Carlos Chevere-Lugo (St. Mary's University Law School) has posted State Action and the Exclusionary Rule: How States Can Eliminate the Public/Private Distinction on SSRN. Here is the abstract:
Why is it crucial to study State Constitutional Law? 1) It provides a comprehensive understanding of the underlying principles and structures of state governance; 2) It enriches legal practice by offering insights into the intricacies of state law; 3) It fosters active participation in civic affairs by promoting an in-depth knowledge of the legal framework; 4) It stimulates legal innovation by encouraging the examination and development of state constitutional jurisprudence; 5) It serves to preserve the historical evolution of state law and constitutional principles; and 6) It bolsters the mechanism of state judicial review by providing a solid foundation for legal analysis and decision-making.
This article explores the intersection of the state action doctrine and the exclusionary rule, advocating for a reimagined framework that removes the strict distinction between public and private actors when addressing constitutional violations. While federal jurisprudence typically limits the exclusionary rule to government misconduct, many state constitutions—such as those in Montana, California, and Puerto Rico—offer broader privacy and dignity protections that support a more comprehensive application of the rule. These constitutions, with their provisions for inalienable rights and independent privacy guarantees, provide a solid basis for extending the exclusionary rule to evidence obtained through private misconduct.
The article traces the historical development of the state action doctrine and the exclusionary rule, highlighting key cases and evolving interpretations at both federal and state levels. It also examines how some states, like Texas, have enacted statutory measures to exclude evidence unlawfully obtained by private individuals. Ultimately, the article argues that progressive state constitutions should guide courts in extending the exclusionary rule's reach to search by private parties and to civil proceedings where evidence stems from illegal searches, thereby ensuring the protection of privacy rights and the judiciary's integrity. This article outlines a path forward that aligns legal remedies with the extensive protections outlined in state constitutions by bridging doctrinal gaps and adopting a comprehensive approach.