Causal Relevance in the Law of Search and Seizure

62 Pages Posted: 26 May 2010

See all articles by Eric Alan Johnson

Eric Alan Johnson

University of Illinois College of Law

Date Written: February 1, 2008

Abstract

In Hudson v. Michigan, 126 S.Ct. 2159 (2006), the Supreme Court held that that the police officers’ violation of the Fourth Amendment’s knock-and-announce requirement did not trigger the exclusionary rule. One of several bases for this holding was the Court’s conclusion that the evidence seized from Hudson’s residence did not flow from an infringement of the “interests” that the knock-and-announce requirement is designed to protect. The Court had relied on similar reasoning once before, in New York v. Harris, 495 U.S. 14 (1990). But in neither Hudson nor Harris did the Court clearly say what role these “interests” play in the fruits analysis. In this paper, I try to make sense of this aspect of Hudson and Harris. I argue, first, that the rule applied in Hudson and Harris is identical in substance to a rule that traditionally has been applied as a limitation on tort and criminal liability. Then I argue that, for two reasons, this “risk rule” is not a suitable limitation on the exclusionary rule. First, application of the risk rule to Fourth Amendment cases would make the exclusionary rule inapplicable to cases that have long been thought to fall at its core. Second, application of the risk rule to Fourth Amendment cases could only be based on a misperception of the role played by causation in the law of search and seizure.

Keywords: Fourth Amendment, exclusionary rule, causation

JEL Classification: K14

Suggested Citation

Johnson, Eric Alan, Causal Relevance in the Law of Search and Seizure (February 1, 2008). Boston University Law Review, Vol. 88, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1616294

Eric Alan Johnson (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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