The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule

30 Pages Posted: 21 Feb 2009 Last revised: 22 Mar 2009

See all articles by Wayne R. LaFave

Wayne R. LaFave

University of Illinois College of Law

Date Written: February 21, 2009

Abstract

This article presents a critical assessment of Herring v. United States, 129 S.Ct. 695 (2009), holding the Fourth Amendment exclusionary rule inapplicable whenever "the error was the result of isolated negligence attenuated from the arrest." The opinion of the Chief Justice for the majority is criticized as (1) falsely claiming that cost/benefit balancing is an established basis for selectively applying the exclusionary rule at a criminal trial because of a police violation of the Fourth Amendment; (2) falsely representing that the Court's precedents support the proposition that the exclusionary rule may be selectively applied depending upon the degree of "culpability" attending the Fourth Amendment violation; (3) asserting as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in instances of a negligent violation of the Fourth Amendment has a reduced "deterrent effect"; (4) purporting to cabin the holding by requiring that the negligence also be "attenuated," but doing so only by passing reference and without any explanation of what attenuation means in the instant or any other case or why attenuation is relevant to the critical reduced "deterrent effect" conclusion; and (5) inflicting upon trial and appellate courts new and uniquely difficult tasks to be performed in adjudicating Fourth Amendment claims.

Keywords: Fourth Amendment, exclusinary rule, search

Suggested Citation

Lafave, Wayne R., The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule (February 21, 2009). Journal of Criminal Law and Criminology, Vol. 99, No. 3, 2009, Illinois Public Law Research Paper No. 08-18, Available at SSRN: https://ssrn.com/abstract=1347310

Wayne R. Lafave (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
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