Exclusionary rule and fruit of the poisonous tree importnace

Exclusionary rule and fruit of the poisonous tree importnace

Exclusionary rule and fruit of the poisonous tree importnace

In this post I will address how the exclusionary rule has changed in the post-Katrina world.


It is difficult to overstate the importance of the Fourth Amendment exclusionary rule.

There are three basic components to the exclusionary rule: (1) the primary rule: police who search and seize in violation of the Fourth Amendment generally may not use the fruits of that search and seizure in a criminal trial against the defendant, (2) the derivative or derivative-upon-derivative rule: when a primary violation has occurred, secondary evidence obtained by using a primary violation is generally inadmissible, and (3) the exclusionary rule exception: police may not use the fruits of a search if they are able to show that they had an objectively reasonable good faith belief that their conduct was lawful, rather than relying on a primary violation of the Fourth Amendment.

The exclusionary rule was intended as a prophylactic. It was not intended to be a remedy. We have a remedy for violations of the Fourth Amendment: damages. However, in the 1960's when the exclusionary rule was promulgated, there were not nearly as many remedies for violations of the Fourth Amendment, not to mention the lack of Fourth Amendment precedent.

The exclusionary rule was also a response to a prior era. The exclusionary rule had been widely in effect in the 1920's and 30's. The police had long used the fruits of their illegal acts. This was especially the case with illegal search and seizures.

The exclusionary rule was also an effort to limit the damage to the innocent as a result of an over zealous police department. I believe this explanation is still valid.

The Exclusionary Rule is not a Constitutional Right

The exclusionary rule is based on the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We have already seen that the Supreme Court has consistently held that the Fourth Amendment does not create any rights. It only restricts how the government is to conduct searches and seizures. Therefore, the exclusionary rule was not created to make any rights more secure. They already exist.

The Exclusionary Rule Cannot be Waived

The exclusionary rule also cannot be waived. In the U.S. Constitution, article 3, section 3 states:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

There is no mention of a right to trial or a right to due process in this section, yet the exclusionary rule is based on these due process rights. This is why it cannot be waived. The exclusionary rule cannot be waived because it is based on fundamental rights that cannot be waived.

The Exclusionary Rule Is an Absolute Doctrine

Another misconception regarding the exclusionary rule is that it only applies when the police conduct was illegal. This is not true. Even if the police conduct was not illegal, it could still be ruled to be unconstitutional. The same is true with the exclusionary rule. Therefore, if an act is not illegal, it does not matter whether the exclusionary rule applies to that act or not. Therefore, the exclusionary rule is an absolute doctrine.

The Exclusionary Rule Is Constitutional

The final misconception about the exclusionary rule is that it is unconstitutional. There are a few cases that have ruled the exclusionary rule unconstitutional, but these were cases that were decided during the period of the exclusionary rule, when the exclusionary rule was absolute.

In fact, in the case of Elkins v. United States (1960), the Supreme Court ruled that in some cases the exclusionary rule does not apply, like when the evidence being excluded is obtained by the violation of a person’s due process rights. It is now time to return to the exclusionary rule as it was meant to be, not as it was turned into when the Supreme Court ruled the exclusionary rule unconstitutional.

I do not advocate for legalization of drugs. Even though I have been a full-time advocate for the legalization of drugs for years, it has never been my focus. I am simply advocating for the exclusionary rule, a rule that protects an individual’s right to due process by upholding the Fourth Amendment.

The Fourth Amendment was designed to protect individuals against searches and seizures that are not based on a valid reason. While it does not protect drug dealers, it does protect individuals against the government abusing its power to violate individual rights. I do not believe we need to legalize drugs. The war on drugs is a war on individuals’ rights, not a war on drugs. The war on drugs is the war on individual freedom.

We need to get back to a rule that protects individuals’ rights, not a rule that protects drug dealers. I believe the Fourth Amendment will do that. I know that it protects my freedom and the freedoms of all individuals.

Michael Ray Hamilton is a student at the University of Miami School of Law. He is an attorney in private practice and a full-time advocate for the rights of individuals to protect themselves and their families. He is the author of “A Call to Arms: The Second Amendment in the Light of Supreme Court Cases” and a founding member of Gun Owners of America. He can be reached at [email protected]

Watch the video: The exclusionary rule