46 Pages Posted: 2 Apr 2008
In its landmark decision of Katz v. United States, the U.S. Supreme Court reconfigured the framework in which Fourth Amendment violations are defined and analyzed by rejecting the notion of constitutionally protected areas and adapting a new emphasis on the individual expectation of privacy. In doing so, the Court extended the Amendment's previously circumscribed reach to protect people, not places. But the force of Katz's protections was, and still is, ultimately predicated on the remedy of exclusion. Unquestioned at the time of Katz, the exclusion of evidence was once a near-certain consequence of unconstitutional searches. In the forty years since Katz, however, the Court has carved out numerous exceptions to the exclusionary rule, thereby limiting both its effectiveness and its protective reach. The Court's most recent retraction of the exclusionary rule in the facially innocuous Hudson v. Michigan threatens to undermine the Katz remedy. This Article explains how Justice Antonin Scalia's 5-4 majority opinion in Hudson misstates and diverges from traditional exclusionary rule jurisprudence, and it warns of the ramifications of such divergence.
Keywords: Hudson, Katz, Mapp, Weekes, exclusionary rule, suppression, fourth amendment, attenuation, fruits, causation, inevitable, independant source, remedy, warrant, deterrence
JEL Classification: K14
Suggested Citation: Suggested Citation
Davies, Sharon L. and Scanlon, Anna B., Katz in the Age of Hudson v. Michigan: Some Thoughts on 'Suppression as a Last Resort'. UC Davis Law Review, Vol. 41, p. 1035, 2008. Available at SSRN: https://ssrn.com/abstract=1115583