A Sixth Amendment Inclusionary Rule for Fourth Amendment Violations

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5-2022

A Sixth Amendment Inclusionary Rule for Fourth Amendment A Sixth Amendment Inclusionary Rule for Fourth Amendment

Violations Violations

Scott W. Howe

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CONNECTICUT

LAW REVIEW

VOLUME 54 MAY 2022 NUMBER 3

Article

A Sixth Amendment Inclusionary Rule for Fourth

Amendment Violations

SCOTT W. HOWE

Early in the tenure of Chief Justice Roberts, a five-Justice majority of

the Supreme Court signaled that it was ready to consider eliminating the

exclusionary rule as a remedy for Fourth Amendment violations. The central

concern was that, even after decades of limiting the rule through new

exceptions, it purportedly lacked utility in balancing protections against the

competing dangers of crime and police abuse, the only rationale on which

it has been grounded in the modern era. That existential reappraisal never

openly occurred, and the exclusionary rule, in further reduced form, still

survives. Yet, given the Court’s recent conservative shift, there is reason to

think that such a fundamental reassessment could now happen. On that view,

the methods by which the Court could eliminate the exclusionary rule

become important, as do some central normative questions that abolition

would raise: In a world without court-ordered suppression, how, if at all,

should the Constitution protect criminals against government searches and

seizures? And how should it balance protection for law-abiders between the

competing dangers of crime and police abuse? For the sake of exploring the

implications, this Article assumes that the Court will, indeed, eviscerate the

exclusionary rule as a judicially mandated remedy. The Article discusses

four routes that the Court could follow. All of them, like the exclusionary

rule, have defects. However, one stands out for protecting law-abiders

somewhat from police overreach while only modestly protecting criminals

and for resting on a constitutional grounding. The Court could substitute for

the exclusionary rule an “inclusionary rule” based on the right to jury trial

in the Sixth Amendment.

ARTICLE CONTENTS

INTRODUCTION .................................................................................... 615

I. FORFEITURE OF FOURTH AMENDMENT INTERESTS .............. 624

II. FORFEITURE OF A CONSTITUTIONALLY-GROUNDED

REMEDY .......................................................................................... 630

III. ABANDONMENT OF THE UTILITARIAN

JUSTIFICATION FOR THE REMEDY ............................................. 633

IV. AN INCLUSIONARY RULE FOR FOURTH

AMENDMENT VIOLATIONS ......................................................... 640

A. THE APPROACH ........................................................................... 640

B. THE CONSTITUTIONAL BASIS ....................................................... 643

C. AN ASSESSMENT ......................................................................... 648

CONCLUSION ........................................................................................ 652

A Sixth Amendment Inclusionary Rule for Fourth

Amendment Violations

SCOTT W. HOWE

INTRODUCTION

One of the harder questions to answer about the Fourth Amendment

concerns how the doctrine should aim to safeguard criminals. This question

typically arises in discussions about the kinds of interests that the Fourth

Amendment protects, which, according to the Supreme Court’s rulings for

more than a century, include interests used to commit and cover up crimes.

The question also arises in discussions of remedy, because the Court, again

for more than a century, has imposed evidence exclusion in criminal cases for

violations,

although, in the last fifty years, it has created many exceptions.

The question can take several forms, but, in the context of hypotheticals, it

might go like this: “How can a terrorist ever have a legitimate expectation of

being able to hide a bomb in his suitcase?” In another context, the question

might be: “How can a murderer have a protected interest in concealing his

dead victim in the trunk of his car?” In more abstract terms, the question is

essentially this: “Why should Fourth Amendment law ever protect liberty,

Frank L. Williams Professor of Criminal Law, Dale E. Fowler School of Law, Chapman

University. For support of various kinds during the preparation of this article, I thank Danny Bogart,

Sherry Leysen, Celestine McConville and Richard Redding. Most importantly, I thank Jetty Maria Howe-

Cascante, without whose help the article would not have come to fruition.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV.

See Weeks v. United States, 232 U.S. 383, 392 (1914) (asserting that “[t]his protection reaches all

alike, whether accused of crime or not”); see also Boyd v. United States, 116 U.S. 616, 622, 638 (1886)

(describing one issue as whether “a search and seizure, or, what is equivalent thereto, a compulsory

production of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his

property for alleged fraud against the revenue laws . . . is . . . an ‘unreasonable search and seizure’ within

the meaning of the Fourth Amendment of the Constitution” and answering that question affirmatively).

See, e.g., Weeks, 232 U.S. at 398 (concluding that papers seized from petitioner in violation of the

Fourth Amendment were not admissible against him in his criminal trial).

See JOSHUA DRESSLER, ALAN C. MICHAELS & RIC SIMMONS, I UNDERSTANDING CRIMINAL

PROCEDURE: INVESTIGATION 354–79 (7th ed. 2017) (discussing various exceptions to the Fourth

Amendment exclusionary rule).

616 CONNECTICUT LAW REVIEW [Vol. 54:3

privacy, and property interests when they are used for committing or covering

up crime?”

That question is a central subject of this Article. The answer would not

be simple even if current Fourth Amendment law were static. Yet, the

priority of interests that the doctrine protects, and in what fundamental ways,

continues to be disputed even among the Justices.

Moreover, the doctrine

on how to treat criminals under the amendment may soon change in ways

that will also affect the answer.

The Supreme Court has focused over the years mostly on the remedial

aspect of the problem of how to treat criminals under the amendment—mostly,

that is, on the exclusionary rule. The Court has not provided an extensive

rationale for its conclusion that law-breakers in the first instance have Fourth

Amendment interests to help them commit and hide their crimes. On that

score, the Court has not claimed in the modern era to have found and

followed an original understanding.

However, in 1914, apparently on the

view that the text did not except criminals, the Court concluded in Weeks v.

United States that the Fourth Amendment “reaches all alike, whether

See, e.g., Janine Young Kim, On the Broadness of the Fourth Amendment, 74 SMU L. REV. 3, 4–6

(2021) (noting various interests that Supreme Court Justices and commentators have contended the

Fourth Amendment should protect and disagreement within the Court over whether privacy or property

interests should be paramount); William Baude & James Y. Stern, The Positive Law Model of the Fourth

Amendment, 129 HARV. L. REV. 1821, 1857–58 (2016) (advocating a view of the Fourth Amendment

that would protect a variety of values beyond liberty, privacy, and property); Lawrence Rosenthal, Binary

Searches and the Central Meaning of the Fourth Amendment, 22 WM. & MARY BILL RTS. J. 881, 885–87

(2014) (noting the Court’s vacillation between libertarian and pragmatic conceptions of the Fourth

Amendment).

See infra text accompanying notes 42–53.

In Boyd v. United States, the Court contended that it identified and was following an original

understanding of the Fourth Amendment. Boyd, 116 U.S. at 623. Later, the Court rejected much of what

the Boyd opinion said. The Boyd Court stated that law-breakers were effectively immunized by the Fourth

Amendment against searches for or seizures of their “private books and papers.” See id. at 622, 630.

Also, the Boyd Court stated that searches for and seizures of “excisable” items, contraband, or stolen

goods were simply not “unreasonable.” See id. at 623–24; see also Kim, supra note 5, at 35–36 (noting

that Boyd suggested “that the Fourth Amendment protects against government trespass where the

individual has a full and legitimate property interest in the item to be seized, but not otherwise”). Later,

in Gouled v. United States, the Court underscored that government agents could not search for mere

evidence of crime, such as the shirt allegedly worn by a robber, or the private papers of the aggrieved

party, but only for items such as contraband or the instrumentalities of a crime. See 255 U.S. 298, 309

(1921). However, the Court subsequently abandoned the view that government agents could not search

for mere evidence, although it did not purport to follow the original understanding. See Warden v.

Hayden, 387 U.S. 294, 306–07 (1967) (holding that police could search for clothing worn by an armed

robber in the commission of the crime). The Court also abandoned the idea that private books and papers

were not subject to searches and seizures under the Fourth Amendment. See Andresen v. Maryland, 427

U.S. 463, 465–84 (1976) (holding that neither the Fifth Amendment nor the Fourth Amendment

prevented police officers from searching the petitioner’s law office, based on a search warrant, for private

papers to be used against him in a fraud prosecution). The Court also has ruled that searches for and

seizures of contraband or stolen goods are unreasonable absent compliance with the procedural

requirements of the Fourth Amendment. See, e.g., Mapp v. Ohio, 367 U.S. 643, 645, 660 (1961)

(discussing the search of a home and seizure of obscene materials).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 617

accused of crime or not.”

Since that time, the Court has acted in accordance

with the Weeks proposition, with little further elaboration.

As for the exclusionary rule, the Court first definitively applied it in Weeks

in the federal context

and extended it to the states in Mapp v. Ohio.

(Note

that the very existence of this remedy underscores the more basic Weeks

proposition—that law-breakers have protected interests on which they can

rely to some extent to pursue and cover up crime.

) The amendment says

nothing about remedy, and the rationales for the Court’s early imposition of

evidentiary suppression were not entirely clear, although they were not

focused on deterrence of police misconduct.

The rationales included the idea

that an effective remedy was implicit in the Fourth Amendment prohibition,

that exclusion was required by the Fifth Amendment privilege,

that notions

of judicial integrity that forbade acquiescence in unconstitutional conduct

mandated suppression,

and, perhaps, that it was simply inconsistent with the

Weeks, 232 U.S. at 391–92.

In later decisions, for example, the Court repeatedly held that an improper search is not validated

by the discovery of evidence of crime. See, e.g., Byars v. United States, 273 U.S. 28, 29–30 (1927)

(declaring it immaterial “that the search was successful in revealing evidence” of crime, and ordering the

evidence suppressed in petitioner’s criminal trial); Sibron v. New York, 392 U.S. 40, 62–63 (1968)

(holding a search to be without probable cause although it turned up illegal heroin, and declaring that the

results of a search may not “serve as part of its justification”); Smith v. Ohio, 494 U.S. 541, 543 (1990)

(per curiam) (holding that a search without Fourth Amendment justification could not find validation as

a search incident to a subsequent arrest based on the results of the illegal search).

The Court clearly applied it in Weeks, but had arguably also applied it in Boyd, although the Court

saw the Fifth Amendment privilege at play in Boyd, 116 U.S. at 630–35, and that privilege, unlike the

Fourth Amendment, expressly embodies an exclusionary principle.

Mapp, 367 U.S. at 655.

See, e.g., Arizona v. Hicks, 480 U.S. 321, 329 (1987) (mandating exclusion of evidence about

stolen stereo equipment based on violation of defendant’s Fourth Amendment rights, and asserting that

the Constitution sometimes “insulates” a defendant’s “criminality”).

See, e.g., TRACEY MACLIN, THE SUPREME COURT AND THE FOURTH AMENDMENT’S

EXCLUSIONARY RULE 3 (2013) (noting that in the late nineteenth and early twentieth centuries, the Court

viewed the prohibition on the admission of unconstitutionally obtained evidence as “a constitutional right

belonging to the citizen”).

See Olmstead v. United States, 277 U.S. 438, 462 (1928) (commenting on the “striking outcome

of the Weeks case . . . that the Fourth Amendment, although not referring to or limiting the use of evidence

in courts, really forbade its introduction”); see also Silas Wasserstrom & William J. Mertens, The

Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 AM. CRIM. L. REV. 85, 138 (1984)

(asserting that the majority opinion in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920),

indicated that exclusion was an essential part of the Fourth Amendment prohibition).

See, e.g., Olmstead, 277 U.S. at 478–79 (Brandeis, J., dissenting) (“And the use, as evidence in

a criminal proceeding, of facts ascertained by such intrusion [in violation of the Fourth Amendment]

must be deemed a violation of the Fifth.”); see also Edward S. Corwin, The Supreme Court’s Construction

of the Self-Incrimination Clause, 29 MICH. L. REV. 191, 203 (1931) (asserting that Boyd created “the rule

that evidence obtained in violation of a person’s rights under the Fourth Amendment may not under the Fifth

Amendment be validly received against him in any criminal prosecution in federal court”).

See Olmstead, 277 U.S. at 470 (Holmes, J., dissenting) (asserting that “for my part I think it a

less evil that some criminals should escape than that the Government play an ignoble part” and that “[i]f

the existing code does not permit district attorneys to have a hand in such dirty business it does not permit

the judge to allow such iniquities to succeed”).

618 CONNECTICUT LAW REVIEW [Vol. 54:3

broader postulates of our Constitution for evidence obtained in violation of the

Fourth Amendment to support a criminal conviction.

In 1961, the Mapp Court

said that exclusion was an inherent right of the aggrieved defendant

and was

also a matter of good social policy.

However, the Court soon concluded that

the Mapp opinion was partly wrong; the aggrieved defendant has no personal

right to exclusion.

The post-Mapp Court initially justified exclusion solely on

an instrumental theory focused on deterrence of police misconduct.

This

somewhat narrow instrumentalism soon morphed into a broader utilitarianism

that weighs deterrence benefits against social costs.

Since the 1970s, the

Court has justified exclusion entirely on the notion that, despite the costs,

exclusion is appropriate in a fraction of criminal cases involving violations to

promote police compliance with Fourth Amendment doctrines,

presumably

for the primary benefit of law-abiders.

On this view, the exclusionary rule

directly protects criminals in an effort to indirectly protect everyone else

The Supreme Court has not always specified the constitutional basis for its rights-based

constitutional rulings. For example, in West Virginia State Board of Education v. Barnette, the Court

ruled that two young sisters, both Jehovah’s Witnesses, could not be expelled from public school for

failing to salute the United States flag and recite the pledge of allegiance. 319 U.S. 624 (1943). The Court

declared that a state cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word or act their faith therein.” Id. at 642. The opinion

cited no specific clause as the basis for the ruling. Laurence Tribe has described Barnette as “rel[ying]

on no single clause of the Bill of Rights but on the broader postulates of our constitutional order.”

Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 HARV. L. REV. F. 16, 26 (2015),

https://harvardlawreview.org/wp-content/uploads/2015/11/vol129_Tribe.pdf.

See, e.g., Mapp v. Ohio, 367 U.S. 643, 660 (1961) (“Our decision . . . gives to the individual no more

than that which the Constitution guarantees him . . . .”); see also Potter Stewart, The Road to Mapp v. Ohio

and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases,

83 COLUM. L. REV. 1365, 1380–89 (1983) (describing how the exclusionary rule developed and contending

that it is essential to disincentivize and thereby help prevent Fourth Amendment violations).

See Mapp, 367 U.S. at 657 (asserting that the exclusionary rule “also makes very good sense”).

See, e.g., Terry v. Ohio, 392 U.S. 1, 29 (1968) (“The entire deterrent purpose of the rule excluding

evidence seized in violation of the Fourth Amendment rests on the assumption that ‘limitations upon the

fruit to be gathered tend to limit the quest itself.’”) (quoting United States v. Poller, 43 F.2d 911, 914 (2d

Cir. 1930)).

Id. at 12.

