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Back to Basics - An Examination of the Exclusionary Rule in Light of Common Sense and the Supreme Court's Original Search and Seizure Jurisprudence

NCJ Number
Arkansas Law Review Volume: 37 Issue: 3 Dated: (1983) Pages: 646-668
D M Harris
Date Published
23 pages
This historical review of U.S. Supreme Court decisions pertinent to search-and-seizure laws argues for a middle ground between the Court's early search-and-seizure jurisprudence and the Court's current application of the exclusionary rule to minor police infractions that do not violate the intent of search-and-seizure laws.
Before 1961, the Supreme Court had held that a search or seizure conducted outside of private premises (or within private premises pursuant to a warrant fair on its face) was lawful if it was successful in finding incriminating evidence or was authorized by statute. The remedy for an invalid search or seizure was a common law action by the aggrieved party for damages against the seizing officer. In 1961, the Court imposed the exclusionary rule upon the States, requiring, for the first time, the exclusion at State court criminal trials of evidence obtained in violation of the fourth amendment. Subsequently, the Court expanded the rule to cover an increasingly wider variety of circumstances. One of the arguments against this current jurisprudence is that it frees guilty persons because of police error, making the justice process appear random and the criminal sanction arbitrary. Advocates of current jurisprudence argue that police action under previous jurisprudence was unbridled and violative of legitimate privacy rights. What is needed is a middle ground between the earlier and the current jurisprudence. This could be achieved by limiting the exclusionary rule to cases where the police acted in knowing violation of the law and with excessive misconduct. Sixty-two footnotes are provided.


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