Search, Seizure and (False?) Arrest: An Analysis of Fourth Amendment Remedies when Police can Plant Evidence

Abstract

The Fourth Amendment prohibits unreasonable searches and seizures in criminal investigations. The Supreme Court has interpreted this to require that police obtain a warrant prior to search and that illegally seized evidence be excluded from trial. A consensus has developed in the law and economics literature that tort liability for police officers is a superior means of deterring unreasonable searches. We argue that this conclusion depends on the assumption of truth-seeking police, and develop a game-theoretic model to compare the two remedies when some police officers (the bad type) are willing to plant evidence in order to obtain convictions, even though other police (the good type) are not (where this type is private information). We characterize the perfect Bayesian equilibria of the asymmetricinformation game between the police and a court that seeks to minimize error costs in deciding whether to convict or acquit suspects. In this framework, we show that the exclusionary rule with a warrant requirement leads to superior outcomes (relative to tort liability) in terms of truth-finding function of courts, because the warrant requirement can reduce the scope for bad types of police to plant evidence.We would like to thank Tue Gorgens and Eli Wald for helpful discussions, and seminar participants at the University of Connecticut for valuable comments.

Law Enforcement and Wrongful Arrests With Endogenously (In)competent Officers

“…But, the higher crime rate 25. See Dharmapala and Miceli (2012) for a similar argument. encourages policing, which reduces crime.…”

“…Specifically, 10. This finding is related to Dharmapala and Miceli (2012) who show that if (some) officers are bad and can "plant evidence," a tort liability system for officers need not always be better than other warrant-based regimes. In contrast to their model where bad officers willfully plant evidence, in our model officers make mistakes because they are simply incompetent.…”

“…Dharmapala and Miceli () consider false arrests as situations where officers “plant evidence” during search and seizures. To avoid confusion we use the term “wrongful arrests” instead.…”

Black sheep and walls of silence

“…For example, Dharmapala and Miceli (2003) analyze a related signaling model, where a court has to decide whether to trust evidence that may have been planted by the police. They investigate how warrant requirements and tort liability of officers, respectively, affect officers' behavior and the truth-finding of courts.…”