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No. 319

October 1, 1998

IN DEFENSE OF THE EXCLUSIONARY RULE

by Timothy Lynch

Executive Summary

The Fourth Amendment to the U.S. Constitution protects

Americans against unreasonable searches and seizures by gov-

ernment officials.  Like other guarantees in the Bill of

Rights, however, the Fourth Amendment cannot enforce itself.

Much of the modern debate about the enforcement of the

Fourth Amendment has focused on the wisdom of and consti-

tutional necessity for the so-called exclusionary rule,

under which evidence obtained in violation of the Fourth

Amendment is ordinarily inadmissible in a criminal trial.

Conservatives often oppose the rule as not grounded in the

Constitution, not a deterrent to police misconduct, and not

helpful in the search for truth.  Abolishing the exclusion-

ary rule has been a high priority for conservatives for more

than 30 years.  When Republicans gained control of Congress

in 1995, they immediately set their sights on the exclusion-

ary rule.  Although that "reform" effort did not succeed, it

is likely that similar efforts may resurface.

The drive to abolish the exclusionary rule is fundamen-

tally misguided, on constitutional grounds, for the rule can

and should be justified on separation-of-powers principles,

which conservatives generally support.  When agents of the

executive branch (the police) disregard the terms of search

warrants, or attempt to bypass the warrant-issuing process

altogether, the judicial branch can and should respond by

"checking" such misbehavior.  The most opportune time to

check such unconstitutional behavior is when prosecutors

attempt to introduce illegally seized evidence in court.

Because the exclusionary rule is the only effective tool the

judiciary has for preserving the integrity of its warrant-

issuing authority, any legislative attempt to abrogate the

rule should be declared null and void by the Supreme Court.

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Timothy Lynch is associate director of the Cato Institute's

Center for Constitutional Studies.