See, e.g., United States v. Calandra, 414 U.S. 338, 350 (1974) (“Against this potential damage to

the role and functions of the grand jury, we must weigh the benefits to be derived from this proposed

extension of the exclusionary rule.”); United States v. Leon, 468 U.S. 897, 913 (1984) (“[O]ur evaluation

of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying

on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should

be admissible in the prosecution’s case in chief.”).

See Richard M. Re, The Due Process Exclusionary Rule, 127 HARV. L. REV. 1885, 1897 (2014)

(noting that under the Court’s recent case law, the exclusionary rule “must yield a marginal deterrence

benefit at least commensurate with the substantial social costs of suppressing reliable evidence”); Ronald J.

Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt, 85

CHI.-KENT L. REV. 241, 243 (2010) ( “The exclusionary rule is based on the premise that the deterrent effect

on police conduct outweighs the injustice of suppressing relevant and material evidence.”).

See, e.g., Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (asserting that “the

purpose of suppression . . . is to compel law enforcement compliance with the Fourth Amendment and

thereby prevent the invasions of law-abiding citizens’ privacy”).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 619

from police misconduct.

This modern explanation for the exclusionary rule is vulnerable.

According to prevailing discourse, the principal problem is not that

court-ordered exclusion conflicts with the original understanding.

That

argument would be complicated by vastly changed circumstances.

The

modern explanation for the exclusionary rule is vulnerable on its own terms.

First, it rests on an assessment that purports to weigh a category of costs

against an incommensurate kind of benefit,

and the value, or negative

value, to be assigned to both the costs and the benefits rests largely with the

beholder.

There also is not much helpful data to clarify the degree to which

See, e.g., Arizona v. Hicks, 480 U.S. 321, 329 (1987) (“But there is nothing new in the realization

that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”).

There is no affirmative argument, based on originalism, that criminals are protected through an

exclusionary rule like that articulated in Weeks and Mapp. Suppression in criminal cases was never

mentioned by the Framers as an enforcement mechanism. AKHIL REED AMAR, THE CONSTITUTION AND

CRIMINAL PROCEDURE: FIRST PRINCIPLES 21 (1997). Likewise, the pre-founding-era common law

inherited from England “conceded the admissibility” of unlawfully obtained evidence. WILLIAM J.

CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING (602–1791) 759 (2009). The

Supreme Court also did not employ court-ordered suppression until 1886, and, even then, the Court did

so only by combining the Fourth Amendment with the more clearly exclusionary Fifth Amendment

privilege against compelled self-incrimination. See Boyd v. United States, 116 U.S. 616, 634–35 (1886).

Moreover, for an additional perspective on perhaps why court-ordered exclusion for violations was not

part of the original understanding, see infra Part IV.B.

Those favoring a court-ordered exclusionary rule could reject, on the basis of “inattention to

historical context,” an originalist position favoring a founding-era enforcement approach. See Lawrence

Rosenthal, Seven Theses in Grudging Defense of the Exclusionary Rule, 10 OHIO ST. J. CRIM. L. 525,

532–33 (2013). First, Carol Steiker has explained that “[t]he racial diversity and divisions that

characterize twentieth-century American society were unimagined by, and indeed unimaginable to, our

eighteenth-century forebears.” Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L.

REV. 820, 838 (1994). Professor Steiker has argued that the exclusionary rule was partly a response to

the failure of law enforcement after the Civil War Amendments to treat Blacks as equal members of

society. Id. at 841. Second, Lawrence Rosenthal has explained that there were few law enforcement

officers in the colonies during the founding era, and their duties consisted mostly in the “execution of

warrants” and in “responding to breaches of the peace, offenses committed in their presence, and pursuing

offenders when summoned in the wake of crime.” Rosenthal, supra, at 533. They generally did not

investigate. George C. Thomas III, Stumbling Toward History: The Framers’ Search and Seizure World,

43 TEX. TECH L. REV. 199, 201 (2010). And they generally undertook a search or seizure without judicial

permission only with substantial care because, while they were immune from liability for executing a

warrant, they otherwise faced the threat of tort liability for errors. Rosenthal, supra, at 534; see also

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 552 (1999)

(“Warrant authority was the potent source of arrest and search authority.”). Today, tort damages are

rarely imposed on and paid by police officers who violate the Fourth Amendment, due, in part, to the

qualified immunity doctrine created and enforced by the Court regarding § 1983 claims and due, largely,

to indemnification by their public employers. See Joanna C. Schwartz, How Qualified Immunity Fails,

127 YALE L.J. 2, 8–9 (2017) (noting that qualified immunity doctrine plays a minor role in shielding

police officers from financial liability); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV.

885, 890 (2014) (“Police officers are virtually always indemnified.”).

See Re, supra note 23, at 1897 (describing the competing values as “incommensurable”).

Because the Court approaches the cost-benefit questions without regard to the seriousness of the

crimes involved, the exclusionary rule also “has no sense of proportionality.” Rychlak, supra note 23, at

243.

620 CONNECTICUT LAW REVIEW [Vol. 54:3

changes on the deterrence side of the equation are effective

or the degree

to which they produce changes on the other side, particularly under varying

crime-type, geographical, and temporal circumstances.

High-quality

empirical investigation on the subject is also notoriously difficult.

Consequently, the Court’s assertions about the costs and benefits are

typically non-refutable.

In this context, exclusion can always readily be viewed as a lose-lose

proposition for the law-abiding. If exclusion does not affect police behavior

much, suppression forces the community to bear the loss of evidence

supporting the defendant’s guilt for no compelling benefit.

Alternatively,

if the exclusionary rule significantly restrains police behavior, it is logical to

suppose that it would also encourage crime, a seemingly negative

consequence for law-abiders that, along with the cost of suppression in the

individual case, could easily be thought to outweigh the police-restraining

benefit. Although good data about the effects of the exclusionary rule are

limited, empirical study has not reassured us against this latter concern.

Consequently, considered within these parameters, neither an ineffective nor

an effective exclusionary rule (as measured by its influence on police) may

sound attractive.

See, e.g., Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL.

L. REV. 363, 368–69 (asserting that “[n]o one is going to win the empirical debate” because empirical

research cannot confirm how much the rule deters police violations).

See, e.g., Re, supra note 23, at 1901 (asserting that when weighing “the deterrent benefit against

the potential costs of increased crime,” the “courts have access to virtually no relevant data”).

See, e.g., Rosenthal, supra note 27, at 542 (noting that, while there is general agreement that

“exclusion has some deterrent effect,” there is a dearth of “reliable evidence” on the “magnitude” of the

effect “in light of the many methodological problems that face those who seek to study” the question).

See Re, supra note 23, at 1901 (noting that the Court’s exclusionary-rule decisions “seem to resist

falsification”).

See generally Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI.

L. REV. 665, 709 (1970) (noting, at that time, the dearth of empirical evidence that suppression deters

police violations, but also clarifying that his study was inadequate to provide “empirical substantiation

or refutation” on the issue).

See Raymond A. Atkins & Paul H. Rubin, Effects of Criminal Procedure on Crime Rates:

Mapping Out the Consequences of the Exclusionary Rule, 46 J.L. & ECON. 157, 159 (2003) (“The

empirical evidence reveals a significant increase in crime rates following the involuntary adoption of an

exclusionary rule as the penalty for an unlawful search and seizure.”).

Given that the Court has construed the Fourth Amendment to confer protected interests on

criminals and law-abiders alike, a broader perspective on the exclusionary rule would acknowledge that

the amendment itself imposes the costs and that the exclusionary rule never does more than attempt to

put the parties in the position that they would have been in had there been no government violation. See,

e.g., MACLIN, supra note 13, at xii–xiii (citing Albert W. Alschuler, Fourth Amendment Remedies: The

Current Understanding, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING

197, 199 (Eugene W. Hickock, Jr., ed., 1999)). If the Fourth Amendment were construed not to assist

persons to pursue and cover up criminal endeavors, this claim would disappear. See infra note 62.

A broader perspective on the exclusionary rule would also acknowledge that, even within the context

of a utilitarian analysis, it is relevant whether the failure to provide an effective remedy for police violations

would over time promote crime. As Justice Brandeis famously contended, “Crime is contagious. If the

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 621

The creation of exceptions to the exclusionary rule is also a poor solution

if suppression is generally seen as non-utilitarian and utility is its only

justification. Based on the view that the exclusionary remedy often does not

substantially deter police violations or that utility is not maximized when it

does, the Supreme Court has recognized a variety of exceptions.

Even so,

some costly consequences from exclusion potentially remain because

suppression still survives as a judicial response to a substantial amount of

police behavior.

Also, because of the exceptions, courts now deny effective

and readily available relief to many criminal defendants, although the police

supposedly violated their Fourth Amendment rights to help secure their

convictions.

In Marbury v. Madison,

Chief Justice Marshall famously

warned that ours could not be called a “government of laws, and not of men

. . . if the laws furnish no remedy for the violation of a vested legal right.”

Contrary to Marshall’s admonition, exceptions to the exclusionary rule

cast many purportedly aggrieved but apparently guilty persons as

semi-sympathetic figures, at least to observers who believe we should honor

constitutional protections.

Given the problems, it is perhaps not surprising that the Roberts Court,

several years ago, hinted that it was ready to fundamentally rethink the

exclusionary rule. In Hudson v. Michigan,

a five-Justice majority

expressed concern that the costs of exclusion may generally outweigh the

benefits.

The majority opinion called “into question the entire rationale of

the exclusionary rule, not just [its application] in the knock-and-announce

context” that the case presented.

There were subsequent signals that the

Court might go in a different direction. The Court decided two cases,

Herring v. United States

and Davis v. United States,

in which it laid the

government becomes a lawbreaker, it breeds contempt for law . . . .” Olmstead v. United States, 277 U.S.

438, 485 (1928) (Brandeis, J., dissenting).

See DRESSLER, MICHAELS & SIMMONS, supra note 4, at 354–79 (discussing various exceptions

to the Fourth Amendment exclusionary rule).

See Re, supra note 23, at 1899 (“While it is true that the Court has increasingly relied on

deterrence-based reasoning to nibble away at the edges of the robust exclusionary rule established in the

1960s, the core of that rule remains intact and in force today: unconstitutionally collected evidence is

presumptively inadmissible at trial.”).

See Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL’Y 111, 114–15 (2003)

(discussing the difficulty for criminal actors to prevail in a constitutional tort action for infringements of

their Fourth Amendment interests and the additional difficulty of gaining more than small damage awards).

5 U.S. (1 Cranch) 137 (1803).

Id. at 163.

547 U.S. 586 (2006).

See id. at 597–99. For more information on Hudson, see infra text accompanying notes 101–104.

David A. Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts Court

Takes on the Fourth Amendment, 2005–2006 CATO SUP. CT. REV. 283, 284 (2006).

555 U.S. 135 (2009).

564 U.S. 229 (2011).

622 CONNECTICUT LAW REVIEW [Vol. 54:3

groundwork to further undermine the rule without abolishing it completely.

By making suppression turn on whether there was egregious police conduct

by the particular officer carrying out the search,

those two cases provided

a foundation for the Court to eventually create an expansive “good-faith

exception for routine search-and-seizure cases.”

A leading scholar on the

subject, Tracey Maclin, asserts that such a move would go “nine-tenths of

the way toward repealing the exclusionary rule.”

Yet, neither the current

remains of the exclusionary rule nor an even more shriveled “bad faith” form

of it has a plausible constitutional grounding,

which helps reveal why the

Court may be ready to go farther.

Given that, of the five Justices in the

See, e.g., MACLIN, supra note 13, at 336–47 (discussing the Harris and Davis opinions and

explaining how they can provide the foundation for the Court to substantially but not entirely abolish the

exclusionary rule).

In Herring, a sheriff’s investigator in Coffee County, Alabama, relied on a telephone report from

neighboring Dale County’s sheriff’s office that there was an outstanding arrest warrant for Bennie Dean

Herring and arrested him. Herring, 555 U.S. at 137. A search incident to arrest revealed that Herring illegally

possessed methamphetamine and a pistol. Id. Ten to fifteen minutes later, the police discovered that the

listing of the warrant in the Dale County database was erroneous. Id. at 138. Thus, the arrest violated the

Fourth Amendment according to prevailing doctrine, id. at 139, and evidence of the drugs and the gun were

the fruit. Nonetheless, the Supreme Court ruled that suppression was inappropriate because the police error

resulted from isolated, ordinary police negligence that was “attenuated” from the illegal arrest. Id. at 144.

The Court asserted that the exclusionary rule serves only to deter “deliberate, reckless, or grossly negligent

conduct, or in some circumstances recurring or systemic negligence.” Id. Herring thereby became the first

Supreme Court decision post-Mapp to hold that police negligence in violating the Fourth Amendment was

not enough to warrant suppression. See MACLIN, supra note 13, at 339.

In Davis, the Court concluded that the “reasonable good-faith belief” exception, applicable where

the police rely on a warrant issued on less than probable cause, see United States v. Leon, 468 U.S. 897,

909 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 255 (1983) (White, J., concurring in judgment)),

should extend to cover a police search based on judicial precedent that was later overruled. Davis, 564

U.S. at 231–32. Expanding on Herring’s focus on police culpability, the Court asserted that exclusion is

inappropriate when police search or seize “with an objectively ‘reasonable good-faith belief’ that their

conduct is lawful” or when their violation “involves only simple, ‘isolated’ negligence.” Id. at 238.

Unlike in Herring, however, the Court made no mention of attenuation, implying that even unattenuated

police negligence in violating the Fourth Amendment was not enough to justify suppression. See

MACLIN, supra note 13, at 341–42. Although the Court would have to narrow the rule more, Professor

Maclin contends that Davis and Herring together may portend that the Court could eventually hold that

only “purposeful, bad-faith police misconduct” can justify exclusion. Id. at 343.

MACLIN, supra note 13, at 342.

Id.

The current exclusionary rule cannot find a plausible constitutional grounding if only because its

contours are insensible given its supposed explanation in utility. For example, there is no good

explanation for why the rule does not apply in civil cases. See Akhil Reed Amar, Fourth Amendment

First Principles, 107 HARV. L. REV. 757, 791 (1994). There is no good explanation for why the rule in

the form of a punitive suppression order does not apply to illegal arrests or cases of illegal searches where

no evidence was recovered. See id. at 796–98; Re, supra note 23, at 1895–96. There is no good

explanation for why the rule does not apply to violations of the Fourth Amendment rights of third parties.

See Re, supra note 23, at 1896. Further, there is no good reason why the rule does apply in cases of

serious crimes where the utility analysis would seem to favor admission. See id. at 1896–97.

See Re, supra note 23, at 1888 (noting that the Herring opinion endorsed views critical of Mapp,

a case of bad-faith violation, which suggests that the majority was skeptical about retaining even a bad-

faith exclusionary rule).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 623

majority in Hudson, three Justices (Roberts, Thomas, and Alito) remain on

the Court and are now part of a six-Justice majority appointed by

conservative presidents (including Gorsuch, Kavanaugh, and Barrett), the

Court might well be prepared to abolish the exclusionary rule entirely.

