# US law: the exclusionary rule **URL:** \ **Category:** Factual Questions\ **Created:** [January 15, 2009, 2:31pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426 "2009-01-15T14:31:24Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 15, 2009, 10:49pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/21 "2009-01-15T22:49:34Z")
> [@NoCoolUserName](#): > > Color me confused. IANAL but as far as I know the current status of the exclusionary rule is based upon [Mapp v. Ohio](http://en.wikipedia.org/wiki/Mapp_v._Ohio). I am surprised this was not a unanimous decision by the SCOTUS. Seems to pretty clearly show a case where police went way beyond what they should have IMO. From link above: > [@](#): > > When the Cleveland Police received an anonymous tip that Dollree Mapp and her daughter were harboring a suspected bombing fugitive, they immediately went to her house and demanded entrance. Mapp called her attorney and under his advice she refused to give them entry because they did not have a warrant. Several hours later, more officers came to her door and demanded that they be permitted to enter her house. After Mapp refused, they forcibly opened a door to the house and proceeded in. Mapp confronted them and demanded to see the search warrant. The police waved a piece of paper in the air (claiming it was the warrant) and Mapp grabbed it and put it down her shirt. The police eventually got it back. The officers then handcuffed her. They then went on to search her entire house and when they reached her basement they found a chest filled with pornographic photos and objects. Mapp claims she was holding the trunk for a friend and was not aware of the contents inside. [2] The officers arrested Mapp for violating an Ohio law which prohibited the possession of obscene material.[2] At her trial, Mapp was found guilty based on the evidence that was presented by the police. Mapp’s attorney questioned the police about the warrant but they could not show one. > > Upon her conviction, Mapp appealed her case to the Supreme Court of Ohio. Her attorney argued that she should never have been brought to trial because the material evidence resulted from an illegal, warrantless search. The Court stated that the materials were admissible evidence and explained its ruling by differentiating between evidence that was peacefully taken from an inanimate object (the trunk) and forcibly taken from an individual. Based on this decision, Mapp’s appeal was denied and her conviction upheld. She then appealed to the Supreme Court of the U.S. ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [January 15, 2009, 10:50pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/22 "2009-01-15T22:50:23Z")
> [@Little\_Nemo](#): > > What about my other point? What about cops who have no concern about any theoretical evidence but just enter homes illegally to harass people? They never have any evidence ruled inadmissable. Why do they get to search illegally without any consequences? Law suits. The fear of which leads police departments to take steps to deter their officers from violating civil rights. For the record, the types of violations are so blatant that the cops would likely be arrested on criminal charges before it ever became as wanton as you’re suggesting, at large anyway. In a more realistic situation the cops and the police department would in reality be sued and the department would be fearful of their officers exposing them to that liability. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 15, 2009, 10:56pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/23 "2009-01-15T22:56:14Z")
> [@Fuzzy\_Dunlop](#): > > Law suits. The fear of which leads police departments to take steps to deter their officers from violating civil rights. For the record, the types of violations are so blatant that the cops would likely be arrested on criminal charges before it ever became as wanton as you’re suggesting, at large anyway. In a more realistic situation the cops and the police department would in reality be sued and the department would be fearful of their officers exposing them to that liability. IIRC you _cannot_ sue the police for actions taken in the normal course of their duties. If you could do as you suggest the police would be swamped with lawsuits. ---
**Author:** ![WF\_Tomba](https://avatars.discourse-cdn.com/v4/letter/w/d9b06d/32.png) [@WF\_Tomba](https://boards.straightdope.com/u/WF_Tomba)\ **Post date:** [January 15, 2009, 11:11pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/24 "2009-01-15T23:11:47Z")
> [@Whack-a-Mole](#): > > IIRC you _cannot_ sue the police for actions taken in the normal course of their duties. > > If you could do as you suggest the police would be swamped with lawsuits. If this is correct, it suggests an idea for better enforcement. The judge could be given the power to not only declare a piece of evidence inadmissible, but also (optionally) declare the actions taken to obtain that evidence exempt from the protection against lawsuits. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [January 16, 2009, 12:55am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/25 "2009-01-16T00:55:28Z")
Police have found ways to get “around” most procedural actions. For instance if a cop wants to find a body or a gun, he simply lists “drugs” or a specific type of small type of drug in additon on the warrent. The reason is in the past judges have said “Police shouldn’t be looking in places where it can’t be found.” So if you have a warrent to look for a gun you couldn’t look in a matchbox, but if you also list drugs on the warrent, you CAN look and “find” other things. In cases like the OP, the police will simply work around it. OK we know we can’t use the gun but let’s lie to the suspect and tell him what we got and see if we can cop a plea bargain. You may be able to say “Gee I see we found these drugs (legally) that actually belong to your mother and grandmother.” But if you’d confess we’d be much too busy to prosecute them. In reality there is usually something the police can work with. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 16, 2009, 12:57am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/26 "2009-01-16T00:57:01Z")
