CrimProf Blog

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

Thursday, October 22, 2020

Banteka on Fourth Amendment Exclusion

Nadia Banteka (Villanova University - School of Law) has posted Reasonable Fourth Amendment Exclusion on SSRN. Here is the abstract:
The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it to decide defendants’ motions to suppress evidence obtained through Fourth Amendment violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that, even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was lawful. Judges and commentators sharply disagree about whether and which police mistakes of law are, in fact, reasonable so as to deny the application of the exclusionary rule remedy. They also disagree on the nature and scope of the reasonableness standard, and its impact on the very existence of the exclusionary rule as a remedy against police misconduct.

This Article offers a new theory of Fourth Amendment exclusion based on a “single reasonableness” standard, which promises to solve many of the doctrine's longstanding puzzles.
There is widespread consensus that Fourth Amendment exclusion determines the application of the remedy of evidence suppression to acknowledged violations of Fourth Amendment rights. But Fourth Amendment exclusion is in fact better understood as an inquiry into the substance of Fourth Amendment rights and not into the application of the remedy. By collapsing the inquiry for evidence suppression into the one assessing the constitutionality of police conduct, courts can resolve one constitutional question with consequent remedial outcomes under one and the same reasonableness standard.

This approach can help solve the doctrine’s vexing problems. It resolves the two conflicting standards of Fourth Amendment reasonableness and establishes a more orderly understanding of the relationship between Fourth Amendment rights and remedies that makes it harder for courts to covertly undermine constitutional values. It also tethers deterrence of police misconduct to the constitutional right and provides useful guidance for how courts should conduct Fourth Amendment exclusion analysis moving forward. Courts will no longer be able to declare broadly that the police have violated the Fourth Amendment while in the same breath undercutting the value of remedying this violation based on two different standards on what constitutes one reasonable police officer.

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