No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule

47 Pages Posted: 19 Mar 2012 Last revised: 19 Apr 2012

See all articles by Tracey Maclin

Tracey Maclin

Boston University - School of Law

Jennifer Rader

affiliation not provided to SSRN

Date Written: March 19, 2012


This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of the exclusionary rule. Part I of the article provides the background for the Court’s recent suppression rulings and Kennedy’s 2006 statement. Part II then considers the substance and worth of Kennedy’s statement as it pertains to Davis v. United States and Herring v. United States, the Court’s most recent rulings on the good-faith exception to the exclusionary rule. Part III considers the meaning of Kennedy’s statement in light of the attenuation rule announced in Hudson v. Michigan, which imposed a significant restriction on suppression as a remedy to deter Fourth Amendment violations.

Keywords: Fourth Amendment, Exclusionary Rule, Roberts Court, Davis v. United States, Herring v. United States, Hudson v. Michigan

JEL Classification: K19, K39, K49

Suggested Citation

Maclin, Tracey and Rader, Jennifer, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule (March 19, 2012). Mississippi Law Journal, Vol. 81, No. 5, p. 151, 2012; Boston Univ. School of Law, Public Law Research Paper No. 12-13. Available at SSRN:

Tracey Maclin (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4888 (Phone)

Jennifer Rader

affiliation not provided to SSRN ( email )

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