MF, commenting on post 51, asks: "So what is your alternative to the exclusionary rule??" The assumption is that the fourth amendment exclusionary rule does something. If it were eliminated, what would take its place?
To answer that, we first need to figure out what the fourth amendment exclusionary rule does. (Later posts will deal with the much different question of what it's intended to do.)
One of the most important things it does is illustrated by the truly spectacular flame-out of northern Missouri Judge Jeffrey D. Sayre. The Kirksville (Mo.) Daily Express reported that Sayre, who become a county judge at age 33, was assigned the drug prosecution of William Lance May. That's when things got interesting:
May hired a Columbia, Mo., attorney to represent him. The indictment alleges that Sayre offered to take care of May's case for less money, and in April Sayre told an intermediary that he would take care of the case for $10,000.
On April 19, 2002, the indictment alleges, Sayre met with May at the Brookfield, Mo., home of an intermediary. May placed $10,000 in cash on the bathroom sink. Sayre later walked into the bathroom and retrieved the money, the indictment stated. May then hired a less expensive attorney for $3,500.
May encouraged his new lawyer to file a motion to suppress evidence, explaining that "he was certain Sayre would rule in his favor." As indeed Sayre did.
It must have been a rude shock to Judge Sayre to learn that the ungrateful May was talking to the FBI. Still, there's a good argument to be made that the judge overreacted when he located a hit man and made arrangements to have May murdered. As always in such conspiracies that make the papers, the "hit man" was an undercover officer. (Here's the anticlimactic ending to Judge Sayre's public story.)
The whole sordid mess was made possible by the fourth amendment exclusionary rule. Motions to suppress evidence are almost universal in drug cases and common in every other type of case. Deciding motions to suppress is a significant part of what a criminal court judge does to fill the day. In my experience, about half of all motions to suppress could go either way. A judge could, with roughly equal plausibility, either grant or deny the motion. That means the judge - such as, for instance, Judge Sayre - can pretty much do whatever he or she wants to do. (In the other half of the cases, the judge can still do what he or she wants, but the risk of reversal on appeal rises.)
One reason for this unpredictability is the sheer, lunatic complexity of fourth amendment law. The amendment is 54 words long, but the leading treatise interpreting it fills six fat volumes. The use of the medieval word "treatise" to describe this type of learning is telling, because what's known as "fourth amendment jurisprudence" is a mass of hairsplitting commentary on the sacred text.
To determine whether an officer's response to a perceived emergency is "reasonable" and therefore constitutional, lawyers and judges have to work their way through a mental flow chart so enormously long that it would require the side of a large barn to represent it graphically. Picture a cop in his patrol car at night, turning on his dome light to leaf through the six volumes, trying to determine if the situation illuminated by his car's (I mean, unit's) revolving red light (I mean, its emergency equipment) is sufficiently dire to qualify as an exigent circumstance, and you'll know all you really need to know about fourth amendment law.
A judge ruling on the constitutionality of a search or seizure doesn't make one decision but many, giving yes or no answers to the endlessly-unfolding string of subsidiary questions. All a judge on the take has to do is change a "no" to a "yes", or vice versa, and the paid-for result is achieved. And, in about half the cases, there's really no argument to be made that the decision should be reversed on appeal.
Combine that abundance of opportunities to hide a corrupt ruling with the amount of money sloshing around in the drug trade. The temptation is there. Now consider the roughly 30,000 state court judges and 1275 sitting federal judges. Imagine that 99% of them are pure as the driven snow. That leaves 313 who, like Mae West, have drifted.
So that's one thing the fourth amendment exclusionary rule does. It invites corruption into the judicial system. In response to MF, any alternative should differ from the current situation in this way: it should produce predictable results, so that the lawyers can know where they stand before the case is filed, and so corrupt rulings will flag themselves by their obvious unreasonableness. (Future posts will discuss other things the fourth amendment exclusionary rule does.)