The Exclusionary Rule

I probably will post more on this later, but I wanted to at least put a little out now as I have been inspired by posting here about this topic.

For those who don't know, the exclusionary rule is the rule that keeps improperly obtained evidence (like evidence obtained by the police without a valid warrant that required a warrant) out of court. Many complain (like at that thread linked above) that this rule is stupid because it lets criminals go free and because it isn't explicitly said in the constitution that the proper remedy for the government violating the constitutional rules of evidnece (like the 4th amendment) is to exclude the evidence. But I think that is nonsense and is not looking at it from the proper perspective.

The exclusionary rule isn't about punishing government officials. Nor, for that matter, is the 4th amendment. The 4th amendment says to the government, you can't do this, period.
So when it comes time for trial, if you let in evidence obtained by means the government can't use, then, you ARE allowing the government to do it. Because the only reason to gather evidence is for use at trial. And the constitution says the government can't do that (in violation of the 4th amendment).

To use a simple analogy, say you are playing monopoly (with the game and its rules representing a trial and its rules). The rules of monopoly say you can't just take money from the bank as if it were yours, you have to earn it through the course of the game (like by passing go). That means you can't do it, period. You do not suddenly get to get around that rule just because some official who "works" for you (say you are playing team monopoly) broke that rule, and hey, we'll punish him, but I still have the money and I'm keeping it and playing it. As far as the rules of the game go, you never legitimately had that money, so you can't use it in the game. You can't say "well, I have it now, and we can deal with those who gave it to me illegitimately later, but since now the money is in my possession I can play it." The rules tell you how you can get the money. If you haven't followed the rules, the money isn't legitimately yours and so you can't play it, period.

Same with the fourth amendment. As far as the rules of the game go, the government never had that evidence - so it can't "play" it at trial. You can't violate the rules (the constitution) and get around that no matter how many government officials you might punish. Whether anyone is punished or not, the rules of the game (the Constitution) says the government cannot get evidence like that. Period. That is totally meaningless if the government could use it anyway, just like it would be totally meaningless ot have a rule in Monopoly that you can't just take money from the bank if you could use it once you got it if some other "official" screwed up and violated that rule. The whole point of having evidence (or money in monopoly) is the use.

And that is why the only possible solution to a government infringement of the fourth amendment is exclusion. To do otherwise is to break the rules of the game as set forth in our constitution. Punishing those who break those rules (by searching without a warrant) is beside the point. Sure, it is good to punish them (though in practice they almost never are). But whether they are punished or not doesn't change the fact that, by the rules, the only evidence that exists for court is that which is acquired by the proper constitutional rules. (There are other rules on top of that, but that is not germaine to this basic discussion because those aren't constitutional rules).

(I'll leave out of this post the sad fact that a lot of our Fourth Amendment rights have been slowly whittled away by some rather egregious police conduct backed up by even more horrendous court rulings by mostly right-wing ideologue judges).