The Fourth Amendment declares a right to be free from unreasonable searches and seizures, but how this right translates into concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule—has been applied with any frequency by the Supreme Court, and Court in recent years has limited its application.
“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.”
Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States,1 which, as noted above, involved not a search and seizure but a compulsory production of business papers, which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment’s self-incrimination provision to the Fourth Amendment’s protections to derive a rule that required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it.2 Boyd was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common-law rule that evidence was admissible however acquired.3
Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States.4 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers such as those sought to be compelled in Boyd. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.5 The basis of the ruling is ambiguous, but seems to have been an assumption that admission of illegally seized evidence would itself violate the Fourth Amendment. If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.6
Because the Fourth Amendment does not restrict the actions of state officers,7 there was originally no question about the application of an exclusionary rule in state courts8 as a mandate of federal constitutional policy.9 But, in Wolf v. Colorado,10 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the Due Process Clause of the Fourteenth Amendment.11 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, because there were other means to observe and enforce the right. Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.12
It developed, however, that the Court had not vested in the states total discretion with regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California,13 evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for the Court, should have been excluded because the police methods were too objectionable. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.14 The Rochin standard was limited in Irvine v. California,15 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Jackson’s plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule.16 Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy.17
Then, in Mapp v. Ohio,18 the Court held that the exclusionary rule applied to the states. It was logically and constitutionally necessary, wrote Justice Clark for the majority, that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right to be secure from unreasonable searches and seizures. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.19 The Court further held that, because illegally seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal.20
Important to determination of such questions as the application of the exclusionary rule to the states and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court’s supervisory power over the lower federal courts. It will be recalled that in Boyd21 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. In Weeks v. United States,22 though the Fifth Amendment was mentioned, the holding seemed clearly to be based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the Self-Incrimination Clause of the Fifth Amendment.23 Then, in Mapp v. Ohio,24 the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the most important constitutional privilege of the right to be free from unreasonable searches and seizures, finding that the rule was an essential part of the right of privacy protected by the Amendment.
This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a 'form of words.'25 It was a necessary step in the application of the rule to the states to find that the rule was of constitutional origin rather than a result of an exercise of the Court’s supervisory power over the lower federal courts, because the latter could not constitutionally be extended to the state courts.26 In fact, in Wolf v. Colorado,27 in declining to extend the exclusionary rule to the states, Justice Frankfurter seemed to find the rule to be based on the Court’s supervisory powers. Mapp establishes that the rule is of constitutional origin, but this does not necessarily establish that it is immune to statutory revision.
Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally seized evidence is itself unconstitutional.28 These suggestions were often combined with a rationale emphasizing judicial integrity as a reason to reject the proffer of such evidence.29 Yet the Court permitted such evidence to be introduced into trial courts when the defendant lacked standing to object to the search and seizure that produced the evidence30 or when the search took place before the announcement of the decision extending the exclusionary rule to the states.31 At these times, the Court turned to the basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.32 Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.33
For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality.34 By the early 1980s, a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,35 and numerous opinions had rejected all doctrinal bases other than deterrence.36 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application.37 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well generate disrespect for the law and administration of justice,38 as well as free guilty defendants.39 No longer does the Court declare that [t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.40
Although the exclusionary rule has not been completely repudiated, its use has been substantially curbed. For instance, defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,41 and even a defendant whose rights have been infringed may find the evidence admitted, not as proof of guilt, but to impeach his testimony.42 Further, evidence obtained through a wrongful search and seizure may sometimes be used directly in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining the evidence.43 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because, the Court found, the costs outweigh the minimal deterrent effect.44
The exclusionary rule is inapplicable in parole revocation hearings,45 and a violation of the knock-and-announce rule (the procedure that police officers must follow to announce their presence before entering a residence with a lawful warrant)46 does not require suppression of the evidence gathered pursuant to a search.47 If an arrest or a search that was valid at the time it took place becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, the Court has held that evidence obtained thereby is nonetheless admissible.48 In other cases, a grand jury witness was required to answer questions even though the questions were based on evidence obtained from an unlawful search and seizure,49 and federal tax authorities were permitted in a civil proceeding to use evidence that had been unconstitutionally seized from a defendant by state authorities.50
A significant curtailment of the exclusionary rule came in 1984 with the adoption of a good-faith exception. In United States v. Leon,51 the Court created an exception for evidence obtained as a result of officers’ objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White’s opinion for the Court could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the substantial social costs exacted by the [rule].52 The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates, and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates.53 Moreover, the Court thought that the rule should not be applied to deter objectively reasonable law enforcement activity, and that [p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.54 The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been dishonest or reckless in preparing their affidavit, if it should have been obvious that the magistrate had wholly abandoned his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity).