On that view, the methods by which the Court could eliminate the

exclusionary rule become important, as do the central normative questions

that abolition would raise: In a world without court-ordered suppression,

how, if at all, should the Constitution protect criminals against government

searches and seizures? And how should it balance protection for law-abiders

between the dual dangers of crime and police abuse? For the sake of

exploring the implications, this Article assumes that the Court will, indeed,

eviscerate the exclusionary rule as a judicially mandated remedy.

The first three Parts of the Article consider alternative ways in which the

Court, in removing the exclusionary rule, could effectively prevent

law-breakers from using Fourth Amendment protections or Court-imposed

remedies to help them pursue and conceal their crimes. Part I explores the

merits and demerits of using a forfeiture theory to abandon the long-standing

notion that criminals have protected Fourth Amendment interests for

purposes of committing and hiding their crimes,

an approach that would

eliminate any basis for an exclusionary remedy. Part II discusses whether

the Court should use a similar forfeiture theory to reach the somewhat

different conclusion that criminals have no constitutionally based claim to a

remedy for a violation of their Fourth Amendment interests when they have

used them to commit or hide their crimes. Part III discusses the pros and

cons of doing what Hudson suggested—simply abandoning the exclusionary

remedy as non-utilitarian and, on grounds that the Fourth Amendment says

nothing about remedy, leaving the question to Congress and the states. All

three approaches have serious demerits, but reliance on any of them would

thwart criminals from using the Fourth Amendment to their advantage.

Part IV describes an alternative approach that, although a significant

change of course for the Court, would provide some protection to

law-abiders from police overreach. The Court could substitute for the

exclusionary rule an “inclusionary rule.” Its grounding in the Constitution

could rest on a combination of the Fourth Amendment and the right to jury

trial in the Sixth Amendment. This approach would continue to require trial

judges to resolve Fourth Amendment claims in criminal cases and, upon

finding a violation involving evidentiary fruits, to include an instruction to

the jury describing the violation and advising the jurors to decide whether to

ignore the evidentiary fruits or even acquit the defendant of some or all of the

charges. This approach has problems even beyond its substantial change of

direction for the Court. Yet, it would probably protect criminals only

Professor Maclin contends that Roberts, Thomas, and Alito are “ready to do so.” MACLIN, supra

note 13, at 342.

See supra notes 7–10 and accompanying text.

624 CONNECTICUT LAW REVIEW [Vol. 54:3

modestly. At the same time, it would preserve the ability of the Supreme Court

to develop and refine Fourth Amendment law through criminal cases and to

at least moderately deter violations against law-abiders, whether or not juries

usually would ignore the evidentiary fruits. Moreover, this approach would

have a constitutional grounding that could largely clarify the contours of its

application, which distinguishes it from the current exclusionary rule and most

other proposals to substitute an alternative remedy.

I. FORFEITURE OF FOURTH AMENDMENT INTERESTS

One way to eliminate the exclusionary rule would be to reject the

existence of legitimate liberty, privacy, or property interests to pursue or

cover up crime. If law-breakers do not have cognizable Fourth Amendment

interests for purposes of pursuing and hiding their offenses, they do not have

a claim for a remedy on the ground that their legitimate interests have been

infringed. On this view, the Court should now revise the claim in Weeks that

the Fourth Amendment applies to all alike, whether they be law-breakers or

law-abiders.

The Court could abandon that idea and thereby eliminate the

basis for an exclusionary remedy.

A forfeiture theory could help explain this position. The law-breaker can

be seen as justifiably penalized for his wrongdoing by the police intrusion

on his liberty, privacy, and property to discover and seize the evidence or

his body and by his subsequent prosecution, conviction, and sanction.

Without malefaction like his, the police would not need to invade anyone’s

Fourth Amendment interests to root out crime. Although an extreme view,

the law-breaker’s criminal behavior and cover-up could perhaps even be

seen as complicity in the causal events leading up to the kind of aggressive

search and seizure tactics about which he would complain in a suppression

motion. From either perspective, his wrongdoing would justify holding that

he forfeits the liberty, privacy, and property interests that would otherwise

support such a motion.

Declining to protect liberty, privacy, and property to the extent that they

See supra note 51 and infra note 139 (making the point that the current exclusionary rule and

other proposals do not satisfy these criteria).

Weeks v. United States, 232 U.S. 383, 392 (1914).

Legal forfeiture has applied in other situations involving wrongdoing by an actor seeking a related

legal benefit. For example, a “forfeiture of the right to appeal” under the “fugitive disentitlement

doctrine” justifies the dismissal of an appeal filed by a criminal defendant who becomes a fugitive during

the pendency of the appeal. See Martha B. Stolley, Sword or Shield: Due Process and the Fugitive

Entitlement Doctrine, 87 J. CRIM. L. & CRIMINOLOGY 751, 753 (1997) (discussing how appellate courts

typically treat criminal defendants who become fugitives during the pendency of their appeals); see also

Ortega-Rodriguez v. United States, 507 U.S. 234, 239-42, (1993) (discussing the Court’s fugitive

disentitlement case law); WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 1571–72 (6th ed. 2017)

(discussing this forfeiture doctrine). Likewise, under the Federal Rules of Evidence, a party forfeits the

right to offer hearsay evidence under the exceptions listed in Rule 804(b), which require an unavailable

declarant, if that party procured or wrongfully caused the declarant’s unavailability. FED. R. EVID. 804(a).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 625

are used for criminal ends would have multiple benefits. It would eliminate

Fourth Amendment issues from criminal cases, saving the resources of the

courts. It would eliminate the purported “windfall”

that we presently

confer on criminal defendants who win evidentiary suppression, while also

clarifying why they are not entitled. It would stop signaling that the law aims

to protect criminal behavior and any concomitant encouragement to crime.

Further, it would end the confusing message that comes with the

exclusionary rule exceptions that the Court does not care enough about those

supposed constitutional violations to provide their sufferers with an effective

and readily available remedy.

This forfeiture-of-interests approach would also neuter all justifications

for the exclusionary rule that build on the proposition that there has

been a government violation of the Fourth Amendment. The approach

would undermine the notion that a criminal defendant can serve as

a proxy for law-abiding persons, which is part of the prevailing

deterrence-of-police-misconduct theory for the exclusionary rule.

Such a

criminal defendant has forfeited the interests that would give him the proxy

status to represent the law-abiding. Likewise, this approach would render

moot other theories that the Court has used in the past to justify exclusion,

such as that a Fourth Amendment infringement requires exclusion under the

Fifth Amendment privilege, or that judicial integrity requires that the courts

not acquiesce in unconstitutional conduct, or perhaps that the broader

postulates of the Constitution require exclusion of the evidentiary fruits of a

Fourth Amendment violation.

It would also sideline similar theories

proposed by commentators to support suppression,

such as that the Due

Process Clauses require exclusion of the evidentiary fruits of a Fourth

Amendment violation.

None of those theories apply if the defendant has

forfeited through wrongdoing the underlying liberty, privacy, and property

interests that could give rise to a Fourth Amendment motion to suppress.

This rights-forfeiture approach also has benefits beyond justifying

abandonment of the exclusionary rule. The approach explains why criminal

MACLIN, supra note 13, at 2.

See supra notes 23–25 and accompanying text.

See supra notes 14–17 and accompanying text.

The rights-forfeiture approach would neutralize the argument that the exclusionary rule never

does more than try to place the parties in the status quo ante, so that the Fourth Amendment itself imposes

the costs in terms of lost convictions and impaired law enforcement. See MACLIN, supra note 13. Under

the rights-forfeiture approach, there is no Fourth Amendment violation.

See Re, supra note 23, at 1890 (arguing that the exclusionary rule should be viewed as “a product

of the Fourth Amendment and the Due Process Clauses working together”). Cf. Albert W. Alschuler,

Regarding Re’s Revisionism: Notes on The Due Process Exclusionary Rule, 127 HARV. L. REV. F. 302,

303, 307–308, 323–24 (2014) (supporting the proposition that the Due Process Clauses can ground an

exclusionary rule, but disagreeing with aspects of Re’s argument and favoring a more robust exclusionary

rule than the one Re proposes).

626 CONNECTICUT LAW REVIEW [Vol. 54:3

actors should not have any remedy under 42 U.S.C. § 1983

for their

detention, prosecution, and sentence upon conviction. The federal courts

have been forced to use pretzel logic or no logic at all to address why those

outcomes are not proximately caused by a clearly established

police

violation of the aggrieved defendant’s Fourth Amendment rights and do not

constitute compensable injuries for purposes of § 1983.

Clearly established

police violations are sometimes an important factual cause of the detentions,

prosecutions, and sentences and are not so divorced from them by any

intervening party’s actions as to relieve the police from liability under

conventional notions of proximate causation.

A more straightforward

explanation would focus on the wrongdoing of the criminal actor in the first

As currently codified, the statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage,

of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia shall be considered to be

a statute of the District of Columbia.

42 U.S.C. § 1983. In Bivens v. Six Unknown Named Agents of Federal. Bureau of Narcotics, 403 U.S.

388 (1971), the Court provided, as a matter of federal common law, an equivalent cause of action for

violations by federal officials. Id. at 397.

Unless the violation is of clearly established law, the police officer would enjoy immunity from

personal liability in a § 1983 suit, according to the Supreme Court’s “qualified immunity” doctrine. See

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“We therefore hold that government officials performing

discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would have

known.”); see also Pierson v. Ray, 386 U.S. 547, 557 (1967) (inventing the “qualified immunity” doctrine).

See, e.g., Lingo v. City of Salem, 832 F.3d 953, 960 (9th Cir. 2016) (in response to claim that

arrest and subsequent harms resulted from illegal search where criminal charges were ultimately dropped,

asserting, inter alia, that “the government’s use of illegally obtained evidence is [not] itself a

constitutional concern”); Black v. Wigington, 811 F.3d 1259, 1268 (11th Cir. 2016) (in response to claim

that arrest and subsequent detention was based on illegal search where criminal charges were dropped,

asserting, inter alia, that “[e]xclusion of the evidence found by [the officers] on the basis that they had

no legal right to search the [area] would, in effect, be an application of the exclusionary rule to this case.”)

(quoting Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997)); Townes v. City of New York, 176 F.3d

138, 146 (2d Cir. 1999) (in response to claim that arrest was based on illegal stop where the resulting

evidence was erroneously admitted but the conviction was ultimately reversed, asserting, inter alia, that

“the trial court’s refusal to suppress the evidence” was “an intervening and superseding cause of

Townes’s conviction.”); see also Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994) (declaring, without

an explanation, that “the ‘injury’ of being convicted and imprisoned (until [the] conviction has been

overturned)” is not an “actual, compensable injury” as required by § 1983).

See, e.g., JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 192 (7th ed. 2016) (noting that a

responsive intervening cause does not relieve the initial wrongdoer (here, the police officer) from liability

where (as here) the subsequent events would not be unforeseeable).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 627

instance as warranting the denial of § 1983 remedies for such outcomes.

The rights-forfeiture theory provides that explanation given that § 1983

would not apply if there is no violation of a constitutional right.

Note that, without concern over expanded remedies for law-breakers as

a cost of enforcement, the Court could also adjust Fourth Amendment law

to better protect the liberty, privacy, and property interests of the

law-abiding. For example, the Court could tighten the current law on police

reliance on exigencies to search, which blinks reality about what is a police

threat to enter premises without authority.

Further, the Court could

abandon the ruling in Illinois v. Gates,

a decision on the standard by which

to judge probable cause, when based on an informant’s tip, which was

facially illogical and arguably too prosecution-oriented.

Likewise, the

Court could modify the qualified immunity doctrines that it constructed, on

dubious technical legal grounds, to avoid over-deterrence of police officers

in § 1983 actions seeking monetary remedies.

While attractive at first blush, however, this rights-forfeiture theory

raises problems. First, it would require the use of a presumption that would

Admittedly, the notion that the police officer’s illegal arrest was not the proximate cause of the

detention, prosecution, conviction, and sentence was a long-standing argument used by courts to deny

relief to the prisoner. See Alschuler, supra note 62, at 308.

See supra note 65.

See Kentucky v. King, 563 U.S. 452, 455–56 (2011) (holding that warrantless police act of

banging on apartment door “as loud as [they] could” and yelling, “[t]his is the police” or “[p]olice, police,

police,” was not a violation of the Fourth Amendment nor a threat to enter in violation of the Fourth

Amendment and, thus, the police could enter on an exigency theory if they subsequently heard noises

inside that indicated occupants were destroying illicit drugs).

462 U.S. 213 (1983).

In Gates, the Court abandoned a two-pronged standard for assessing informant tips that it had

previously enforced in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S.

410 (1969). See Gates, 462 U.S. at 227–30. Under the Aguilar-Spinelli test, the magistrate was required

to find that the informant had an adequate basis of knowledge and was a credible person. See, e.g.,

Aguilar, 378 U.S. at 114. Under Gates, the basis of knowledge and veracity prongs are not treated as

separate requirements. See Gates, 462 U.S. at 233. The Court called for a “totality-of-the-circumstances”

assessment that allowed the strength of one prong to make up for weakness in the other. See id.

Commentators have generally criticized as illogical the Court’s view that the two prongs are not

independently important. See, e.g., Wayne R. LaFave, The Fourth Amendment Today: A Bicentennial

Appraisal, 32 VILL. L. REV. 1061, 1065–70 (1987) (contending that all of the rationales offered by the

Gates majority for abandoning the two-prong standard were unpersuasive); Alexander P. Woollcott,

Recent Development, Abandonment of the Two-Pronged Aguilar-Spinelli Test: Illinois v. Gates, 70

CORNELL L. REV. 316, 329 (1985) (asserting that Gates’s abandonment of the two-prong test neutralized

the “protection against the issuance of warrants based on purely conclusory information provided by

potentially unreliable informants”). It is doubtful that information that an informant is credible should be

understood to indicate that the informant would not rely on hearsay, and it is even more clearly untenable

to assume that a report of first-hand knowledge by an informant means that the informant is a truthteller.

See DRESSLER, MICHAELS & SIMMONS, supra note 4, at 134–36 (discussing several criticisms of the

Gates majority opinion and concluding that it was “probably wrong” that “strength in the basis-of-

knowledge prong can make up for weakness in the informant’s veracity”).

See William Baude, Is Qualified Immunity Unlawful? 106 CALIF. L. REV. 45, 51 (2018)

(explaining that there are no technical legal grounds that can sustain the modern doctrine of qualified

immunity constructed by the Court).

628 CONNECTICUT LAW REVIEW [Vol. 54:3

rise and fall in unsettling ways. Imagine, for example, that the police in a

murder investigation claim to have discovered a bloody knife in the

defendant’s home through a search and seizure that would have amounted

to a Fourth Amendment violation if no evidence of crime turned up and he

were innocent. Under the rights-forfeiture approach, the defendant would

have no grounds for a motion to suppress. He would be presumed to have

forfeited the otherwise legitimate interests in liberty, privacy, and property

that could support the motion by virtue of having relied on them to pursue

or hide his crime.

