A Sixth Amendment Inclusionary Rule for Fourth Amendment Violations

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