The Court applied the Leon standard in Massachusetts v. Sheppard,55 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant. Then, the Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held to violate the Fourth Amendment.56 Justice Blackmun’s opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants.57 Finally, the Court has held that the exclusionary rule does not apply if the police conduct a search in objectively reasonable reliance on binding judicial precedent, even a defendant successfully challenges that precedent.58
The Court also applied Leon to allow the admission of evidence obtained incident to an arrest that was based on a mistaken belief that there was probable cause to arrest, where the mistaken belief had resulted from a negligent bookkeeping error by a police employee other than the arresting officer. In Herring v. United States,59 a police employee had failed to remove from the police computer database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed that the arrest warrant remained in effect. The Court upheld the admission of evidence because the error had been the result of isolated negligence attenuated from the arrest.60 Although the Court did not suggest that all recordkeeping errors by the police are immune from the exclusionary rule, it emphasized that, [t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.61
Herring is significant because previous cases applying the good-faith exception to the exclusionary rule have involved principally Fourth Amendment violations not by the police, but by other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police employee other than the arresting officer, the introduction of a balancing test to evaluate police conduct raises the possibility that even Fourth Amendment violations caused by the negligent actions of an arresting officer might in the future evade the application of the exclusionary rule.62
For instance, it is unclear from the Court’s analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures.63 It is also unclear what a good-faith exception would mean in the context of a warrantless search, because the objective reasonableness of an officer’s action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation.64 The Court’s increasing willingness to uphold warrantless searches as not unreasonable under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule.65
Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.66 A police officer who makes an illegal search and seizure is subject to internal departmental discipline, which may be backed up by the oversight of police review boards in the few jurisdictions that have adopted them, but, again, the examples of disciplinary actions are exceedingly rare.67
Civil remedies are also available. Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law, or against the Federal Government under the Federal Tort Claims Act.68 Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit in federal court for damages and other remedies69 under a civil rights statute.70 Although federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has held that a right to damages for a violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts.71
Although a damages remedy might be made more effectual,72 legal and practical problems stand in the way.73 Law enforcement officers have available to them the usual common-law defenses, the most important of which is the claim of good faith.74 Such good faith claims, however, are not based on the subjective intent of the officer. Instead, officers are entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment,75 or where they had an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.76 On the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to sue. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.
The Court for a long period followed a rule of standing by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.77 Subsequently, the Court departed from the concept of standing to telescope the inquiry into one inquiry rather than two. Finding that standing served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant’s Fourth Amendment rights have been violated. We can think of no decided cases of this Court that would have come out differently had we concluded that the type of standing requirement reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.78 One must therefore show that the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.79 The Court has clarified that this concept of standing in Fourth Amendment cases should not be confused with Article III standing, emphasizing that Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine and is not a preliminary jurisdictional question.80
The Katz reasonable-expectation-of-privacy inquiry largely supplanted property-ownership concepts that previously might have supported either standing to suppress or the establishment of an interest that has been invaded—but has not entirely replaced or repudiate[d] the Fourth Amendment's concern for government trespass.81 In the 1960 case Jones v. United States, the Supreme Court held that a person could establish standing to challenge a search or seizure where that person was legitimately on [the] premises as a guest or invitee of the owner of the premises.82 This statement about legitimate presence was later limited by the Court in Rakas v. Illinois,83 which emphasized that to challenge a search, a person must assert a personal interest protected by the Fourth Amendment.84 And while prior case law had seemed to suggest that ownership of a seized item would alone suffice to establish standing, the Court clarified in Rakas that under Katz, capacity to claim the protection of the Fourth Amendment depends upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.85 Under the reasonable-expectations-of-privacy test, a person may have a legally sufficient interest to implicate the protections of the Fourth Amendment even if that interest might not have been a recognized property interest at common law.86 Nonetheless, a property or possessory interest in the premises searched remains relevant to the inquiry.87
Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the causal link between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.88 In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.89 Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.90
More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.91 As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving an independent act of a defendant’s 'free will.'92 Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,93 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the temporal proximity between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.94 On the whole, the Strieff Court, reiterating that suppression of evidence should be the courts’ last resort, not our first impulse,95 concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,96 the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,97 and in the Court’s view, there was no indication that this unlawful stop was part of any systematic or recurrent police misconduct.98 In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant broke the causal chain between the unlawful stop and the discovery of the challenged evidence.99 As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, predat[ing the] investigation and entirely unconnected with the stop, generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.100
1. 116 U.S. 616 (1886).