Yet, what if the defendant contended that the police planted the bloody

knife and otherwise framed him for the murder? Although the

rights-forfeiture presumption could perhaps still justify refusing suppression

at the criminal trial, it seems that it should not necessarily deny his litigation

of the Fourth Amendment claim in a § 1983 action. The reason is that his

claim of innocence based on a set-up might be true! If he were acquitted, the

presumption of forfeiture of his Fourth Amendment rights seemingly should

disappear. He would then have grounds to pursue a § 1983 remedy for the

improper police search.

But what if the government simply dropped the murder case and did not

go forward? Could the defendant then pursue a § 1983 action? The answer

probably should be yes, although it is not clear how the answer should play

out in the pre-trial civil process on a defense motion for summary judgment

based on forfeiture. How much proof of the plaintiff’s criminal guilt or

innocence should one or the other of the parties have to offer to support or

overcome the motion?

Moreover, what if the police had searched his house and found nothing

relevant but defendant were ultimately found guilty of the murder? Could

defendant pursue the § 1983 action for the search? It seems that he should

be able to do so, at least in theory. But, to play devil’s advocate, why did the

forfeiture of his privacy and property interests not arise and survive, given

that he was, in some sense, always hiding the murder by not coming forward

and confessing it?

Further, what if the defendant were found guilty but still claimed that the

police planted the bloody knife in his home? If we say in the prior scenario

that the failure of the police to find anything during the search would, in

theory, give rise to a non-exclusionary remedy for the improper search, that

bears on our answer to this new scenario. Would not our defendant in this new

scenario also have, at least in theory, a § 1983 remedy? These hypotheticals

reveal that the explanations as to when and why the presumption of forfeiture

arises and disappears is more complicated than we might initially imagine.

Consider what should be the outcome if the police conduct a search that turns up evidence of

crime by a guilty party in the residence or business premises of an innocent party to which the guilty

party has no connection. Should the innocent party have a § 1983 action for money damages if the search

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 629

There are other conundrums associated with this rights-forfeiture

approach. One of them would arise from acknowledging that even

lawbreakers should retain some Fourth Amendment interests. Consider

arrests involving excessive force, such as police shootings of non-dangerous,

but clearly guilty, fleeing suspects.

Despite the implementation of a

rights-forfeiture approach, it seems that those aggrieved criminal actors

should still have a protected Fourth Amendment interest in their bodily

integrity and recourse of some sort, even if not through an exclusionary

rule.

However, to make this concession is to begin to acknowledge that it

goes too far to say that criminal actors forfeit all of their Fourth Amendment

interests in the process of committing and covering up their crimes. Indeed,

should we not also protect against the unreasonable destruction of the

criminal actor’s property

or unnecessary intrusion into his privacy caused,

for example, by a police invitation to the press to accompany them during

the search of defendant’s residence?

Also, what about a public strip and

cavity search of a person caught with a small amount of marijuana?

But,

then, precisely how do we define what interests remain nonforfeited, and

how do we justify the distinctions drawn?

How many people, moreover, have occasionally relied on their Fourth

Amendment interests for mostly acceptable purposes, while simultaneously

relying on them secondarily for minor, criminal ones? Imagine a great

performance artist who only commits a crime by concealing a small amount

of marijuana along with several blues harmonicas in his trousers on his way

to a musical extravaganza involving the harps (and enhanced by his marijuana

usage) at which he stands to make several thousand dollars. Suppose he would

also probably bring pleasure to a large gathering of fans who often give him a

series of rousing ovations. Should the police and local government be free

from any requirement of compensation for stopping and searching him at a

would clearly have violated the Fourth Amendment had no evidence of crime turned up? The answer

probably should be yes, but it is not clear.

See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (prohibiting under the Fourth Amendment the

use of deadly force to prevent the escape of a felony suspect unless the officer has “probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or to others”).

See id. at 22 (affirming the possible liability of defendants in a § 1983 suit for a police killing by

excessive force of a fleeing felon).

See United States v. Ramirez, 523 U.S. 65, 71 (1998) (“Excessive or unnecessary destruction of

property in the course of a search may violate the Fourth Amendment, even though the entry itself is

lawful . . . .”).

See Wilson v. Layne, 526 U.S. 603, 614 (1999) (“[I]t is a violation of the Fourth Amendment for

police to bring members of the media or other third parties into a home during the execution of a warrant

when the presence of the third parties in the home was not in aid of the execution of the warrant.”).

Such a strip search could be impermissible although it would be permissible in the station house

or jail setting. See Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 322–23 (2012) (upholding

embarrassing strip searches, including of body cavities, of petty noncontraband offenders in jail settings).

630 CONNECTICUT LAW REVIEW [Vol. 54:3

drug “checkpoint” without reasonable suspicion,

seizing his effects,

arresting him, and thereby preventing his performance, only because he

possessed a small amount of illegal cannabis? If not, the challenge is to explain

how doctrine could reject his reliance on liberty, privacy, and property for

criminal ends, but honor his reliance for other purposes.

The rights-forfeiture approach is also vulnerable to the claim that it is

revisionist in the extreme. The textual objection is not compelling. As noted,

the Fourth Amendment does not explicitly exclude criminal actors from its

protections.

However, critics favoring rights forfeiture could counter that

unauthorized invasions of the liberty, privacy, and property interests of

persons using them for criminal ends are generally not “unreasonable” in the

language of the amendment.

To the extent that history matters, this

argument coincides with the common-law “ex post success rule,”

which

held that if the constable, even without authority, seized a suspect who was

a felon or items that were stolen or contraband, he was not liable.

Nonetheless, the Court has long followed a contrary view regarding criminal

actors

and explicitly so more than a century ago in Weeks,

which also

underscores that rights forfeiture arguably would be the most historically

jarring of the alternatives proposed by which the Court could eradicate the

exclusionary rule.

II. FORFEITURE OF A CONSTITUTIONALLY-GROUNDED REMEDY

As a second option to eliminate the exclusionary rule, the Court could

declare that lawbreakers forfeit their constitutionally-based claim to a

remedy when they rely on their Fourth Amendment interests to commit or

hide their crimes. This approach, unlike the rights-forfeiture approach,

avoids the contention that the Fourth Amendment does not explicitly

In City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000), the Supreme Court rejected under

the Fourth Amendment a drug interdiction checkpoint program that involved suspicionless vehicle stops

that was aimed primarily at enforcement of criminal drug laws.

See supra text accompanying note 13; U.S. CONST. amend. IV.

There is a plausible rejoinder to this counterargument building on the second clause in the

amendment: The demand that police officers sometimes seek a warrant based on “probable cause”

suggests, given that “probable cause” includes evidence of criminal behavior, that the amendment gives

criminals some protection. Nonetheless, that constitutes an ethereal protection for criminals if the first

clause trumps the second. The criminal would forfeit his Fourth Amendment liberty, privacy, and

property rights by virtue of the government’s discovery of evidence of his criminal behavior (rendering

the invasion “[]reasonable”) where a warrant was not secured. U.S. CONST. amend. IV.

Steiker, supra note 27, at 829; see also Laura K. Donohue, The Original Fourth Amendment, 83

U. CHI. L. REV. 1181, 1192 (2016) (“What ‘unreasonable’ meant in the seventeenth century was ‘against

reason,’ which translated into ‘against the reason of the common law.’”).

See Amar, supra note 51, at 767 (noting that, at common law, “ex post success was a complete

defense”).

See, e.g., Rosenthal, supra note 27, at 528 (“It is [well-settled] that an unreasonable search cannot

be justified by what is found.”) (citations omitted).

See supra notes 8–9 and accompanying text.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 631

exclude lawbreakers from its protections. Under this approach, delinquents

have Fourth Amendment interests by virtue of the text, but have lost any

constitutionally-grounded claim to a remedy due to their wrongdoing.

A “constitutionally-grounded” remedy for present purposes is one that

the Court has concluded the Constitution gives it the authority—but not the

obligation—to impose.

The prevailing view today is that the exclusionary

rule to enforce the Fourth Amendment is of that kind,

even if such a

grounding seems implausible in light of the diminished and contorted

contours of the current rule.

The explanation may come down to the notion

advocated at times by scholars, but not endorsed by the Court, that there

exists something akin to “constitutional common law.”

The view that a lawbreaker forfeits the constitutionally-grounded

remedy for the violation of his Fourth Amendment rights would operate

similarly in several important respects to the rights-forfeiture approach.

First, like the rights-forfeiture approach, the remedy-forfeiture approach

makes the criminal actor’s wrongdoing the focus of attention. His

dereliction is the reason he is not entitled to what would otherwise

be a constitutionally-justified remedy—evidentiary suppression—for the

violation of his Fourth Amendment interests.

This remedy-forfeiture approach also has several of the same practical

benefits as the rights-forfeiture approach. It would eliminate Fourth

Amendment suppression motions from criminal cases, saving substantial

judicial and prosecutorial resources. It would end the practice of granting

evidentiary suppression in favor of some criminal defendants and stop any

concomitant encouragement to crime. It would also provide a rationale about

why such defendants are not entitled to the benefit that the exclusionary rule

provides. Further, it would end the rather arbitrary disparities that the

exceptions to the exclusionary rule currently cause in the way we treat

criminal defendants who are aggrieved by Fourth Amendment violations.

Davis v. United States, 564 U.S. 229, 243–44 (2011). In Davis, the Court described the

suppression remedy as “a ‘prudential’ doctrine, created by this Court to ‘compel respect for the

constitutional guaranty.’” Id. at 236 (citations omitted).

See, e.g., Rosenthal, supra note 27, at 530, 545 (explaining that “contemporary doctrine” rejects

any claim that the Fourth Amendment generally “requires the use of the exclusionary rule,” but that

exclusion is sometimes necessary to achieve constitutionally adequate deterrence).

See supra note 51 and accompanying text.

For the foundational article, see Henry P. Monaghan, The Supreme Court, 1974 Term—Foreword:

Constitutional Common Law, 89 HARV. L. REV. 1 (1975). For arguments against constitutional common law

as a normative theory, see Thomas S. Schrock & Robert C. Welsh, Reconsidering the Constitutional

Common Law, 91 HARV. L. REV. 1117 (1978). For a short rebuttal to Schrock & Welsh, see Daniel J.

Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1172–76 (1986).

For example, it is not compelling that there is a lesser deterrent effect if a Fourth Amendment

right is enforced in federal habeas rather than on direct appeal in a criminal case. However, in Stone v.

Powell, 428 U.S. 465, 481–82 (1976), the Court held that Fourth Amendment rights cannot be enforced

in federal habeas proceedings where the prisoner received a full and fair hearing on the issue in state

court. That holding appears especially dubious given its exemption for those who did not receive an

632 CONNECTICUT LAW REVIEW [Vol. 54:3

Like the rights-forfeiture approach, this remedy-forfeiture approach also

could respond to any theory that the Court has offered (and some others, as

well) to support the exclusionary rule. It would counter the prevailing

justification that law-breakers effectively represent law-abiders in the

judicial effort to deter police violations of the Fourth Amendment because,

under this approach, the law-breaker has forfeited the remedial right that

would otherwise make him an appropriate proxy. At the same time, this

approach could deflect claims that suppression is the product of the implicit

demands of the Fourth Amendment, the operation of the Fifth Amendment

privilege, the mandates of judicial integrity, the mandates of the Due Process

Clauses, or the force of aggregated provisions of the Constitution.

Those

theories do not work if the offender’s abuse of his Fourth Amendment rights

bars his reliance on those rights to appeal for a remedy.

However, this remedy-forfeiture approach also poses what some may

see as problems. Unlike the rights-forfeiture approach, this approach cannot

justify the denial of claims by law-breakers under § 1983 for damages

associated with their detentions, prosecutions, and sentences upon

conviction.

Those are statutory remedies, unlike the exclusionary rule,

which has been constitutionally-grounded (unconvincingly)

even if not

constitutionally required. And, as we have seen, where a clearly established

Fourth Amendment violation by the police has contributed to a

law-breaker’s detention, prosecution, and conviction, the courts often have

not offered the most satisfying explanations as to why the offending

police officer should be relieved from liability under § 1983 for the full harm

that ensues for the law-breaker, including imprisonment.

Under the

remedy-forfeiture approach, the lower courts would have to continue to offer

unimpressive rationales for why all the damaging consequences are not

remediable under the statute.

On this score, then, the rights-forfeiture

approach is superior.

Another problem focuses on history. The Court has, for many decades,

rejected the notion that an aggrieved criminal defendant has a personal claim

to a constitutionally-grounded remedy for improper police searches and

seizures.

The Court also has chipped away under a utilitarian analysis at

the only constitutionally-grounded remedy in play—the exclusionary rule.

adequate hearing in state court. That factor would not bear significantly on whether enforcing the Fourth

Amendment in federal habeas would help deter improper police behavior.

See supra notes 14–17, 62–63 and accompanying text.

For the text of § 1983, see supra note 63.

See supra note 51 and accompanying text.

See supra notes 64–65 and accompanying text.

See supra note 65.

See supra notes 67–68.

See supra notes 20–25 and accompanying text.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 633

To now declare that the criminal defendant forfeits a claim to such a remedy

would depart from the foundation and trajectory of the Court’s last

half-century of opinions on the exclusionary rule.

It might be slightly less

discordantly revisionist than the rights-forfeiture strategy. However, the

sharp incongruity with past decisions can still be seen as a mark against it.

A final demerit for this remedy-forfeiture approach is its lack of

explanatory transparency. If the exclusionary rule is something

constitutionally inspired but not constitutionally required, eviscerating it on

a “forfeiture” theory seems like an evasion of some more truthful

explanation. The forfeiture notion does not seem quite so disingenuous when

used to void certain liberty, privacy, and property rights of the law-breaker

that survive for the law-abider. But, even in that context, there is deception,

which means that this demerit could also have been listed for the first

approach. The exclusionary rule has been maintained in the modern era not

as a constitutional requirement but as a constitutionally authorized remedy

based on non-textual policy considerations.

100

In that light, the more

transpicuous explanation for eviscerating it is that whatever prudential

arguments were thought to justify it in the past are now considered

inefficacious. A forfeiture contention (either of rights or remedies), unless

combined with that more transpicuous explanation, obscures more than

reveals why those policy considerations are no longer valid.

III. ABANDONMENT OF THE UTILITARIAN JUSTIFICATION FOR

THE REMEDY

Instead of relying on forfeiture notions to eliminate the exclusionary rule

and effectively hiding the true explanation, the Court could follow the

implications of its opinion in Hudson v. Michigan

101

and merely declare that

the only modern rationale that it has cited to maintain that remedy has

become outdated. The only modern rationale for exclusion, of course, is

deterrence of police misconduct.

