Wednesday, July 27, 2011

Fairness versus Utility and the Fourth Amendment Exclusionary Rule

By Sherry F. Colb

In my column this week, I discuss the U.S. Supreme Court's decision in Davis v. United States, which held that if police conduct a search that is authorized under existing appellate precedent interpreting the Fourth Amendment, then the evidence that results from that search is admissible at trial, even if the High Court announces (after the search but before the conviction becomes final) that such searches actually violate the Fourth Amendment.  The Court takes the position that the exclusionary rule, under which a judge keeps illegally obtained evidence from the jury's consideration at trial, is a costly way of inducing police to comply with the Fourth Amendment.  Suppression ought therefore to be limited to cases where it will most effectively deter Fourth Amendment violations -- cases in which police have behaved culpably (i.e., deliberately, recklessly, or with gross negligence) in performing a search or seizure.  In my column I discuss the changing face of the exclusionary rule over the last century, and I challenge the Supreme Court's conclusion that effective deterrence requires police culpability.  The Court, I argue, confuses fairness (of punishing only those who do something culpable) with deterrent value.

In this post, I want to discuss the difficulty we have, on both sides of the aisle, in ignoring concepts of "fairness" when it comes to the exclusionary rule.  Quite apart from the Court's desire to limit exclusion to cases in which police deserve to have their efforts undermined and frustrated, it is common to think about the suppression of evidence in terms of what everyone deserves.

For opponents of the exclusionary rule (and for some supporters as well), it is clear that a person who commits a criminal act deserves to be punished.  The fact that police search the criminal's home without probable cause or without a warrant, moreover, does nothing to diminish this desert.  Say, for example, John Doe murders his wife.  By coincidence, then, police decide to search John Doe's home, without probable cause, because they smell donuts when they walk by and they feel an overwhelming craving for them.  They break into the house to look for donuts, in other words, and instead find the body of John's murdered wife.  The behavior of the police in this case was totally inappropriate.  They were searching a person's home to find donuts to steal.  Yet John Doe nonetheless deserves punishment for murder, just as much as he would deserve it if the police had received a call from a reliable informant and sought a warrant to look for the body that they found.  If John Doe escapes punishment because the police lacked probable cause, most people outside the A.C.L.U. will find this result unfair, to society, to the victim's family, and to justice itself, which requires that people pay for their crimes.

For strong defenders of the exclusionary rule, the introduction at trial of evidence obtained in violation of the Fourth Amendment is itself unfair.  By benefiting from evidence taken illegally, the police (and everyone represented by the State in wanting John Doe punished) unfairly benefits from having violated the Constitution.  John Doe, moreover, suffers the unfairness of landing in prison (or death row) only because the police violated his Fourth Amendment right to security against unreasonable searches.  Like a million-dollar lottery winner who stole his winning ticket, the government is cashing in on its own  unlawful conduct, thereby adding insult to injury.

A cooler-headed assessment of fairness suggests that once police perform an unreasonable search and seizure that turns up reliable incriminating evidence, it becomes impossible to achieve fairness for all parties.  Suppression unfairly protects someone who deserves to be punished, while introduction unfairly exploits a constitutional violation to yield benefits that would otherwise have eluded the violator.  And those who debate about the exclusionary rule have a difficult time avoiding the issue of fairness, even when they seem to be talking about something else (such as the marginal deterrent value of exclusion).  This reality suggests that most people would have an easier time if we were able to deter Fourth Amendment violations without suppressing evidence of wrongdoing, when the perpetrators of wrongdoing (whether the criminals or the police) are less salient and our appetite for just desserts less intense.  Utilizing the exclusionary rule to bring about an optimally efficient state of affairs seems inevitably to clash with the intuition that justice and fairness to the individual actors at issue are more important than the utility maximization that the exclusionary rule is currently tasked with achieving.