NCJ Number
88028
Journal
Journal of Criminal Law and Criminology Volume: 73 Issue: 3 Dated: (Fall 1982) Pages: 875-915
Date Published
1982
Length
41 pages
Annotation
'Good faith' tests and damage remedies (civil actions against police officers), which undermine the force of the current exclusionary rule, offer no realistic prospect of deterring fourth amendment violations.
Abstract
The 'good faith' type tests which seek to determine if an officer acted with a 'reasonable good faith belief' even though evidence was in fact obtained illegally would launch the Federal courts on an uncharted expedition to rewrite the scope of the exclusionary rule, an expedition guided by the elusive and abstract concept of 'reasonable good faith belief.' Such tests will excuse police officers and agencies from assimilating certain portions of the fourth amendment. In addition, the vagueness of the fact-specific nature of the standard will ensure that the standards governing exclusion will become incomprehensible. Under the deterrent safeguard theory of Mapp v. Ohio, which places the constitutional status of the exclusionary rule not merely on the fact that the rule deters police misconduct but also the fact that the rule provides assurance that misconduct is being deterred, the 'good faith' tests are particularly deserving of rejection. Damage remedy proposals would eliminate the exclusionary rule entirely, with misconduct being theoretically deterred by the threat of victim civil action against individual officers and their employing agencies. Violation of the intangible interests protected by the fourth amendment, when asserted by plaintiffs who are, or merely appear to be, criminal suspects, will not likely result in substantial damage awards from juries. Consequently, lawyers can hardly be expected to rush to the courts to press such claims. The litigation of fourth amendment issues will be so reduced that this constitutional right will become virtually meaningless. A total of 138 footnotes are provided. (Author summary modified)