The Exclusionary Rule — enunciated in Mapp v. Ohio, 367 U.S. 643 (1961) — puts teeth in the Fourth Amendment by generally excluding, from trial, evidence obtained by police through a violation of the Fourth Amendment’s prohibition against searches and seizures not based upon probable cause.

In 2004, the United States Supreme Court bitterly divided 5-4 (with a plurality of three justices and a concurrence of two more justices) in declining to apply the Exclusionary Rule to evidence obtained by police through voluntary but un-Mirandized admissions about the location of contraband. United States v. Patane, 542 us 630 (2004). This bitter division among the nine justices underlines how critical it is to thoroughly examine each Supreme Court nominee, including Neil Gorsuch, who likely would have sided with the Patane majority when the case was argued before the Supreme Court.

In Patane, police arrested Francis Patane for allegedly violating a protective order. The police tried to read Patane his Miranda rights, but Patane “interrupted, asserting that he knew his rights.” Then, without any Miranda warnings having been read, the police asked Patane about the whereabouts of his Glock handgun. At first Patane was reluctant to answer, but ultimately told the police where it was.

Had Patane — who ironically claimed to have known his rights — simply have clammed up, the Glock may never have been found, and had it not been found, Patane would not subsequently have been indicted and convicted for possession of a firearm by a convicted felon, under 18 U.S.C. § 922(g)(1).

Just as the Patane court was deeply split 5-4, the federal courts of appeal were also split on the issue at the time Patane the Court’s composition rarely includes reached the Supreme Court. Critical criminal law cases repeatedly get accepted for review by the Supreme Court, yet justices who have practiced criminal law on either side, and even more rarely any justices who have practiced criminal defense. The bench is not the place to get up to speed on criminal law, which is so complex and nuanced that Patane arose from a split among the federal circuits and resulted in a deeply divided 5-4 Supreme Court decision.