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 Historically, the only remedies for unconstitutional searches and seizures were “tort suits” and “self-help.” Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). The exclusionary rule-the practice of deterring illegal searches and seizures by suppressing evidence at criminal trials-did not exist. No such rule existed in “Roman Law, Napoleonic Law or even the Common Law of England.” Burger, Who Will Watch the Watchman? 14 Am. U. L. Rev. 1 (1964). And the Supreme Court did not adopt the federal exclusionary rule until the 20th century. See Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, T.D. 1964 (1914). As late as 1949, nearly two-thirds of the States did not have an exclusionary rule. See Wolf v. Colorado, 338 U.S. 25, 29, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). Those States, as then-Judge Cardozo famously explained, did not understand the logic of a rule that allowed “[t]he criminal . . . to go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926).


The Founders would not ...

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