2. We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms. 116 U.S. at 633. It was this use of the Fifth Amendment’s clearly required exclusionary rule, rather than one implied from the Fourth, on which Justice Black relied, and, absent a Fifth Amendment self-incrimination violation, he did not apply such a rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493, 496–500 (1971) (dissenting opinion). The theory of convergence of the two Amendments has now been disavowed by the Court. See discussion, supra, under Property Subject to Seizure.
3. Adams v. New York, 192 U.S. 585 (1904). Since the case arose from a state court and concerned a search by state officers, it could have been decided simply by holding that the Fourth Amendment was inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914).
4. 232 U.S. 383 (1914).
5. 232 U.S. at 392.
6. 232 U.S. at 393.
8. The history of the exclusionary rule in the state courts was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 29, 33–38 (1949). The matter was canvassed again in Elkins v. United States, 364 U.S. 206, 224–32 (1960).
9. During the period in which the Constitution did not impose any restrictions on state searches and seizures, the Court permitted the introduction in evidence in federal courts of items seized by state officers which had they been seized by federal officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long as no federal officer participated in the search, Byars v. United States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became known as the silver platter doctrine after the phrase coined by Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 78–79 (1949): The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter. In Elkins v. United States, 364 U.S. 206 (1960), the doctrine was discarded by a five-to-four majority, which held that, because Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and seizures subject to federal constitutional restrictions through the Fourteenth Amendment’s due process clause, the silver platter doctrine was no longer constitutionally viable. During this same period, since state courts were free to admit any evidence no matter how obtained, evidence illegally seized by federal officers could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court ruled out such a course if the evidence had first been offered in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214 (1956).
10. 338 U.S. 25 (1949).
11. The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. 338 U.S. at 27–28.
12. 338 U.S. at 31.
13. 342 U.S. 165 (1952). The police had initially entered defendant’s house without a warrant. Justices Black and Douglas concurred in the result on self-incrimination grounds.
14. 342 U.S. at 172.
15. 347 U.S. 128 (1954).
16. 347 U.S. at 134–38. Justice Clark, concurring, announced his intention to vote to apply the exclusionary rule to the states when the votes were available. Id. at 138. Justices Black and Douglas dissented on self-incrimination grounds, id. at 139, and Justice Douglas continued to urge the application of the exclusionary rule to the states. Id. at 149. Justices Frankfurter and Burton dissented on due process grounds, arguing the relevance of Rochin. Id. at 142.
17. Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice Warren and Justices Black and Douglas dissented. Though a due process case, the results of the case have been reaffirmed directly in a Fourth Amendment case. Schmerber v. California, 384 U.S. 757 (1966).
18. 367 U.S. 643 (1961).
19. 367 U.S. at 655–56. Justice Black concurred, doubting that the Fourth Amendment itself compelled adoption of an exclusionary rule but relying on the Fifth Amendment for authority. Id. at 661. Justice Stewart would not have reached the issue but would have reversed on other grounds, id. at 672, while Justices Harlan, Frankfurter, and Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice Harlan advocated the overruling of Mapp down to the conclusion of his service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (concurring opinion).
22. 232 U.S. 383 (1914). Defendant’s room had been searched and papers seized by officers acting without a warrant. If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. Id. at 393.
