Document Type
Article
Abstract
When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence should not be excluded when its discovery was not caused by the misconduct of the police. Yet, courts struggle with deciding the scope of a Fourth Amendment violation. The United States Supreme Court crafted the attenuation doctrine to assist in establishing the breadth of a Fourth Amendment violation. Attenuation simply stands for the proposition that not all evidence that is discovered subsequent to a Fourth Amendment violation is a consequence of that violation. Sometimes, the evidence results from an altogether different cause. If that is the case, the evidence is “attenuated” and the exclusionary rule should no longer be an issue. Yet, over time, the Supreme Court has whittled away the straightforward causal nature of attenuation and has substituted other policy-based tests to assess indirectly discovered evidence. This undermines the causal nature of attenuation and serves to diminish its utility by finders of fact. This Article suggests that the time is right to restore causality to attenuation. By modifying the situations in which attenuation is used to evaluate the causal links between illegal police conduct and the discovery of incriminating evidence and by modifying the tests used to assess attenuation, we can once again make attenuation a useful causal concept. Policy will no doubt still drive decisions on what to do with evidence discovered in such circumstances. Attenuation, however, can best be used as a measure of causality as opposed to policy-based tests that seem to do little but confound and confuse.
Recommended Citation
Bryan H. Ward,
Restoring Causality in Attenuation: Establishing the Breadth of a Fourth Amendment Violation,
124
W. Va. L. Rev.
147
(2021).
Available at:
https://researchrepository.wvu.edu/wvlr/vol124/iss1/7