David Gray, Meagan Cooper & David McAloon

91 Texas L. Rev. 7

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In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials.  This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings.  In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns.  The core of our critique is that the collateral use exception reconstitutes a version of the “silver platter doctrine.”  In the days before the Fourth Amendment and the exclusionary rule were incorporated to the states, the silver platter doctrine allowed federal courts to admit evidence seized by state law enforcement agents during “unreasonable” searches and seizures.  The silver platter doctrine was rejected by the Court in 1960 out of concern that it was compromising states’ efforts to guarantee constitutional protections because it created incentives for state law enforcement officers to violate the Fourth Amendment.  By recreating the silver platter doctrine, the Court’s collateral use cases have recreated some of those incentives.  Our research indicates that these incentives have been successful in altering police practices in ways that threaten the Fourth Amendment rights of all citizens.