The Exclusionary Rule and Social Science
Compiled by Mark Phillips, Pranoto Iskandar, and Stephen Flynn
Introduction
The exclusionary rule was created by the Supreme Court over 100 years ago in Weeks v. United States1. The rule states that evidence seized by law enforcement officers as a result of an illegal search or seizure in violation of the Fourth Amendment is excluded from a criminal trial.2 It applies to both federal and state criminal proceedings.3 Additionally, any evidence that is derived from the illegal search or seizure is also inadmissible as “fruit of the poisonous tree.”4 Since its inception, the exclusionary rule has been the subject of heated debate about its necessity and its effectiveness.5
Originally, the exclusionary rule was created to vindicate the rights of individuals and protect the integrity of the criminal justice system.6 The exclusion of evidence that was illegally seized by law enforcement officers was an integral part of a citizen’s Fourth Amendment rights against unreasonable searches and seizures.7 Without such a rule, as the Court later explained, the Fourth Amendment would be reduced to a mere “form of words.”8 The rule’s purpose was not aimed at offending officers.9 Additionally, when the rule was created, it was of constitutional dimensions.10 Over time however, the justification for the exclusionary rule and whether it was constitutionally required evolved. Four cases that highlight this evolution: Weeks v. United States, Mapp v. Ohio, Untied States v. Leon, and Herring v. United States. As it stands today, the only purpose of the exclusionary rule, according to the Supreme Court, is to deter future police misconduct.11 Also, the rule is not referred to as a judicially created prophylactic and is not constitutionally required.12 Excluding evidence is now only a last resort, and only if the social good done by excluding the evidence outweighs its cost.13
So, if the sole purpose of the exclusionary rule is to deter police misconduct, the Supreme Court must believe that the exclusion of evidence actually deters police misconduct. But, does the exclusionary rule actually deter police misconduct? Despite the fact that the Supreme Court itself believes that this question has yet to be answered,14 many scholars agree that the exclusionary rules does not deter police misconduct.15 But, there are those who claim the rules does deter police misconduct. Therefore, it appears that this is still open for debate among social scientists and empiricists. And, given the exclusionary rule’s polarizing effect on scholars, this debate will continue for years to come.
Discussion
Today, the only purpose of the exclusionary rule, as described by the Supreme Court, is to deter future police misconduct.16 Since that Supreme Court tied the exclusionary rule to its deterrent effects, numerous scholars have tried to determine if the rule in fact deters police misconduct.17 Many scholars have concluded that the exclusionary rules does not deter police misconduct.18 However, there are some that argue that rule does have a deterrent effect.19 So, it appears that this is still very much an open question that social science has yet to solve.
First, it must be noted that empirically quantifying the effects of the exclusionary rule on police conduct is difficult—some even say impossible.20 The main reason for this difficulty is because some kinds of occurrences are easier to measure than others.21 In the exclusionary rule context, police compliance with the rule “produces a non-event which is not directly observable—it consists of not conducting an illegal search.”22 Also, “[o]ne cannot compare the frequency of Fourth Amendment violations before and after Mapp v. Ohio, for no one can determine the incidence of unlawful searches and seizures in non-exclusionary rule states before Mapp.”23 So, researchers are forced to rely on inferences from other data.24 This can create weaknesses in studies if the wrong assumptions about the data are made.
Despite this difficulty in measuring the effect of the exclusionary rule, many scholars, and some judges, argue that the exclusionary rule has no deterrent effect.25 One of the earliest and most widely cited study that studied the empirical influence of the exclusionary rule was the study conducted by Dalin Oaks.26 Justice Rehnquist described the Oaks study as probably being, “[t]he most comprehensive study on the exclusionary rule . . . .”27 Oaks’ study is still widely considered to be the most thorough study of the rule and has been cited in Fourteen Supreme Court opinions, numerous lower court opinions, and hundreds of scholarly articles.28 Oaks concluded that the exclusionary rule had no direct deterrent effect on police behavior.29 Police have nothing to lose by violating the Fourth Amendment and typically, they have something to gain by conducting an illegal search.30
Oaks also looked at the possible negative effects of the exclusionary rule. One negative effect he focused on that is particularly interesting was false testimony by the police and how the exclusionary rule might have increased police lawlessness instead of reducing it.31 He described how law enforcement officers admit that officers “twist” facts to prevent suppression.32 He described a research project by a group of Columbia Law School students who discovered that officers claim drugs they seized were in plain view nearly doubled after Mapp.33 While it is possible that the officers might have conducted fewer unlawful searches, it seems more likely that the officers were fabricating testimony so the drugs would not be suppressed.