> [@](#): > > What makes you think there wouldn’t be consequences? Because the logic of the exclusionary rule is that the consequence of an illegal search is that any evidence found is excluded. So if there’s no evidence then there can be any exclusion - ie no consequence. > [@](#): > > Law suits. The fear of which leads police departments to take steps to deter their officers from violating civil rights. For the record, the types of violations are so blatant that the cops would likely be arrested on criminal charges before it ever became as wanton as you’re suggesting, at large anyway. In a more realistic situation the cops and the police department would in reality be sued and the department would be fearful of their officers exposing them to that liability. So you agree that the threat of lawsuits over illegal searchs is sufficient to prevent those searchs even when the exclusionary rule is not applicable? Then what purpose does the exclusionary rule serve? Why have a flawed procedure to address a problem that’s already being better addressed by other means? ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [January 16, 2009, 1:24am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/27 "2009-01-16T01:24:16Z")
> [@Little\_Nemo](#): > > So you agree that the threat of lawsuits over illegal searchs is sufficient to prevent those searchs even when the exclusionary rule is not applicable? > > Then what purpose does the exclusionary rule serve? Why have a flawed procedure to address a problem that’s already being better addressed by other means? I’m not aware of any examples of the police busting down the doors of citizens solely to harrass them. If they were engaging in this type of behavior, unrelated to any legitimate police business, then the individuals involved would be subject to lawsuits and criminal charges. However, if the police bust down someone’s door without a warrant because they think they’ll find evidence of illegal activity, that’s connected to their duties as police. I’m not so sure they’d be subject to a lawsuit for that. Even if you sued the municipality and they settled, would the money make up for your lost freedom? Paying someone damages, yet prosecuting them and locking them up, doesn’t really make up for the violation of their constitutional rights. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 16, 2009, 1:40am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/28 "2009-01-16T01:40:48Z")
> [@Whack-a-Mole](#): > > IIRC you _cannot_ sue the police for actions taken in the normal course of their duties. > > If you could do as you suggest the police would be swamped with lawsuits. But their actions stop being the normal course of their duties when they know or should have known what they were doing was illegal. Police can be sued for damages for illegal searches, police brutality, false arrest, etc. See Monroe v. Pape, 365 U.S. 167 (1961). ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 16, 2009, 1:44am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/29 "2009-01-16T01:44:46Z")
> [@Little\_Nemo](#): > > Then what purpose does the exclusionary rule serve? Why have a flawed procedure to address a problem that’s already being better addressed by other means? One huge reason is that the vast majority of people affected by illegal searches cannot afford a civil suit. Especially from jail. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [January 16, 2009, 1:49am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/30 "2009-01-16T01:49:51Z")
> [@Richard\_Parker](#): > > One huge reason is that the vast majority of people affected by illegal searches cannot afford a civil suit. Especially from jail. Anyone with an actionable civil claim will find numerous lawyers willing to take their case on a contingent fee basis. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 16, 2009, 1:53am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/31 "2009-01-16T01:53:55Z")
> [@MOIDALIZE](#): > > Anyone with an actionable civil claim will find numerous lawyers willing to take their case on a contingent fee basis. That’s absolutely false. Anyone with a _likely-to-win_ claim _that will win more money than the cost to litigate it_ will find numerous lawyers willing to take their case. The gap between a case that might win, and a case that a contingent-fee lawyer will take, can be quite large. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 16, 2009, 2:01am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/32 "2009-01-16T02:01:37Z")
> [@Little\_Nemo](#): > > I’ve argued the same point I think the OP is making.The problem with the logic of inadmissability is that there would be no consequence in any of those cases where the police broke into someone’s house on a gut feeling - unless the gut feeling was right. If they break into your house and find nothing, there’s no evidence to be made inadmissable, so no consequence. It’s only when they break into your house and find evidence of a crime that there’s the possibility of consequences. > > So if you had a really incompetent police force and they had terrible instincts, they’d break into hundreds of houses without ever finding any evidence of any crimes. There’d be no consequences from their activities so there’d be no reason to stop their activities. Let’s say that in the 4th house of the random search, these cops find 20 women tied up in the basement and 400 pounds of marijuana in the indoor grow house. It is all inadmissible. So, these cops have no incentive to randomly break into hundreds of houses because anything they find gets tossed. The idea of a monetary fine for a police officer couldn’t be feasible. Imagine the first time that a victim wanted help, but the officer hesistated because he couldn’t afford the fine, and wasn’t sure about the legality of entering. Or the cop who, on a hunch, breaks down a door and saves the life of a good, loving 7 year old girl being held hostage by her abusive step father. Then he has to pay his $1,000 fine the week before Christmas, leaving no money for his kids’ toys. More news at 11.. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [January 16, 2009, 2:12am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/33 "2009-01-16T02:12:15Z")
