Should The Exclusionary Rule Be Abolished Essay

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Should the Exclusionary Rule be Abolished? Since the introduction of the exclusionary rule, many debates have raged about whether or not it should be in place in our justice system. The exclusionary rule was set in place to protect citizens’ Fourth Amendment rights against illegal searches and seizures. As a result of the induction of this rule, law enforcement throughout the country has been affected and changed. Personally, I do not believe that the exclusionary rule should not be excluded from the criminal justice system because constitutional rights need to be upheld.

I also feel that the rule acts as a check and balance system for officers in law enforcement. However, there are a couple recommendations that I have on how to tweak the exclusionary rule to minimize the amount of criminals that are set free because they use the rule as a technicality in court proceedings. I feel that the exclusionary rule is a work in progress and it needs to be altered as often as criminals and technology change in order to keep its effectiveness. In 1914, the Supreme Court case of Weeks vs.

United States established that illegally seizing items from a private residence was in violation of the Fourth Amendment of the Constitution. This case also established the exclusionary rule in which the admission of illegally obtained evidence into federal court proceedings was illegal. However, at this time, this rule did not apply to individual state’s court proceedings. This lasted until the case of Mapp vs. Ohio reached the Supreme Court in 1961. In this case, the Supreme Court ruled that the exclusionary rule applied to not only federal criminal prosecutions, but to state prosecutions as well.

This decision brought about great changes for police and criminal procedure throughout the country. The Supreme Court case of Mapp vs. Ohio (1961) changed the way that law enforcement officers were legally allowed to obtain evidence for criminal prosecutions. Before this landmark case, police officers were very lax on the issue of illegal searches and seizures. Only the federal government and a handful of individual states had rules against illegally obtaining evidence.

For example, in 1955, Chief Justice Roger Traynor stated that “without fear of criminal punishment or other discipline, [California] law enforcement officers…casually regard [illegal searches and seizures] as nothing more than the performance of their ordinary duties for which the city employs and pays them. ”(Kamisar, 2004) After the conclusion of Mapp vs. Ohio, this way of thinking was forced from law enforcement officers’ minds upon the threat that criminals were now able to be set free if evidence was not obtained legally.

Police procedure, when it concerned search warrants and probable cause, changed drastically in order to ensure that evidence would not be thrown out of court proceedings because of the exclusionary rule. Police officers had to have and present a valid reason of suspicion in order to obtain a search warrant. Police officers also had to realize that any search that was illegal was fruitless from the start. However, the issue on whether the exclusionary rule should really apply has been debated because of the fact that police officers still make mistakes.

I feel that the exclusionary rule was set in place for a valid reason. The constitutional rights of the citizens of this country are protected by the exclusionary rule. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Wikipedia, 2007) is the specific right that the Fourth Amendment provides for the citizens of this country.

If the exclusionary rule were not in place, the Fourth Amendment would not be followed in police procedure, especially with the tendency of police in this time to lean towards crime control rather than due process and civil rights. Another reason I feel that the exclusionary rule should stay set in place is because the rule acts as a check and balance between law enforcement and the court system.

Any time a police officer (an executive branch of the government) tries to disregard the need for a search warrant or tries to bypass the issuing process altogether, the court system (the judicial branch of government) can check that inappropriate behavior. The best way for the court to do this is through the exclusionary rule and throwing out illegally seized evidence. Although I feel that the exclusionary rule is beneficial, I do have a couple suggestions on how to tweak the rule to promote a better system.

One suggestion I have on how to alter the exclusionary rule is to have the Supreme Court define what an unreasonable search is. I feel this would prevent many criminals that should be prosecuted from slipping through the cracks. “One recent study estimated that 150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution. (Meese, 2007) If the exclusionary rule is truly supposed to protect against Fourth Amendment violations, then it should only apply to unreasonable searches. For example, if a case is brought to the Supreme Court and is in jeopardy of being thrown out because evidence that was obtained was not obtained within the time frame that the search warrant stated, the issue brought before the Court should be whether the search was unreasonable (police had enough evidence or the accused has a criminal history) and not whether it was unconstitutional.

Another recommendations to alter the exclusionary rule is an idea that President Bush set forth in Section 213 of the Patriot Act. This recommendation is in regards to “what legal scholars call the sneak and peek warrant (also dubbed the covert entry warrant or the surreptitious entry warrant)” (Wilkes, 2006). A sneak and peek warrant would allow officers to enter a residence (primarily when the resident/s are not home) just to investigate the area for clues about criminal activity and without confiscating any items from the premises.

http://moritzlaw.osu.edu/students/groups/osjcl/issues-and-articles/

http://en. wikipedia. org/wiki/

http://www.hoover.org/publications/policy-review

http://www.law.uga.edu/profile/mehrsa-baradaran

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