102

In Hudson, Justice Scalia, for the

majority, suggested that federal civil-rights lawsuits, encouraged by

post-Mapp legislative changes—including, for example, the extension of the

remedy to reach the deep pockets of municipalities and the provision of

statutory fees for plaintiff lawyers—can now adequately remedy Fourth

Amendment violations.

103

He also suggested that police officers are less likely

than during the pre-Mapp era to violate the Fourth Amendment because they

See supra notes 20–25 and accompanying text.

100

See supra notes 20–25 and accompanying text.

101

547 U.S. 586, 588–602 (2006).

102

See supra notes 20–25 and accompanying text.

103

See 547 U.S. at 597–98 (explaining why the Court should not assume that exclusion in the

modern era is essential simply because the Court found that it was necessary deterrence nearly half a

century earlier).

634 CONNECTICUT LAW REVIEW [Vol. 54:3

are generally better trained and more professional.

104

In an appropriate case,

the Court could assert that those changes have made deterrence through

suppression less important across the board such that a cost-benefit assessment

now favors abandoning the exclusionary remedy entirely.

This non-utility approach brings some of the benefits of the second

option—the forfeiture-of-remedies strategy. This non-utility approach

would foreclose all Fourth Amendment suppression motions from criminal

cases, saving public resources. It would eliminate the windfall in the form

of suppression that we currently give to some criminal defendants and

provide a rationale for taking that benefit away. It would also eliminate the

rather arbitrary disparities, resulting from exceptions to the exclusionary

rule, that currently arise in how we treat criminal defendants whose Fourth

Amendment rights have been infringed.

105

The principal benefit of this non-utility approach, compared to the first

two, is that it would not cast the Court as so much of a change agent. This

approach would build on the gradual flow of precedent over the last

half-century, during which the Court recast the justification for exclusion as

resting on purely consequentialist considerations and then gradually

restricted it by declaring it non-utilitarian on the margins over and over

again.

106

The assertion of changed circumstances regarding the availability

of federal civil-rights remedies and the professionalization of the police as

the justification for the final blow would also help inoculate the Court

against claims of judicial activism. Citing those changed circumstances

would give the appearance that the Court has not become, by dint of its

changed composition, an opponent of the exclusionary remedy, but rather

that the remedy has merely outlived its usefulness.

This non-utility approach, however, has imperfections. The first one also

applied to the remedy-forfeiture approach. Like that second option, this

non-utility approach cannot explain the rejection of suits by law-breakers

alleging clearly established Fourth Amendment violations under § 1983

and seeking police liability for damages associated with their resulting

detentions, prosecutions, and sentences upon conviction. The courts would

have to continue to offer questionable reasoning for why all the damaging

consequences for the aggrieved law-breaker are not remediable under that

provision.

107

On this point, then, the first option—the rights-forfeiture

approach—remains superior.

108

104

See id. at 598–99 (asserting the “increasing professionalism of police forces” and “the increasing

evidence” that they “take the constitutional rights of citizens seriously”).

105

See supra note 90 and accompanying text.

106

See supra notes 20–25 and accompanying text.

107

See supra note 65.

108

See supra notes 66–67 and accompanying text.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 635

An additional demerit arises from the inability of this non-utility approach

to overcome claims that the exclusionary rule is not fully explained as a

prudential doctrine. Despite the Court’s efforts in the modern era to cast the

remedy as only about deterrence of police misconduct and, thus, utility, that

is not the whole truth about its history.

109

As Richard Re has noted, the modern

iteration of the rule is not fully consistent with the view that the goal is

deterrence of police violations.

110

If that were true, the Court would not, for

example, continue to impose stringent standing requirements on criminal

defendants as a prerequisite to their success on motions to suppress.

111

Whether a violation is of the aggrieved defendant’s Fourth Amendment

interests, or those of another person, has little, if anything, to do with the

deterrent effect of suppression.

112

Such a requirement is, instead, consistent

with the notion that exclusion is a personal right of the aggrieved party alone.

The current doctrine reflects that the rule was originally thought to be required

for reasons other than police deterrence.

113

The non-utility explanation for

abolition does not adequately confront that reality. On this score, therefore, it

is inferior to the first two options—the forfeiture approaches.

114

Another demerit of this non-utility approach is that it does not explain

why we should ignore a constitutional right because it is inconvenient to

honor it. If lawbreakers have Fourth Amendment rights, then lawbreakers

should have a meaningful remedy for violations committed against them, at

least when there is one readily available. Otherwise, as Chief Justice

Marshall asserted, the Court is effectively dissembling when it asserts that

lawbreakers have those rights in the first instance.

115

On this score, then, a

forfeiture theory is decidedly superior.

Probably the most serious problem with the non-utility approach,

however, is that its basic premise may be false. The Court would be ceding

control over the protection of law-abiders against police overreach to a

potential tyranny of the majority (in legislatures or on civil juries) based on

a wildly unsubstantiated proposition—that suppression is non-utilitarian for

law-abiders. The Court has no good information to conclude that the

exclusionary rule is ineffective and no good basis to decide that if it is

effective the consequences are non-utilitarian.

116

109

See supra notes 20–25 and accompanying text.

110

See Re, supra note 23, at 1894–1902 (asserting that “deterrence arguments cannot justify central

features of current exclusionary doctrine”).

111

See id. at 1896 (contending that this requirement is “nonsensical from a deterrence standpoint”).

112

See id. (noting that “the threat of springing Person A from prison could very well deter police

from violating Person B’s constitutional rights”).

113

Id. at 1899.

114

See supra Parts I–II.

115

See supra notes 40–41 and accompanying text.

116

See generally Danielle Hayes, Note, He Say, She Say: Utah v. Strieff and the Role of Narrative

in Judicial Decisions, 61 HOW. L.J. 611, 624–28, 631–32 (2018) (describing that studies of police activity

636 CONNECTICUT LAW REVIEW [Vol. 54:3

The exclusionary remedy may well significantly deter police violations

of the Fourth Amendment against law-abiders in many circumstances, over

and above any deterrent influence of § 1983 remedies. There is anecdotal

evidence to that effect.

117

There is also little doubt among the scholarly

community or police, lawyers, and judges participating in the criminal

justice system that exclusion has had some deterrent effect, despite the

debate about the magnitude of its influence in differing circumstances.

118

For

example, after the implementation of the exclusionary rule in various

jurisdictions, affected police departments quickly began emphasizing

training of officers so as to avoid the political fallout that would occur if

evidentiary exclusion for violations became common.

119

It is reasonable to

think that this newfound concern with following Fourth Amendment law

would have deterred Fourth Amendment violations against law-abiders.

As Carol Steiker has explained, the exclusionary rule also has ensured

“that the courts will develop a fairly comprehensive set of constitutional

guidelines for law enforcement—guidelines that the political branches of

government would otherwise [have] neglect[ed].”

120

The judiciary almost

surely would not have developed this Fourth Amendment doctrine without

an exclusionary rule giving defendants an incentive to challenge search and

seizure practices in criminal cases.

121

Accordingly, she notes that if the Court

now completely abandons the exclusionary rule, we would plausibly expect

to see not only little action to fill the gap from the political branches but a

“resounding silence” from the judiciary in further developing important

aspects of Fourth Amendment law through § 1983 suits.

122

after Mapp initially “suggest[ed] the rule was an effective deterrent,” but has produced “a mix bag of

results” since the advent of exceptions to the exclusionary rule in 1974).

117

See, e.g., Albert W. Alschuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U.

CHI. L. REV. 1365, 1372–73 (2008) (noting that police respond to Supreme Court Fourth Amendment

rulings and that those rulings would not have come about were there no exclusionary rule).

118

See, e.g., id. at 1373 (“Judges, prosecutors, defense attorneys, and police officers agree that the

exclusionary rule has influenced police conduct for the better.”); see also Rosenthal, supra note 27, at

540–43 (“[T]he empirical debate centers on the magnitude of the exclusion’s deterrent effects; there is

little debate about whether exclusion has some deterrent effects.”).

119

See, e.g., Alschuler, supra note 117, at 1372 (noting anecdotal evidence that the exclusionary

rule achieves its deterrence effects largely through “long-term guidance and habit formation” occurring

within police departments).

120

Steiker, supra note 27, at 851.

121

Alschuler, supra note 117, at 1372–73; see also Steiker, supra note 27, at 851 (“By creating

litigation incentives in a wide body of cases in which defendants will, of necessity, be provided with

court-appointed counsel, the exclusionary rule ensures that the courts will develop a fairly comprehensive

set of constitutional guidelines for law enforcement – guidelines that the political branches of government

would otherwise neglect.”).

122

Steiker, supra note 27, at 851; see also Rosenthal, supra note 27, at 552 (noting that numerous

“scholars have expressed concern that absent a vigorous exclusionary remedy, the development of Fourth

Amendment law is likely to be stunted”); Nancy Leong, Making Rights, 92 B.U. L. REV. 405, 421–22,

428 (2012) (including a study of federal appellate cases from 2005 to 2009 and revealing that virtually

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 637

There is also little reason to believe that § 1983 suits otherwise would

have much deterrent effect on most police violations.

123

There is a high bar

to injunctive relief.

124

And, in the relatively few cases when plaintiffs can

get past immunity doctrines and other obstacles to damage relief,

125

civil

juries generally remain unreceptive to claims alleging police misconduct.

126

The force of the exclusionary rule, moreover, is not, as the Court has often

suggested, simply about the penalizing or disincentivizing effect operating

directly on individual police officers.

127

Its influence may come mostly

through its effect on police agencies more generally.

128

We can sensibly

believe that police agencies will strive to avoid—through, for example, better

training—the political problems that arise for them if criminals are set free

based on police violations of the Fourth Amendment.

129

Moreover, as regards

individual police officers, the influence is likely more complex than its direct

effect on the thinking of those otherwise ready to violate.

130

As Professor

Steiker has explained, the exclusionary rule may be effective “not so much

for the fear that it inspires in the ‘bad cop,’ but rather in the way that it creates

an alternative vision of the ‘good cop.’”

131

By spurring the development of

rules about what the Fourth Amendment demands, the exclusionary rule has

helped give “good cops” an “aspirational counterpart” to the “highly

all those involving consent, Terry issues, and the vehicle exception were raised in criminal prosecutions

rather than in § 1983 actions).

123

Excessive force claims may produce more jury verdicts for plaintiffs than other claims, but even

those will generally be small. See Leong, supra note 122, at 423 (noting that excessive force claims tend

to be litigated in § 1983 actions); Calabresi, supra note 39, at 115 (noting “jury disinclination to give

significant awards”).

124

See Rosenthal, supra note 27, at 549–50 (noting that “plaintiff must establish a credible and

nonspeculative threat that he will be subjected in the future to an allegedly unreasonable search and

seizure” and, when brought against a municipality, plaintiff must prove an “actionable municipal custom,

policy, or practice”).

125

See id. at 548–50 (discussing various obstacles facing a typical § 1983 plaintiff alleging a Fourth

Amendment violation by police).

126

See, e.g., Calabresi, supra note 39, at 114–15 (explaining that jurors are reluctant to identify

with a criminal defendant or even with an innocent person illegally searched or seized by the police and,

thus, are reluctant in a tort action against the police to render a verdict in the plaintiff’s favor).

127

See Rosenthal, supra note 27, at 541 (contending that exclusion encourages police policy and

training changes that promote compliance with Fourth Amendment doctrine).

128

See, e.g., William J. Mertens & Silas Wasserstrom, The Good Faith Exception to the

Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 GEO. L.J. 365, 399 (1981)

(“[E]ven if a particular constable is indifferent to whether his arrests and seizures result in convictions,

those who run the police department are concerned with successful prosecutions.”).

129

See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of

Constitutional Costs, 67 U. CHI. L. REV. 345, 417 (2000) (asserting that the exclusionary rule operates

on the political incentives of the police); Mertens & Wasserstrom, supra note 128, at 399 (“[A]t least the

more professional police forces can be expected to encourage fourth amendment compliance through

training and such guidelines as the department provides for conducting searches, seizures, and arrests.”).

130

See Alschuler, supra note 117, at 1374 (contending that the exclusionary rule “works over the long-

term by allowing judges to give guidance to police officers who ultimately prove willing to receive it”).

131

Steiker, supra note 27, at 852.

638 CONNECTICUT LAW REVIEW [Vol. 54:3

aggressive attitudes and behavioral patterns” that tend to develop within

modern police forces.

132

For present purposes, however, the important point is that there is often

a lack of clarity about the degree of deterrent influence of the suppression

remedy. While the Court has little good empirical data to decide in what

contexts it is effective, some of the Court’s unsupported contentions about

its ineffectiveness should seem dubious even to critics of the exclusionary

rule. For example, the Court’s unsupported assertion in Herring that

suppression would only marginally deter negligent police violations is

counter-intuitive.

133

As the dissenters noted, that position contradicts tort

law’s response to negligent conduct by private actors.

134

Yet, the better

criticism is not that the Court is demonstrably wrong about deterrence effects

in one setting or another but that it has generally made assertions as if it had

corroborating information when it is actually shooting in the dark.

When the exclusionary rule deters police violations, moreover, the Court

has no special capacity to make or implement nuanced value judgments

about whether the costs in crime outweigh the benefits in reduced police

abuse for law-abiders. Critics could again justifiably contend that the Court

has done a poor job on this score. For example, an intentional but relatively

unobtrusive police violation, such as the opening of luggage without a search

warrant when the owner is not present, might produce crucial evidence in a

homicide case, and many of us might oppose suppression. Yet, the same

kind of violation might produce crucial evidence in a marijuana possession

case, but most of us might think the police violation to be the greater

problem. Murder is not the same as marijuana possession in most contexts,

including if the question is how to use suppression to maximize law-abiders’

utility. Nonetheless, the Court has not been able to accommodate crime-type

distinctions in its suppression doctrine.

135

“The seriousness of the crime and

the future threat posed by the criminal are irrelevant” under the doctrine.

136

The non-utility approach would not solve this lack of nuance connected

to the seriousness of the crime. Even if the police were to commit a flagrantly

obtrusive invasion of liberty and privacy in a minor cocaine possession case,

evidentiary suppression would not ensue. Most of us might think that result

is also suboptimal because of the need to restrain police aggression, if not

for the protection of the cocaine possessor, then for the benefit of the

132

Id.

133

See Herring v. United States, 555 U.S. 135, 147–48 (2009) (asserting that exclusion would

produce only “marginal deterrence”).

134

See id. at 153 (Ginsburg, J., dissenting) (arguing that the majority’s position “runs counter to a

foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an

incentive to act with greater care”).

135

See Rychlak, supra note 23, at 242 (noting that the exclusionary rule requires suppression even

if “the crime involved is serious and the criminal is dangerous”).

136

Id. at 243.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 639

law-abiding. Yet, the larger point is not that the Court is demonstrably wrong

about the value judgment in one particular context or another but that it lacks

any special ability to decide those value questions for us or the capacity to

implement them in a refined way.