23. E.g., Gouled v. United States, 255 U.S. 298, 306, 307 (1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v. United States, 269 U.S. 20, 33–34 (1925); McGuire v. United States, 273 U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462 (1928), Chief Justice Taft ascribed the rule both to the Fourth and the Fifth Amendments, while in dissent Justices Holmes and Brandeis took the view that the Fifth Amendment was violated by the admission of evidence seized in violation of the Fourth. Id. at 469, 478–79. Justice Black was the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493, 496–500 (1971) (dissenting opinion). See, however, Justice Clark’s plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which he brought up the self-incrimination clause as a supplementary source of the rule, a position which he had discarded in Mapp.
24. 367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively.
25. Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis added).
26. An example of an exclusionary rule not based on constitutional grounds may be found in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which the Court enforced a requirement that arrestees be promptly presented to a magistrate by holding that incriminating admissions obtained during the period beyond a reasonable time for presentation would be inadmissible. The rule was not extended to the States, cf. Culombe v. Connecticut, 367 U.S. 568, 598–602 (1961), but the Court’s resort to the self-incrimination clause in reviewing confessions made such application irrelevant in most cases in any event. For an example of a transmutation of a supervisory rule into a constitutional rule, see McCarthy v. United States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).
27. Weeks was not derived from the explicit requirements of the Fourth Amendment. The decision was a matter of judicial implication. 338 U.S. 25, 28 (1949). Justice Black was more explicit. I agree with what appears to be a plain implication of the Court’s opinion that the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate. Id. at 39–40. He continued to adhere to the supervisory power basis in strictly search-and-seizure cases, Berger v. New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring). See also id. at 678 (Justice Harlan dissenting); Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court).
28. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution Weeks v. United States, 232 U.S. 383, 392 (1914). In Mapp v. Ohio, 367 U.S. 643, 655, 657 (1961), Justice Clark maintained that the Fourth Amendment include[s] the exclusion of the evidence seized in violation of its provisions and that it, and the Fifth Amendment with regard to confessions assures . . . that no man is to be convicted on unconstitutional evidence. In Terry v. Ohio, 392 U.S. 1, 12, 13 (1968), Chief Justice Warren wrote: Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . . A ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the conduct which produced the evidence.
30. See Operation of the Rule: Standing, infra.
33. Linkletter v. Walker, 381 U.S. 618, 636–37 (1965). The Court advanced other reasons for its decision as well. Id. at 636–40.
34. Among the early critics were Judge Cardozo, People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go free because the constable has blundered), and Dean Wigmore. 8 J. Wigmore, A Treatise on the Anglo-American System of Evidence 2183–84 (3d ed. 1940). For an extensive discussion of criticism and support, with citation to the literature, see 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.2 (4th ed. 2004).
35. E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief Justice Burger: rule ought to be discarded now, rather than wait for a replacement as he argued earlier); id. at 536 (Justice White: modify rule to admit evidence seized illegally but in good faith); Schneckloth v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v. Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v. Minjares, 443 U.S. 916 (1979) (Justice Rehnquist, joined by Chief Justice Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black’s dissent that the Fourth Amendment supports no exclusionary rule).
36. E.g., United States v. Janis, 428 U.S. 433, 446 (1976) (deterrence is the prime purpose of the rule, if not the sole one.); United States v. Calandra, 414 U.S. 338, 347–48 (1974); United States v. Peltier, 422 U.S. 531, 536–39 (1975); Stone v. Powell, 428 U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137–38 (1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, admission of the fruits of an unlawful search or seizure work[s] no new Fourth Amendment wrong, the wrong being fully accomplished by the unlawful search or seizure itself, United States v. Calandra, 414 U.S. at 354, and the exclusionary rule does not cure the invasion of the defendant’s rights which he has already suffered. Stone v. Powell, 428 U.S. at 540 (Justice White dissenting). Judicial integrity is not infringed by the mere admission of evidence seized wrongfully. [T]he courts must not commit or encourage violations of the Constitution, and the integrity issue is answered by whether exclusion would deter violations by others. United States v. Janis, 428 U.S. at 458 n.35; United States v. Calandra, 414 U.S. at 347, 354; United States v. Peltier, 422 U.S. at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).
