The Exclusionary Rule Reconsidered: Restoring the Status Quo Ante

The thesis of this article is that the exclusionary rule is a fair and just rule to enforce Fourth Amendment interests. However, the justice of the rule is not in its effect on law enforcement officers, as the Supreme Court has suggested since the Calandra decision in 1974. Crafting measures to punish or to deter unlawful conduct is not the business of the judiciary. Punishment and deterrence have no more place in a discussion of the exclusionary rule than they have in a discussion of the Fourth Amendment itself. Rather, the exclusionary rule is a just one because it puts both the state and the accused in the positions in which they would have been had the constitution not been violated, neither better nor worse. It provides an individual remedy for the violation of an individual right. Thus, the exclusionary rule restores the status quo ante. The restoration justification would provide a principled basis for judicial decision-making, replacing a flawed empirical test which the Supreme Court has followed since Calandra. It would provide a fair and predictable test in place of one that leads to opinions which are best described as adjudications by hunch. The final part of the article considers the changes in application of the exclusionary rule which would be caused by adopting the restoration justification.