137

The non-utility theory would also ignore that differing circumstances

exist in different communities. On the dual problems of crime and police

abuse, St. Louis may differ from Ann Arbor, and both may differ from

Washington, Austin, Springfield, and Irvine, not to mention the smaller

places in the great rural expanse. One community may be besieged by crime

but not police abuse or vice versa, while another may have both problems,

and another may have neither. Those differences could substantially

influence value judgments about the propriety of an exclusionary remedy in

criminal cases in those communities. Moreover, those circumstances could

change over time in one community but not another. Yet, the Court’s

doctrine on suppression has treated the country as a static monolith,

138

and

the non-utility theory for abandoning the rule would also follow that pattern.

In the end, if the utility of law-abiders is the focus, then a central

contention about why the Court should eliminate the exclusionary rule is also

a central contention about why the Court should not eliminate it without a

constitutionally-grounded substitute. The argument, again, is that the Court is

not a very good decision-maker. That does not mean the Court should rely on

legislatures or civil juries in constitutional tort cases to find the right solution,

given that the Fourth Amendment is not about majority rule. Yet, if they are

not the right decision-makers either, what constitutionally-grounded remedy

should the Court implement?

139

137

Difficulties would significantly complicate the imposition of a “serious crimes” exception to the

exclusionary rule, which may, in part, explain why the Court has not imposed it. See Yale Kamisar,

“Comparative Reprehensibility” and the Fourth Amendment Exclusionary Rule, 86 MICH. L. REV. 1,

11–29 (1987).

138

The Supreme Court also has sometimes derided the notion that Fourth Amendment protections

could “vary from place to place and from time to time.” Virginia v. Moore, 553 U.S. 164, 176 (2008)

(quoting Whren v. United States, 517 U.S. 806, 815 (1996)).

139

Commentators have proposed various substitutes for an exclusionary rule, such as punishing

offending police officers with contempt citations and providing sentencing concessions or other

administratively supervised remedies to aggrieved criminal defendants. See, e.g., Calabresi, supra note

39, at 115–17 (proposing sentencing concessions for aggrieved criminal defendants combined with

punishments for offending police officers); Rychlak, supra note 23, at 249–53 (proposing criminal

contempt and punishment for certain offending police officers while retaining evidentiary suppression in

some cases); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 422

(1971) (Burger, C.J., dissenting) (proposing administrative remedies for aggrieved criminal defendants);

see also Donald Dripps, The Case for the Contingent Exclusionary Rule, 38 AM. CRIM. L. REV. 1, 2

(2001) (proposing that courts “experiment with suppression orders that are contingent on the failure of

the police department to pay damages set by the court”). Some of these proposals would require

legislative enactment. For those that would not, it seems that, while their purpose is to achieve a utility-

maximizing equilibrium for law-abiders, the Supreme Court would not have a good constitutional basis

to impose them on the states and would not be in a good position to supervise them to achieve the utility-

maximizing function.

640 CONNECTICUT LAW REVIEW [Vol. 54:3

IV. AN INCLUSIONARY RULE FOR FOURTH AMENDMENT VIOLATIONS

This Part proposes a constitutionally-grounded remedy for Fourth

Amendment violations against criminal defendants that does not claim

utility-maximization for law-abiders as its primary purpose or that the Court

is the right decision-maker. The proposal is that the Court abandon the

exclusionary rule but substitute a new remedy called an “inclusionary rule”

that would find explanation largely in the Sixth Amendment right to jury

trial. After describing the mechanics of the proposal in Subpart A, Subpart

B takes up the explanation for its constitutional grounding, and Subpart C

provides an assessment of its advantages and demerits.

A. The Approach

The proposed inclusionary rule would focus on criminal juries as

arbiters of the remedy in criminal cases for Fourth Amendment violations.

In the modern era, the idea that juries in criminal cases should play a role in

enforcing the Fourth Amendment is not entirely new.

140

A few scholars,

beginning with Ronald Bacigal, have proposed that criminal juries decide

whether the police have violated the amendment

141

or that separate screening

juries, according to legislative enactment, decide whether to suppress

evidence or fine police officers for violations.

142

However, the inclusionary

140

See generally Ronald J. Bacigal, Putting the People Back into the Fourth Amendment, 62 GEO.

WASH. L. REV. 359 (1994) (proposing a structure for Fourth Amendment decisionmaking that, as in the

pre-revolutionary period, gives criminal juries a prominent role).

141

See generally Ronald J. Bacigal, A Case for Jury Determination of Search and Seizure Law, 15

U. RICH. L. REV. 791 (1981) (proposing criminal jury determination of search and seizure law if the trial

judge rules against the defendant in a pre-trial hearing); Bacigal, supra note 140 (presenting an expanded

version of the proposal); see also Michael J. Zydney Mannheimer, Decentralizing Fourth Amendment

Search Doctrine, 107 KY. L.J. 169, 215–17 (2018–2019) (advocating involving juries in Fourth

Amendment search inquiries where positive law provides no clear answer); Lauren M. Ouziel, Beyond

Law and Fact: Jury Evaluation of Law Enforcement, 92 NOTRE DAME L. REV. 691, 735 (2016)

(proposing that criminal juries, based on instructions, be allowed openly to evaluate the propriety of law

enforcement action in rendering its verdict, without supplanting the role of the judge in resolving Fourth

Amendment suppression motions); Meghan J. Ryan, Juries and the Criminal Constitution, 65 ALA. L.

REV. 849, 902 (2014) (arguing that criminal juries should decide criminal constitutional moral matters,

including Fourth Amendment reasonableness); Melanie D. Wilson, The Return of Reasonableness:

Saving the Fourth Amendment from the Supreme Court, 59 CASE W. RES. L. REV. 1, 4 (2008) (advocating

that criminal juries resolve those Fourth Amendment issues that are “heavily dependent on the actions,

beliefs, and perspectives of prudent, ordinary citizens”); Erik Luna, The Katz Jury, 41 U.C. DAVIS L.

REV. 839, 851 (2008) (suggesting that juries could determine whether a government intrusion was a

“search” under the Fourth Amendment); George C. Thomas III & Barry S. Pollack, Saving Rights from

a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. REV. 147, 150 (1993) (proposing that

jury panels dedicated to resolving all the motions set for a day or week decide whether there was a Fourth

Amendment violation and that judges decide on suppression).

142

See George C. Thomas III, Judges are Not Economists and Other Reasons to be Skeptical of

Contingent Suppression Orders: A Response to Professor Dripps, 38 AM. CRIM. L. REV. 47, 48–49

(2001) (proposing a model, to be instituted by legislation, in which “a screening jury would decide

whether to suppress the evidence or fine the officer”).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 641

rule proposed here would involve juries in a more limited way, and the

explanation for it would rest largely on the Sixth Amendment right to jury

trial. The criminal trial judge would continue to decide whether there was a

violation of the Fourth Amendment. In cases of violations involving

evidentiary fruits, the judge would include an instruction describing the

violation and advising the jury to decide whether to take further action,

which would involve ignoring the evidentiary fruits and possibly acquitting

the defendant of some or all of the charges.

143

Because the judge’s instruction would be crucial to this approach, it

would be subject to review on appeal.

144

The instruction should emphasize

that the violation was of the United States Constitution, particularly the

Fourth Amendment. The judge should summarize the facts making out the

violation and advise the jury as to the level of culpability of the wrongdoers,

whether it be purposeful, knowing, reckless, or negligent. The judge should

identify the officials who acted wrongfully, if possible. The judge should

also state what evidence was secured as a result of the violation and make

clear that the jury is authorized to ignore that evidence in reaching its verdict

on some or all of the charges.

145

Perhaps the judge could also add that the

jury might weigh the nature of the police violation against the seriousness of

the criminal allegations.

146

However, the judge should note that the law

leaves the choice to each juror and should emphasize that each one is free to

act according to their own judgment, conscience, and discretion.

While the proposal does not contemplate that evidence be admitted

regarding the value of evidentiary exclusion, lawyers should be able to argue

the question to a limited extent in their summations. Restricting the

evidentiary presentation would help avoid turning the criminal case into a

minitrial on that question. Also, because, as we will see, the inclusionary

143

The proposal is that the inclusionary rule would not apply where there is no but-for connection

between the violation and the evidence discovered.

Should the inclusionary rule apply where there are no evidentiary fruits? For example, what if the

police illegally arrested the defendant but probable cause developed independently of the illegal arrest

by the time of the defendant’s trial? An example of such a scenario arose in United States v. Crews, 445

U.S. 463, 469 (1980). The proposal is that, as where there is no but-for connection between the violation

and the evidence discovered, the inclusionary rule would not apply.

This position is not crucial to the proposal. If the inclusionary rule were held to apply in such cases,

jurors would decide. (Where there were no evidentiary fruits, they would have to be told of their authority

directly to decide for acquittal.) However, if that position were taken, the Court would then need to draw

some line to clarify when a seizure of the defendant or a search that turned up nothing was otherwise too

disconnected from the prosecution to warrant jury consideration.

144

See Hedgpeth v. Pulido, 555 U.S. 57, 60 (2008) (“[V]arious forms of instructional error are not

structural but instead trial errors subject to harmless-error review.”).

145

Should the judge try to state the value of ignoring the evidence? Is the value in honoring the

aggrieved defendant’s Fourth Amendment rights, in promoting compliance by the police with the

Constitution, or both? The proposal is that the judge would allow jurors to decide.

146

The judge need not try to characterize the seriousness of the charges, because jurors could make

that assessment.

642 CONNECTICUT LAW REVIEW [Vol. 54:3

rule would rest on the Fourth Amendment and the Sixth Amendment right

to jury trial, it would not concern merely utility for law-abiders but also the

jury’s sense of whether to take further action to honor the defendant’s Fourth

Amendment rights.

147

In any event, as we have seen, there is not good

empirical evidence on the effects of exclusion, and the ultimate utility

question is a value judgment, not an empirical one.

148

Nonetheless, the

lawyers could appropriately offer arguments before the jury about the

justifications for ignoring or considering the evidentiary fruits that would

parallel those allowed in death penalty sentencing trials concerning the

utility and justness of a death verdict.

149

The proposed inclusionary rule would only apply in limited

circumstances. First, because it would rest heavily on the Sixth Amendment

right to jury trial, the rule would only apply in criminal jury trials.

150

It would

not apply in civil cases, in probation or parole revocation hearings, or in the

early stages of a criminal case, such as at the preliminary hearing or

the grand jury. Should it apply in criminal bench trials? The proposal is

that it should not, given that the defendant would choose, with the consent

of the prosecutor and judge, whether to waive a jury trial.

151

(The parties

could nonetheless agree to have the judge clarify whether she would

suppress in a bench trial.) Yet, in the context of a criminal jury trial, there

would not be many exceptional situations where the evidentiary fruits of a

violation of the defendant’s Fourth Amendment rights would come in

without the violation instruction.

Should the inclusionary rule apply where the police violate the rights of

a third party and thereby secure evidence that incriminates the defendant?

The proposal is that it would not apply in those cases, on grounds that we

need not view the defendant as a proxy for law-abiders where the police have

not infringed his Fourth Amendment rights. This conclusion implies that the

remedy—consideration of his request for evidentiary suppression and

possibly suppression itself—is also personal to the defendant by virtue of its

grounding in his Fourth and Sixth Amendments rights, rather than in

147

See infra text accompanying notes 154–192.

148

See supra notes 27–32 and accompanying text.

149

In death-penalty cases, trial courts need not allow parties to present all evidence bearing on the

utility or morality of the death sanction. The Supreme Court has held that only evidence bearing on the

offender’s character, record, and crime is required. See Lockett v. Ohio, 438 U.S. 586, 604 (1978). For a

discussion of evidence that bears on the utility or morality of the death sanction but that does not meet

this test, see Scott W. Howe, Resolving the Conflict in the Capital Sentencing Cases: A Desert-Oriented

Theory of Regulation, 26 GA. L. REV. 323, 324–25 n.11 (1992). Despite the restriction on such evidence,

lawyers are allowed to assert in closing argument, and often do, that the death penalty would or would

not deter similar crimes and that it is or is not justified on moral grounds. See WELSH S. WHITE, THE

DEATH PENALTY IN THE NINETIES: AN EXAMINATION OF THE MODERN SYSTEM OF CAPITAL

PUNISHMENT 112–13 (1991).

150

See infra text accompanying notes 154–192.

151

As regards the rules on waiver of jury trial, see LAFAVE ET AL., supra note 57, at 1287–89.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 643

something with an uncertain constitutional explanation, but purportedly

justified by its utility for law-abiders (the current exclusionary rule).

152

Should the inclusionary rule apply to mistakes by non-law-enforcement

government agents, such as magistrates or judges who erroneously issue

warrants? The proposal is that it would apply, unlike the current

exclusionary rule.

153

In such cases, the criminal defendant’s Fourth

Amendment rights have been violated. There is no persuasive reason to see

those violations differently from police violations for purposes of allowing

the criminal jury to learn of them and their consequences and to decide

whether to take further action.

B. The Constitutional Basis

A combination of the Fourth Amendment and the Sixth Amendment

right to jury trial

154

could justify the inclusionary-rule approach. The Fourth

Amendment basis would require that there be a Fourth Amendment violation

and, if so, it would then justify honoring the aggrieved party’s liberty,

privacy, and property rights and protecting those same rights held by others.

The Sixth Amendment grounding would authorize jury action in response

and limit it by requiring that it come in a criminal trial.

The Sixth Amendment protection would operate in its dual role as a

personal safeguard for the charged defendant and as a structural assignment

of decision-making authority.

155

According to academic convention, some

constitutional provisions embody individual rights while others embody

allocations of power.

156

The Sixth Amendment guarantee of jury trial in

criminal cases is both—“a valued right of persons accused of crime” and “an

allocation of political power to the citizenry.”

157

152

United States v. Leon, 468 U.S. 897, 906 (1984). This is not crucial to the proposal if we

recognize that constitutional doctrine is often not fully coherent. The inclusionary rule could be held

applicable in such cases on the view that the court should let the jury determine how to balance the dual

dangers of crime and excessive police aggression whether or not the defendant has standing.

153

See id. at 916 (declaring that the exclusionary rule was not designed to punish the errors of

judicial officers).

154

See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a

. . . trial, by an impartial jury . . . .”).

155

See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United

States, 61 U. CHI. L. REV. 867, 876 (1994) (“Jury trial was a valued right of persons accused of crime,

and it was also an allocation of political power to the citizenry.”); Akhil Reed Amar, The Bill of Rights

as a Constitution, 100 YALE L.J. 1131, 1183-85 (1991) (explaining that the Sixth Amendment right serves

both functions).

156

See Alschuler & Deiss, supra note 155, at 876 (asserting that academic convention divides

constitutional provisions into two classes—those that “allocate governmental power” and those that

“guarantee individual rights”).

157

Id. Cf. Laura I Appleman, The Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397, 405 (2009)

(“[T]he right to a jury trial, particularly in the criminal context, was viewed almost exclusively as the

people’s right, not as a right of the accused . . . .”).

