Copyright (c) 1997 Walter F. George School of Law, Mercer University
Mercer Law Review
Articl: Glide Path to an "Inclusionary Rule": How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule
48 Mercer L. Rev. 1023
James P. Fleissner *
During recent political debates over the federal budget deficit, it became fashionable to speak of a "glide path" to a balanced budget. Advocates of a budget plan would plan certain tax rates and spending limits, factor in a set of economic assumptions, and graph a swooping path of declining deficits over several years. Needless to say, that sort of exercise in prediction does not involve the sort of odds that would inspire confidence in a gambler. The accuracy of the beguiling graph, of course, depends on whether tax and spending commitments are kept and whether a host of economic assumptions are correct. Common sense tells us to be wary: Reality may well convert that smooth arc of descent into a line resembling an "up" staircase.
Making predictions about the future of our constitutional jurisprudence is a similarly risky business. Shifts in the interpretation of the United States Constitution depend on many variables, from the direction of the political winds to the chance occurrence of a case and controversy that raises a constitutional issue in the right factual setting. Despite the difficulty of the predictive enterprise, I believe that the jurisprudence of the Fourth Amendment is on a "glide path" toward a fundamental change in the Exclusionary Rule, which currently forbids the use of much illegally seized evidence. I believe that we are on a course towards an erosion of the Exclusionary Rule and a diminution of our rights. I fear that the Exclusionary Rule will ...
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