it was created, most significantly, the goal of deterring violation of Fourth Amendment rights?12 We certainly know more now than we used to know. The empirical research has given us a clearer notion about "the effects of the rule outside the confines of the courtroom."13 And as shall be set forth later in this Article, we have come to learn that the rule does not accomplish what it was meant to accomplish because police officers are generally not deterred by its operation.14 If, then, our "understanding" has changed, and we are underwhelmed with the exclusionary rule, is it not time to heed Justice Blackmun's call and do something about it? Most of those engaged in thoughtful reflection about the efficacy of the exclusionary rule would agree that the rule is far from the effective remedy first envisioned by the Warren Court in the early sixties.15 And there certainly has been no lack of alternatives bandied about in the literature.16 Why then does it still remain the primary vehicle for enforcing the Fourth Amendment?17 If the devil we know isn't working, aren't we bound to try something else, especially when the devil at play comes with such tremendous costs?18 This Article is not meant to be just another academic alternative to the exclusionary rule that would quickly be relegated to the junkyard of such proposals, but is meant to be a guideline for actually moving past the rule.19 This Essay argues that such movement is justified and that the state courts are the places to effectuate the change. It goes on to provide a blueprint for enabling one trial judge in one county in one state court to institute change and nudge a nation beyond the exclusionary rule. In this Article, I will track a hypothetical criminal case from illegal search and seizure through pretrial motions in which a trial prosecutor concedes that the fruits of the crime (a methamphetamine lab) were seized in violation of the Fourth Amendment. The hypothetical prosecutor maintains that exclusion of the evidence would be inappropriate both because it would prevent probative evidence from trial and because it would not further the deterrence goal of the exclusionary rule. The prosecutor then asserts that since the officer involved was already sanctioned and reeducated on the requirements of search and seizure, he will be less likely to err in the future, thus accomplishing the goal of the exclusionary rule in deterring the officer from future violations and negating the need to exclude the fruits of the illegal search. …