The Exclusionary Rule: What Is It and What Does it Mean?

The SCOTUS created the Exclusionary Rule in Weeks v. United States, 232 U.S. 383 (1914) to prohibit the prosecution from using evidence against a defendant that federal law enforcement officials had seized from the defendant’s residence without a search warrant, a violation of the Fourth Amendment prohibition against residential searches without a search warrant issued by a neutral and detached magistrate upon a finding of probable cause to believe that the defendant’s residence contained evidence of a particular crime.

At first, the rule only applied to federal law enforcement officials, not to state law enforcement officials. The SCOTUS eventually extended the rule to cover unlawful searches by state law enforcement officials via the Due Process Clause of the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643 (1961).

The rule is not absolute, however, because a person can consent to a search of their residence, so long as their consent is obtained freely and voluntarily, not as the result of an assault, a threat or a false pretense.

The consent exception has produced a number of sub-rules to deal with situations that come up frequently where one person (e.g., a girlfriend) voluntarily consents to a search of premises they share with another and the search turns up evidence that the prosecution seeks to use against the other person (e.g., a boyfriend).

Generally speaking, these sorts of cases are decided on the basis of whether the defendant had a reasonable expectation of privacy in the place where the evidence was discovered and seized. Consent to search a common area of a home is valid as to all occupants, whereas consent to search another person’s room is not valid. Similarly, consent obtained from a motel or hotel clerk to search a person’s room or from a landlord to search a tenant’s room or residence is invalid.

A closely related rule is the plain view doctrine. Pursuant to this rule, a law enforcement officer may seize evidence of a crime that he or she sees in plain view, if the officer has a right to be where they are when they see the item in plain view and the officer immediately recognizes the item as evidence of a crime. Therefore, if an officer knocks on the front door of an apartment in a building, someone opens the door and the officer looks over the person’s shoulder and sees drugs and paraphernalia on a coffee table in the living room, the officer may enter without obtaining a search warrant.

Exigent circumstances are another important exception to the search warrant requirement. For example, an officer may enter a residence without a search warrant if the officer is in hot pursuit of a fleeing suspect who enters into the residence to avoid arrest. Officers also may enter a residence without a warrant to prevent the destruction of evidence, such as an attempt to flush drugs down a toilet.

I have always taught my students, many of whom were police officers, to get a search warrant whenever possible to be on the safe side. Houses can be surrounded to prevent a suspect from escaping and search warrants can be obtained within minutes at any time of the day or night by telephone from the on-duty judge.

The Exclusionary Rule also applies to exclude involuntary statements (i.e., coerced confessions) obtained from suspects in violation of the Fifth Amendment and statements obtained from suspects in violation of their right counsel.

Mark O’Mara has not filed a motion to suppress evidence pursuant to the Exclusionary Rule and I do not expect he will because all of Zimmerman’s statements appear to have been voluntary and he waived his rights to remain silent and have counsel present.

You may want to make a note of this article for future reference in this and other cases that we may have reason to discuss.

EDIT: Since I mentioned the plain view rule, I also should have mentioned the plain feel rule, even though it has nothing to do with search warrants. The plain feel rule applies to Terry patdown searches for weapons. If the officer conducting the patdown search feels something that feels like a weapon, they can reach into the pocket and seize it. Same is true of something mushy or a prescription bottle that feels like drugs. As with plain view, the officer must have a lawful basis for conducting the patdown (i.e., officer safety after stopping someone to investigate a reasonable suspicion) or the item seized will be suppressed pursuant to the Exclusionary Rule.

59 Responses to The Exclusionary Rule: What Is It and What Does it Mean?

  1. Daniel Mosco says:

    I have to disagree with you on “if an officer knocks on the front door of an apartment in a building, someone opens the door and the officer looks over the person’s shoulder and sees drugs and paraphernalia on a coffee table in the living room, the officer may enter without obtaining a search warrant.”

    the significant elements in any plain view doctrine seizure are: (1) the officer must already have lawful prescense an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent.

    Now can the officer argue exigency, maybe but plain view only applies to seizures and not searches, so simply seeing contraband is not enough for warrant less entry.

    Was that a typo or do you disagree?

    • Not a typo, although I should have been more explicit.

