In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory to evaluate the patterns of communication and influence across state courts in the diffusion of the search and seizure exclusionary rule as a matter of state constitutional law. During the period studied, the Supreme Court made the exclusionary rule mandatory in federal criminal prosecutions for violations of the Fourth Amendment, but had not yet ruled that the Fourth Amendment applied to the states. We conceptualize the diffusion of the exclusionary rule in state courts as a matter of state law as a two-stage process. The first stage concerns whether the issue of exclusion of evidence obtained through illegal searches and seizures in violation of state constitutional law was presented to state supreme courts following adoption of the federal exclusionary rule in Weeks v. United States.
The second stage concerns whether the state courts adopted the exclusionary rule as a matter of state law, before Wolf v. Colorado, when the Fourth Amendment was made applicable to the states. This article uses logistic regressions to evaluate the pattern of communication and influence among state courts in the diffusion of the exclusionary rule at each stage in the process. The results are striking. They suggest that precedents by other state supreme courts in the same West legal reporting regions were more influential in determining whether the question would arise in a particular state than precedents by state supreme courts in neighboring states, or the same federal circuit regions, or the same census regions. But precedents by other state supreme courts in the same federal circuit regions appear to have been more influential in determining whether the exclusionary rule would be adopted than precedents in neighboring states, the same West reporting regions, or the same census regions. These results both corroborate and extend those of previous studies.
Laurence A. Benner, Robert Bird & Donald J. Smythe,
Social-Network Theory and the Diffusion of the Search-and-Seizure Exclusionary Rule Among State Courts Between Weeks and Wolf,
Available at: https://scholarlycommons.law.cwsl.edu/fs/147