Mass Suppression: Aggregation and the Fourth Amendment

57 Pages Posted: 18 Apr 2017 Last revised: 29 Jun 2017

See all articles by Nirej Sekhon

Nirej Sekhon

Georgia State University College of Law

Date Written: April 13, 2017

Abstract

The Fourth Amendment's exclusionary rule requires that criminal courts suppress evidence obtained as a result of an unconstitutional search or seizure. The Supreme Court has repeatedly stated that suppression is purely regulatory, not remedial. Its only purpose is to deter future police misconduct, not to remedy past privacy or liberty harm suffered by the defendant. Exclusion is for the benefit of those in the community who might, sometime in the future, be subject to police misconduct like that suffered by a defendant. This regulatory purpose would be most effectively realized if criminal courts had tools for identifying those instances of unconstitutional searches and seizures that are most representative of widespread police misconduct. Currently, state and local criminal courts - where the vast majority of Fourth Amendment suppression motions are litigated - decide Fourth Amendment suppression motions without the benefit of well-developed contextual information regarding local police practices. Informational bottlenecks and other design defects prevent criminal courts from systematically recording and analyzing all of the information that is available to them regarding systemic police misconduct. This Article suggests procedural and other reforms to correct these defects and allow criminal courts to achieve their full regulatory potential. For example, criminal courts might, under appropriate circumstances, aggregate different defendants' Fourth Amendment claims and grant group-based suppression. This will, in turn, incentivize public defenders to systematically identify and challenge patterns of unconstitutional police conduct.

Keywords: Fourth Amendment, Seizure, Evidence, Suppression, Exclusionary Rule, Criminal Procedure, Police Misconduct

JEL Classification: K14, K19, K39, K40, K41, K42

Suggested Citation

Sekhon, Nirej, Mass Suppression: Aggregation and the Fourth Amendment (April 13, 2017). Georgia Law Review, Vol. 51, No. 2, pp. 429-484, 2017; Georgia State University College of Law, Legal Studies Research Paper No. 2017-11. Available at SSRN: https://ssrn.com/abstract=2954058

Nirej Sekhon (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States
404-413-9166 (Phone)

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