Like my co-blogger Will Baude, I was very interested in the Ninth Circuit’s recent case, United States v. Dreyer, suppressing evidence as a violation of the Posse Comitatus Act. I think the case is interesting because it demonstrates a view of the exclusionary rule that I haven’t seen in a while.

First, some history. Back in the the middle of the 20th Century, the federal courts often found ways to impose an exclusionary rule for statutory violations in federal court. For example, in Nardone v. United States, 302 U. S. 379 (1937) (“Nardone I”) and Nardone v. United States, 308 U.S. 338 (1939) (“Nardone II”), the Supreme Court adopted an exclusionary rule for violations of the Communications Act. In McNabb v. United States, 318 U.S. 332 (1943), the Court adopted an exclusionary rule for violations of Rule 5 of the Federal Rules of Criminal Procedure. The Court had a rather free-form approach to the exclusionary rule at the time, in part because suppression was seen as the judiciary’s domain. The federal courts had an inherent power to control evidence in their own cases, so the Court could be creative in fashioning what evidence could come in to deter bad conduct. If the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.

By the 1980s, after Warren Court revolution, the Supreme Court had a different view of the exclusionary rule. The scope of the rule had expanded dramatically when it was incorporated and applied to the states. But as a kind of tradeoff for that expansion, the Court cut back on the free-form approach outside core constitutional violations. The Burger and Rehnquist Courts saw suppression as a doctrine that had to be rooted in deterrence of constitutional violations and not just something that courts didn’t like or found offensive.

In his post, Will points out a passage from Sanchez-Llamas v. Oregon to that effect. And I would add the earlier case of United States v. Payner, 447 U.S. 727 (1980), in which investigators had intentionally violated one person’s Fourth Amendment rights to get evidence they were holding of the suspect’s crimes. The Sixth Circuit had suppressed the evidence on the basis of the federal courts’ supervisory power to punish the blatant abuse even though the suspect did not have Fourth Amendment standing to object to the violation. The Supreme Court reversed, blocking courts from using the supervisory power as an end-run around the limits of Fourth Amendment doctrine.

The new Ninth Circuit case, Dreyer, strikes me as a vestige of the mid-20th century free-form view of the exclusionary rule. The lower courts in the 1960s and 1970s had a few areas where they rejected suppression outside of constitutional law but recognized the hypothetical possibility that they might suppress evidence if the facts were particularly egregious. For example, a bunch of circuits held that the Fourth Amendment does not regulate evidence collection by foreign governments not acting in coordination with the U.S., but that they would suppress evidence if the foreign government conduct “shocked the conscience.” See, e.g., Birdsell v. United States, 346 F.2d 775, 782 n. 10 (5th Cir. 1965); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir. 1975). But see United States v. Mount, 757 F.2d 1315, 1320 (D.C. Cir. 1985) (Bork, J., concurring) (arguing based on Payner that lower courts lack supervisory powers to impose an exclusionary rule for searches by foreign governments). The caselaw was never reviewed in the Supreme Court, however, perhaps because those egregious circumstances were not found and the evidence wasn’t actually suppressed.

Violations of the Posse Comitatus Act, the issue in the new decision, provides another example. The history seems to run like this. First, in the 1970s, a few courts applied the free-form approach to the exclusionary rule and left open the possibility that violations of the Posse Comitatus Act could lead to exclusion if it were necessary to deter violations. See, e.g.,United States v. Walden, 490 F.2d 372, 376–77 (4th Cir. 1974); State v. Danko, 219 Kan. 490 (1976). When the Ninth Circuit reached the issue in 1986, the panel did not focus on the Supreme Court’s then-new more skeptical approach to the exclusionary rule. Instead, the Ninth Circuit expanded on the 1970s lower-court cases, indicating that the exclusionary rule would be necessary for violations of the Act if “a need to deter future violations is demonstrated.” United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). Again, though, this was just a possibility, and the issue was never reviewed.

Dreyer picks up that 28-year-old invitation and concludes that the need has finally been demonstrated and that the exclusionary rule therefore must be applied. Dreyer cites Roberts, which in turn cited Walden. So on its face, the court is at least drawing on precedent.

But it seems to me that Dreyer is very vulnerable if DOJ thinks it is worth challenging in the Supreme Court. Dreyer appears to rely on a line of thinking about the exclusionary rule that the Supreme Court has long ago rejected. Of course, we can debate the normative question of how the Justices should approach the exclusionary rule, either in the context of constitutional violations or statutory violations. But just as a predictive matter, I suspect that today’s Court would have a different view of the question than the circuit court cases from the 1970s on which the Ninth Circuit’s Dreyer decision ultimately relies.