INSTRUMENTALIZING JURORS: AN ARGUMENT AGAINST THE FOURTH AMENDMENT EXCLUSIONARY RULE

Introduction I. Jurors' Deliberative Autonomy A. The Moral Problem with Exclusionary Rules B. The Fourth Amendment Exclusionary Rule II. Remedying the Problem A. Lesser Approaches B. Abandoning the Exclusionary Rule 1. Broaden the Availability of Punitive Damages for Violations of the Fourth Amendment 2. Increase Municipalities' Financial Exposure for Fourth Amendment Violations Committed by Their Law Enforcement Officers 3. Increase the Amount of Attorney's Fees That May Be Recovered by Incarcerated Plaintiffs in Actions Brought Under [section] 1983 Conclusion INTRODUCTION Ever since the Fourth Amendment exclusionary rule emerged on the scene roughly a century ago, (1) judges and scholars of formidable intelligence and towering reputations have disagreed about the rule's merits. Prior generations found Justice Potter Stewart declaring, for example, that "the exclusion of illegally obtained evidence" (2) is the only effective means of "ensur[ing] that the government does not violate the fourth amendment at its pleasure," (3) while Judge Benjamin Cardozo condemned the notion that "It]he criminal is to go free because the constable has blundered." (4) Today, Wayne LaFave painstakingly defends the exclusionary rule (5) and calls the Fourth Amendment his "cheval de bataille," (6) while Akhil Amar insists that "[t]he exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens." (7) The core reasons for the rule's divisiveness are not difficult to perceive. Without the exclusionary rule or any other deterrence mechanism, one can reasonably fear that government officials will sometimes behave like totalitarian bullies, brazenly disregarding the Fourth Amendment's demands and securing criminal convictions on the strength of illegally obtained evidence. With the exclusionary rule, one can reasonably fear that guilty and possibly dangerous individuals will sometimes be released due to seemingly technical Fourth Amendment violations, thereby frustrating many citizens' conceptions of justice and good sense. Both of these countervailing fears have powerfully influenced the Supreme Court's Fourth Amendment jurisprudence. With respect to the fear of totalitarian behavior, the exclusionary rule traces its birth to cases in which government officials evinced no regard whatsoever for citizens' Fourth Amendment rights. In the landmark case of Weeks v. United States, (8) for example, state and federal law enforcement officers searched the defendant's home without a warrant and seized numerous items of evidence while the defendant was away, after a neighbor showed the police where a key to the defendant's residence was hidden. (9) In Silverthorne Lumber Co. v. United States, (10) federal officials entered the defendant's office "without a shadow of authority ... and made a clean sweep of all the books, papers and documents found there." (11) In Agnello v. United States, (12) one group of federal officials took the defendant to the local police station while another group simultaneously searched the defendant's home without a warrant and seized incriminating evidence. (13) In Mapp v. Ohio, (14) police officers forced their way into the defendant's residence, physically restrained the defendant, and searched the defendant's residence without a warrant, all despite the defendant's vociferous objections. (15) The Court created the exclusionary rule with the hope that, stripped of the incentive to obtain evidence illegally for use in criminal prosecutions, law enforcement officers would not commit such abuses again. (16) With respect to the fear that guilty and possibly dangerous defendants will escape punishment due to non-egregious violations of the Fourth Amendment, the Court has identified numerous occasions when the exclusionary rule need not be applied. …