Weeks v. United States (1914)
Facts: The police arrested defendant for illegally using the mail to transport lottery tickets. After defendant was arrested, police officers went to defendant’s home to conduct a search for evidence of defendant’s crime. Defendant’s neighbor told the police where to find a key to defendant’s home, which they used to enter the home and seize papers, letters, and other articles despite not having a warrant to do so. The papers seized from defendant’s home were used to convict him of transporting lottery tickets through the mail.
Issue: If officers seize a defendant’s property in violation of the Fourth Amendment, may that unconstitutionally seized property be used as evidence against the defendant in a federal trial?
Holding: No. The United States Supreme Court (the Court) held that use of unconstitutionally seized evidence would render meaningless the protection of the Fourth Amendment.
Mapp v. Ohio (1961)
Facts: Police officers received an anonymous tip that defendant was involved in an illegal gambling racket. Acting on this tip, police went to defendant’s home and sought defendant’s consent to conduct a search. After consulting her lawyer over the phone, defendant refused to consent to the search of her home. Police remained outside defendant’s home for thirteen hours before finally forcing the door open to conduct a warrantless search which yielded betting slips and other gambling paraphernalia later used as evidence against defendant at trial.
Issue: May evidence obtained in violation of the Fourth Amendment be used against a defendant in a state criminal proceeding?
Holding: No. The Court held that the exclusionary rule applies to state and federal criminal proceedings alike. In making this decision, the Court noted that many state legislatures had either wholly or partially adopted the rule from Weeks because other remedies had failed to ensure the full protection of the Fourth Amendment.
United States v. Leon (1984)
Facts: A confidential informant told the police that he/she had witnessed a drug sale at the defendant’s address. Acting on the informant’s tip, the police began surveilling the address. During the course of the surveillance, the police observed a number of previously-convicted drug offenders leaving with small packages. Based on this information, the police applied for and obtained a warrant to search the homes and vehicles of the people observed during the surveillance. A search of the homes and vehicles listed in the warrant yielded large quantities of cocaine.
Antonio Leon was one of several people indicted on drug charges. Leon and the other defendants filed motions to suppress the evidence seized, claiming that the warrant was insufficient, and thus the defendants’ Fourth Amendment rights had been violated. The District Court found that the informant’s credibility had not been established and that the information was “stale.” Therefore, the District Court held that the information upon which the warrant was based was insufficient to establish the probable cause necessary for the issuance of a search warrant. Upon appeal, the Ninth Circuit affirmed the District Court’s decision.
Issue: Whether the Fourth Amendment exclusionary rule should suppress evidence obtained by police in reasonable reliance upon a search warrant which is later deemed to be invalid.
Holding: The Court held that this evidence should not be suppressed at trial. In justifying its decision, the majority stated that the exclusionary rule is not a constitutional right, but a judicial remedy whose purpose is to deter police from conducting searches in violation of the Fourth Amendment by excluding from evidence the fruits of those unconstitutional searches. The Court claimed that when the police reasonably rely on a facially-valid search warrant, there is no misconduct to deter. Further, the consequence of the exclusion of evidence is that some guilty defendants will go free. Therefore, the social cost of excluding the evidence outweighs the Fourth Amendment considerations when the police conduct a search based on a facially-valid warrant.
Analysis: In its decision to allow the evidence obtained by the police in Leon, the Court relied on a balancing of the costs and benefits of excluding evidence of this kind. Citing precedent, the Court noted that “no empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect.” The Court does, however, cite statistical research purportedly in support of its assertion that the cost of the exclusionary rule is quite high because guilty defendants either go free or receive reduced sentences.34 But, as Brennan argued in his dissent, the study cited by the majority shows, if anything, that few guilty felons go free as a result of the exclusionary rule (between 0.6% and 2.35%).35 Moreover, even fewer felons go free as a result of the suppression of evidence by the exclusionary rule when the police act in reasonable reliance upon a facially-valid warrant.
