Does the Fourth Amendment’s Exclusionary Rule Apply in Section 1983 Cases? The Circuits Answer No

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule—-under which evidence obtained by law enforcement officers who engage in searches or seizures in violation of the Fourth Amendment may not ordinarily be used against criminal defendants at trial—-applied to the states. This Fourth Amendment exclusionary rule remains the general rule, although the Court has introduced various exceptions to it. For example, in United States v. Leon, 468 U.S. 897 (1984), the Supreme Court created a good-faith exception to the exclusionary rule in criminal cases where a search warrant is obtained from a neutral magistrate.

Does the Fourth Amendment’s exclusionary rule also apply in section 1983 cases where, say, police officer defendants wish to introduce evidence against plaintiffs and in support of their defense position? In Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016), the Ninth Circuit said that it was joining the First, Second, Fifth and Eleventh Circuits in holding that the exclusionary rule does not apply in section 1983 cases.

In Lingo, the plaintiff arrestee sued police officers alleging an unconstitutional arrest without probable cause that arose out of a violation of the Fourth Amendment when the officers entered the curtilage of her home to approach the back door. According to the plaintiff, that initial unconstitutional entry led to the eventual discovery (through smell) of evidence of marijuana use, the “fruit” of the poisonous tree, and thereafter brought about her unconstitutional arrest. In the state court criminal case, the trial court agreed and suppressed this evidence on Fourth Amendment grounds, with the result that criminal charges were dismissed.

In this section 1983 case, the plaintiff argued that the officers should not be permitted to introduce evidence obtained in violation of the Fourth Amendment to show probable cause to arrest her. Rejecting her argument, the Ninth Circuit held that this evidence, even though obtained in violation of the Fourth Amendment, was indeed admissible.

The Ninth Circuit reasoned that, unlike in criminal cases where the purpose of the exclusionary rule is to remove any incentive for police to violate the Fourth Amendment and incriminate a suspect, the need for deterrence was minimal in section 1983 cases. And even if there were some need for deterrence, the costs of the exclusionary rule to police officers would be excessive. Specifically, the court explained:

[Compared to removing the incentive to violate the Fourth Amendment in criminal cases, in section 1983 cases] the need for deterrence is minimal. Here, application of the exclusionary rule would not prevent the State from using illegally obtained evidence against someone, but instead would prevent state actors merely from defending themselves against a claim for monetary damages. Exclusion of evidence in this context would not remove any preexisting incentive that the government might have to seize evidence unlawfully. It would simply increase state actors’ financial exposure in tort cases that happen to involve illegally seized evidence. In effect, section 1983 plaintiffs would receive a windfall allowing them to prevail on tort claims that might otherwise have been defeated if critical evidence had not been suppressed. Even if such application of the rule might in some way deter violative conduct, that deterrence would impose an extreme cost to law enforcement officers that is not generally countenanced by the doctrine.

The Ninth Circuit concluded:

[N]othing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search. Indeed, as a general matter, probable cause determinations depend on the substance of the information known to the officer, not whether that information would be admissible in court.

Comment

1. The reasoning and result in Lingo come as no surprise. The Supreme Court has not extended the Fourth Amendment’s exclusionary rule beyond criminal trials.

2. Also, as noted above, the four other circuits that have addressed this issue in a section 1983 context all reached the same conclusion.

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