The "New" Exclusionary Rule Debate: From "Still Preoccupied with 1985" to "Virtual Deterrence"

Way before Nirvana There was U2 and Blondie And music still on MTV Her two kids in high school They tell her that she's uncool Cause she's still preoccupied With 19, 19, 1985 (1) Introduction I. Back to the Future? A. The (Unhappy) History of the Exclusionary Rule B. The "New" Exclusionary Rule Debate: Hudson and Herring 1. Hudson 2. Herring II. Normative and Empirical Dimensions of the Overdeterrence Hypothesis A. The Overdeterrence Concept B. Police Incentives C. Testing the Overdeterrence Hypothesis 1. Warrant Searches 2. Warrantless Searches 3. Terry Stops 4. Police Brutality 5. Arrests 6. Summary of the Evidence on the Overdeterrence Hypothesis III. Rights-Based Theories of the Exclusionary Rule IV. Virtual Deterrence A. Virtual Deterrence: The Basic Idea B. Pros and Cons C. The Bottom Line on Virtual Deterrence Conclusion INTRODUCTION The exclusionary rule for evidence found in violation of the Fourth Amendment is, again, in play. In Hudson v. Michigan, (2) the Court held that the exclusionary rule does not apply to violations of the Fourth Amendment's knock-and-announce requirement. This by itself was not surprising. Justice Scalia's majority opinion, however, joined by Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito, contained language, gratuitous to the result, lamenting the "substantial social costs" of the exclusionary rule, questioning the need for the "massive remedy" of exclusion, (3) and claiming the effectiveness of alternative remedies. The phrase "substantial social costs" appears three times in the majority opinion. (4) Justice Breyer's stout dissent, joined by Justices Stevens, Souter, and Ginsburg, replied that exclusion would deter violations (5) and threw cold water on the claim of effective alternatives. (6) Justice Kennedy, who joined in the majority, filed a concurrence including the assertion that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." (7) He was the only justice to express this particular view. Just this January, in Herring v. United States, (8) the justices divided into the same blocs. This time, however, Justice Ginsburg's dissent raised the ante, by arguing that the familiar cost-benefit approach to applying the exclusionary rule is misguided. (9) For the first time since Justice Brennan left the Court, members of the Court appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. (10) The ideas in this "new" debate, however, are about as fresh as the musty air of an antique shop. The Justices have added nothing to the stock arguments of their predecessors on the Burger Court. I find myself wearing the remains of my hair long, putting on wide ties, reading dismal economic news, and seeing in the latest pages of the Supreme Court Reporter the United States v. Leon decision (11) being countered by appeals to 1983 law review articles and prior dissenting opinions by Justice Brennan. (12) It could be 1985 all over again. This Article has two objectives. The first is to discredit both the majority and dissenting positions in Herring. I contend that the loss of evidence is a cost of the exclusionary rule, as distinct from the Fourth Amendment, only in a precise technical sense. It is conceptually possible that the rule might deter borderline but legal police activity. (13) While that cost is conceptually possible, the empirical evidence does not suggest that it is significant. (14) Notions of a right to exclude illegally-obtained evidence based on unitary-transaction theories or judicial integrity are equally unsound. (15) They rest on a conception of substantive Fourth Amendment rights that goes beyond personal security and informational privacy to include a constitutional right to private crime. …