Arizona v. Evans, 514 U.S. 1, 20 (1995)

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Stevens, J., dissenting

contrast, this case involves a search pursuant to an arrest made when no warrant at all was outstanding against respondent. The holding in Leon rested on the majority's doubt "that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate." Id., at 916. The reasoning in Leon assumed the existence of a warrant; it was, and remains, wholly inapplicable to warrantless searches and seizures.2

The Fourth Amendment's Warrant Clause provides the fundamental check on official invasions of the individual's right to privacy. E. g., Harris v. United States, 331 U. S. 145, 195-196 (1947) (Jackson, J., dissenting); see generally Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L. Rev. 565, 571-579 (1983). Leon stands for the dubious but limited proposition that courts should not look behind the face of a warrant on which police have relied in good faith. The Leon Court's exemption of judges and magistrates from the deterrent ambit of the exclusionary rule rested, consistently with the emphasis on the warrant requirement, on those officials' constitutionally determined role in issuing warrants. See 468 U. S., at 915- 917. Taken on its own terms, Leon's logic does not extend to the time after the warrant has issued; nor does it extend to court clerks and functionaries, some of whom work in the same building with police officers and may have more regular and direct contact with police than with judges or magistrates.

2 As Justice O'Connor observed in her dissent in Illinois v. Krull, 480 U. S. 340 (1987): "[T]he Leon Court relied explicitly on the tradition of judicial independence in concluding that, until it was presented with evidence to the contrary, there was relatively little cause for concern that judicial officers might take the opportunity presented by the good-faith exception to authorize unconstitutional searches." Id., at 365. I joined that dissent, and I take exception to the majority's pronouncement that today's opinion is "consistent with" it. Ante, at 14.

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