Friday, April 1, 2011
This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts excuse what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for actual yet more serious offenses (usually relating to guns or drugs). The Article surveys the important rule of law, separation of powers, and legislative accountability reasons supporting continued judicial adherence to the historic no-excuse position. In so doing it illuminates the central role that police play as interpreters - not merely enforcers- of the law, a role to date ignored by courts and commentators.