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by | Jul 18, 2022 | Recent Orders

The Fourth Amendment requires that the police searches be done only with warrants issued by judges or magistrates who have found probable cause.  What to do  with this pesky Fourth Amendment, “technicality”   That lets so many actually guilty criminals  off  Scot=free under the exclusionary rule because a search was conducted without a warrant?  At a time in the development of the law when the Fourth Amendment was thought not binding on the States and only  applicable  As against  The federal government, the year was 1926, future United States Supreme Court Justice Benjamin Cardozo rejected the exclusionary rule when sitting on New York’s highest court.  At that time, when federal employees such as Marshals obtained evidence in violation of the Fourth Amendment  by conducting a search without a necessary warrant, the fruit of the illegal search was not competent evidence in a federal prosecution.  But States were then free to determine whether to adopt the exclusionary re, and by Cardozo’s  count, 31 States at the same time , including Massachusetts, had rejected it.  Refusing to accept a rule where, “The criminal is to go free  because the constable had, “Cardozo rejected the exclusionary rule for New York.  Since 1961, the Fourth Amendment has been held to apply against the States a s there is no “opting out” of the exclusionary rule.

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