Where Have All Our Fourth Amendment Rights Gone?

The Supreme Court will decide on Friday whether to review Virginia v. Banks, a case that could potentially expand the “exigent circumstances” exception to the warrant requirement of the Fourth Amendment. The Supreme Court could also use this case as a vehicle to further limit the exclusionary rule, which precludes admission of the fruits of Fourth Amendment violations into evidence at trial. The Virginia Court of Appeals held that police cannot use evidence found in a suspect’s jacket, grabbed by police with the intention of keeping him warm after arresting him in his home, when they have no warrant or other constitutional reason to search and seize the jacket. I fear that the Supreme Court, following its trend of eviscerating our Fourth Amendment rights, will find a way for courts to admit into evidence the gun found in Mr. Banks’s jacket.

I’ve been pondering some Hamlet-like questions. Is it better for the Court to candidly admit that it wants to tie Fourth Amendment violations solely to police bad faith, and thus undo many applications of the exclusionary rule that apply regardless of the officer’s intentions (this is where the Court seems to be going, unfortunately), or is it better for the Court to slowly chip away at Fourth Amendment rights?  It’s hard to see how this case presents a true exigency, but instead of frankly announcing that the exclusionary rule applies only in cases of bad faith by the police, the Court may squeeze Banks into the exigent circumstances exception.  More of our Fourth Amendment rights will remain in the latter scenario, because the Court won’t invalidate the exclusionary rule jurisprudence, but the doctrine will be disingenuous and incoherent. And, is it better to have Fourth Amendment rights that cannot be enforced through the exclusionary rule than never to have any Fourth Amendment rights at all? Maybe we should incentivize police officers, by not applying the exclusionary rule, to perform nice gestures like grabbing a suspect’s coat (without permission from the suspect). To exclude or not to exclude: that is the question.

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3 Responses

  1. Colin Miller says:

    Banks and the “clothing exigency exception” sounds similar to United States v. Baptiste, 2011 WL 3793653 (D.Vt. 2011), and the “same sex bathroom exception.” In Baptiste, authorities suspected that an apparently pregnant woman and others were transporting drugs and detained her. The suspect claimed that she needed to use the bathroom, so the officers called for a female officer, who took 45 minutes to arrive. Upon her arrival, the female officer did not escort the suspect to the bathroom. Instead, another 20-30 minutes passed before the suspect confessed. The court found that the detention was reasonable in part because “it was reasonable for the officers to wait for a female officer to assist her.” Of course, upon her arrival, the female officer did not in fact assist her.


  2. nidefatt says:

    Fact is, if your State’s constitution doesn’t have its own exclusionary rule that has resisted the good faith exception, you have to accept that there is nothing keeping the police from violating your privacy. That’s the balance the Chief Justice thinks the country’s constitution truly demands.

    Rehnquist once made some goofball comment at an oral argument about how police might not go around stopping people for no reason if the Court didn’t require at least a reasonable suspicion standard and Marshall just laughed him into silence. We don’t have justices like Marshall anymore. We honestly don’t have one justice that knows anything about what it’s like in the criminal justice trenches, save perhaps Sotomayor. It’s a Court of Harvard grad douchebags. You get what you appoint America. Rich folks’ rules.

  3. JoeJP says:

    Note that Tom Clark, not exactly a liberal, thought the exclusionary rule was fundamental to protect the 4A. Mapp v. Ohio. Guy was former prosecutor, dissenter in various Warren Court opinions. Holmes said the same thing. Now, it is something only some commie like Marshall is willing to support wholeheartedly.