37. United States v. Janis, 428 U.S. 433, 448–54 (1976), contains a lengthy review of the literature on the deterrent effect of the rule and doubts about that effect. See also Stone v. Powell, 428 U.S. 465, 492 n.32 (1976).
38. Stone v. Powell, 428 U.S. at 490, 491.
39. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Chief Justice Burger dissenting).
41. E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held it impermissible for a federal court to exercise its supervisory power to police the administration of justice in the federal system to suppress otherwise admissible evidence on the ground that federal agents had flagrantly violated the Fourth Amendment rights of third parties in order to obtain evidence to use against others when the agents knew that the defendant would be unable to challenge their conduct under the Fourth Amendment.
42. United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by Havens). The impeachment exception applies only to the defendant’s own testimony, and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990).
43. Wong Sun v. United States, 371 U.S. 471, 487–88 (1963); Alderman v. United States, 394 U.S. 165, 180–85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982); Utah v. Strieff, 136 S. Ct. 2056 (2016). United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the testimony of a witness discovered through an illegal search. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession made by a suspect whose arrest at his home had violated the Fourth Amendment because, even though probable cause had existed, no warrant had been obtained. And, in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to a warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of the warrant. This rule also applies to evidence observed in plain view during the initial illegal search. Murray v. United States, 487 U.S. 533 (1988). See also United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant).
46. The knock and announce requirement is codified at 18 U.S.C. § 3109, and the Court has held that the rule is also part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995).
47. Hudson v. Michigan, 547 U.S. 586 (2006). Writing for the majority, Justice Scalia explained that the exclusionary rule was inappropriate because the purpose of the knock-and-announce requirement was to protect human life, property, and the homeowner’s privacy and dignity; the requirement has never protected an individual’s interest in preventing seizure of evidence described in a warrant. Id. at 594. Furthermore, the Court believed that the substantial social costs of applying the exclusionary rule would outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The Court also reasoned that other means of deterrence, such as civil remedies, were available and effective, and that police forces have become increasingly professional and respectful of constitutional rights in the past half-century. Id. at 599. Justice Kennedy wrote a concurring opinion emphasizing that the continued operation of the exclusionary rule . . . is not in doubt. Id. at 603. In dissent, Justice Breyer asserted that the majority’s decision weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection. Id. at 605.
48. Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive criminal offense). Statutes that authorize unconstitutional searches and seizures but which have not yet been voided at the time of the search or seizure may not create this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive and procedural statutes and holding the exclusionary rule inapplicable in the case of a police officer’s objectively reasonable reliance on a statute later held to violate the Fourth Amendment. Similarly, the exclusionary rule does not require suppression of evidence that was seized incident to an arrest that was the result of a clerical error by a court clerk. Arizona v. Evans, 514 U.S. 1 (1995).
51. 468 U.S. 897 (1984). The same objectively reasonable good-faith rule now applies in determining whether officers obtaining warrants are entitled to qualified immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986).
52. 468 U.S. at 907.
53. 468 U.S. at 916–17.
54. 468 U.S. at 919, 921.
55. 468 U.S. 981 (1984).
56. Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-to-establish qualifications apply: there can be no objectively reasonable reliance if in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws, or if a reasonable officer should have known that the statute was unconstitutional. Id. at 355.
57. Dissenting Justice O’Connor disagreed with this second conclusion, suggesting that the grace period during which the police may freely perform unreasonable searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws, and that the Court’s ruling destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366, 369.
58. Davis v. United States, 564 U.S. 229 (2011). Justice Breyer, in dissent, points out that under Griffith v. Kentucky, 479 U.S. 314 (1987), a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . . Thus, the majority opinion in Davis would allow the incongruous result that a defendant could prove his Fourth Amendment rights had been violated, but could still be left without a viable remedy. Id. at 253 (Breyer, J., dissenting).
59. 555 U.S. 135 (2009), Herring was a five-to-four decision, with two dissenting opinions.
60. 129 S. Ct. at 698.