Brennan effectively scrutinized the research cited by the majority and also cited additional research demonstrating that prosecutors rarely drop cases because of potential search and seizure violations (0.2% of all felony arrests).36
Thus, the extent of the scientific research used by the Court so far has been limited to statistical data ostensibly used to determine the relative weight of the costs and benefits of the exclusionary rule. However, there has been no mention of what constitutes too high a cost, and the benefits are shrugged off as being too difficult to measure.
Herring v. United States (2009)
Facts: Acting on a warrant later discovered to be faulty, the police arrested the defendant. While conducting a search of the defendant and his vehicle, officers found methamphetamine and a gun. The warrant upon which the initial arrest had been based was supposed to be recalled five months prior to defendant’s arrest, but it had not yet been removed from the police computer system.
Issue: Does the exclusionary rule apply to evidence obtained by the police during a search based on an arrest warrant that should have been recalled, but was negligently left active in the police computer system?
Holding: No. The Fourth Amendment is not violated when police negligently conduct an unwarranted search. The Court explained that "to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Thus, evidence obtained through searches based on faulty warrants is admissible at trial if the police acted in good faith reliance upon a faulty warrant.
Analysis: The majority’s holding in Herring illustrates how the Court has fully embraced the cost-benefit determination from Leon and has not sought further scientific evidence that the benefits of the exclusionary rule’s role in deterring police misconduct may be ascertainable and outweigh the rule’s costs.
The Social Science of Exlusionary Rule
The exclusionary rule is an important part of the Fourth Amendment doctrine which, in brief, protects against illegal searches and seizures. A large number of transitioning democratic countries have voluntarily adopted exclusionary rule as they feel “...[i]]t embodies the idea of restraining government power and promoting the rule of law”.37 The present discussion will provide a glimpse of the U.S. notion of exclusionary rule. In particular, it will illustrate how social science has helped to shape this doctrine.
What Is the Exclusionary Rule?
As one of the “legal technicalities”, the exclusionary rule has been evolved.. Essentially, the exclusionary rule is instituted as a constitutional entitlement to prevent the abuse of power. Specifically, “...[e]vidence illegally obtained by law enforcement officers cannot be received in a criminal prosecution, provided the accused defend any particular formulation regulating the objects to its admission”.38 Further, the U.S. Supreme Court (hereinafter “the Court”) introduced the exclusionary rule as a protection of “The constitutional rights of the accused”.39 It should be noted that neither “The constitutional rights of the accused” nor “Exclusionary rule” are listed in the U.S. Constitution. In other words, the exclusionary rule was created by the Court as a constitutional necessity. As a Court’s “creation”, the exclusionary rule is a legal doctrine that is articulated through a judicial lawmaking process.40 The development is a direct consequence of the U.S. adoption of common law system that is essentially based on the judiciary’s greater role in lawmaking.41
To make things more complicated, the Court has developed a separate body of law that deals specifically with constitutional issues. It is observed that “[c]onstitutional doctrine spills from the pages of the federal reporters every day, covering an ocean of subject matter so vast that no single theory could possibly navigate it all”.42 This is similar to other bodies of laws, such as Criminal Law, “it is assumed that there are . . . constitutional doctrines [or rules and principles of constitutional law] . . . that generally guide the decisions of courts . . . ”.43 Constitutional Law has established its own area, “legal doctrine” has been renamed as “constitutional doctrine”. As Fried puts it, no different from legal doctrine constitutional “[d]octrine is the work of judges and of those who comment on and rationalize their decisions”.44 Thus, Constitutionally speaking the exclusionary rule is constitutional doctrine.
However, having the status as a constitutional rule does not automatically rule out potential challenges to the exclusionary rule. As Chief Justice Rehnquist puts it, it is “a proper understanding” that needs to be upheld rather than wrong constitutional understandings enshrined in precedent.45 Justice Frankfurter bluntly states that “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it”.46 It can be inferred that the door is always open for any kind of contestation that might delegitimize the constitutionality of the exclusionary rule. Following this line of reasoning, it is fair to question the efficacy of exclusionary rule in achieving the intended results, i.e. the constitutional ideals. To answer this, there can be no better way than prove it empirically. As an empirical query, one can starkly juxtapose the raison d'être of the exclusionary rule with the effects that it has produced. In effect, we can gain an empirically grounded, not speculation based, and, thus, measurable answer.
