Search, Seizure and (False?) Arrest: An Analysis of Fourth Amendment Remedies When Police Can Plant Evidence

Forthcoming in in Matthew Baker and Thomas Miceli (eds.) "Research Handbook on Economic Models of Law," Edward Elgar Publishing, 2012

Illinois Public Law Research Paper No. 13-28

Posted: 6 Dec 2012 Last revised: 16 Jan 2013

See all articles by Dhammika Dharmapala

Dhammika Dharmapala

University of Chicago Law School

Thomas J. Miceli

University of Connecticut - Department of Economics

Multiple version iconThere are 2 versions of this paper

Date Written: December 5, 2012

Abstract

The Fourth Amendment prohibits unreasonable searches and seizures in criminal investigations. The Supreme Court has interpreted this to require that police obtain a warrant prior to search and that illegally seized evidence be excluded from trial. A consensus has developed in the law and economics literature that tort liability for police officers would be a superior means of deterring unreasonable searches. We argue that this conclusion depends on the assumption of truth-seeking police, and develop a game-theoretic model to compare the two remedies when some police officers (“bad” types) are willing to plant evidence in order to obtain convictions, while other police (“good” types) are not (where this type is private information). We characterize the perfect Bayesian equilibria of the asymmetric-information game between the police and a court that seeks to minimize error costs in deciding whether to convict or acquit suspects. In this framework, we show that the exclusionary rule with a warrant requirement leads to superior outcomes (relative to tort liability) in terms of the truth-finding function of courts, because the warrant requirement can reduce the scope for “bad” types of police to plant evidence.

Keywords: exclusionary rule, Fourth Amendment, search and seizure

JEL Classification: K14, K42

Suggested Citation

Dharmapala, Dhammika and Miceli, Thomas J., Search, Seizure and (False?) Arrest: An Analysis of Fourth Amendment Remedies When Police Can Plant Evidence (December 5, 2012). Forthcoming in in Matthew Baker and Thomas Miceli (eds.) "Research Handbook on Economic Models of Law," Edward Elgar Publishing, 2012; Illinois Public Law Research Paper No. 13-28. Available at SSRN: https://ssrn.com/abstract=2185714

Dhammika Dharmapala (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Thomas J. Miceli

University of Connecticut - Department of Economics ( email )

365 Fairfield Way, U-1063
Storrs, CT 06269-1063
United States
860-486-5810 (Phone)
860-486-4463 (Fax)

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