Exclusionary Rule Act Exposed

The Exclusionary Rule Act is listed under ALEC's Public Safety and Elections Task Force and was included in the 1995 ALEC Sourcebook of American State Legislation. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

CMD's Bill Summary

This bill would significantly change the "exclusionary rule," a rule of evidence that allows the exclusion of evidence from trial if it was obtained in a manner inconsistent with the 4th Amendment or other law (namely, collected without a warrant and not based on one of the warrant exceptions). The exclusionary rule is tied to enforcement of the 4th Amendment's guarantees. This bill would eliminate that rule, allowing admission of evidence if an office "reasonably believed" that an unlawful search was justified. A similar bill passed the U.S. House of Representatives in 1995 (introduced by Rep. Bill McCollum (R-Fl)) but did not pass the Senate, Similar bills were also introduced in many states, including Texas.

ALEC Bill Text

Summary

This Act would specify the conditions which would have to be met in order to define evidence as illegally collected and therefore suppressed from being used in a trial. However, the Act would prohibit the suppression of evidence in both searches with a warrant and warrantless searches if the law enforcement officer collecting the evidence acted in good faith that he was doing so legally, even if the evidence was subsequently ruled as being illegally collected.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Title.}

This Act may be cited as the Exclusionary Rule Act.

Section 2. {Definitions.}

As used in this Act:

(A) "Evidence" means contraband, instrumentations or fruits of a crime, or any other evidence that tends to prove a fact in issue.

(B) "Good faith" means whenever a peace officer obtains evidence:

(1) pursuant to a search warrant obtained from a neutral and detached circuit court or associate circuit court judge, which is free from obvious defects other than non-deliberate errors in preparation, and the officer reasonably believed the warrant to be valid;

(2) pursuant to a warrantless search, when:

(a) the officer reasonably believed he possessed probable cause to make the search;

(b) the officer possessed at least a reasonable suspicion that the person or premises searched possessed or contained items of an evidential nature; and

(c) the officer reasonably believed there were circumstances excusing the procurement of a search warrant;

(3) pursuant to a search resulting from an arrest, when:

(a) the officer reasonably believed he possessed probable cause to make the arrest;

(b) the office reasonably believed there were circumstances excusing the procurement of an arrest warrant; or

(c) the officer procured or executed an invalid arrest warrant he reasonably believed to be valid;

(4) Pursuant to law, local ordinance, judicial precedent, or court rule which is later

declared unconstitutional or otherwise invalidated.

Section 3. {Suppression of evidence.}

(A) A person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure may file a motion to suppress the use in evidence of the property or matter seized. For the purposes of this Section, a pending criminal proceeding shall mean any criminal investigation subject matter in seeking an indictment or information.

(B) The motion to suppress shall be in writing. It shall be filed with the court in which there is pending against the moving party a criminal proceeding growing out of the subject matter of the seizure.

(C) The motion shall be made before the commencement of the trial of the moving party on the charge arising out of the seizure unless he or she was unaware of the grounds or had no opportunity to do so before the trial. In that event, the motion may be made during the trial. However, the trial judge may in his or her discretion entertain a motion any time during trial. Notice shall be given to the prosecuting attorney of the date, time, place and nature of the hearing.

(D) The motion to suppress may be based upon any one or more of the following grounds:

(1) that the search and seizure were made without warrant and without lawful authority;

(2) that the warrant was improper upon its face or was illegally issued, including the issuance of a warrant without proper showing of probable cause;

(3) that the property seized was not that described in the warrant and that the officer was not otherwise lawfully privileged to seize the same;

(4) that the warrant was illegally executed by the officer; or

(5) that in any other manner the search and seizure violated the rights of the moving party under the Fourth and Fourteenth Amendments of the Constitution of the United States.

(E) The judge shall receive evidence on any issue of fact necessary to the decision of the motion. The burden of proof shall be upon the state to show a preponderance of the evidence that the motion to suppress should be overruled.

(F) If the motion is sustained, the judge shall order the property or matter delivered to the moving party, unless its retention is authorized or required by any other law of this state.

(G) If a party in a proceeding, whether civil or criminal, seeks to exclude evidence from the trier of fact because of the conduct of a peace officer in obtaining the evidence, the proponent of the evidence may urge that the peace officer's conduct was taken in reasonable, good faith belief that the conduct was proper and that the evidence discovered should not be kept from the trier of fact if otherwise admissible.

(H) No court shall suppress evidence that is otherwise admissible in a civil or criminal proceeding if the evidence was seized in good faith or as a result of a technical violation.

Section 4. This Act shall not adversely affect the rights of any plaintiff to seek special damages against a peace officer or a governmental entity, provided that the trier of fact in such civil action determines that the officer or entity conducted an unlawful search or seizure.

Section 5. {Severability clause.}

Section 6. {Repealer clause.}

Section 7. {Effective date.}

ALEC's Sourcebook of American State Legislation 1995