The Obsession with Exclusion

…Additionally, a damages regime is a much better remedial fit for certain types of Fourth Amendment violations. As the Supreme Court's recent decision in Hudson v. Michigan n71 notes, while exclusion may meaningfully vindicate Fourth Amendment rules meant to "prevent[] the government from seeing or taking evidence," n72 it does not as clearly serve interests protected by other rules.

n73 Thus in Hudson the Court rejected exclusion as a remedy for a violation of the knock-and-announce doctrine, because that doctrine is meant to prevent unnecessary destruction of property and minimize violence by or embarrassment of a surprised resident, interests which have little to do with the subsequently seized evidence (for which the police in Hudson had probable cause and a warrant). n74 A damages action compensating the individual for injury to person or property would make much more sense in this situation.

The same analysis suggests that exclusion is not a good remedy for other search execution rules, as well as for post-search rules  [*618]  such as record-keeping and periodic review requirements. n75 Most important, as has often been pointed out, exclusion provides no remedy for the innocent victims of police misconduct.

…[T]he dominance of the exclusionary rule as the remedy for illegal searches and seizures has been one of many reasons judicial endorsement of a robust Fourth Amendment has been stymied. And I am saying that without a meaningful damages regime, the Fourth Amendment law that we do have is not likely to make much of a practical difference.

V. Conclusion

The Court's adherence to the probable cause standard, the individualized suspicion requirement, and the exclusionary remedy is either short-sighted or disingenuous (depending upon the extent to which the justices understand and care about the effects of these precepts). None of these doctrines is required by the Fourth Amendment. Instead, the proportionality and exigency principles should govern, and a realistic damages regime instituted.

… The probable-cause-forever, individualized suspicion and exclusionary rule dogmas are all revered by those who want a vigorous Fourth Amendment. Unfortunately for their advocates, these dogmas have backfired. They have fed, rather than restrained, the temptation to give government leeway in its law enforcement efforts. The good news is that more moderate positions are both consistent with the Fourth Amendment and more likely to lead to its full implementation.