      In so called knock-and-talks, police can knock on the front door of a residence or apartment without trespassing, so long as they get there by walking up a driveway or walkway from the street. The front door or entrance is a public place and that means the cops can be present without violating any law and the resident does not have a reasonable expectation of privacy in what is visible through the open door. Since drugs are easily disposable, so the thinking goes, the cops can cross the threshold and seize the drugs. So, you’re right. That is an exigent circumstance that would excuse the warrant requirement.

      If the evidence they see and immediately recognize to be evidence of a crime can’t be seized pursuant to an exigent circumstance, they would have to withdraw, secure the perimeter of the residence and apply for a search warrant.

      Another exception to the search requirement warrant is hot pursuit. See United States v. Santana, 427 US 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). Compare Payton v. New York, 445 US 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

      • Daniel Mosco says:

        Yes, I just wanted to make sure the readers are clear that the Plain View Doctrine only allows cops to seize not search. So if the cop is in the house; fair game, car on a public road fair game but outside the house without consent not so much unless the officer creates exigency.

        My rationale is say a cop responds to a noise complaint and peeks in the window to see if someone is home. The window is to an unoccupied bedroom and has a pound of drugs. The occupant now answers the door. Since the drugs are not in immediate reach and the occupant does not know the cop is aware, is exigency really created?

        I am sure cops are smart enough to create exigency and tell occupant they found drugs.

        I also believe a cop can’t use plain view for Minor in Possession in a house as proving someone in underage would require consent to enter unless someone was carded outside the home. Correct me if I am wrong here?

        I also believe exigency can’t be used for a non jailable offense. I believe that is why an officer can’t use “collecting the boom box before it is destroyed” to force entry for noise complaint.

  2. BREAKING NEWS: Bad situation in Gaza is getting worse

    Is Israel at war with Hamas?

    • Xena says:

      Oh oh. I hope not. Not that I don’t trust Israel to do the right thing but because I hate war.

    • grahase says:

      Social media war – it is not looking good. Again, defending against militant extremists.

    • cielo62 says:

      Israel has always been at war with Hamas. International leaders won’t let Israel finish that war. It’s like a wound that is never allowed to heal. Hamas gets arms smuggled in. They bomb Israel. Israel retaliates until Hamas runs out of bombs. They cry, whine and beg for a “peace treaty. “Force is brought on Israel to give Hamas another chance. In the downtime, Hamas re-arms. . Then the bombing and the sick cycle of death and hated begins again.

  3. Ina says:

    mason blue = prof Leatherman 🙂 I see

  4. Ina says:

    Prof. Leatherman, for what I have read here, I can say this is a very good blog, You seem to know a lot about the law. I never commented here before and I only came reading here yesterday. I just want to let you and especially mr Knechel know that I was not Ada who commented here on the blog a while ago. Someone told him it was me stirring up the blog here. I was not. Thank you.

  5. Malisha says:

    The little brown-haired boy! “And my leg went that way…”

    Kinda reminds me of, “And I fell down with the first punch, and somehow he got on top of me…and he just started punching me…and I had my hand over his…he put his hand over my mouth, and…I feel like he saw it…and…”

    HILARIOUS! Except for the part, “and I fired one shot.”

  6. Xena says:

    Professor, there’s a pending civil case in Illinois where the local LE is included as a defendant. The plaintiff participated on a certain website where another player maliciously called LE with allegations that the plaintiff had guns and threatened to commit suicide. After about 5 such calls, the defendant player, who resides on the East Coast, made another call. The police arrived, removed the man from his home and then searched his home, finding two unloaded handguns.

    They didn’t arrest the man but took him to a mental health hospital. Because of that, and regardless of the outcome where he was released with no mental illness finding, his Firearm Owner’s Identification Card was revoked.

    The police did not have a search warrant. Does the exclusionary rule apply, or just in events where it leads to criminal prosecution?

    • The exclusionary rule does not apply because it is a judicially created remedy to prohibit the prosecution from using evidence, which was unlawfully seized by police, to convict a defendant in a criminal case.

      It does not come into play because he was not charged with a crime.

      • Xena says:

        It does not come into play because he was not charged with a crime.

        Thank you Professor. That’s too bad. I’m really pulling for the plaintiff in this case and hoping too that it will send a powerful message to cyber-bullies.

  7. grahase says:

    Canada continues the gradual expansion toward a more absolutist exclusionary rule that began with the enactment of the Charter of Rights and Freedoms in 1982, while the United States continues to limit the use of the exclusionary rule in an attempt to give prosecutors greater power in prosecuting criminally accused individuals. Therefore, it is suggested to the Canadian readers here, there are major differences between the two countries and the Exclusionary Rule.