61. 129 S. Ct. at 703, 702. Justice Ginsburg, in a dissent joined by Justices Stevens, Souter, and Breyer, stated that the Court's opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement. Id. at 706. Justice Ginsburg added that the majority's suggestion that the exclusionary rule is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless . . . runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care. Id. at 708. Justice Breyer, in a dissent joined by Justice Souter, noted that, although the Court had previously held that recordkeeping errors made by a court clerk do not trigger the exclusionary rule, Arizona v. Evans, 514 U.S. 1 (1995), he believed that recordkeeping errors made by the police should trigger the rule, as the majority's case-by-case, multifactored inquiry into the degree of police culpability would be difficult for the courts to administer. Id. at 711.
62. See Leon, 468 U.S. 897, 926 (1984) (articulating, in dicta, an intentional or reckless misconduct standard for obviating good faith reliance on an invalid warrant).
63. The thrust of the analysis in Leon was with the reasonableness of reliance on a warrant. The Court several times, however, used language broad enough to apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice White’s concurrence in Illinois v. Gates): the balancing approach that has evolved . . . ‘forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment’; and id. at 919: [the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.
64. See Yale Kamisar, Gates, ‘Probable Cause’, ‘Good Faith’, and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a good-faith exception on top of the already diluted standard for validity of a warrant would amount to double dilution).
65. See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer’s reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding warrantless search of entire interior of passenger car, including closed containers, as incident to arrest of driver); Arizona v. Gant, 556 U.S. 332, 351 (2009) (the Belton rule applies only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest); United States v. Ross, 456 U.S. 798 (1982) (upholding warrantless search of movable container found in a locked car trunk).
66. Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 Va. L. Rev. 621 (1955).
67. Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).
68. 28 U.S.C. §§ 1346(b), 2671-2680. Section 2680(h) prohibits suits against the Federal Government for false arrest and specified other intentional torts, but contains an exception with regard to acts or omissions of investigative or law enforcement officials of the United States Government.
69. If there are continuing and recurrent violations, federal injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (W.D.N.C. 1969) (preliminary injunction); Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969) (permanent injunction), vacated on jurisdictional grounds sub nom., Goodman v. Wheeler, 401 U.S. 987 (1971).
70. 42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some circumstances, the officer’s liability may be attributed to the municipality. Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). These claims that officers have used excessive force in the course of an arrest or investigatory stop are to be analyzed under the Fourth Amendment, not under substantive due process. The test is whether the officers’ actions are ‘objectively reasonable’ under the facts and circumstances confronting them. Graham v. Connor, 490 U.S. 386, 397 (1989) (cited with approval in Scott v. Harris, in which a police officer's ramming a fleeing motorist's car from behind in an attempt to stop him was found reasonable). Thus, the Court has noted, [a]s in other areas of our Fourth Amendment jurisprudence, ‘[d]etermining whether the force used to effect a particular seizure is reasonable’ requires balancing of the individual’s Fourth Amendment interests against the relevant government interests. Cty. of L.A. v. Mendez, 137 S. Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396) (rejecting the Ninth Circuit’s provocation rule under which law enforcement officers who make a ‘seizure’ of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination can nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force). The operative question in excessive force cases is ‘whether the totality of the circumstances justifie[s] a particular sort of search or seizure.’ Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).
71. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946).
72. See, e.g., Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422–24 (1971), which suggests a statute allowing suit against the government in a special tribunal and a statutory remedy in lieu of the exclusionary rule.
73. Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).
74. This is the rule in actions under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the court of appeals promulgated the same rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).
75. Pearson v. Callahan, 555 U.S. 223 (2009), quoted in Safford Unified School District #1 v. Redding, 557 U.S. 364, 377 (2009). In Saucier v. Katz, 533 U.S. 194 (2001), the Court had mandated a two-step procedure to determine whether an officer has qualified immunity: first, a determination whether the officer's conduct violated a constitutional right, and then a determination whether the right had been clearly established. In Pearson, the Court held that, while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. 555 U.S. at 236. See also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
76. Anderson v. Creighton, 483 U.S. 635 (1987). The qualified immunity inquiry has a further dimension beyond what is required in determining whether a police officer used excessive force in arresting a suspect: the officer may make a reasonable mistake in his assessment of what the law requires. Saucier v. Katz, 533 U.S. 194, 205–06 (2001). See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a hazy border between excessive and acceptable force, an officer's misunderstanding as to her authority to shoot a suspect attempting to flee in a vehicle was not unreasonable); Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who applied for a warrant unless a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant). But see Mullenix v. Luna, 136 S. Ct. 305, 310 (2015) (per curiam) (The Court has never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone be the basis for denying qualified immunity.).
77. Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must show that he was a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else. Id. See Alderman v. United States, 394 U.S. 165, 174 (1969).
79. 439 U.S. at 140.
81. United States v. Jones, 565 U.S. 400, 406–07 (2012) ([F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas it enumerates. Katz did not repudiate that understanding.). See also Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam); Florida v. Jardines, 569 U.S. 1, 5–6 (2013).
82. 362 U.S. 257, 266–67 (1960). See also United States v. Jeffers, 342 U.S. 48, 51–53 (1951) (allowing defendant with access to a hotel room to challenge the seizure of narcotics that were his property, concluding that the search and the seizure were incapable of being untied).
83. 439 U.S. 128, 143 (1978) ([T]he Jones statement that a person need only be 'legitimately on premises' in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.). In Jones, the Court had also held that a person had standing where the indictment itself charges possession. 362 U.S. at 264. But in Simmons v. United States, 390 U.S. 377, 390 (1968), the Court held that testimony given by a defendant to establish possession of things searched or seized and meet standing requirements is not admissible against him at trial on the question of guilt or innocence. The Court recognized that Simmons (among other legal developments) had undermined the justification for automatic standing on the basis of an indictment and overruled this part of Jones in United States v. Salvucci, 448 U.S. 83, 88–89 (1980).
84. See Rakas, 439 U.S. at 136 (A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.) (citing Alderman v. United States, 394 U.S. 165, 171–72 (1969)). See, e.g., id. at 143 (holding that defendants' claims must fail where, even though the defendants were in a car with the permission of the car's owner, [t]hey asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized). In Rakas, the Court distinguished United States v. Jeffers, 342 U.S. 48 (1951), by holding that [s]tanding in Jeffers was based on Jeffers' possessory interest in both the premises searched and the property seized. 439 U.S. at 136.
85. Rakas, 439 U.S. at 143. See also United States v. Salvucci, 448 U.S. 83, 92 (1980) (We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.); see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105–06 (1980) (holding defendant could not challenge seizure of his drugs from another's purse, where defendant had no legitimate expectation of privacy in the purse). In Rakas, the Court distinguished Jones v. United States, 362 U.S. 257 (1960), by stating that in that case, Jones not only had permission to use the apartment of his friend, but had a key to the apartment . . . . [and] [e]xcept with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it, 439 U.S. at 149. Cf. Florida v. Jardines, 569 U.S. 1, 5 (2013) (When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a search' within the original meaning of the Fourth Amendment has 'undoubtedly occurred.' (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)) (emphasis added)).
86. Rakas, 439 U.S. at 143.
87. Id. at 148. See also, e.g., United States v. Padilla, 508 U.S. 77, 82 (1993) (per curiam) (Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims.).
89. 371 U.S. 471, 491 (1963).
90. 468 U.S. 796, 813–16 (1984).
91. Strieff, 136 S. Ct. at 2059. The state in Strieff had conceded that law enforcement lacked reasonable suspicion for the stop, id. at 2060, and the Supreme Court characterized the search of the defendant following his arrest as a lawful search incident to arrest, id. at 2063.
92. Id. at 2061 (quoting State v. Strieff, 457 P.3d 532, 544 (Utah 2015)).
93. See 422 U.S. 590, 603–04 (1975) (holding that the state supreme court, in this case, had erroneously concluded that Miranda warnings always served to purge the taint of an illegal arrest).
94. See Strieff, 136 S. Ct. at 2062–64.
95. Id. at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal quotations omitted)).
96. Id. at 2062 (noting that only minutes passed between the unlawful stop and the discovery of the challenged evidence).
97. Id. at 2062–63. The Strieff Court emphasized that it viewed the warrant as compelling the officer to arrest the suspect. Id. at 2063; see also id. at 2062 (similar).
98. Id. at 2063.
99. Id. at 2063.
100. Id. at 2062.