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Hastings Law Journal

Abstract

Fourth Amendment violations are currently divided into two categories for the purpose of deciding whether to apply the exclusionary rule as a remedy. One category contains "good-faith" violations, which require no remedy. All other violations, because they are lacking in good faith, are subject to the application of the exclusionary rule when the government attempts to use evidence obtained by the violation at trial. However, the exclusionary rule, because it is limited in four major ways, does not prevent all of the possible uses of this evidence. This Article argues that the current categorization of violations is too crude; the general category of "all other violations" contains a wide range of government conduct and culpability. Based in part on models they have developed in two recent articles, Professor Thomas and Mr. Pollack propose the creation of a new category of Fourth Amendment violations-bad-faith violations-for which a less constrained exclusionary rule should apply.

The Article begins by sketching a general justification for the assertion that a bad-faith violation requires a broader exclusionary rule. After exploring how to determine when police are acting in bad faith, the Article analyzes each of the four current limitations on the exclusionary rule and examines whether that limitation should apply to evidence discovered by bad-faith conduct. The Article concludes by discussing the procedure by which courts can make the bad-faith determination.

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