Reconceiving the Fourth Amendment and the Exclusionary Rule

29 Pages Posted: 24 Jan 2010 Last revised: 3 Jul 2013

Craig Bradley

Indiana University Maurer School of Law

Date Written: 2010

Abstract

In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in it's stated holding, suggested that it was only reducing the rule's force in a minor way. This article reconceives the exclusionary rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court's past approach, or it's proposal in Herring, is to exclude evidence only when there is a violation of the Court's Fourth Amendment rules and that violation is "unreasonable" or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the rule while maintaining it as an effective deterrence to police misconduct.

Keywords: Criminal Procedure, Fourth Amendment, Exclusionary Rule

Suggested Citation

Bradley, Craig, Reconceiving the Fourth Amendment and the Exclusionary Rule (2010). Law and Contemporary Problems, Vol. 73, p. 211, 2010; Indiana Legal Studies Research Paper No. 143. Available at SSRN: https://ssrn.com/abstract=1540686

Craig Bradley (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Paper statistics

Downloads
190
Rank
129,877
Abstract Views
1,005