CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, October 2, 2017

Walsh & Sullivan on the Exclusionary Rule and Domestic Military Action

Patrick Walsh and Paul Sullivan (U.S. Army Judge Advocate General's Legal Center and School and Government of the United States of America - Federal Law Enforcement Training Center) have posted The Posse Comitatus Act and the Fourth Amendment’s Exclusionary Rule on SSRN. Here is the abstract:
The United States continually calls upon the U.S. military to deploy inside the United States to respond to disasters, to protect citizens in times of war, and even to perform acts of law enforcement during civil unrest. At the same time, Americans have a long standing and inherent distrust of the use of the military on U.S. soil, particularly for law enforcement activities. These two competing interests: to use the military in times of need but restrict its domestic use for law enforcement, has created a mix of court cases that apply different tests to determine when the military has exceeded its legal authority to operate inside the United States. 

The court’s primary tool for restricting the use of the military as domestic law enforcement is to use the Fourth Amendment exclusionary rule to suppress evidence gathered in violation of the restrictions on the domestic use of the military.
Recently, the Supreme Court has reevaluated and restricted the application of the exclusionary rule. The Court has emphasized that the exclusionary rule should be judiciously applied to suppress evidence of criminal activity. Courts need to follow this new trend and recognize that the exclusionary rule should not be used to suppress evidence derived from the domestic use of the military.

This paper will examine the use of the military inside the United States and the recent restrictions on applying the exclusionary rule to deter government violations of law, providing insight to each of them by exploring where they intersect, in the courts when criminal defendants seek the application of the exclusionary rule to exclude evidence gathered while the military was engaged in an impermissible act of law enforcement. Examining recent military operations inside the United States and looking at the recent development of the exclusionary rule, there is a clear answer. The Fourth Amendment’s exclusionary rule is misused when courts apply it to the military’s domestic law enforcement activity.

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