St. Mary's Law Journal


The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.

This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused on the appropriate scope of the exclusionary rule by evaluating whether the fruits or attenuation doctrines should serve as the basis for decision. The Article evaluates how the state supreme courts have responded to the opportunity provided by these cases to strengthen judicial federalism by making their own interest evaluations of these doctrines, with the fruits doctrine, serving primarily as surrogate for the interest of the people, and the attenuation doctrine serving primarily as surrogate for the interest of the government.

This Article documents that the state supreme courts during the last two decades were more likely than SCOTUS, overall, to assess the interest implicated by the doctrines in favor of finding that exclusion was justified. The Article advocates that the interest evaluation made under these doctrines be merged, and that the merger sets the stage for a more consistent and less subjective evaluation of the interests of the people and the government that are truly at stake.

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St. Mary's University School of Law


Brent A. Bauer