644 CONNECTICUT LAW REVIEW [Vol. 54:3

The Sixth Amendment right to jury trial has been understood as more

important than the textually similar dual-role protection—the Seventh

Amendment right to jury trial in certain civil cases.

158

First, the right in the

Sixth Amendment, unlike that in the Seventh, has been deemed

“fundamental to the American scheme of justice” and thus has been

incorporated against the states.

159

Further, the right in the Sixth, unlike that

in the Seventh, has been understood to give the judiciary less room to intrude

on the authority of the jury to decide matters in favor of protected parties,

160

which, in the case of the Sixth Amendment, includes only criminal

defendants, and, in the case of the Seventh Amendment, encompasses civil

litigants more generally.

161

Criminal trial courts “may not direct a verdict of

guilty, in whole or in part, no matter how conclusive the evidence might

appear.”

162

To do so would impede the jury’s acknowledged power to render

a verdict of not guilty “in the teeth of both law and facts,”

163

and would

“invade the defendant’s constitutionally protected right to trial by jury.”

164

Criminal trial courts also must use great care in employing special verdict

forms, lest they infringe on the criminal jury’s independence.

165

In contrast,

federal trial courts in civil cases, among other actions that lessen the civil

jury’s power, grant motions for summary judgment,

166

direct verdicts,

167

and

158

See U.S. CONST. amend. VII (“In suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved . . . .”).

159

Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020); Duncan v. Louisiana, 391 U.S. 145, 149

(1968); see also McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010) (listing the Seventh

Amendment as not incorporated).

160

See, e.g., LaFave, supra note 71, at 1397 (noting that use of special verdicts is common in civil

jury trials but not in criminal jury trials).

161

See U.S. CONST. amends. VI, VII.

162

LaFave, supra note 71, at 1397.

163

Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

164

LAFAVE ET AL., supra note 57, at 1397 (citing United States v. Martin Linen Supply Co., 430

U.S. 564, 572 (1977) (stating that a criminal trial judge may not direct a verdict in favor of the prosecution

or instruct jury to do so); Connecticut v. Johnson, 460 U.S. 73, 84 (1983) (stating the same)); see also

Duncan, 391 U.S. at 156 (asserting the framers’ view that “[i]f the defendant preferred the common-

sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge,

he was to have it”).

165

See LAFAVE ET AL., supra note 57, at 429 (noting that “special verdicts and special

interrogatories can limit jury independence”); see also United States v. Spock, 416 F.2d 165, 182–83 (1st

Cir. 1969) (holding that use of special questions to jury in criminal case violated defendants’

constitutional right to jury trial).

166

See, e.g., FED. R. CIV. P. 56 (providing that a civil litigant may move for and a court may grant

summary judgment).

167

See, e.g., Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674, 675 (1895) (approving trial

court instruction directing civil jury to return a verdict for defendants); Randall v. Balt. & Ohio R.R. Co.,

109 U.S. 478, 482 (1883) (approving the same).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 645

employ special verdict forms that lead the jury toward verdicts that accord

with the law and the evidence.

168

The long history of judicial acceptance of the limited power

169

of the

criminal jury to nullify

170

—or, in other words, to “acquit against

instructions”

171

—helps reveal a constitutional basis for the inclusionary-rule

approach.

172

That acceptance demonstrates recognition of the criminal jury’s

purpose as more than simply “resolution of factual disputes.”

173

The apparent

view that the Sixth Amendment right embraces this broader function

174

would allow the Supreme Court to use the provision to constitutionally ground

the inclusionary-rule approach. The proposal contemplates telling jurors of

their authority to decide the suppression question while the nullification power

of criminal juries is not conferred on them through explicit instructions.

175

Yet,

implementing the inclusionary-rule approach remains sensible as Sixth

Amendment doctrine. The central reason not to tell jurors of their nullification

power is to try to ensure that they only rarely use it and only in favor of the

criminal defendant.

176

When jurors nullify, they ignore or override the law

about which the judge instructs them. To implement the inclusionary-rule

approach and openly instruct jurors on their authority regarding suppression

would encourage them not to ignore or override existing law but to decide

when to take further remedial action on grounds that the Court would

168

See LAFAVE ET AL., supra note 57, at 429 (“The use of ‘special verdicts’ or ‘special

interrogatories,’ whereby the jury is required to respond to a series of fact questions in connection with

the return of its verdict, is a common practice in civil cases but not in criminal cases.”).

169

The power is limited in that it appears, for example, that trial courts can excuse for cause

members of a jury venire “who admit that they will not follow the law.” Id.

170

Bacigal, supra note 141, at 817; DENNIS HALE, THE JURY IN AMERICA: TRIUMPH AND DECLINE

19 (2016).

171

See Alschuler & Deiss, supra note 155, at 912–14 (discussing the political power of early

American juries to “acquit against instructions”).

172

The widespread view at the time of the founding was that criminal juries had even more power

than that embodied in the notion of nullification. See infra text accompanying note 181.

173

Bacigal, supra note 141, at 818.

174

See infra note 184 and accompanying text; see also Raoul Berger, Justice Samuel Chase v.

Thomas Jefferson: A Response to Stephen Presser, 1990 BYU L. REV. 873, 889–90 (endorsing the view

that the nullification power was “embodied” in the constitutional right to jury trial in criminal cases). For

a view questioning whether it is correct to assert that jury nullification, even in restricted form, is part of

the Sixth Amendment right, see LAFAVE ET AL., supra note 57, at 1285–86.

175

See LAFAVE ET AL., supra note 57, at 186 (“Courts have . . . rejected any constitutional right to an

instruction that informs the jury that it has the power to disregard the law and acquit.”); see also CLAY S.

CONRAD, JURY NULLIFICATION 5 (2014) (“We want jurors to intervene on occasion . . . without us telling

them about their power to do so . . . .”). For the view that jurors should be told of their power to nullify, see

Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. CALIF. L. REV. 168, 168 (1972).

176

See, e.g., United States v. Dougherty, 473 F.2d 1113, 1134–35 (D.C. Cir. 1972) (“There is reason

to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice

depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of

law.”); Alschuler & Deiss, supra note 155, at 914 n.246 (noting that the power to disregard instructions

can “disadvantage defendants rather than aid them”).

646 CONNECTICUT LAW REVIEW [Vol. 54:3

acknowledge are not closely regulated by legal rules or standards.

177

The Sixth

Amendment can support this move.

The Court could ground the inclusionary-rule approach in the Sixth

Amendment right without explicitly endorsing “nullification.” The Court

may be hesitant to use such terminology out of concern that it could suggest

that the accused has a limited right to law-nullifying jurors—an idea that is

hard to qualify properly.

178

Instead, the Court could emphasize the

traditional role of the criminal jurors in serving dual functions, and focus on

their role as “political participants,”

179

charged with balancing the power of

the judiciary by representing “popular-sentiment.”

180

Founding era history supports more than it undermines the

inclusionary-rule approach. The Framers believed strongly in the importance

of criminal juries

181

in an era when juries decided cases through their authority

to render general verdicts, typically with little or no binding instructions on

law from the judge.

182

Juries in that era were widely viewed as authorized to

serve as judges of both the law and the facts.

183

Given those circumstances,

177

For this reason, implementing the inclusionary-rule approach also need not be understood to

contravene the proposition first articulated by the Court in Sparf v. United States, 156 U.S. 51 (1895),

over a lengthy dissent, see id. at 163 (Gray, J., dissenting), that juries were no longer to be understood as

judges of the law.

178

United States v. Dougherty, 473 F.2d at 1133–34; see also Wainwright v. Witt, 469 U.S. 412,

424 (1985) (holding that prospective jurors in a capital case may be excluded for cause if their views

disfavoring capital punishment would substantially impair their ability to perform their duties as jurors

in accordance with the law).

179

Amar, supra note 155, at 1187.

180

Id. at 1189.

181

See, e.g., Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (noting the Framers’ regard for the

criminal jury as a crucial safeguard against a rogue judiciary); Amar, supra note 155, at 1183 (noting that

the criminal jury was guaranteed in both Article III, Section 2, of the body of the Constitution and in the

Sixth Amendment); see also DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776) (listing as a

grievance against George III his “depriving us . . . of the benefits of trial by jury”).

182

See, e.g., Alschuler & Deiss, supra note 155, at 903–06 (explaining that “the authority of

American juries to decide questions of law may have arisen from haphazard practice at a time when most

judges lacked legal training” but that this power “became a symbol of trust in the public’s sense of

justice”); see also Robert Ireland, The American Jury: From Judge of the Law to Trier of the Facts, in A

HANDBOOK OF JURY RESEARCH 2-1, 2-2 (Walter F. Abbott & John Batt, eds., 1999) (“Sometimes judges

endeavored to instruct jurors, but seldom in binding fashion.”); John P. McClanahan, The “True” Right

to Trial by Jury: The Founders’ Formulation and Its Demise, 111 W. VA. L. REV. 791, 808 (2009) (“At

the time of the Founding, it was almost universally accepted that juries in criminal cases had the right to

decide issues of law.”).

183

Alschuler & Deiss, supra note 155, at 912; Amar, supra note 155, at 1185, 1191–95; Ireland,

supra note 182, at 2-2; Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582,

590–95 (1939); see also HALE, supra note 170, at 27 (“By the late eighteenth century, the right to find a

‘verdict . . . according to conscience’ had achieved the status of conventional wisdom.”). Cf. William E.

Nelson, The Lawfinding Power of Colonial American Jurors, 71 OHIO. ST. L.J. 1003, 1028 (2010)

(concluding that founding era juries in New England and Virginia, although not in Pennsylvania, New

York, and the Carolinas, possessed law-finding authority).

Views on the legitimate authority of the criminal jury were evolving during the nineteenth century.

See Alschuler & Deiss, supra note 155, at 906–10; Ireland, supra note 182, at 2-4. However, by mid-

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 647

the criminal juries contemplated by the Sixth Amendment may well have been

thought vested with the authority to acquit not simply through nullification but

lawfully when they thought the prosecution unconstitutional.

184

Moreover,

colonial jurors confronting seizures in prosecutions for violations of English

law had frequently acquitted, and it is “a fair inference ” that some of those

acquittals were “based, at least in part, upon their conclusion of law that the

seizures were illegal.”

185

In that era, then, the importance of instructions

openly acknowledging jurors’ authority to ignore evidence based on an illegal

search and seizure would not have been apparent. “Most early American

jurors were already aware of their power to judge the law.”

186

Hence, the

imposition of an inclusionary-rule approach—with jurors being told of their

authority to judge suppression—would seem essential to conform with the

historical understanding of the Sixth Amendment jury-trial guarantee.

187

If criminal juries once passed on the propriety of searches and seizures,

however, why not enlist them to do so again rather than limit them to

deciding whether to suppress the evidentiary fruits of a violation?

188

The

reason focuses on the need for guidance of police officers regarding the

meaning of the Fourth Amendment. Changed circumstances that underscore

why originalism allows an inclusionary-rule approach also underscore why

originalism does not demand more. The need for legal guidance to direct the

work of our now extensive law enforcement personnel

189

requires that the

judiciary assume the task. We could not expect police officers to know how

they are permitted to investigate crime through the unpredictable and

unexplained general verdicts of juries.

190

The inclusionary-rule approach

century, at least fifteen of the thirty states still authorized criminal juries to resolve legal questions. See

Alschuler & Deiss, supra note 155, at 910–11. Moreover, the Supreme Court did not disavow the notion

that juries were legitimate judges of the law in federal court until Sparf, decades after the adoption of the

Fourteenth Amendment, and, even then, only over a long and forceful dissent. See generally, Sparf v.

United States, 156 U.S. 51 (1895) (rejecting the notion that criminal juries may rightfully disregard the

law as provided them by the court and become judges of the law themselves).

184

See Amar, supra note 155, at 1185 (noting that this view was widely endorsed by many

constitutional theorists in the late eighteenth and early nineteenth centuries); see also VALERIE P. HANS

& NEIL VIDMAR, JUDGING THE JURY 37 (1986) (asserting that “the writings of Adams, Jefferson,

Elbridge Gerry, and other framers of the Constitution made it clear that they believed that the jury could,

and should, decide law as well as fact.”).

185

Bacigal, supra note 141, at 800.

186

Conrad, supra note 175, at 65.

187

Juries were not diverse at the time of the founding and typically were not so even by the early

1960s. See Alschuler & Deiss, supra note 155, at 878; see also infra text accompanying notes 199–202.

Although juries are now more diverse, it seems that few, if any, serious critics would claim that an

inclusionary-rule approach involving diverse juries should founder on that basis.

188

See supra note 141 (identifying scholars who have argued for this approach).

189

LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 67 (1993) (noting

that there were no full-time police and few full-time criminals); Steiker, supra note 27, at 837.

190

See Bacigal, supra note 140, at 391 (noting that the randomness of juries would present a

problem in settling Fourth Amendment law according to fixed, legal principles).

648 CONNECTICUT LAW REVIEW [Vol. 54:3

constitutes a plausible construction of the Sixth Amendment that aims to

be pragmatic.

191

C. An Assessment

The implementation of an inclusionary rule would reflect a genuine

concern not only with honoring the aggrieved defendant’s Fourth

Amendment rights but also with balancing the dangers of police abuse and

crime. Regarding police, the effect intuitively would be to deter some

violations of the Fourth Amendment against law-abiders. The prospect of a

judge’s instruction identifying a violation and the wrongdoers—in essence,

a public reprimand—would often be unpleasant for the officers involved and

their superiors. The prospect that jurors might also disregard any evidentiary

fruits and even acquit the defendant for the violation would compound the

police discomfort and encourage continued training about Fourth

Amendment doctrine to promote compliance. At the same time, the likely

effect on law-breakers, or potential law-breakers, would seem appropriately

limited. Juries might often ignore the violations and convict the guilty

defendant, especially in serious cases, and, if not on the greater offense

charged, on the lesser-included one.

192

Also, it appears implausible that

persons who actually contemplate serious crimes or even minor ones would

commonly expect that improper invasions of their liberty, privacy, or

property interests that turn up evidence against them would generate

sympathy from criminal juries. We cannot estimate the outcome of the

approach with much precision, although it seems unlikely to prove as

problematic as the Court’s efforts to impose and then diminish the

exclusionary rule.

A benefit of the inclusionary rule, moreover, is that it does not claim a

correct utility regarding the use of evidentiary suppression. The inclusionary

rule acknowledges that there is value merely in honoring the aggrieved

defendant’s Fourth Amendment rights. Also, being unable to estimate with

great accuracy how it would play out everywhere in terms of its effect on

crime and police abuse can be understood as a positive rather than a negative.

191

Should this construction of the Sixth Amendment right to jury trial apply to some other

violations of constitutional rules governing police practices, such as those regarding suspect statements?

Those questions deserve extensive consideration and are beyond the scope of this Article.

