Alternatives to the Exclusionary Rule
Enforcing the Fourth Amendment: The Exclusionary Rule
A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how this right translates into concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule—has been applied with any frequency by the Supreme Court, and the Court in recent years has limited its application.
Alternatives to the Exclusionary Rule.—Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.353 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of police review boards, but again the examples of disciplinary actions are exceedingly rare.354
351 See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), appeal after remand 565 F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978), aff'd. in part, rev'd. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
352 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1797, 50 U.S.C. §§ 1801-1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality of disclosure restrictions in Act).
353 Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA. L. REV. 621 (1955).
Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law. Moreover, police officers acting under color of state law who violate a person's Fourth Amendment rights are subject to a suit for damages and other remedies355 under a civil rights statute in federal courts.356 While federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts.357 While a damage remedy might be made more effectual,358 a number of legal and practical problems stand in the way.359 Police officers have available to them the usual common-law defenses, most important of which is the claim of good faith.360 Such “good faith” claims, however, are not based on the subjective intent of the officer. Instead, officers are entitled to qualified immunity “where clearly established law does not show that the search violated the Fourth Amendment,”36 or where they had an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.361 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.
354 Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 MICH. L. REV. 1123 (1967).
355 If there are continuing and recurrent violations, federal injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971).
356 42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some circumstances, the officer's liability may be attributed to the municipality. Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). These claims that officers have used excessive force in the course of an arrest or investigatory stop are to be analyzed under the Fourth Amendment, not under substantive due process. The test is "whether the officers' actions are 'objectively reasonable' under the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397 (1989) (cited with approval in Scott v. Harris, 550 U.S. 372, 381 (2007), in which a police officer’s ramming a fleeing motorist’s car from behind in an attempt to stop him was found reasonable).
358 See, e.g., Chief Justice Burger's dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422-24 (1971), which suggests suit against the Government in a special tribunal and the abolition of the exclusionary rule.
359 Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L. REV. 493 (1955).
360 This is the rule in actions under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court of Appeals promulgated the same rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).
36 Pearson v. Callahan, 129 S. Ct. 808, 822 (2009), quoted in Safford Unified School District #1 v. Redding, 129 S. Ct. 2633, 2643 (2009). In Saucier v. Katz, 533 U.S. 194 (2001), the Court had mandated a two-step procedure to determine whether an officer has qualified immunity: first, a determination whether the officer's conduct violated a constitutional right, and then a determination whether the right was clearly established. In Pearson, the Court held “that, while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 129 S. Ct. at 818. See also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
361 Anderson v. Creighton, 483 U.S. 635 (1987). The qualified immunity inquiry "has a further dimension" beyond what is required in determining whether a police officer used excessive force in arresting a suspect: the officer may make "a reasonable mistake" in his assessment of what the law requires. Saucier v. Katz, 533 U.S. 194, 205-206 (2001). See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a “hazy border between excessive and acceptable force,” an officer’s misunderstanding as to her authority to shoot a suspect attempting to flee in a vehicle was not unreasonable). See also Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who applied for a warrant unless "a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant").