Where Have All Our Fourth Amendment Rights Gone?
posted by Erica Goldberg
The Supreme Court will decide on Friday whether to review Virginia v. Banks, a case that could potentially expand the “exigent circumstances” exception to the warrant requirement of the Fourth Amendment. The Supreme Court could also use this case as a vehicle to further limit the exclusionary rule, which precludes admission of the fruits of Fourth Amendment violations into evidence at trial. The Virginia Court of Appeals held that police cannot use evidence found in a suspect’s jacket, grabbed by police with the intention of keeping him warm after arresting him in his home, when they have no warrant or other constitutional reason to search and seize the jacket. I fear that the Supreme Court, following its trend of eviscerating our Fourth Amendment rights, will find a way for courts to admit into evidence the gun found in Mr. Banks’s jacket.
I’ve been pondering some Hamlet-like questions. Is it better for the Court to candidly admit that it wants to tie Fourth Amendment violations solely to police bad faith, and thus undo many applications of the exclusionary rule that apply regardless of the officer’s intentions (this is where the Court seems to be going, unfortunately), or is it better for the Court to slowly chip away at Fourth Amendment rights? It’s hard to see how this case presents a true exigency, but instead of frankly announcing that the exclusionary rule applies only in cases of bad faith by the police, the Court may squeeze Banks into the exigent circumstances exception. More of our Fourth Amendment rights will remain in the latter scenario, because the Court won’t invalidate the exclusionary rule jurisprudence, but the doctrine will be disingenuous and incoherent. And, is it better to have Fourth Amendment rights that cannot be enforced through the exclusionary rule than never to have any Fourth Amendment rights at all? Maybe we should incentivize police officers, by not applying the exclusionary rule, to perform nice gestures like grabbing a suspect’s coat (without permission from the suspect). To exclude or not to exclude: that is the question.