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Opting for a Legislative Alternative to the Fourth Amendment Exclusionary Rule


Samuel Estreicher


New York University Law School

Daniel P. Weick


New York University School of Law; Kaye Scholer LLP

April 24, 2010

UMKC Law Review, Vol. 98. p. 949, 2010
NYU School of Law, Public Law Research Paper No. 10-03

Abstract:     
Our proposal for an alternative to the exclusionary rule differs from others in that while damages actions play an important role, it proposes a regulated experiment - crafted and enacted into law by Congress pursuant to its Section 5 power to enforce the Fourteenth Amendment - whereby federal, state and local law enforcement agencies can operate free of the exclusionary rule if they develop internal mechanisms to deter police misconduct. The central focus would be on developing systematic police compliance with the Fourteenth Amendment rather than addressing individual violations.

To help frame the discussion, consider the following formulation of our proposal: Application for Review and Certification of Effectiveness of Alternative Remedial System for Fourth Amendment Violations (a) The Department of Justice (Department) is authorized to review and certify applications by federal and state law enforcement agencies (Agency) seeking a declaration that the Agency has adopted and is able to implement an effective system for deterring and remedying Fourth Amendment violations committed by its personnel or those acting on its behalf. (b) A certification authorized by Subsection (a) shall issue only if the Department determines that the Agency (1) has or will (upon certification) put in place (i) a regularly updated, publicly accessible registry of all searches and seizures by the Agency, including all search, seizure and arrest warrants issued at its behest, and all complaints from members of the public and Agency actions taken in response to those complaints; (ii) quality and conduct standards for Agency personnel, including annual training requirements and a discipline schedule for repeated Fourth Amendment violations (up to and including termination of employment); and (iii) an ombudsman’s office to review complaints from members of the public and to monitor compliance with this Subsection; and (2) has provided for a legally effective compensation system, waiving all sovereign and official immunity, enabling victims of Fourth Amendment violations by the Agency to bring an individual or class action suit for appropriate injunctive relief and special damages (on a schedule approved by the Department) against the Agency. (c) Any certification authorized by Subsection (a) will have effect for one year only, subject to an annual renewal process as authorized by Department regulations. (d) A certification authorized by Subsection (a) reflects the Department’s considered determination that in light of the Agency’s system for deterring and remedying Fourth Amendment violations, it is not necessary for any court within the United States to exclude any evidence because it has been obtained by the Agency in violation of the Fourth Amendment. A certification authorized by Subsection (a) shall be reviewable in the ordinary course by a court of appropriate jurisdiction.

The program would be entirely voluntary, open to federal, state or local law enforcement agencies interested in operating free of the exclusionary rule. Congress would authorize the Department of Justice to craft standards for evaluating training and disciplinary regimes for certification. Participating law enforcement agencies (which in an appropriate case could include an entire state) would be required to submit training and discipline policies consistent with the Department’s requirements. In order to provide information necessary to meaningful monitoring of the agency’s compliance, participating agencies would have to maintain a periodically updated, publicly accessible registry of all searches and seizures conducted by the agency’s personnel, including warrants issued at the agency’s behest, and complaints received from the public. In addition, participating agencies would have to provide for a schedule of substantial damages for Fourth Amendment violations sufficient to create a financial incentive to bring 42 U.S.C. & 1983 actions against jurisdictions whose law enforcement agencies regularly and systematically violate the Fourth Amendment, and also sufficient to provide compensation for dignitary harms visited on victims of Fourth Amendment violations, whether or not they have been charged with crimes. Certifications would be annually renewed and subject to judicial review in the ordinary course.

Presumably, victims of unlawful searches would still try to initiate a suppression hearing and whether they succeed would depend on judicial acceptance of the certification as reflecting an effective alternative to the exclusionary rule. States which decline to participate or which do not develop adequate training and enforcement plans would continue to be bound by the Fourth Amendment exclusionary rule.

Number of Pages in PDF File: 19

Keywords: exclusionary rule, fourth amendment, constitutional law, constitutional tort, deterrence

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Date posted: January 18, 2010 ; Last revised: April 28, 2010

Suggested Citation

Estreicher, Samuel and Weick, Daniel P., Opting for a Legislative Alternative to the Fourth Amendment Exclusionary Rule (April 24, 2010). UMKC Law Review, Vol. 98. p. 949, 2010; NYU School of Law, Public Law Research Paper No. 10-03. Available at SSRN: http://ssrn.com/abstract=1537902

Contact Information

Samuel Estreicher (Contact Author)
New York University Law School ( email )
40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6226 (Phone)
(212) 995-4341 (Fax)
Daniel P. Weick
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Kaye Scholer LLP ( email )
New York, NY
United States
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