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The Rule Lets Criminals Off "Scot-Free"

This objection confuses the exclusionary rule with the

substantive legal safeguards that are set forth in the

Fourth Amendment.  Justice Potter Stewart exposed the

faulty reasoning underlying the objection in 1983:

Much of the criticism leveled at the exclusionary

rule is misdirected; it is more properly directed

at the fourth amendment itself.  It is true

that, as many observers have charged, the effect

of the rule is to deprive the courts of extreme-

ly relevant, often direct evidence of the guilt

of the defendant.  But these same critics some-

times fail to acknowledge that, in many

instances, the same extremely relevant evidence

would not have been obtained had the police

officer complied with the commands of the fourth

amendment in the first place. . . . The

inevitable result of the Constitution's prohibi-

tion against unreasonable searches and seizures

and its requirement that no warrant shall issue

but upon probable cause is that police officers

who obey its strictures will catch fewer crimi-

nals.  That is not a political outcome impressed

upon an unwilling citizenry by unbeknighted

judges.  It is the price the framers anticipated

and were willing to pay to ensure the sanctity

of the person, the home, and property against

unrestrained governmental power.86

If critics of the exclusionary rule are not willing to

"pay the price" that will inevitably accompany governmental

respect for the Fourth Amendment, they should try to per-

suade the citizenry to amend the Constitution in accor-

dance with the procedures outlined in Article V of that

charter.

The Rule Undermines the "Truth-Seeking" Function of the

Criminal Justice System

This objection has surface appeal, but close scrutiny

will reveal a fatal misstep.  It is important to recognize

that the purpose of the Constitution and the Bill of

Rights is not simply to authorize and empower government

but to limit it as well.  Yes, the criminal justice system

searches for the truth, but not by just any means.  This

objection blurs the difference between the police officers

of a free society and those of a police state.