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The Exclusionary Rule Post-Hudson v. Michigan
Moderator: The Honorable Steven M. Colloton
The Exclusionary Rule and Causation Professor Alschuler will emphasize two dichotomies – (1) the distinction between “rights” and “instrumental” justifications for the exclusionary rule and (2) the distinction between rules about when a search may occur and rules about how a search must be conducted. He will discuss how Hudson’s withdrawal of the exclusionary remedy when the police have violated the Fourth Amendment’s knock-and-announce requirement seems justified under a “rights” conception of the rule that since 1965 the Supreme Court has mostly disavowed. He contends that customary principles of “but for” causation ordinarily support the suppression of evidence only when the police have made a search they should not have made, not when they have conducted a search in an improper manner. A requirement of but-for causation does not fit well with the rule's instrumental justifications. Professor Alschuler will discuss how “[W]hen ‘rights’ theories of the exclusionary rule and ‘instrumental’ theories are considered together, the appropriate initial question might be, not whether the government’s illegality was a but-for cause of its discovery of challenged evidence, but whether the government’s illegal conduct facilitated the discovery of this evidence. Contributing cause is a less demanding concept than but-for cause. Posing this initial question would not preclude recognition that the ‘taint’ of the government’s unlawful conduct can be ‘dissipated’ by independent intervening causes. Moreover, the suggested formulation might be relaxed somewhat to accommodate a limited ‘inevitable discovery’ exception to the exclusionary rule.”
Waiting for the Other Shoe: Hudson and the Precarious State of Mapp Professor Moran will discuss two different but interrelated aspects of the decision in Hudson v. Michigan. First, he will address how the case morphed from a straightforward application of the inevitable discovery exception to the exclusionary rule to a case about the continuing viability of the exclusionary rule itself, and how that change occurred when Justice O'Connor left the Court and was replaced by Justice Alito. Second, he will show how the decision in Hudson has made it much for difficult for the Court to decide other Fourth Amendment cases.
Hudson v. Michigan and the Future of Fourth Amendment Exclusion Professor Tomkovicz believes that the impact of the Supreme Court’s decision in Hudson v. Michigan upon the Fourth Amendment exclusionary rule is potentially quite significant, but utterly unpredictable. The narrowness of the issue resolved by the Court, the alternative doctrinal threads proffered in support of its conclusion, and the unavoidable tone and subtext of Justice Scalia’s opinion provide signposts that point down a number of different paths. Ultimately, there are a variety of defensible understandings of the message the Hudson majority intended to deliver. The primary objectives of his Article will be to identify the various interpretations of Hudson, from the narrowest to the broadest, to explain their precise meanings, to explore their logic and plausibility, and to assess the practical implications of each for the future of Fourth Amendment exclusion.  |
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