Thursday, April 5, 2012
Tracey Maclin and Jennifer Marie Rader (Boston University - School of Law and affiliation not provided to SSRN) have posted No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule (Mississippi Law Journal, Vol. 81, No. 5, p. 151, 2012) on SSRN. Here is the abstract:
This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of the exclusionary rule. Part I of the article provides the background for the Court’s recent suppression rulings and Kennedy’s 2006 statement. Part II then considers the substance and worth of Kennedy’s statement as it pertains to Davis v. United States and Herring v. United States, the Court’s most recent rulings on the good-faith exception to the exclusionary rule. Part III considers the meaning of Kennedy’s statement in light of the attenuation rule announced in Hudson v. Michigan, which imposed a significant restriction on suppression as a remedy to deter Fourth Amendment violations.