The line of cases which are to be explained illustrate both the creation of the exclusionary rule, its development, and social sciences role. There four cases which illustrate this evolution are, Weeks v. U.S., Mapp v. Ohio, U.S. v. Leon, and Herring v. United States.
Social Science and Deterrence
One of the main purposes of the exclusionary rule is to deter law enforcement from conducting searches and seizures inconsistent with the Fourth amendment.47 Proponents of the death penalty also claim that it deters qualifying criminal activity.48 The line of cases that developed the exclusionary rule doctrine, and the issue of deterrence in death penalty cases, utilized social science to evaluate the legitimacy of their deterrent effect.
In United States v. Janis, the Court stated that, “No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect…”49. This reason was quoted, and relied on, for the Court in Leon to limit the exclusionary rules reach by providing the good faith exception.50 In Janis, the Court claimed that the data provided for both proponents, and opponents of the deterrent effect of the rule, was flawed. The Court stated that there were three main issues for the empirical data; inability to control, the number of variables, and ineffective recordkeeping prior to Mapp.51 The Court went as far as to say that it found itself in no better position than the Court was in 1960 support the claim that “...[i]nhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained.”52 Because the deterrent effect of the exclusionary rule was at least unproven; and because of the warmer reception of social science evidence that the imposition of the exclusionary rule was costly, the Court limited its reach.
In Gregg v. Georgia, the majority acknowledges that a major justification of the death penalty, deterrence, is largely unsupported. Gregg v. Georgia, 428 U.S. 153. This however, was not dispositive as the Court claimed that the issue was a legislative matter. Id. A major similarity the exclusionary rule doctrine was the comparison between murder rates and states that had the death penalty, and the difficulty in concluding this was attributable to the death penalty. Id. The dissent relied heavily on social science to demonstrate that there is no correlation between the existence of the death penalty and lower rates on crime; and to attack the retentionists reliance on the Elrich Study.53 The issue Justice Marshall had with the Ehlrich Study, is explained following the case by Alfred Blumstein, et al. Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates National Research Council, 1978. The Ehlrich Study, which claimed to show a negative association with homicide rates and executions for convictions, suffered from both the inability to control for other factors that would influence murder rates. Because both events are rare, the inability to control for other factors greatly diminishes the findings.
The purpose of the exclusionary rule and the death penalty is deterrence. The Court in both lines of cases struggled how to apply inconclusive data. The major flaws in the empirical evidence in both doctrines was the difficulty in maintaining proper controls, which could have influenced the conclusions in either direction. The Court relied on inconclusive social research to limit the exclusionary rule, and declined to restrict the death penalty because of inconclusive data.
Alternatives to the Exclusionary Rule
Why is there a need for an alternative Exclusionary Rule?
The underlying logic for the rule, “…[t]o deter law enforcement from using improper methods to obtain evidence…[t]here is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials.”54 Deterrence is the remedy the rule provides, and it is largely unsupported by evidence.
Further, illegal police tactics in effect disenfranchise the lower rung of society. The population harmed the most by illegal police conduct are people who may live in high crime areas and whom a jury is unlikely to sympathize with. Many jurisdictions require “ill-will”, or “actual malice” before monetary damages. Punitive damages against officers are extremely rare. Thus, there is seldom a sufficient remedy for those harmed by illegal police conduct, and after Leon (providing a good faith exception), it has become even more difficult for the exclusionary rule to bar the admission of evidence obtained unconstitutionally.
Because of the importance of protecting vulnerable persons and safeguarding the Fourth Amendment; and because the evidence does not support the claim that the rule is effective, other judicial remedies may be more effective at protecting citizens from evidence obtained unconstitutionally.
Current Alternatives
State Law Tort Claims
A person who has been the subject of illegal police conduct can file a civil lawsuit against that officer in state court for an intentional tort.55
Benefits: Almost every state allows for this.
Difficulties: The lack of uniformity between states. Attorney’s fees are a significant obstacle.
