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Dump the exclusionary rule!

scotusThe criminal is to go free because the constable has blundered.

~ Justice Benjamin Cardozo

Last week the Supreme Court handed down a decision further narrowing the limits of warrantless car searches. In a 5-4 split decision, the Court ruled that a warrantless search of a car incident to an arrest is legal provided that the police officer is within reaching distance of the vehicle, or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”

The decision in Arizona v. Gant overturned a 30-year rule established in New York v. Belton (1980), where the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The Court upheld the Arizona Supreme Court ruling for the defendant, Rodney Gant, on whom police found cocaine in his jacket pocket in the back seat of his car during an arrest for driving with a suspended license. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule” of Chimel v. California (1969), as applied to Belton.

When I viewed the names of the majority justices – Stevens, Ginsburg, Souter, Scalia and Thomas, a rare and bizarre mix of strict constructionist with liberal social activist jurisprudence – it appeared to me like the fix was in against the police as the sentinels against societal anarchy, against the original intent of the Constitution’s framers and against a rational judicial decision-making that will protect law-abiding citizens from being preyed upon by criminals cunning enough to get off on a technicality.

Don’t miss our Founding Fathers’ most inspired arguments for constitutional government translated into today’s English: “Federalist Papers In Modern Language”

The dissenting justices – Breyer, Alito, Chief Justice Roberts and Kennedy – would have strongly followed stare decisis (judicial precedent) principles to maintain Belton’s “bright-line rule.” Nevertheless, the dissenters predicted that the Court’s decision will lead to the unnecessary suppression of evidence and confusion by law enforcement officers, but here I think they missed the point. Let’s return to first principles.

Black’s Law Dictionary contains the following definition of the exclusionary rule:

The rule command that where evidence has been obtained in violation of the search and seizure protections guaranteed by the U.S. Constitution, the illegally obtained evidence cannot be used at that trial of the defendant. Under this rule evidence which is obtained by an unreasonable search and seizure is excluded from admissibility under the Fourth Amendment, and this rule has been held applicable to the States. Mapp v. Ohio (1961).

The key word here is “reason.” What happens to a society where over time through politicians, legislative mandates, shyster lawyers and humanist judges, the public is led to the abandonment of Reason and the original intent of the Constitution’s framers in exchange for perversity correctness and egalitarianism? What happens to a culture where law becomes disconnected from morality? I believe that socialism, anarchy, nihilism and ultimately national suicide will fill the void.

In a 2005 law review article, “Excluding the Exclusionary Rule: Natural Law vs. Judicial Personal Policy Preferences,” my thesis followed Justice Cardozo’s critique against linking overt criminal behavior to bureaucratic red tape or procedural errors by the police, for this will lead to criminals being set free and the safety of the public jeopardized. Cardozo rightly prophesied the devolution of American constitutional law since the Court first started legislating from the bench and writing police codes of conduct. The case at bar, Arizona v. Gant, simply follows that long, shameful, illegitimate line of judicial precedent.

What is my solution to this entire lineage of jurisprudence since the exclusionary rule was created by the Court out of whole cloth almost 100 years ago in U.S. v. Weeks (1914)? Exclude the exclusionary rule! It is the only way.

Even Justice Scalia, a stalwart of the original intent jurisprudence, said so much when he wrote in Arizona v. Gant:

In a concurring opinion, Justice Scalia disparaged that line of cases as “badly reasoned” with a “fanciful reliance” upon the officer safety rule. Justice Scalia was clearly the swing vote in the case, explaining that a “4-to-1-to-4 opinion that leaves the governing rule uncertain” would be “unacceptable.” In his view, the “charade of officer safety” in Belton, Chimel and Thornton v. United States (extending Belton to all “recent occupants” of a vehicle) should be abandoned in favor of the rule that the majority ultimately adopts in its opinion.

I believe that Scalia, as usual, has put his finger on the problem of the exclusionary rule: “badly reasoned,” but his solutions admittedly are nuanced, vague and inadequate. Here is what I proposed in my law review article on the exclusionary rule at p. 793:

Bluntly speaking, the exclusionary rule is insane jurisprudence as well as a patent example of liberal judicial activism of the most outrageous kind. What the Courts and the police departments should do when confronted by improper police conduct is not to let the guilty go free, which makes a mockery of justice and endangers the public, but as a separate issue, duly punish, reprimand, or fine the errant police officer(s).

Justice Cardozo was right that the essence of the exclusionary rule is that, the criminal is to go free because the constable has blundered. Surely it can be understood that no rational society that follows the rule of law can continue to exist where criminals (through the aiding and abetting of judges) are essentially given the key to their own jail cell via the exclusionary rule. This is sheer madness.

I do not celebrate the bipartisan decision of Arizona v. Gant because it has given credence to this diabolical, unconstitutional exclusionary rule. Let us return to electing faithful and wise presidents and governors who will appoint judges that will interpret the law according to the black letter text of the Constitution and the original intent of the framers, rather than legislating from the bench by aborting Reason and morality and deifying their own judicial personal policy preferences.


Ellis Washington, currently a professor of law and political science at Savannah State University, former editor at the Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including “The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law” (2002). See his law review article “Reply to Judge Richard Posner.” Washington’s latest book is “The Nuremberg Trials: Last Tragedy of the Holocaust.”

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Category: Government

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