What Does Jones Mean for the Exclusionary Rule?
Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts. I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things. Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing. A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least. More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither. By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week. There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely. So . . . Thanks Your Honors, very considerate indeed!
It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone). Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule: What, if anything, does Jones mean for remedies. The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate. Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.
It is not at all clear that the exclusionary rule has any footing in a Fourth Amendment that is about places. Roger Roots’s recent efforts to prove otherwise notwithstanding, most folks agree that, until Boyd in 1886, the remedies available for Fourth Amendment violations were the same remedies available for all tortious trespasses: return of illegally seized property and damages. Boyd itself did not mark a dramatic change. All the Court did there was to recognize, albeit temporarily, that allowing the government to introduce illegally seized papers will sometimes implicate the Fifth Amendment right against compelled self-incrimination. The Fifth Amendment continued to loom large behind the Fourth Amendment exclusionary rule in Weeks, where the Court rejected efforts by law enforcement officers to subpoena for use at trial illegally seized papers that had been returned to the defendant, and in Silverthorne, where officers made investigative use of illegally seized papers. Although Katz was decades in the future, the rise of the Fourth Amendment exclusionary rule in these early cases is nevertheless accompanied by tantalizing foreshadow. In Weeks, for example, Justice Day contends that “it is not the breaking of his doors and rummaging of his drawers that constitutes the essence of the [Fourth Amendment] offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property . . .” This and similar comments in these early cases bind the birth of the Fourth Amendment exclusionary rule to a shifting understanding of the Fourth Amendment as securing not just property, but the conditions of private repose, which are fundamental to our understandings of liberty, and that property rights are meant to secure. Absent this shift, it is hard to see where the exclusionary rule would get traction.
To the extent Jones carries forward a late-eighteenth century understanding of search, we are therefore left to wonder whether the exclusionary rule will be available for Jones violations. Given skepticism on the Court about the merits of the exclusionary rule, and particularly the Court’s contemporary commitment to the proposition that the exclusionary rule is justified solely by its utility as a deterrent, it’s hard not to worry. There seem to be three main issues.
The first is historical. If Jones defines Fourth Amendment violations according to a 1792 understanding of the Fourth Amendment, then does it also limit remedies to those available in 1792? Here we can look forward to rehashing standing debates about theories of constitutional interpretation with Justice Kennedy casting the deciding vote.
The second is more substantive. Although the Court long ago abandoned its early justifications of the exclusionary rule as a personal remedy justified by commitments to constitutional principle and judicial integrity, the Court has recently rehabilitated some of those arguments to limit the exclusionary rule. Hudson is a good example. There Justice Scalia argued for the Court that, absent a constitutional right to destroy evidence, there is no cognizable nexus between knock and announce violations and the discovery and seizure of evidence. Rather, he contended, the Fourth Amendment interests at stake in the knock and announce rule are limited to preservation of property and the opportunity to collect oneself before confronting law enforcement. The Court therefore held that exclusion should not be available as a remedy for knock and announce violations because exclusion does not vindicate the Fourth Amendment interests at stake. Those interests, the Court concluded, would be better served by tort actions seeking compensation for broken doors and emotional disturbance.
The exclusionary rule seems to have similar problems with “fit” in cases of Jones violations. To paraphrase a point made by Justice Thomas in other contexts, the Fourth Amendment violation contemplated by Jones was complete at the installation of the device. Although that trespass had to have been effected with the purpose of obtaining information, there is no requirement in Jones that any information actually be obtained. If the violation was complete at the installation, it is hard to see how punishing subsequent conduct by law enforcement, here turning on and monitoring the device, would vindicate the Fourth Amendment right or interest at stake at the installation. One might argue that monitoring the device constituted a separate Fourth Amendment—the Jones minority certainly did—or a continuation of the initial Fourth Amendment violation, but the majority specifically declined to do so.
The third issue is deterrence. For some time now a stable, though often bare, majority of the Court has held that the sole justification of the exclusionary rule is its capacity to deter law enforcement officers from violating the Fourth Amendment. In the context of elaborating this justification of the exclusionary rule the Court has argued that exclusion can only deter where the officer in question and those similarly situated can be deterred by the threat of exclusion. So, for example, officers who make an arrests based on the good faith belief that they are enforcing an active warrant will not be deterred by the threat of exclusion because they do not believe that they are violating the Fourth Amendment. This was the Court’s argument in Herring a couple of terms ago.
Here the exclusionary rule would appear to have some purchase in the context of Jones violations. After all, to qualify as a Fourth Amendment violation under Jones the trespass must have been effected with the purpose of obtaining evidence. Given that purpose, the threat of exclusion might well be expected to deter. Once again, however, we must confront the fact that the violation in Jones was the installation, not the monitoring. On the Court’s strict deterrence logic, what would be deterred by the exclusionary rule is therefore the monitoring, not the initial installation. Given the Court’s views on indirect deterrence, it seems odd to contemplate punishing lawful conduct in order to deter unlawful conduct.
Even assuming that the exclusionary rule could deter the unlawful installation in Jones, however, the Court has also held that exclusion will not be available unless its benefits clearly outweigh costs to truth seeking, punishing the guilty, and public perceptions of justice. This is, of course, a highly context-sensitive inquiry, but if the violation in Jones was the installation and not the monitoring, and exclusion as a punishment is therefore one more step removed from the offense, then the exclusionary rule seems to inflict a direct and significant cost to truth in the hope of a achieving quite indirect and speculative deterrence benefits.
All of this is, of course, both speculative and cynical. The exclusionary rule was not an issue in Jones, and there are good and credible reasons for thinking that the Court would have or should have imposed exclusion had it been. Whether those reasons will prevail when the question of remedy for Jones violations is presented, the future will tell. For now the speculation will be great fodder for class.