[2] The exclusionary rule is also designed to provide a remedy and disincentive for criminal prosecution from prosecutors and police who illegally gather evidence in violation of the Fifth Amendment and its protection against self-incrimination.
"[6] Additionally, a defendant could sue to suppress and regain possession of at least some types of illegally seized evidence, in a common law action for replevin.
[8] It is questionable whether the Warickshall rule became known in the United States before 1789 (when the U.S. Bill of Rights was written), and whether it applied to confessions obtained by both governmental and private parties.
[4] Generally speaking, English law before 1789 did not provide as strong an exclusionary rule as the one that later developed under the Fourth Amendment to the United States Constitution, regarding unlawful searches and seizures.
Boyd was closely limited to its facts, and several years later the Court stated that the Fourth Amendment does not extend to "excluding testimony" about wrongful searches and seizures.
This court held that the examination of the defendant violated the due process clause of the Iowa Constitution, as well as article 1, section 8’s prohibition of unreasonable searches.
[13]In 1914, the U.S. Supreme Court announced a strong version of the exclusionary rule, in the case of Weeks v. United States, under the Fourth Amendment prohibiting unreasonable searches and seizures.
[16] The Court stated that allowing evidence gathered as an indirect result of an unconstitutional search and seizure "reduces the Fourth Amendment to a form of words".
By 1960, 22 states had adopted the rule without substantial qualifications: California, Delaware, Florida, Idaho, Illinois, Indiana, Kentucky, Mississippi, Missouri, Montana, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Washington, Texas, West Virginia, Wisconsin, Wyoming.
[29] Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment.
The exclusionary rule generates "substantial social costs," United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large.
We have therefore been "cautious against expanding" it, Colorado v. Connelly, 479 U.S. 157, 166 (1986), and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application," Pennsylvania Bd.
Yale Law Professor Akhil Amar, for example, has argued that "nothing in the text, history, or structure of the Fourth Amendment" supports the rule.
[52] Critics like Amar, Oaks and Wilkey point to the fact that the text of the Fourth Amendment does not indicate that illegally seized evidence must be excluded.
Some legal historians argue that the Constitution's Framers intended only that victims of unreasonable searches or seizures could file civil lawsuits.
In 2009, Roger Roots presented evidence that the idea of exclusion can be found in the earliest set of law books published in American history.
[53] In 2014, Roots elaborated that certain eighteenth-century British law books and pamphlets which discuss the exclusion of illegally seized evidence circulated widely in the American colonies and were owned by numerous prominent Framing-era lawyers and statesmen.