Criminal Sanctions Against State and Federal Officers
Another possible remedy for the victim of police misconduct is criminal charges against the offending individual officers. Federal officers who provide inaccurate information to obtain a warrant can be charged, under the malicious standard, under 18 U.S.C. 2235.56 They can be charged under U.S.C. 2234 for exceeding the scope of the warrant. State officers can be charged under 18 U.S.C. 2236 for depriving a person of constitutional rights, even when acting under color of law. The latter provision seems to at least provide a check to the “good faith” provision in Leon. Both state and federal officers can be criminally charged for violations of state and federal laws.
Benefits: The possibility of a criminal charge is a very serious penalty. It provides a retributive remedy for victims.
Difficulties: This rarely happens. The discretion of law enforcement, and the sympathetic juries make successful charges extremely unlikely. Lastly, it is unclear whether the prospect of being criminally charged deters law enforcement officials from acting beyond the scope of their duty.
The Federal Civil Rights Act U.S.C. 1983
This act provides several additional ways to remedy misconduct by law enforcement.
Firstly, it allows injunctive relief against an individual officer.57
Benefits: Relieves the fear of retaliation against the plaintiff. Does not necessitate criminal or civil officer liability.
Difficulties: Evaluated under “persistent pattern” standard which may be difficult to establish.
Secondly, it allows a plaintiff to sue without attorney fees.58
Benefits: Allows poorer plaintiffs to get into court. This is extremely important since it is often poorer persons victimized by police misconduct.59
Difficulties: None besides perhaps judicial backflow, but I could not find any evidence of this.
Thirdly, the authorizes suits against the municipality (employer).
Benefits: Avoids a major concern of opponents of individual officer liability-that officers being individually sued is unfair and might lower police utility in communities. Evidence exists that demonstrates that officer misconduct is more likely to be deterred through employer policies than the prospect of criminal charges, or the exclusionary rule in general. This aspect of the act would stimulate the growth and detail of employer policies.
Difficulties: None.
Proposed Alternatives
Reduction in Quotas
The quota systems can be detrimental to the individual officers, the department, and the public’s trust.60 These quota systems put pressure on officers and sometimes cause falsification to meet the requirements. Removing the incentive, or requirement, for officers to meet a certain number of sanctions could reduce the likelihood of acting beyond the scope of employment, and in turn increase trust from the public.
Increase Enforcement of Prosecutorial Misconduct
While current laws do exist that mandate prosecutorial disclosure it is seldom enforced. (ABA Model Rule 3.8 (d)). This rule like perjury, requires a truthfulness, and has serious consequences for false statements and omissions, but is seldom invoked against prosecutors. The rarity of this charge, coupled with the array of incentives for prosecutors to lie or omit material facts (competitiveness, protection of the public, etc.), results in material facts about officer conduct in the obtaining of evidence not being disclosed to the judge or defense council. Enforcement of this rule would provide incentive for prosecutors to be forthcoming.61
Footnote Resources:
1 Weeks v. United States, 232 U.S. 383 (1914).
3 Weeks v. United States, 232 U.S. 383, 398 (1914) (applying the exclusionary rule to federal cases); Mapp v. Ohio, 367 U.S. 643, 656-57 (1961) (applying the exclusionary rule to states via the Fourteenth Amendment).
4 Wong Sun v. United States, 371 U.S. 471, 488 (1963).
5 Robert E. Belanger, Judicial Decision Making and the Exclusionary Rule, 21 TEX. REV. L. & POL. 69, 73 (2016) (claiming that the exclusionary rule has been the subject of “hundreds, if not thousands, of scholarly articles”).
6 Weeks v. United States, 232 U.S. 383, 383 (1914); Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting) (“If the government becomes a lawbreaker, it breeds contempt for law . . . .”).
8 Silverthrone Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
9 Weeks v. United States, 232 U.S. 383, 398 (1914).
10 Mapp v. Ohio, 367 U.S. 643 (1961) (We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court . . . .) (emphasis added).
11 See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (“[T]he exclusionary rule is designed to deter police misconduct . . . .”); Davis v. United States 131 S. Ct. 2419, 2426 (2011) (“The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.”).
12 United States v. Leon, 468 U.S. 897, 906 (1984).
14 United States v. Janis, 428 U.S. 333, 450 n. 22 (“The final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect.”).
