The anachronistic exclusionary rule
Many have noted the role of America’s original sin of slavery, and the sad legacy of racism that survived Appomattox, in explaining what appears to be uniquely abusive treatment of black men by police. Another part of our history — Prohibition — explains why the law has failed to adequately address our recurring problem with excessive force.
Prohibition led to outrage over frequent police searches for liquor. Major newspapers in the 1920s reported the sometimes violent accounts and described search and seizure law with the depth one would expect in a legal treatise. Courts in about half of the states began to exclude the fruits of illegal searches. If officers in these jurisdictions wanted to ensure that their cases would result in convictions, they were required to abide by the limits courts imposed on their power to search.
Soon after Prohibition ended in 1933, however, concerns about search and seizure dropped from national headlines and a new concern about police began to emerge. By the end of the 1950s, police brutality, especially against those living in minority communities in major cities, became the focal concern of civil libertarians.
At this pivotal moment in American police history, the U.S. Supreme Court agreed to hear Dollree Mapp’s claim that she had a First Amendment right to possess pornography seized in a warrantless search of her Ohio home. The case came to redefine how police were regulated in the United States.
The decision had nothing to do with her claimed constitutional right to forbidden printed materials. Instead the court held that Ohio could not use any evidence discovered in a warrantless search of Ms. Mapp’s home.
The decision in Mapp v. Ohio, in 1961, extended the Prohibition era’s exclusionary rule to the states that had not adopted it.
The timing of the decision was peculiar. There was no widespread concern about illegal searches following Prohibition.
Concerns about police brutality, that the Mapp decision does nothing to address, were however about to grip the nation. Within five years, the Watts community in Los Angeles would go up in flames with 34 souls losing their lives and property damage exceeding $400 million, the worst riots in L.A.’s history until the beating of Rodney King.
During this turbulent period, Cleveland, Detroit and Newark all experienced serious rioting. The Black Panther Party was formed in Oakland to protect citizens from government, by force if necessary.
Clouds of this coming storm were gathering when the Supreme Court decided Mapp. The court’s opinion spent more time discussing officers’ manhandling of Ms. Mapp than it did the warrantless search of her home.
Mapp’s exclusionary rule nevertheless demonstrated the role judges could play in defining and thus preventing police violence. A court must, if requested by the defendant, rule on the legitimacy of the methods by which officers obtain every piece of evidence in a trial.
A judge is never called upon to evaluate the arresting officer’s use of force in a criminal case. Courts only consider such issues when the victim of excessive force files a lawsuit. Very complex rules, designed to limit municipal liability, allow these plaintiffs to recover only where officers violated clearly established rules.
The substantial hurdle to success thus discourages many from bringing suit. For the claims that are filed, judicial rulings only identify those acts of force that are so egregious as to be clear violations of the law. By contrast, a judge considering the admissibility of cocaine found in a trunk must always decide whether the seizure was illegal, not whether it was clearly illegal.
Our process of criminal procedure produces a rich body of linedrawing decisions that assists officers, and police academies, in understanding the limits of their powers to search. No similar mechanism provides guidance on the use of lethal force.
This is backwards and fixable. At no point since Prohibition has police violence been regarded as less troubling than improper searches. Mapp’s anachronistic decision, and missed opportunity, needs to be revisited.
The exclusionary rule should be replaced with an injunction prohibiting all police from violating the Constitution’s prohibition on unreasonable searches and seizures. Officers could then be held in contempt for illegal searches as well as unlawful uses of force. The limits on the use of force by police would then be more easily established, the threat of sanction would still deter illegal searches and criminals would not go free because constables blunder.