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trial process, saying that it "was not within the [leg-

islative] province to say to any judicial officer that,

when he has heard proof of certain facts the evidence thus

adduced before him shall constitute conclusive proof of

the fact in issue in the trial of the cause before him."55

Just as Congress must refrain from telling the Supreme

Court how to decide a constitutional controversy in a

pending case, so too must the legislature refrain from

telling judicial officers when they must issue search war-

rants.56

The judiciary has thus far fended off attacks on its

warrant-issuing prerogative from the executive and legisla-

tive branches.  The frontal and lateral moves against the

judiciary have been stymied.  Yet the judicial role in

searches and seizures is far from secure.  The executive

and legislative branches are as determined as ever to

undercut, bypass, or override the judiciary.57   In recent

years, in fact, those branches have attempted to invade

the judicial province through the "back door."

Encroachment on the Judiciary: The Back-Door Assault

Thus far we have seen how the judiciary has used its

power of judicial review to defend its warrant-issuing

prerogative from encroachment.  But judicial review is

only one of the judiciary's constitutional weapons.  The

primary weapon with which the judiciary has defended its

role in searches and seizures has been the exclusionary

rule, which bars the introduction of illegally obtained

evidence in criminal trials.

The exclusionary rule can be justified on the basis

of separation-of-powers principles.  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 respond by

checking such misbehavior, when it is able to do so.  As

it happens, the most opportune time to check that kind of

executive branch mischief is when executive branch lawyers

(prosecutors) attempt to introduce illegally seized evi-

dence in court.  Because the exclusionary rule helps the

judiciary to uphold the integrity of its warrant-issuing

process, it is an inestimable weapon against executive

branch transgressions.