16 Davis v. United States 131 S. Ct. 2419, 2426 (2011).
17 Robert E. Belanger, Judicial Decision Making and the Exclusionary Rule, 21 TEX. REV. L. & POL. 69, 73 (2016) (claiming that the exclusionary rule has been the subject of “hundreds, if not thousands, of scholarly articles”).
19 Arval A. Morris, The Exclusionary Rule, Deterrence and Posner’s Economic Analysis of Law, WASH. L. REV. 647, 652 (1982) (recounting testimony of Maryland’s Attorney General, Stephen H. Sachs, who claimed that the rule had a deterrent effect).
20 See, e.g., Kit Kinports, Culpability, Deterrence, and the Exclusionary Rule, 21 WM. & MARY BILL RTS. J. 821, 832 (2013); Albert W. Alchuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1368 (2008) (“Quantifying the behavioral effects of the exclusionary rule is . . . impossible.”); Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49, 54 (“No one actually knows how effective the exclusionary rule is as a deterrent . . . .”).
21 Arval A. Morris, The Exclusionary Rule, Deterrence and Posner’s Economic Analysis of Law, WASH. L. REV. 647, 656 (1982) (“No research design yet conceived is capable of distinguishing between the number of nonoccuring illegal searches that can be attributed to police policies and the number of nonoccurrences correctly attributed solely to the effect of the exclusionary rule”).
23 Albert W. Alchuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1368 (2008).
25 See e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 416 (1971) (Burger, J. dissenting) (“there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials”); California v. Minjares, 443 U.S. 916, 926 (1979) (Rehnquist, J. dissenting) (“it is an open questions whether the exclusionary rule deters the police from violating Fourth Amendment protections of individuals); Dalin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 755 (1970) (“As a device for directly deterring illegal searches and seizures by the police, the exclusionary rule is a failure.”); Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49, 54 (1982) (“[The exclusionary rule] deters too little or too much; only be accident would it deter optimally”); L. Timothy Perrin et al., If It’s Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 755 (1998) (concluding that the exclusionary rule is “inadequate as a deterrent.”).
26 Dalin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665 (1970).
27 California v. Minjares, 443 U.S. 916, 926 (1979) (Rehnquist, J. dissenting).
28 Albert W. Alchuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1365-66 (2008).
29 Dalin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 755 (1970).
30 Albert W. Alchuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1370 (2008).
34 Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 A.B.F.Res.J. 611, 621.
36 Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979).
37 Jenia I. Turner, “The Exclusionary Rule as a Symbol of the Rule of Law,” 67 SMU Law Review 821 (2014).
38 Monrad G. Paulsen, “The Exclusionary Rule and Misconduct by the Police”, 52 Journal of Criminal Law and Criminology 255 (1961).
40 See Edward Rubin & Malcolm Feeley, “Creating Legal Doctrine,” 69 Southern California Law Review 1989 (1996); Emerson H. Tiller & Frank B. Cross, “What Is Legal Doctrine” (Northwestern Pub. Law, Res. Paper No. 05-06, May 2005). Cf. Aleksander Peczenik, “A Theory of Legal Doctrine”, 14 Ratio Juris 75 (2001).
41 See The Common Law and Civil Law Traditions.
42 Victoria F. Nourse, “Making Constitutional Doctrine in A Realist Age,” 145 University of Pennsylvania Law Review 1401 (1997).
43 Charles Fried, “Constitutional Doctrine”, 107 Harvard Law Review 1140 (1994).
45 Planned Parenthood v. Casey, 112 S. Ct 2791 (1992).
46 Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 491-92 (1939).
47 United States v. Leon, 468 U.S. 897, 906 (1984).
48 Gregg v. Georgia, 428 U.S. 153 (1976).
49 United States v. Janis, 428 U.S. (1976).
50 United States v. Leon, 468 U.S.
51 Mapp v. Ohio, 367 U.S. 643 (1961). See Janis, at 452.
53 I. Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and Death (Working Paper No. 18, National Bureau of Economic Research, Nov. 1973).
54 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 412-15 (1971) (Burger, C. J., dissenting).
55 Hilton, Alicia. Alternatives to the Exclusionary Rule after Hudson v. Michigan: Preventing and Remedying Police Misconduct. Villanova Law Review, Volume 53, Issue 1, page 12 (2008).