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NCJRS Abstract

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NCJ Number: 50065 Find in a Library
Title: IS THE EXCLUSIONARY RULE AN 'ILLOGICAL' OR 'UNNATURAL' INTERPRETATION OF THE FOURTH AMENDMENT?
Journal: JUDICATURE  Volume:62  Issue:2  Dated:(AUGUST 1978)  Pages:66-84
Author(s): Y KAMISAR
Corporate Author: American Judicature Soc
United States of America
Date Published: 1978
Page Count: 19
Sponsoring Agency: American Judicature Soc
Chicago, IL 60601-7401
Format: Article
Language: English
Country: United States of America
Annotation: A JUDGE FROM THE U.S. COURT OF APPEALS PRESENTS HIS VIEWS ON THE EXCLUSIONARY INTERPRETATION OF THE FOURTH AMENDMENT TO THE CONSTITUTION.
Abstract: THE EXCLUSIONARY RULE IS BASED ON THE FOLLOWING PREMISE: WHEN POLICE OBTAIN EVIDENCE IN VIOLATION OF THE CONSTITUTION, COURTS MUST EXCLUDE SUCH EVIDENCE TO ASSURE THE PEOPLE THAT GOVERNMENT CANNOT PROFIT FROM ITS LAWLESSNESS. THE FOURTH AMENDMENT CONSTITUTES A A GUARANTEE AGAINST UNREASONABLE SEARCHERS AND SEISURES, BUT IT DOES NOT EXPLICITLY STATE WHAT THE CONSEQUENCES OF A VIOLATION OF THIS GUARANTEE SHOULD BE. THE WEEKS CASE IS CITED AS SIGNIFICANT IN THAT IT BARS THE USE OF EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT IN FEDERAL PROSECUTIONS. THE SILVERTHORNE CASE IS NOTED ALSO, INVOKING WHAT HAS COME TO BE KNOWN AS THE 'FRUIT OF THE POISONOUS TREE' DOCTRINE. THE OLMSTEAD CASE STATES THAT TELEPHONE MESSAGES DO NOT FALL WITHIN THE CONFINES OF PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE AND SUCH EVIDENCE SHOULD NOT BE EXCLUDED BECAUSE FEDERAL AGENTS WHO TAP TELEPHONES VIOLATE STATE STATUTES. IT IS ARGUED THAT THE EXCLUSIONARY RULE IS NOT ILLOGICAL OR MISDIRECTED BUT THAT MUCH OF THE CRITICISM IT HAS GENERATED IS ILLOGICAL. THE TIME LAG BETWEEN THE ADOPTION OF THE EXCLUSIONARY RULE IS EXAMINED, AND CONSIDERATION IS GIVEN TO THE SOURCE OF THE RULE, CONFESSIONS, AND COURT INCONSISTENCIES. THREE POINTS ARE MADE: (1) NOT ALL VIOLATIONS OF THE FOURTH AMENDMENT OFFEND DUE PROCESS; (2) EVIDENCE (VERBAL OR REAL) THAT IS THE PRODUCT OF POLICE VIOLENCE OR BRUTALITY SHOULD BE EXCLUDED, BUT NOT EVIDENCE OBTAINED BY OTHER TYPES OF POLICE MISCONDUCT; AND (3) OBTAINING EVIDENCE BY SEARCHES OR SEIZURES THAT MAY VIOLATE THE FOURTH AMENDMENT IF CONDUCTED BY FEDERAL OFFICIALS DOES VIOLATE DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WHEN MADE BY STATE OFFICERS. THE USE OF SUCH EVIDENCE IN STATE COURTS DOES NOT OFFEND DUE PROCESS, HOWEVER, UNLESS POLICE METHODS CONSTITUTE AN AGGRAVATED OR OUTRAGEOUS VIOLATION OF THE FOURTH AMENDMENT. (DEP)
Index Term(s): Constitutional Rights/Civil Liberties; Exclusionary rule; Right to Due Process; Search and seizure
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=50065

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