> [@Richard\_Parker](#): > > That’s absolutely false. > > Anyone with a _likely-to-win_ claim _that will win more money than the cost to litigate it_ will find numerous lawyers willing to take their case. The gap between a case that might win, and a case that a contingent-fee lawyer will take, can be quite large. That’s true of any lawsuit. But a large city settles hundreds of these types of cases every year. If it’s notorious enough, you don’t need to do much more than file the complaint and get some press coverage. It took a week for a lawsuit to be filed in the Oakland shooting, and I bet that will get settled after all this dies down. But my larger point stands. Freedom is more important than money. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 16, 2009, 2:14am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/34 "2009-01-16T02:14:55Z")
> [@MOIDALIZE](#): > > That’s true of any lawsuit. Any suit filed by a contingent-fee lawyer, sure. That’s the point: the ability to sue in civil court is not a particularly good deterrent when the victims tend to be poor. ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [January 16, 2009, 3:01am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/35 "2009-01-16T03:01:54Z")
> [@Whack-a-Mole](#): > > IIRC you _cannot_ sue the police for actions taken in the normal course of their duties. > > If you could do as you suggest the police would be swamped with lawsuits. People absolutely can and do sue police for civil rights violations. Rodney King sued the LAPD for $86mm and settled for, I believe, less than $10mm. I’m assuming that your definition would cover “a traffic stop” as normal course of duties and not “beating a man”, which obviously isn’t normal. ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [January 16, 2009, 3:08am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/36 "2009-01-16T03:08:23Z")
> [@Little\_Nemo](#): > > So you agree that the threat of lawsuits over illegal searchs is sufficient to prevent those searchs even when the exclusionary rule is not applicable? Absolutely not. The threat of a lawsuit per se or policies put in place due to that threat are largely sufficient to ensure improper conduct is dealt with after the fact. > [@Little\_Nemo](#): > > Then what purpose does the exclusionary rule serve? Why have a flawed procedure to address a problem that’s already being better addressed by other means? The exclusionary rule protects the constitutional rights of the accused. It’s not a deterrent to keep cops in line. It’s a prophylactic that guarantees that if an American’s civil rights are violated the state cannot use its unconstitutional action to the detriment of the accused. A fine or a criminal complaint doesn’t protect my civil liberties. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 16, 2009, 9:25am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/37 "2009-01-16T09:25:55Z")
> [@](#): > > So you agree that the threat of lawsuits over illegal searchs is sufficient to prevent those searchs even when the exclusionary rule is not applicable? > [@](#): > > Absolutely not. The threat of a lawsuit per se or policies put in place due to that threat are largely sufficient to ensure improper conduct is dealt with after the fact. I’m not seeing the distinction you’re making here. > [@](#): > > The exclusionary rule protects the constitutional rights of the accused. It’s not a deterrent to keep cops in line. It’s a prophylactic that guarantees that if an American’s civil rights are violated the state cannot use its unconstitutional action to the detriment of the accused. A fine or a criminal complaint doesn’t protect my civil liberties. I disagree. The issue is illegal searchs. The exclusionary rule was set in place to prevent illegal searchs not prevent convictions - the fact that it prevents convictions was just a means to the end of deterring illegal searchs from occurring in the first place. While it is a prophylactic policy it is intended to have a deterrent result. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [January 16, 2009, 10:32am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/38 "2009-01-16T10:32:20Z")
> [@Fuzzy\_Dunlop](#): > > What makes you so sure none of those things happen now? The exclusionary rule isn’t trying to punish law enforcement, it’s trying to protect the civil liberties of people accused of crimes. > > Imagine you have someone in custody who you think raped a 6 year old boy. He wants to talk to a lawyer. Two options - you can deny him access to counsel and not give him any food or water for 30 hours until he confesses, then pay a $1000 fine, or you can deny him access to counsel and not give him any food or water for 30 hours until he confesses and have the confession ruled inadmissible. Which is more likely to keep law enforcement from violating his rights? This is the straw man people always go to, that somehow letting evidence in without a warrant would lead to torture by police. Hogwash. You want to protect suspects from unfair interrogation, you shore up that side of things: protect the right to silence with exclusion, fine; perhaps more usefully, have taped interrogations, since police try to bend the rules anyway. But that doesn’t mean searches without warrants need the same rule. And that “NBC’s Law & Order” nonsense where one fudging of rules can create a cascading chain of inadmissibility for evidence that was pursued legally afterward on information received questionably–that’s so inane I assume the TV writers are exaggerating. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [January 16, 2009, 10:38am UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/39 "2009-01-16T10:38:51Z")
> [@Fuzzy\_Dunlop](#): > > It’s not some new principle being adopted in the last 20 years, it’s been this way for hundreds of years. Since 1961 is not “hundreds of years.” I expect this policy won’t survive hundreds of years, but what do I know? ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [January 16, 2009, 12:50pm UTC](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426/40 "2009-01-16T12:50:43Z")
> [@foolsguinea](#): > > Since 1961 is not “hundreds of years.” I expect this policy won’t survive hundreds of years, but what do I know? Courts have been excluding unlawfully obtained evidence since at least the 1700s. The Bill of Rights was adopted in 1789, for instance, and English courts had already been excluding self-incriminating evidence that was obtained through state compulsion before then. Mapp v. Ohio applied the exclusionary rule to the states through the 14th amendment but it’s completely disingenuous to pretend it was some new idea. [Previous page](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426.md?page=1) [Next page](https://boards.straightdope.com/t/us-law-the-exclusionary-rule/481426.md?page=3)