Is The Exclusionary Rule Constitutional?

You may be familiar with the exclusionary rule, and how beneficial it is to a defense in a criminal matter. You may not be aware of the fact that it’s not a constitutional guarantee in Utah, or at least not one that is firmly rooted. In the recent Utah Supreme Court case, Utah v. Rowan, the court reverses a decision to apply the exclusionary rule to evidence acquired through a warrant. I’m not really interested in discussing the underlying facts of that case, nor in the ultimate decision. A more interesting question was posed in a concurrence by Associate Chief Justice Lee.

In it, he posits that the exclusionary rule should not be automatically applied in situations where there was an illegal search and seizure. My initial reaction in reading this was: that sounds like a terrible idea! How else can you dissuade overzealous police officers from infringing on your rights?

Justice Lee states that he “observed that the constitution says nothing about an exclusionary… remedy for the violation of article I, section 14.”  Id. at page 16. He states that because “the constitution “does not speak to the remedy for an unreasonable search or seizure… it seems sensible to read article I, section 14 as requiring a remedy sufficient to protect the rights of Utah citizens but leaving the selection of the appropriate remedy… up to common-law evolution.”

Here’s where it gets interesting. He states that the exclusionary rule was “introduced into our Utah system as a matter of federal constitutional law by Mapp v. Ohio.” For those who are unfamiliar, the exclusionary rule requires that any evidence that was seized illegally be unavailable for use at trial by the prosecuting party. It is often called “suppression”, and it can be statements made without proper warnings, or contraband found in your home without being authorized. Lee wassn’t looking to jettison the exclusionary rule. He proposed that the exclusionary rule would not be mandated, which would leave it up to the State legislature to determine how to best protect the rights of Utah Citizens. 

I was still skeptical, but Lee’s next few points caused me to wonder. “There is an irony in our modern search and seizure law: Because the sole remedy for an unlawful search or seizure is exclusion of evidence, the protections of the constitution are reserved for those found in possession of illegal contraband; the purely innocent are left without an effective remedy.”  id. at page 18.

Is Lee correct? Part of me is concerned that if the exclusionary rule is made optional, it may not be valued by lawmakers. If it is not guaranteed, it may open the door to even more reasons to not apply it. Lee recognizes that the laws surrounding the exclusionary rule are “riddled by a set of contradictory exceptions that contribute more confusion that clarity.”

At the same time, I feel persuaded by the fact that there is no real remedy for individuals who are innocent but still suffer an illegal search. If I was the victim of an illegal search, but there was no evidence to suppress, I would still want some remuneration. Getting paid by the government seems like a good way to make them not do something ever again.

Why can’t there be a middle ground? Why can’t the exclusion of evidence always be a remedy, and remuneration is paid in situations where there is no excusable evidence? The exclusionary rule has been around for so long, to make it optional would be untenable. Too many cases depend on it.

What do you think? What should be the outcome? What should the legislature do? Let me know!

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