How to Move Beyond the Exclusionary Rule: Structuring Judicial Response to Legislative Reform Efforts

Abstract

Whatever its strengths and weaknesses-and there are both–the Pepperdine Study is strangely silent with respect to the question of implementation. Given the United States Supreme Court's precedent in Mapp v. Ohio, how can the proposal be enacted? Why would not the Mapp precedent invalidate any legislative effort of the sort advocated? Indeed, some have argued that Mapp does not permit any legislative experimentation. Even if Mapp does not foreclose the legislature's option to implement different approaches, why would the United States Supreme Court permit California to adopt an administrative alternative to the exclusionary rule while mandating that the exclusionary rule be followed in the other states? Does the Constitution tolerate such nonuniformity?

This Article addresses that gap in the Pepperdine Study by arguing that state and federal legislatures have the power to enact the proposed administrative scheme and that the courts may-and perhaps should-uphold any such effort. First, this Article argues, as have others, that the exclusionary rule as a judge-made rule can be superseded by congressional action. Properly understood, there is no inconsistency between Mapp and the administrative proposal in the Pepperdine Study. Although Mapp has constitutional roots, the Court has over-enforced the Fourth Amendment norm, permitting other institutional actors to participate in determining the best way to enforce the constitutional norm protecting against unreasonable searches and seizures. Mapp does not hold that the exclusionary rule is constitutionally enshrined; rather, other institutional actors may devise alternative schemes which obviate the need for the exclusionary rule Second, this Article suggests that the United States Supreme Court, despite its lack of exclusive jurisdiction to consider remedial options for the exclusionary rule, properly retains control over legislative reform efforts through its power to review the introduction of illegally obtained evidence in particular cases and controversies. The Court should review the adequacy of any alternative remedial scheme based on all available evidence. This Article further argues that the Court should afford substantial deference to Congress's determination of how best to enforce the Fourth Amendment. As with other constitutional common law remedies, Congress can create alternative means of enforcing constitutional value based on its presumably greater institutional competence for factfinding. The Court's analysis of when to allow congressional remedies to displace the judicially created remedy under Bivens v. Six Unknown Named Agents poses the closest analogy, suggesting the Court's willingness to defer to majoritarian determination of appropriate remedies. Furthermore, the Court should defer even more to the legislative product if it is backed by detailed findings substantiating the benefits expected from the substitute remedy.

Finally, this Article argues that state courts and lower federal courts have independent authority to review the adequacy of legislative alternatives. Change in the exclusionary rule can be implemented prior to any Supreme Court imprimatur. Indeed, my argument is hardly radical in light of the fact that lower federal courts currently make a similar inquiry in Bivens cases. The implication for state courts, however, is admittedly more controversial. If state courts may permit legislative alternatives to the exclusionary rule in their own courts, uniformity under our constitutional system would be lost. Although perhaps disconcerting, that result is a product of our federalist system and even today states provide differing protections against unreasonable searches and seizures. Thus, I conclude that the Supreme Court should respect the right of states, based on their own institutional concerns and priorities, to forge different approaches to protect against violation of the Fourth Amendment.