Is the Exclusionary Rule Dead?

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term\u27s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in simple, isolated negligence or where negligence is attenuated from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon. The Court\u27s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police\u27s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that reckless behavior can be deterred more readily than negligent behavior, but that is not obvious. This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of substantial as opposed to simple isolated negligence-that is, when negligence has substantially interfered with a suspect\u27s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained