Criminal Procedure - Police Immunity from Civil Suit - Malley v. Briggs
Morar, Sandra D.
INTRODUCTION|More than seventy years ago, the United States Supreme Court invented a remedy for individuals who were victims of an illegal police search and seizure of property. Termed the "exclusionary rule," the doctrine became the exclusive remedy for persons whose fourth amendment rights had been violated by a warrantless search and seizure. Since its inception, the exclusionary rule has been attacked by several commentators and Supreme Court Justices. These critics allege the inefficacy of the rule's purported function as a deterrent to future police misconduct. In addition, critics argue that the rule is not a workable solution to the problem judges have in keeping their hands clean when allowing illegally obtained evidence into court. However, even if these criticisms are invalid, the exclusionary rule is still defective as a remedy, because the rule does not provide relief for victims of an unconstitutional search that has produced no evidence to be excluded from a trial. Consequently, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Court held that the victims of a warrantless search could sue federal investigators for money damages when the investigators had violated the victims' fourth amendment rights, and when the exclusionary rule did not provide a remedy. Hence, the Court created a new remedy for fourth amendment violations: suing for civil damages under 42 U.S.C. § 1983...
20 Creighton L. Rev. 193 (1986-1987)
Creighton University School of Law