The battle of Hudson Heights.

The law, lawyers, and the court.
June 19 2006 3:01 PM

The Battle of Hudson Heights

A small case may portend big changes to the exclusionary rule.

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It's not guaranteed that a court majority would buy this argument in the Next Perfect Test Case. Justice Kennedy, while joining almost all of Scalia's Hudson opinion, wrote separately to insist that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." Kennedy also took pains to note that in Hudson the drugs were discovered "because of a search pursuant to a lawful warrant"—which would not quite be true in the Next Perfect Test Case.

Yet Kennedy also embraced virtually all of Scalia's opinion, which vigorously cataloged various vices of the exclusionary rule and called for a tighter fit between right and remedy. One big problem with the exclusionary rule, Scalia argued, is that the rule often fits poorly with important Fourth Amendment values. If cops brutalize or humiliate citizens or destroy personal effects within a home—thereby violating core Fourth Amendment principles—there is no real link between these unreasonable intrusions on persons and property and the finding of evidence for use in a criminal case. Indeed, in many situations the cops may find no evidence at all (and they might not even be looking for evidence). If the exclusionary rule were the only remedial game in town, it would be open season on the innocent.

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Of course, as Scalia and Kennedy made clear (joined by Justice Thomas and by the court's two newest members, Chief Justice Roberts and Justice Alito), the exclusionary rule is not the only—and in many cases, not the best—way to vindicate Fourth Amendment values. In fact—though Scalia did not stress this point—no Founding Father ever called for a Fourth Amendment exclusionary rule, and no court in America ever followed such a rule in the entire century after the Declaration of Independence. Instead, the framers believed that punitive-damage suits brought by aggrieved Americans against overbearing government searchers and seizers would properly protect Fourth Amendment values.

What Scalia did stress is that—in sharp contrast to the situation faced by the early Warren Court (which was the first to apply the exclusionary rule to ordinary state crimes)—today a wide range of civil rights laws and regimes offers a superior model for enforcing the Fourth Amendment via damage suits by innocent citizens and other devices rather than suppression motions by the guilty.

Hudson's facts illustrate the point nicely. Why, after all, does the Fourth Amendment generally require the cops to knock and wait for a few seconds? Not to give crooks a 20-second window to destroy evidence, but rather to give innocent citizens a 20-second chance to, say, put on a bathrobe. And this right would best be vindicated in a punitive-damage suit brought by, for example, an innocent women in her negligee who was surprised by overbearing cops, rather than by a drug dealer caught red-handed and seeking a get-out-of-jail-free card.

The Founders' Fourth Amendment, in short, was designed to protect the innocent; yet the later judge-made exclusionary rule perversely springs the guilty. While the New York Times has said that Scalia seemed to trivialize the Fourth Amendment knock-and-announce rule when he emphasized the bathrobe/negligee issue, Scalia was in fact describing part of the amendment's core—a right of privacy and personal dignity. It was largely this core value that led Scalia, writing for the court in 2001, to invalidate freewheeling use of high-tech thermal detection devices aimed at personal residences, since such James Bond-like ray guns would improperly allow the government to learn "at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.' "

This is hardly some personal obsession of Scalia's. The Fourth Amendment's framers had a remarkably similar view of the amendment's core rights and core remedies. According to one 1787 pamphlet, if a constable searching "for stolen goods, pulled down the clothes of a bed in which there was a woman and searched under her shift ... a trial by [civil] jury would be our safest resource, [and] heavy damages would at once punish the [offending constable] and deter others from committing the same."

Although none of the justices in Hudson quoted this remarkably apt passage from the Founding Fathers, it strongly supports the Hudson court's shift toward Fourth Amendment remedies that protect the innocent rather than reward the guilty. In the latest round of the culture wars, score one for Scalia.

Akhil Reed Amar, who clerked for then Judge (now Justice) Stephen Breyer in 1984-85, teaches constitutional law at Yale and is the author of America's Constitution: A Biography, winner of the 2006 ABA Silver Gavel Award.

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