NCJ Number
59236
Journal
Journal of Criminal Law & Criminology Volume: 69 Issue: 4 Dated: (WINTER 1978) Pages: 635-657
Date Published
1978
Length
23 pages
Annotation
THIS LAW ARTICLE DISCUSSES THE RELATIONSHIP BETWEEN GOOD FAITH AND THE FOURTH AMENDMENT REQUIREMENT OF PROBABLE CAUSE, RELATING THE MAIN CRITICISMS OF THE EXCLUSIONARY RULE AND PROPOSING A GOOD FAITH EXCEPTION.
Abstract
AS ONE OF THE LAW'S MORE CONTROVERSIAL CREATIONS, THE EXCLUSIONARY RULE HAS BEEN THE TARGET OF MUCH CRITICISM. SOME CRITICS DECRY ITS RESULTS AND OTHERS QUESTION ITS EFFECTIVENESS. THE MOST RECENT OBJECTION, AND ONE WHICH IS GAINING SUPPORT, IS AIMED AT THE RULE'S NONSELECTIVE APPLICATION. THE EXCLUSIONARY RULE IS PRESENTLY APPLIED INDISCRIMINATELY, WITHOUT REGARD TO THE NATURE OF THE UNDERLYING VIOLATION. BOTH FLAGRANT POLICE MISCONDUCT AND HAPLESS OFFICIAL ERROR ARE UNIFORMLY SUBJECTED TO THE SAME STRINGENT SANCTION. THROUGH A SERIES OF OPINIONS ISSUED SINCE 1974, FOUR CURRENT MEMBERS OF THE UNITED STATES SUPREME COURT HAVE URGED THE ADOPTION OF A GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE TO MEET THIS OBJECTION. THE ARTICLE EXPLORES THE EXTENT TO WHICH THE GOOD FAITH DOCTRINE IS SUPPORTED BY HISTORICAL AND DECISIONAL ANTECEDENTS AND ASSESSES THE EFFECT WHICH THE PROPOSED EXCEPTION WOULD HAVE UPON THE INTERPRETATION OF FOURTH AMENDMENT RIGHTS. THE DISCUSSION IS PRINCIPALLY CONCERNED WITH THE TREATMENT OF GOOD FAITH BY THE UNITED STATES SUPREME COURT AND EMPHASIZES SUPREME COURT OPINIONS. THE CONCLUSION STATES THAT A GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE IS IN STEP WITH CURRENT JUDICIAL TRENDS AND MAY BE JUSTIFIED BY ARGUING HISTORY, PRECEDENT, AND POLICY. HOWEVER, THE EXCEPTION SHOULD NOT BE ADOPTED WITHOUT CAREFUL CONSIDERATION OF THE REQUIREMENTS OF THE 20TH CENTURY AND FULL COGNIZANCE OF THE EFFECT IT WILL HAVE UPON FOURTH AMENDMENT RIGHTS AS WE KNOW THEM. (AUTHOR ABSTRACT MODIFIED -- MJW)