<<  <  >  >>

Page 25

Conservative critics of the exclusionary rule have

seized upon the notion that the rule is nothing more than

a judicially created remedy.  In the mid-1980s, the

Department of Justice issued a report that urged Attorney

General Edwin Meese and President Ronald Reagan to pursue

policies that would "result in the abolition of the exclu-

sionary rule."69  In 1994 the Republicans' Contract with

America featured various reforms for the criminal justice

system--including a curtailment of the exclusionary rule.70

When Republicans gained control of Congress in 1995,

conservative legislators immediately set their sights on

the exclusionary rule.  Sen. Orrin Hatch (R-Utah), chair-

man of the Senate Judiciary Committee, crafted the

Republican crime bill, section 507(b) of which sought to

completely eliminate the exclusionary rule in federal crim-

inal prosecutions.  The new section of title 18 of the

U.S. Code would have read:

§ 3502A.  Admissibility of evidence obtained by

search and seizure

. . . Evidence obtained as a result of a search

or seizure that is otherwise admissible in a

Federal criminal proceeding shall not be excluded

in a proceeding in a court of the United States

on the ground that the search or seizure was in

violation of the Fourth Amendment to the

Constitution.71

That legislative attempt to stop trial courts from exclud-

ing illegally seized evidence was a back-door assault on

the judiciary's warrant-issuing prerogative.  The legisla-

ture has been unable to vest the warrant-issuing power in

the executive branch.  It has also been unable to diminish

that power by converting the warrant-issuing procedure into

a rubber-stamping process for executive branch agents.

Its latest effort, therefore, is to negate the power by

stripping the judicial branch of the one tool, the exclu-

sionary rule, that has been most effective in thwarting

encroachment by executive branch agents.  Yet even that

effort has thus far failed to win enough votes to succeed.

Despite those setbacks, many people in the legislative

and executive branches are relentlessly pressing to limit

the judicial role in searches and seizures by short-

circuiting the warrant-issuing process.  Make no mistake,

abolishing the exclusionary rule would give executive

branch agents a license to bypass the warrant application

process and to disregard the terms of search warrants.

After collecting evidence in warrantless searches, police