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Red Herring or the death of the exclusionary rule?

Article Excerpt
Most readers will be surprised to learn that criminal procedure did not exist in law schools as a discrete subject with its own casebook before the 1960s. Beginning in that decade, the Supreme Court set out most of the fundamental rules of modern criminal procedure in a series of decisions beginning with Mapp v. Ohio. (1) That case held that the exclusionary rule, established by Weeks v. United States (2) nearly half a century earlier, applied to the states.

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After Mapp, the Court realized that, if evidence was to be excluded for violation of the Fourth Amendment, it had better make it clear just what the Fourth Amendment, as well as the Fifth and Sixth Amendments, required. With the publication in 1965 of the first edition of Livingston Hall and Yale Kamisar's Modern Criminal Procedure, Crim Pro became a law school staple.

This term, in Herring v. United States, the Supreme Court inched closer to destroying the constitutional protection of the exclusionary rule set out in Mapp. The Court stopped short of doing so in its narrow holding, apparently influenced by Justice Anthony Kennedy's reluctance to take the final, fateful step toward abolishing that protection. (3)

Mapp comprises two essential holdings. The first is that the exclusionary rule, providing that evidence must be excluded if obtained through a violation of a suspect's Fourth Amendment rights, applies to actions taken by state and local, not just federal, law enforcement officials. This part of Mapp is not in question. It is Mapp's second holding that is under attack: that "all evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in ... court." (4)

For the last 37 years since the Republicans gained control of the Supreme Court in 1972, the Court has been chipping away at this mandatory exclusionary rule, gradually expanding the number and kinds of cases in which evidence will not be excluded, despite the constitutional violation.

In Herring, a police investigator saw the defendant, Bennie Herring, near the Coffee County, Alabama, sheriff's office. Suspecting that Herring was wanted for something, the investigator asked the county's warrant clerk if any warrants...