This is a common misconception. The fourth amendment only limits the actions of the state, and case law establishes how evidence is excluded from trials. So, if I break into my neighbor's house and find child porn on his computer, that evidence is admissible in court. But if the police break into my neighbor's house without a warrant and search his computer, it isn't admissible, because it's a fourth amendment violation. But if they have a warrant to search the computer, it is admissible. If the judge who issued the warrant made a mistake and shouldn't have issued the warrant, the evidence is still admissible. This last situation also surprises people.

Makes sense that it's admissible in that case.

Would you still be able to be held legally responsible for breaking the law to get the information though? In that case, the evidence would be admissible but wouldn't you be in trouble for breaking into your neighbor's house?

Yes, you are correct.

Seems quite the loophole. So a law enforcement agency could, in theory, be able to hire private contractors that then obtain admissible evidence that would otherwise be inadmissible if the LEA did it themselves? Do I understand this correctly?

No, if someone is acting as an 'agent' of law enforcement, the evidence would be excluded via the exclusionary rule just the same as if the evidence was collected directly by the police themselves.

They can't employ them to do illegal things. They'd have to have some sort of plausible deniability. If they did, the private contractor would be acting as an agent of the government. If they circumvented this by creating some cover story and payments from some other sources, then they might get it into courts, but if it came to light it'd be thrown out (and the agents/agency involved would likely end up in some degree of trouble).

Surprising that a judge doesn't make a mistake all the freaking time. The legal system is a religion, it has little basis in reason.

Think in terms of branches of government. The executive branch investigates crimes, and the judicial adjudicates them. The exclusionary rule is designed to punish the executive branch for abusing the Fourth Amendment. But if it's the judge that's mistaken, it's the judicial, not the executive, at fault, and the incentive behind the exclusionary principle ceases to exist.

(If it helps: the US's exclusionary rule is significantly stronger and more consistent than those of European countries, particularly the UK.)

Indeed, the problem here is too much reason (not applying the exclusionary rule when the incentives it seeks to create do not apply), and not enough religion (always applying the exclusionary rule to benefit the accused when the government makes a mistake).

Doesn't the fact that a judge's career depends on promotion by the executive branch create such an incentive?

It's more complicated than that... in order for the judge to abuse the system this way, the police would have to be acting in good faith, but still bring a groundless request to the judge, who would have to figure out that the warrant was groundless but decide to issue it anyway. That's a pretty unlikely scenario.

Here's a comic about the 4th amendment: http://lawcomic.net/guide/?p=1604

Why should there be no penalty to the judicial branch for abusing the fourth amendment?

Again, in Europe, it's considered a little weird that we have an exclusionary rule that applies to any branch of government.

But the reason is: judges aren't abusing the Fourth Amendment; they're the arbiters of it.

Only the Supreme Court can claim that; lower judges are overruled all the time (in some sense).

The judge does make mistakes all the freaking time. But in practice the system is so stacked against the defendant that this effect is negligible.

That makes surprisingly good sense. The more you know. :) Thanks.

People have been arrested when burglars stole their computer and claimed to have found "child porn" on it.

http://www.cnn.com/2011/10/06/us/california-robbery-porn-bus...

4th amendment or not, you'd think that the "rules of evidence" and the word of a burglar would lend credence to the explanation that the burglar planted it to make himself seem more respectable in the eyes of the court.

It's outrageous in this case, as reported by CNN, that the burglars were not arrested. It means you can commit any crime as long as you plant some illegal porn!

As soon as the burglars figure this out, we're all screwed!

The only limitation is the government can't be responsible for gathering the information. AKA if a private eye breaks the law it's only an issue if they where directly or indirectly paid for by the government.

Which makes sense, because the sole purpose of the exclusionary rule is to punish the state for actively cheating the Fourth Amendment.

Also "Not long after that, I secretly gained access to his forum" seems like a CFAA violation. Though law enforcement may not care to prosecute, I don't see how it's different from "I secretly gained access to an internal AT&T forum" which would likely see an average citizen facing years in prison.