<<  <  >  >>

Page 21

The Exclusionary Rule: A Response to Executive

Branch Lawlessness

As noted earlier, one way in which the executive

branch has sought to expand its search and seizure powers

is by denying the legal necessity of search warrants.

Regardless of the reasons offered, it is a fact that

police officers frequently choose to proceed with a search

without applying for a warrant.  Because judges and judi-

cial magistrates are not on the scene when such searches

take place, only much later does the judicial branch

become aware of the circumstances surrounding a warrantless

search--when prosecutors are in court seeking to present

the evidence that the police acquired during the search.

If the attorney for the accused contends that the search

was unlawful and objects to the admission of illegally

seized evidence, how should a trial judge respond?  Should

the evidence be excluded or admitted?

The Supreme Court addressed those questions in Weeks

v. United States (1912).58  Weeks, who was suspected of

illegal gambling activity, was taken into custody at his

place of employment, while a separate group of police

officers went to his home and entered it without his per-

mission and without a search warrant.  The police seized

various books, papers, and letters and turned those items

over to prosecutors.  When prosecutors tried to introduce

some of those incriminating papers at Weeks's trial, the

defense attorney cited the peculiar circumstances of the

search and lodged an objection.  The trial court overruled

the objection, allowing the prosecution to introduce the

seized papers.  Weeks was convicted, but he appealed his

case all the way to the Supreme Court, arguing that the

trial court's failure to exclude the incriminating papers

was a legal error.

Because a warrant is not required for every search,

the Supreme Court began its analysis by reviewing the lim-

ited instances in which police may conduct searches with-

out warrants.  Finding none of those exceptions applicable

to the case under review, the Court concluded that the

search was unlawful and that the trial court should not

have allowed prosecutors to introduce illegally seized evi-

dence at trial.

The United States Marshal could only have invaded

the house of the accused when armed with a war-

rant issued as required by the Constitution, upon

sworn information and describing with reasonable

particularity the thing for which the search was

to be made.  Instead, he acted without sanction