This article takes the position that, although the PATRIOT Act is superficially unrelated to the specifics of the exclusionary rule, such a drastic departure from constitutional norms would not have been possible had the Court not conditioned the Fourth Amendment exclusionary rule's operation on pursuit of the inherently unstable target of institutional deterrence. Part I of this article will trace the development of the Fourth Amendment's exclusionary rule from its origins in federal court through its incorporation against the states, paying particular attention to the underlying purpose of the exclusionary rule as announced by the Court, and concluding with a survey of several exceptions to the exclusionary rule derived from that purpose. Part II will discuss aspects of the PATRIOT Act that are facially inconsistent with clearly established Fourth Amendment law, describe the operational relationship between the shift to a deterrence model of evidence exclusion and the Act's passage, and identify the criminological assumptions on which the Act is based. Part III of this article argues that the wrong turn made in the area of evidentiary exclusion fifty years ago, problematic as it has always been, must now share the blame for a loss of Fourth Amendment protection enjoyed by the American public as a whole. The article concludes by suggesting that the single solution is to restore the remedial vision of the Fourth Amendment through interpretation of the exclusionary rule.
Leveling the Playing Field: A New Theory of Exclusion for a Post-PATRIOT Act America, 70 MO. L. REV. 519