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Abstract: My legal training was the liberal kind, and I started this paper with a vague goal of mounting a spirited defense of the Fourth Amendment exclusionary rule against the incursions of the modern Supreme Court. But the rule I set out to defend—where ill-gotten evidence is excluded irrespective of the underlying crime or the nature of the officer’s misconduct—is dead, and it has been for a while. Frankly, it was doomed from the start. Trial court judges are, under their judicial robes, human beings. Their decision-making was always going to express a “moral” exclusionary rule: one where exclusion of ill-gotten evidence is reserved for unignorable police misconduct and prosecutions of misdemeanors and vice crimes. It is time to accommodate this reality. It is time to adopt an exclusionary rule for the real world.
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