Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play

23 Pages Posted: 13 Oct 2009 Last revised: 16 Mar 2010

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law

Date Written: October 13, 2009


The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court’s rulings have made clear, any reevaluation of the exclusionary rule’s future will be conducted under the now familiar rubric of whether the rule’s “benefit” of deterring police misbehavior outweighs the “cost” of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the Court must take into account something overlooked in evaluations of the past: the benefits of a suppression hearing itself. The hearing acts much like a morality play for those involved in the nitty gritty of law enforcement – police, judges, prosecutors, and defense attorneys – by instructing everyone involved both as to the Fourth Amendment’s rules and why those rules are of a constitutional magnitude mandating honor and respect. And because the exclusionary rule reaches a wide variety of police behavior – unlike civil suits and disciplinary proceedings which reach only the most egregious instances of misbehavior – the suppression hearing becomes an invaluable public forum for providing transparency and promoting police compliance with the Fourth Amendment. In short, the suppression hearing is the exclusionary rule’s unsung hero, and in the end offers the Court a means to find the truest measure of the exclusionary rule’s costs and benefits.

Keywords: Procedure, Criminal Law, Rights and Liberties, Criminal Procedure, Corrections and Sentencing Law and Policy

JEL Classification: K14, K42

Suggested Citation

Sundby, Scott E., Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play (October 13, 2009). Washington & Lee Legal Studies Paper No. 2009-09. Available at SSRN: or

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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