We’ll divide the discussion of the remedies into two types and between this chapter and the next. This chapter’s topic is the exclusionary rule, which bans illegally obtained evidence in the case against the defendant (by far the most frequently used remedy). In Chapter 11, we’ll examine remedies in separate proceedings from the criminal cases against defendants. Some of these proceedings take place inside the judicial system (civil lawsuits and criminal prosecutions) and others outside (department disciplinary actions and civilian review).
The U.S. legal system, like all others, excludes the use of some irrelevant or untrustworthy evidence. But the exclusionary rule, mandating that courts ban the introduction of “good” evidence obtained by “bad” law enforcement, is more prevalent in the United States than in most other countries’ legal systems. “Good evidence” refers to probative evidence—evidence that proves (or at least helps to prove) defendants committed the crimes they’re charged with. “Bad methods” refers to police actions and procedures that violate any of five constitutional rights:
1. The Fourth Amendment ban on unreasonable searches and seizures (Chapters 3–7)
2. The Fifth Amendment ban on coerced incriminating statements (Chapter 8)
3. The Sixth Amendment right to counsel (Chapter 12)
4. The Fifth and Fourteenth Amendment guarantees of due process of law
Note two important points about the Fourth Amendment and the exclusionary rule. First, searches and seizures make up the great bulk of suppression cases. Second, and most important, evidence obtained by illegal searches and seizures is just as reliable as evidence obtained legally. We can’t say this about coerced confessions and suggestive eyewitness identification and other non-DNA forensic analyses.
The Bill of Rights to the U.S. Constitution doesn’t mention the exclusionary rule (or for that matter the other remedies we’ll discuss in Chapter 11). James Madison, in an address to Congress in 1789 (Annals of Congress 1789), explains this silence:
If these rights are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will naturally be led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. (457)
In other words, the Constitution didn’t have to spell out the remedies because judges would create appropriate ones to fit the circumstances of each case.
Until 1914, the only remedies for constitutional violations were private lawsuits against officials. (The U.S. Supreme Court suggested in Boyd v. U.S.  that illegally obtained evidence should be banned from court; it ignored that suggestion for 27 years.)
All this changed dramatically in 1914, when the U.S. Supreme Court created the exclusionary rule in Weeks v. U.S. (1914). In that case, while Fremont Weeks was at work in Union Station, Kansas City, Kansas, local police officers broke into his house without a warrant. They searched the house and seized “all of his books, letters, money, papers, notes, evidences of indebtedness, stock certificates, insurance policies, deeds, abstracts of title, bonds, candies, clothes, and other property.” After taking the evidence to the U.S. marshal’s office, local officers and a marshal arrested Weeks while he was at work. Soon, Weeks was charged with illegal gambling.
The trial court refused Weeks’s motion to return the seized evidence, and he was convicted and sentenced to a fine and imprisonment. On appeal, the U.S. Supreme Court reversed the conviction and ordered the return of his documents because to allow the government to seize his private papers and use them to convict him violated his Fourth Amendment right against unreasonable searches and seizures.
Notice that the exclusionary rule established in Weeks applied only to federal law enforcement; the states could fashion any remedy they saw fit to enforce their own citizens’ constitutional rights under their state constitutions. (Recall from Chapter 2, pp. 30–35, that it wasn’t until the 1930s that the Supreme Court began to apply the Bill of Rights to state criminal proceedings under the Fourteenth Amendment due process clause: “no state shall deprive any person of life, liberty, or property, without due process of law.”)
It took until 1949 for the Court to decide whether the due process clause of the Fourteenth Amendment incorporates the right against unreasonable searches and seizures (Wolf v. Colorado). In fact, the Court answered two questions:
1. Does the Fourteenth Amendment due process clause apply the right against unreasonable searches and seizures to the states at all?
2. If it does, is the exclusionary rule part of the right?