It is widely agreed that at common law, the primary way of enforcing search and seizure rules was through civil trespass suits. There were no professional police in those days, but agents of the King could get a warrant permitting them to lawfully search a home for a warrant. If an agent of the King broke into your house and searched it without a valid warrant, your remedy was to sue the agents for trespass into your home. A valid warrant provided a defense against the trespass suit: It authorized the entry. On the other hand, an agent of the King who entered without a valid warrant was not officially acting as an agent of the King He was just a private person who was a trespasser, and therefore could be subject to a trespass suit. As a result, at common law, the remedies for illegal search and seizure were enforced by civil trespass suits. The Fourth Amendment then embraced this common law heritage.
That's the usual history. Critics of the exclusionary rule generally rely on this history to say that the U.S. Supreme Court invented the exclusionary rule out of thin air. The exclusionary remedy is not found or hinted at in the common law trespass cases, the argument runs, and it does not appear in the Constitution itself.
I'm less sure of that. I tend to think there's actually a reasonable originalist basis for a modest form of the exclusionary rule — and that the modest form helps explain the rule's origins.
To see why, we need to understand that the Fourth Amendment protects against two distinct things: searches, like entry into a home, and seizures, such as the taking away of a person's property. In early Fourth Amendment law — and at least as I understand it, at common law, as well, although I am less sure of that — a seizure was permitted if and only if the government had a superior property interest in the item seized. The notion was that the government's power to search and seize was premised on a superior property interest in items a person possessed. Thus, the government could get a warrant to search a home for stolen property or contraband — items that the person did not and could not legally own — but the government could not get a warrant to search for and seize mere evidence of crime. Mere evidence could not be seized because a person's property is still their property. The government only had a right to take that which a person had no right to retain. See generally Warden v. Hayden (discussing this history).
Why does this matter? Well, I think it explains the origin of the exclusionary rule. If the government can only obtain a warrant to search for and seize property if it has a superior property interest in the item seized, then a proper remedy for a Fourth Amendment violation is the return of property unlawfully seized. And a return of property from the government to the defendant keeps the government from having it in a way it can use in court.
Thats' just what happened in Weeks v. United States, 232 U.S. 383 (1914), the case that is generally understood as having introduced the exclusionary rule. The police in Weeks broke into Weeks's home without a warrant and took his papers away. Although the timing of events isn't exactly clear, Weeks was charged with a crime based on the papers and he filed suit seeking return of the papers on the ground that the government had no right to possess them. That is, Weeks wasn't seeking "suppression" of the evidence: He was seeking a return of his stuff that the government had unlawfully stolen from him. The trick was that by getting the property back, Weeks could keep it away from the government: The government needed to possess the property to move for its admission in court.
It seems to me that for an originalist judge, letting Weeks have his property back doesn't require any judicial rulemaking or living constitutionalism. After all, the government has no right to the property: It was literally stolen from Weeks. What are you supposed to do when Weeks wants his property back? Say "no"? Or maybe say, "Sorry bud — your property was stolen from you and you deserve it back, but first we want to let the thief hold on to it for a few months to prosecute you"? In that setting, it seems pretty reasonable to give the property back to Weeks. And interestingly, the result in Weeks was 9-0.
I think the tougher cases for an originalist came later, when the Supreme Court had to determine the scope of the exclusionary rule established in Weeks. The remedy eventually morphed from a rule about the return of property stolen from a suspect to a rule that evidence obtained in violation of the Fourth Amendment could not be used in Court.
Perhaps the key case was Silverthorne Lumber v. United States, 251 U.S. 385 (1920), a case in which agents raided the business offices of a company without a warrant and hauled off all of their papers, both in flagrant violation of the Fourth Amendment. The company moved for the return of the papers, and the trial court agreed that the papers had to be returned under Weeks. Before returning the papers, however, the agents copied all the papers and analyzed the copies to discover crimes the company had committed. Agents then issued subpoenas to the company for the originals of the documents that agents knew revealed evidence of crime.
The Silverthorne Lumber case raised some really profound questions about the meaning of Weeks. If Weeks was only about ordering the return of stolen property, then presumably the company had no exclusionary remedy: the evidence actually used in court had been legally subpoenaed from them. On the other hand, if the Court allowed the government to steal private papers and then just make copies before returning the originals, then Weeks was just an empty shell that was easily circumvented.
The Silverthorne Lumber Court voted 7-2 to suppress the evidence to bolster Weeks. The majority opinion by Justice Holmes adopts a pretty clear deterrence rationale: to the Silverthorne Lumber Court, Weeks is about deterring abuses by suppressing evidence, not just making sure that property goes back to its owner. Given the egregious facts of Silverthorne Lumber, it's pretty easy to see why the Justices saw it that way. But if you're an originalist, I think you probably should have more trouble with cases like Silverthorne Lumber that extended the exclusionary rule than the Weeks case that introduced it.
Anyway, that's my best sense of things. I haven't found a lot of good scholarship on whether the exclusionary rule is consistent with originalism, so I don't know if my ideas here are utterly banal, entirely novel, or simply loopy. But that's my best sense.
Related Posts (on one page):
- Response to Paul on Originalism and the Exclusionary Rule:
- Originalism Does Not Support an Exclusionary Rule
- Is the Exclusionary Rule Consistent With Originalism?: