With New Ruling, Exclusionary Rule’s Days May be Numbered


The Supreme Court yesterday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional, the National Law Journal reports. Justices Elena Kagan and Sonia Sotomayor joined in the majority’s hostile approach, leading a dissenter to wonder if the rule — weakened by recent decisions — might be on life support. “If the Court means what it says, what will happen to the exclusionary rule?” asked Justice Stephen Breyer in a dissent joined by Justice Ruth Bader Ginsburg.

Justice Samuel Alito, writing for the court, said the absence of police culpability at the time of the search “dooms” a defendant’s claim that evidence obtained in the search should be excluded at trial. “Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule,” Alito wrote. He said the rule had a limited purpose of deterring future police misconduct, and could be ignored if it did not clearly serve that purpose in a given case. The exclusionary rule has long been a target of conservative justices, but the tenor of Alito’s majority opinion was unusually contentious. Kent Scheidegger of the Criminal Justice Legal Foundation said the Court’s hostile analysis of the exclusionary rule in Davis suggests “its days may be numbered.”

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