Deterring Constitutional Violations

Consider a case of police misconduct:  An officer wants to enter and search a citizen’s home, but has no search warrant, no legal basis to obtain one, and no exigent circumstances to justify entry.  The officer enters and searches anyway and, as he suspects, finds contraband.  The citizen-turned-criminal-defendant then moves the court for a remedy: suppression of the evidence.

Should the evidence be suppressed?  In Herring v. United States, our Supreme Court held that suppression is not an individual right, but rather a last resort.  That is, even given a clear constitutional violation, a trial court should suppress evidence only in the rare case of egregious police misconduct, where suppression would deter the misconduct in the future.

Deterrence in this context, however, is an illusion.

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