    • Two sides to a story says:

      Could you explain the difference a little more? It sounds as if Canada is aiming toward more civil liberty. I know the US sure isn’t.

      • grahase says:

        In the U.S., the exclusionary rule has only one purpose – to deter police misconduct.

        Canada, however, takes a different approach. The Supreme Court of Canada makes clear the only reason for having such a rule in Canada is to protect the long-term reputation of the justice system.

        In deciding whether admitting tainted evidence into a trial would do long-term damage to the justice system’s reputation, the court says that judges must weigh three different considerations – the actions of the police, the effect on the accused person (did the Charter violation, for instance, involve a relatively mild plucking of a scalp hair or was it a body cavity search?) and whether the truth-seeking function of a criminal trial would be better served by admitting or excluding the evidence.

      • Rachael says:

        I know my kids really want to move somewhere nice and safe to raise their girls and I sure want to move. Maybe just a little farther north to Canada would be good.

    • Jun says:

      I feel there is a huge difference between Canada and the US, and it is that the US is much more dangerous to live in, hence the difference in rules. Canada gives the prosecutor more leeway in indictment and conviction. The US has to put more people in place on a regular basis.

    • groans says:

      When my husband and I traveled to Turkey during the Bush (“W”) years (the years during which the U.S. started wars and Gitmo and projected an otherwise overall arrogant and cowboy attitude towards the world), we told people who asked that we were from Canada! Got very friendly reactions, too. Doubt that would have been the case if we we had told the truth!

      Just a little white fib … and we’re eternally grateful for Canada’s excellent reputation! 😀

  8. grahase says:

    Canada has what is called the War Measures Act. I remember when, in 1970, the government used the act to allow LE to enter any home without warrants, without cause, without accountability.

    The Act was passed unopposed in 1914. This allowed the federal government to suspend civil liberties and by-pass parliament to do things through order-in-council that it felt were necessary for the war. For instance, factories could be told to stop producing farm implements and start manufacturing arms and ammunition instead. Immigrants who had come from what were now enemy countries, like Germany, had their movements controlled and anyone thought to be an enemy sympathizer could be arrested and kept in internment camps without trial.

    The only time it was enacted during peacetime was October 1970 when Prime Minister Pierre Trudeau used it to make searches and arrests during the FLQ crisis. The FLQ (Front de libération du Québec) was an extremist group of French separatists who were involved in kidnappings and a murder.

    Under the War Measures Act, many people were arrested and held without charges on suspicion of sympathizing with the terrorists.

  9. ed nelson says:

    Paragraph #7:

    Exigent circumstances are another important exception to the search warrant requirement. For example, an officer may enter a residence without a search warrant if the officer is in hot pursuit of a fleeing suspect who enters into the residence to avoid arrest. Officers also may enter a residence without a warrant to prevent the destruction of evidence, such as an attempt to flush drugs down a toilet.
    To this I answer respectfully, it was in the year 2003, that I was in my bead sleeping deeply. Deeply, as I hadn’t had any sleep for two days, and when I went to bed, without the usual “libation”, I was gone, and that was at 9:pm. (if anyone remembers the way you are sleeping in that way after a couple days w/o… Or if anyone remembers how it feels to jared from that deep sleep!
    I jerked awake and heard doors banging in the basement entry, I saw out the window of my bedroom lights up in the trees, I heard some voices, and I wasn’t sure what was up! I grabbed what was handy, and headed to the rear door, only to see the outline of, well you had to see it was a cop: all the gear they have on their belts, including radio handsets and so on… so I retreated quick.
    I had been invaded by cops, and well, I didn’t deserve it, I hadn’t done anything wrong! (other than my banal comment about how the neighbor should provide parking for the “inlaw [shoe-box] apartment”. These sleaze ass assholes never go by the rules… so the tenants always flex their nonexistent muscles by parking their big rigs smack dab in front of my … shoe box house.!
    So to make it as short as I can, the woman next door had rented a tiny… shoe box of an “inmate apartment”… to a “Coasty” and his… “Southern bell…Homade Dixie flag sweater ‘sleaze girl friend”’. And the two of em, were up to no good, and they made a complete frivolous claim of… “neighbor… is: sneaking around and looking in windows etc.” I never done that, not recently!
    But there were no less than 6 cruisers up and down the street, this little punk Coast Guard guy of about 23 maybe was out there on the street yelling at the head cop, “I’m not kidding around here! I want that guy arrested!”
    Well to the credit of the Petaluma Police Dept. they saw through it and I was allowed to stay put, and go back to bed, but come-on! I couldn’t get back to sleep, a much needed sleep, and so, that is the way that goes sometimes… assholes can become pretty terrible, when they get power, from the likes of the Federal system, power! We didn’t learn much from the 1940’s! This showed me something. It is: that the power can be put in the hands of complete little nobody ignorants, of which there is a… ready supply for sure! We all are under the thumb of the powers, that conscript the stupidest most ignorant to press on… the populous…
    The Exclusionary Rule also applies to exclude involuntary statements (i.e., coerced confessions) obtained from suspects in violation of the Fifth Amendment and statements obtained from suspects in violation of their right counsel.
    Don’t say nothing, if you do you will regret.

