Does the Exclusionary Rule apply every time there’s a constitutional violation?
Solari: No it’s a pretty severe remedy. So suppression of evidence has always been a last resort. The Exclusionary Rule generates a lot of societal cost, to include keeping evidence out of court and thereby allowing the guilty to sometimes go free. So before excluding the evidence from trial, the court is going to first require a “but-for” connection between the constitutional violation and the evidence. That means “but-for” the constitutional violation, the government wouldn’t have discovered the evidence. So an example might be where the police who don’t have probable cause or a warrant search a house and find evidence. There has to also be a close fit between the constitutional violation and the evidence. Obviously a close connection exists in the example I just gave you. However, in some cases there might be a question whether the government obtained the evidence by exploiting the constitutional violation or by some other means that’s sufficiently distinguishable so the evidence ca
