Thoughts on Fourth Amendment and Illegally Obtained Evidence

A while back, I commented on Matthew Yglesias non-TPMCafe blog about Stephan Kinsella's LewRockwell.com article about the "exclusionary rule."

Essentially, the argument is that evidence obtained illegally ought not be excluded, and evidence that winds up being probative ought to excuse an otherwise illegal search. The mechanism for enforcing the 4th amendment ought to be prosecutions or civil suits on behalf of people who were searched illegally in cases where nothing was found. This would make the rule protect the innocent instead of the guilty.

It seemed like a good idea at the time, but the Cory Maye case and Paul Craig Roberts' recent column brought me to realize the flaw in the plan. If policemen overconfidently search an innocent person (figuring that they'll take the risk that he is innocent because they are so certain he is guilty), and find nothing, then they are likely to face severe censure. Given such pressures, what are the chances that they'll frame the guy in order to protect their own skin?

Perhaps the exclusionary rule, by making illegal searches pointless, does make the best deterrent after all.

That is all.