    • Uhm, you need new neighbors, Ed.

      • ed nelson says:

        I need new neighbors… I agree, but the offending neighbors are getting older too, they will die in due course, I will be sort of sorrowfull when they do, as I usually am, but were you suggesting that I should move? That is a radical idea! I almost bought an ocean going boat, but.. I get sea sick!
        I didn’t inherit the Viking gene from Granpa.

    • Brown says:

      @Ed Nelson,

      6 ft privacy fence all the way around. They can’t see you… you can’t see them everyone happy.

      Don’t get a dog, they will complain about the barking.

      : ^ )))

      • ed nelson says:

        the cracker phoney in the two years there, did get a Rotweiler pup, put it on a kind of line that runs the space between my back yard… way back there next to my garden, and I guess was on some training thing for the dog to run up and down between, so my main thing is: who wants these gadamned southern trash that becaome powerful because they get into the military, to live next door!… No, not me, it isn’t the first time I have seen the way that goes…!

      • ed nelson says:

        Well see Brown, they got this thing, that they said, that any property of say over 6500 sq ft of lot, you can make a so called: Inlaw apartment deal… you know; make a little shoe box appartment in your back yard if you want. Well they don’t really say that it has to be an…”Inlaw”… who resides int the MFR… no, there is completely laxness, you can rent the thing to anybody.

        So of course that is what you get: you get new neighbors, that are anything but: “inlaws”, I would prefer “inlaws” Sir!

        What you get in these gadamamnded inlaw appartments is: sorry little assholes who can’t afford a normal appartment!

        Now I mean that in a way, that what I really mean is: of course that is only some of the time.

        • Brown says:

          got it ed
          so just because they can build it, it also means you have to go by certain renting laws such as a Certificate of Occupany. Have a separate meter. No frickin wires going from the main house and running through the back. Certain amout of windows etc. you get the gist of it. It has to be legal to rent. Check into it. They may have to shut it down if certain agencies are notified.

      • ed nelson says:

        Thanks for the advisement Miss Brown: you have said it right!
        Bellow that was: I hear you! but the get you in the end… they get you in the end, because it is all about death, and these are the Deaths Angels from HELL, call em whatever you want… Devils is my term!

      • I’ve had “neighbors from hell” too…6′ fences don’t work because they’re not high enough and we can’t run them all the way down to the curb… Besides, when my NFH was doing some target practice with his new pellet gun in his back yard, he missed the target that he nailed to a tree, shot a hole through my side window and dented the aluminum mini-blind….and that was only for starters. At the age of 39, he joined the army (they must be very desperate if they took him) because he couldn’t keep a job, most likely because of his attitude problem, and they moved……:-D

    • Valerie says:

      LOL !! following…I think.

  10. Jun says:


    I have always theorized that this rule of warrants was invented because of some unsavory cops who would plant evidence on the scene and to track the movements and chain of custody

    is that correct?

  11. Two sides to a story says:

    Thanks. I didn’t know about plain view doctrine. Makes sense.

    What if an officer sees something that turns out to not be what he or she thought it was? Any liability?

    • Not if they acted in good faith.

      There is an interesting case from Washington State where a property tax assessor went onto a rural wooded property to reassess it for real estate tax purposes after the owner had constructed a new building to serve as a greenhouse. The assessor peered through a window and thought he saw marijuana plants that were actually tomato plants. He called the cops and they got a search warrant for the greenhouse. Unfortunately for the owner, the cops found some marijuana plants in a different location in the greenhouse.

      The court denied the owner’s motion to suppress on the ground that the assessor and the cops acted in good faith.

      The case is State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981).

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