The Erosion of the Exclusionary Rule

In 2007, in Greenville, Alabama police stopped Stella Owens and Willie Davis.  Ms. Owens was thereafter arrested for DWI and Mr. Davis for giving a fake name to the police.  They were both put in the back of the squad car.  The police then search the car Owens and Davis had been driving.  They found a revolver in Davis’ jacket…another criminal charge.  Davis v. United States

At the time of the search of the vehicle incident to arrest, the police complied with the then existing law – authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants.  However, while Davis’ case was pending on appeal, the Supreme Court decided Arizona v. Gant, 556 U.S. __ (2009), and overruled the longstanding "search incident to arrest rule" in favor of a rule that allows a search of only (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.  The search in Davis, therefore, turned out to be unconstitutional under the Court's rule in Gant.

To discuss all of the cases contributing to the recent erosion of the exclusionary rule is an academic paper rather than a post on a blog.  However, the Court’s opinion in Davis is the most recent contributing factor to its all but certain demise.  The current Court held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule regardless of any Fourth Amendment violation. 

According to the current Court, the sole purpose of the exclusionary rule is to deter Fourth Amendment violations.  Never mind that previous Courts have adopted a more expansive view of the exclusionary rule and held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”  Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568–569 (1971).

Laws are passed every session that are applied retroactively.  Sex offender registration laws come to mind first.  Why not allow the exclusionary rule, a bedrock of our constitutional jurisprudence, to be applied retroactively, too, just to even things out?  If nothing else, the silver lining this case stands for is that police will have to be keenly aware of current Fourth Amendment law and conform their conduct to the same.