192

There are good reasons to suspect that juries made up of law-abiders would often be indifferent

to violations committed against criminals. Many law-abiders may believe that the police will not

commonly violate law-abiders’ Fourth Amendment rights. See Bacigal, supra note 140, at 417 (asserting

that law-abiding citizens may generally be “confident that the police will not direct unreasonable searches

at them”). Or, if the jurors are white and middle-class, they may “often fear the robbers more than the

cops because the robbers tend to be mostly poor and/or members of minority groups and because cops

tend to focus their attention on just such disfavored groups.” Steiker, supra note 27, at 850. In addition,

many jurors may simply believe that those who are doing nothing wrong have nothing to hide and should

willingly submit to police intrusions. See, e.g., Tom Wicker, Rights vs. Testing, N.Y. TIMES, Nov. 28,

1989, at A25 (discussing Washington Post/ABC poll revealing that most respondents held such views).

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 649

In this view, the inclusionary-rule approach would produce different results

in different counties depending on the counties’ circumstances related to

existing crime and police abuse rates. Assuming that concerns about crime

and police abuse vary in different counties, it is appropriate that the

responses would differ as well.

The inclusionary-rule approach would also allow for variation based on

the type of crime involved. The same police violation might be treated

differently in a capital murder prosecution than in a minor drug possession

prosecution. Unlike the Supreme Court, juries could consider Fourth

Amendment violations on a case-by-case basis without having to articulate

principles that would apply across the nation.

The inclusionary-rule approach also would not reflect deference to

majority rule. It would accomplish something different than leaving the

question of remedy for violations in criminal cases to Congress and the

states. The inclusionary-rule approach would also differ, more specifically,

from allowing civil juries in constitutional tort cases to decide what to do

regarding aggrieved criminal defendants. The reason is that, unlike in

constitutional tort cases, the government has the burden of proof in criminal

cases, and criminal juries do not operate based on majority rule. Ramos v.

Louisiana recently clarified that criminal jury verdicts favoring conviction

must be unanimous throughout the states.

193

The unanimity requirement

means that “[a] jury must reach a unanimous verdict in order to convict.”

194

In some cases, a mistrial rather than a conviction would result, and, in a few,

where all of the jurors concurred on the need to ignore the evidentiary fruits,

an acquittal as opposed to a conviction could follow.

195

In reducing police abuse against minorities, the inclusionary-rule

approach would also seem substantially more effective as a

constitutionally-grounded remedy rather than simply abandoning the

exclusionary rule, despite the history of racial discrimination in the

composition of American criminal juries.

196

The racial bias problem and the

absence of an incorporated mandate of jury unanimity would have

undermined this approach as a protection for minorities if the Court had

implemented it in Mapp in the early 1960s. However, along with unanimity

rules,

197

the law of jury composition has changed.

198

The modern Court has

193

140 S. Ct. 1390, 1397 (2020).

194

Id. at 1395.

195

See id. at 1394.

196

See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 172–80 (1997) (discussing the racial

exclusion of Black prospective jurors during the late 1800s through the 1990s); DAVID COLE, NO EQUAL

JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 105–07 (1999) (discussing the

Supreme Court’s toleration of racial exclusions of Black prospective jurors for decades after declaring

race discrimination in jury selection unconstitutional).

197

See supra text accompanying notes 187–188.

198

See supra text accompanying note 186.

650 CONNECTICUT LAW REVIEW [Vol. 54:3

required that states take steps to promote representative jury pools.

199

Also,

in the Batson line of cases, the Court has taken modest steps to ensure that

litigants do not use peremptory strikes to eliminate prospective jurors based

on race or gender.

200

The Court reiterated this proscription most recently

in Flowers v. Mississippi.

201

Those changes, along with changes in racial

attitudes, could help modestly to mitigate racial discrimination in the

operation of the rule.

202

This approach would also help the Court avoid claims from both

proponents and opponents of the exclusionary rule that it is acting without

good information and in the face of its own incapacity. As we have seen, a

central objection to the Court’s decisions both maintaining and undermining

the exclusionary rule is that the Court lacks a good basis to make such

decisions or the ability to act in a nuanced fashion.

203

By turning decisions

about when to suppress and acquit over to criminal juries, the Court could

avoid those justified criticisms.

Perhaps the most important benefit of the inclusionary rule is that it

would allow the Court to continue to use criminal cases to direct law

enforcement and lower courts on the meaning of the Fourth Amendment.

Given the possibility of jury suppression and acquittal, criminal defendants

would continue to have a strong incentive (in addition to discovering

information about the government’s case through pre-trial hearings on the

claims) to raise Fourth Amendment issues in pre-trial motions seeking an

instruction on any violation. Trial judges would also continue to hold

hearings and render rulings on those motions in much the same way that they

do under current doctrine. On review of those rulings, appellate courts,

including the Supreme Court, would be able to continue to develop Fourth

Amendment law to guide the police. The same would not be true if the Court

pursued any of the options for eliminating the exclusionary remedy that have

been presented in the first three parts of this article.

The inclusionary rule approach, however, could not be expected to

achieve any utility maximizing equilibrium between the dangers of crime

and police abuse facing law-abiders. The inclusionary rule does not purport

to focus juries on the problem of maximizing utility for law-abiders.

199

See, e.g., Lockhart v. McCree, 476 U.S. 162, 175 (1986) (noting that the exclusion of Blacks,

women, or Mexican-Americans from jury venires could violate the representativeness requirement);

Peters v. Kiff, 407 U.S. 493, 502–04 (1972) (plurality opinion) (holding that the systematic exclusion of

Blacks from grand and petit juries violated due process).

200

See, e.g., Batson v. Kentucky, 476 U.S. 79, 97 (1986) (discussing race); J.E.B. v. Alabama ex

rel. T.B., 511 U.S. 127, 143, 145 (1994) (discussing gender).

201

See 588 U.S. 1, 31 (2019) (holding that trial court committed error in allowing state’s peremptory

strike of Black prospective juror).

202

Despite these changes, Black citizens still tend to be underrepresented on juries for a variety of reasons.

See KENNEDY, supra note 196, at 232–37 (explaining a variety of grounds for their underrepresentation,

including their underrepresentation on voter registration lists).

203

See supra text accompanying note 139.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 651

Juries also will not know much about how to maximize utility even if they

focus on it. Jurors often will not know the situation regarding crime and

abusive police in a particular neighborhood where the events occurred or

even in the larger county where they are called to serve. Some counties

encompass many different communities, and the proposal does not call for

evidentiary presentations on the general problems of crime and police abuse

in the locality. Jurors could still act on crime-type distinctions and

police-culpability nuances that the Supreme Court has been unable to

implement.

204

Some jurors might also appreciate local concerns that are

relevant to the problems. In their summations, lawyers could also allude to

the relevant considerations. Yet, many jurors would likely not know how to

come to a much better resolution of the problems (in a utility-maximizing

sense) than would Supreme Court Justices.

Because “the great majority of criminal cases” result in guilty pleas,

205

the inclusionary rule would also only produce an instructional reprimand and

jury consideration of a Fourth Amendment violation in a small proportion

of cases. The rule would probably influence plea negotiations somewhat,

and prosecutors in plea-bargained cases might sometimes communicate to

police officials their displeasure that a police violation of the Fourth

Amendment warranted an extra prosecutorial concession. The same could

be said regarding the current exclusionary rule. However, the influence of

the inclusionary rule on plea bargaining and, thus, in deterring violations of

the Fourth Amendment, might be even murkier given the uncertainty over

how jurors would react to a violation instruction.

This approach would also perpetuate one of the demerits attributed to

the two approaches presented in Parts II and III. It would not eliminate the

need for federal courts to give contorted reasons for denying criminals

damages in § 1983 actions for clearly established Fourth Amendment

violations that helped cause their detentions, prosecutions, convictions, and

sentences.

206

Only the first option presented in Part I, involving rights

forfeiture, provides a good explanation for those outcomes.

207

This inclusionary rule approach may also give criminals at least some

potential assistance in committing and covering up their crimes. Although

this concern seems inconsistent with concerns that the approach may have

modest deterrent influence, the larger point is that we cannot be sure. To the

extent that the rule results in reprimanding instructions from trial judges and

jury actions favoring accused persons, it would protect criminals and might

also modestly encourage crime.

A final, major concern is that implementing this approach would

constitute a significant change of direction for the Court. After so many

204

See supra notes 131–132 and accompanying text.

205

LAFAVE ET AL., supra note 57, at 1194.

206

See supra note 65 and accompanying text.

207

See supra notes 67–68 and accompanying text.

652 CONNECTICUT LAW REVIEW [Vol. 54:3

decades with the exclusionary rule, substituting the inclusionary rule might

suggest that constitutional law lacks an enduring meaning. The move might

seem to square more easily with the view that constitutional law is not “an

expression of values written into the Constitution by the framers, but . . . the

product of a continuing process of valuation carried on by those to whom

the task of constitutional interpretation has been entrusted.”

208

For some

observers, that perspective would be unsettling. Moreover, the Court might

not be fully able to counter it even by pointing to the historical powers of

the criminal jury or by noting the Court’s lack of previous consideration of

the Sixth Amendment right to jury trial as a basis to address Fourth

Amendment violations.

CONCLUSION

By assuming that the Supreme Court will abolish the exclusionary rule

and by considering potential alternatives, this Article has demonstrated a

conundrum that surrounds the Fourth Amendment. The alternatives are all

problematic. This point may be reason enough for the Court to maintain

an admittedly flawed exclusionary rule. Yet, there remain good grounds to

rank the options. A comparison among them bears, if not on what approach

the Court should have pursued in the past,

209

then on what approach it should

follow if, as it has hinted, it might eliminate court-ordered exclusion in

the future.

This Article favors an inclusionary rule as the best alternative to the

exclusionary rule. The approach has flaws, but it would appear to be a

workable method to promote the utility of law-abiders. By allowing the

judiciary to continue to use criminal cases to develop search and seizure

doctrine to guide law enforcement, while also allowing criminal juries, after

an instruction reprimanding violators, to decide the suppression question,

the approach could moderately promote government compliance with the

Fourth Amendment. At the same time, because jurors might frequently not

ignore the evidentiary fruits, particularly in serious criminal cases involving

minor or only negligent violations, the approach would seem to protect and

encourage lawbreakers only modestly in their efforts to commit and cover

up crimes.

The inclusionary-rule approach would also represent an effort to

implement an acceptable balance between crime and police abuse, though

208

Terrance Sandalow, Constitutional Interpretation, 79 MICH. L. REV. 1033, 1033–34 (1981).

209

Neither the article’s assumption that the Court will eliminate the exclusionary rule nor its

presentation of alternative approaches rests on a view that the implementation of the rule in federal court

and its incorporation against the states were mistakes. The exclusionary rule may have been deemed

essential for combating severe racial discrimination in search and seizure practices. See, e.g., Steiker,

supra note 27, at 838–41. For more on how racial-discrimination problems would have plagued an

inclusionary-rule approach if it had been adopted before reforms were implemented that modestly

promoted racial diversity on juries, see supra text accompanying notes 196–202.

2022] A SIXTH AMENDMENT INCLUSIONARY RULE 653

that is not its overriding purpose. The approach does not claim a correct

utility regarding the use of evidentiary suppression. Jurors would not be told

to try to effectuate such an equilibrium. The inclusionary rule acknowledges

that there could be value merely in honoring the aggrieved criminal

defendant’s Fourth Amendment interests. However, jurors would decide on

the value of suppression in the process of deciding whether to suppress.

The inclusionary-rule approach would also rest on a constitutional theory

that would explain the basic contours of its application. Because it would

depend heavily on the Sixth Amendment right to a jury trial in criminal cases,

it would not apply in civil cases, in probation or parole revocation hearings,

or in the early stages of a criminal case, such as the preliminary hearing or the

grand jury. On this score, it is superior to the current exclusionary rule, which

has no constitutionally grounded explanation.

210

Before presenting the inclusionary-rule approach in Part IV, this

Article proposed three routes that the Court could follow to eviscerate

the exclusionary rule without imposing a constitutionally grounded

substitute: Part I presented a rights-forfeiture theory; Part II presented a

remedy-forfeiture theory; and Part III presented a nonutility theory. Those

approaches would rely primarily on legislatures to protect law-abiders from

Fourth Amendment violations. The principal protection envisioned would

come from legislatively authorized civil rights suits. It is not apparent that

there is a better constitutionally grounded substitute for the exclusionary rule

than the inclusionary rule.

211

Thus, if the Court were convinced that

evidentiary suppression in criminal cases is always nonutilitarian for

law-abiders and that the Constitution cannot support an inclusionary rule,

those first three proposals would seem to represent the available options.

In that case, which of those first three routes to evisceration would be

preferable? One might be tempted to pick the approach presented in Part I:

Criminals should, with a few exceptions, forfeit Fourth Amendment

interests that would help them commit and hide their crimes and, thus, also

forfeit the associated remedies by virtue of their wrongdoing. However, it

would seem essential to couple that approach with an explanation from the

Court about why evidentiary suppression is non-utilitarian across the

spectrum of Fourth Amendment violations. For more than fifty years, the

Court has pronounced that the exclusionary rule is all about utility, both

when parts of the rule have been preserved and when other parts of it have

been pared.

212

For the Court now to offer forfeiture as the sole reason for

abolition would be disingenuous.

210

On the point that the contours of the exclusionary rule in its current or some even more

contracted form have no persuasive constitutional explanation, see supra note 51.

211

See supra note 139.

212

See supra notes 20–25 and accompanying text.

654 CONNECTICUT LAW REVIEW [Vol. 54:3

With that caveat (and a few others),

213

the rights-forfeiture approach

would allow a simple answer to the big question: how can the Fourth

Amendment give criminals protection in their efforts to commit and hide

their crimes? The answer would be that it does not because they would

forfeit those rights through their abuse of them to pursue their criminal ends.

The rights-forfeiture approach would also allow a simple answer to another

big question: how can criminals purportedly have all the Fourth Amendment

rights to liberty, privacy, and property that law-abiders have, and yet we do

not give them a readily available remedy—evidentiary suppression—when

those rights are violated to their great detriment? The answer again would

be that criminals no longer have such rights because they forfeit them

through their wrongdoing.

In the end, however, none of the approaches discussed in this Article

clearly deserves honorable mention as a second choice to the inclusionary-rule

approach. From the perspective of maximizing utility for law-abiders, a

central argument for why the Court should eliminate the exclusionary rule is

also a central argument for why the Court should not eliminate it without

imposing a constitutionally grounded substitute that, to a modest degree,

protects criminals. The Court lacks the information and capacity to

convincingly declare that the exclusionary rule maximizes utility for

law-abiders. Yet, the Court also lacks the information and capacity to

convincingly deny that a suppression remedy, implemented in some form—by

local criminal juries—is utilitarian for law-abiders. The inclusionary-rule

approach is a worthy alternative to turning the enforcement of the Fourth

Amendment over completely to some form of majoritarian rule. And, by good

fortune perhaps, the inclusionary-rule approach finds support in the historical

powers of the criminal jury that are plausibly viewed as embodied in the right

to jury trial in the Sixth Amendment.

213

See supra text accompanying notes 73–78.