The Exclusionary Rule & the Bill of Rights

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is inadmissible for a criminal prosecution in a court of law.

“Nothing can destroy a government more quickly than its failure to observe its own laws” Mapp v. Ohio, 367 U.S. 643 (1961). That was Justice Clark’s sententious response, back in 1961, to those seeking to uphold the decision in Wolf v. Colorado, 338 U.S. 25 (1949), that the exclusionary rule did not apply to state court jurisdictions. Evidence gathered by police without a warrant is in direct violation of the Fourth Amendment to the United States Constitution and is therefore inadmissible.

The Court comes to this conclusion based on the historical context and or historical evolution of constitutionality of this rule; and the Court believes that these prior precedents on the issue best represent the original contextual meaning set forth in the Constitution, regardless of its brevity on the matter.

In regard to the Bill of Rights: the pithiness of the text, as not to fully consider or detail whether or not this should have applied both to the states as well as to the federal government shows that framers of the Constitution were unable to foresee such conflict on the matter between the federal government and the states. It is hard to imagine that the framers would have not included text for the incorporation of the Bill of Rights if they had a chance to witness the imminent conflict. The argument for the exclusionary rule is made from the original text of the Constitution within the Fourth Amendment. It wasn’t until 1833, however, that the Supreme Court confronted the argument that a state government had violated one of the provisions of the Bill of Rights.

Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833), set the precedent on whether or not the United States Bill of Rights could be applied to state governments. John Barron, co-owned a profitable wharf in the Baltimore harbor, sued the city for economic loss occasioned by the city’s diversion of streams, which lowered the water level around the wharfs. Chief Justice John Marshal wrote for the majority, concluding that the first ten amendments restrained only the federal government, thus requiring Americans to look to state constitutions for civil liberty and political liberty protections.

It wasn’t until 1868 that the Fourteenth Amendment was ratified; thus, again bringing up the issue of the application of the Bill of Rights to the States. The particularly language that is applicable to incorporation within the Fourteenth Amendment comes in the Due Process Clause, which prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness, and the Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction.

In Hurtado v. California, 110 U.S. 516 (1884), the Court held that the Fourteenth Amendment was a limit on state power. The case that set forth the exclusionary rule was Weeks v. United States, 232 U.S. 383 (1914). In Weeks the Court held that evidence (betting slips) could not be used because there was no warrant obtained by federal marshals to search the premises. The ruling, however, did not apply to state and local police, since the Bill of Rights was not applicable to state jurisdiction. In Gitlow v. New York, 268 U.S. 652 (1925), the Court ruled that the Fourteenth Amendment had extended the reach of certain provisions of the First Amendment. With the Gitlow decision, Barron began to lose some of its authoritative status for the first time.

Meanwhile, the exclusionary rule came up again in Wolf v. Colorado, 338 U.S. 25 (1949). In Wolf, the Supreme Court ruled specifically that the exclusionary rule did not apply to state court jurisdictions. The consideration in Wolf was whether or not the Fourth Amendment search and seizure protection was incorporated in the Fourteenth Amendment’s equal protection clause, thereby making it applicable to state as well as the federal government. Writing for the majority, Justice Felix Frankfurter argued that protection from arbitrary intrusion by law enforcement is implied in the “concept of ordered liberty” and is thereby applicable to the states; however, he rejected the claim that illegally or unconstitutionally obtained evidence had to be excluded in state criminal proceedings. The opinion put forth by Justice Frankfurter was puzzling and frankly contradictory.

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule was now applicable to state courts when local police violated the rules governing searches and seizures under the Fourth Amendment. In Mapp, Justice Thomas C. Clark gave pragmatic reasoning for extending the Weeks decision to the states. Justice Clark argued that without applying the Weeks decision to the states the Fourth Amendment would be dramatically reduced. Justice Clark also clarified that it is the “law that sets the criminal free,” not the authorities. It was one year later that the Selective Incorporation Doctrine (1962) was formally signed, making the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states.

No doubt it was the forming of such groups as the American Civil Liberties Union (ACLU), and the Civil Rights Movement (1955-1968), among other things, that spurred on such a dramatic change in the Supreme Court’s opinion. Other big contributing factors have to be seen as police misconduct complaints and statistics. These changes were necessary, both for the profession and for the preservation of civil liberties. Many of these types of laws are a work in progress (trial and error), and thankfully the Constitution (i.e. the framers) left such a broadly interpretive text in order to do so, with the changing of the times and ever-evolving social views.