Case Study: United States v. Leon, 468 U.S. 897 (1984) (pgs. 80-83)

C H A P T E R 2 Constitutional Remedies, the Fourth Amendment, and the Exclusionary Rule

We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government

should play an ignoble part.

—JUSTICE OLIVER WENDELL HOLMES, JR., DISSENTING IN Olmstead v. United States, 277 U.S. 438, 470 (1928)

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CHAPTER OUTLINE

REMEDIES FOR CONSTITUTIONAL VIOLATIONS A Theory of Remedies Civil Lawsuits for Money Damages Immunity from Civil Lawsuits Injunctions Criminal Prosecution Administrative Measures

THE FOURTH AMENDMENT THE FOURTH AMENDMENT EXCLUSIONARY RULE

Development of the Exclusionary Rule, 1886–1921 State Action Doctrine “Fruits of the Poisonous Tree” Doctrine—Derivative Evidence The Movement to Incorporate the Exclusionary Rule, 1949–1963 Incorporating the Exclusionary Rule: Mapp v. Ohio

Undermining the Exclusionary Rule Good Faith Reliance Exceptions Standing Exclusionary Rule Theories

LAW IN SOCIETY: DEBATING THE EXCLUSIONARY RULE

Inherent Limits of Deterrence The Deterrent Effect of the Exclusionary Rule The Educative Effect of the Exclusionary Rule Costs of the Exclusionary Rule The Effectiveness of Tort Remedies

SUMMARY LEGAL PUZZLES JUSTICES OF THE SUPREME COURT: THE ADVERSARIES: BLACK AND FRANKFURTER

Hugo LaFayette Black Felix Frankfurter

KEY TERMS

attenuation balancing test Bivens suit contempt of court contraband damages derivative evidence disgorgement exclusionary rule

“fruits of the poisonous tree” doctrine

general-reasonableness construction

general warrant independent source inevitable discovery injunction originalism

particularity requirement pattern and practice suit property theory Reasonableness Clause reparation Section 1983 suit “silver platter” doctrine sovereign immunity standing

target theory tort trespass Warrant Clause warrant-preference

construction writs of assistance

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REMEDIES AND THE RULE OF LAW Law is a practical undertaking, although based on ideals of fairness, rationality, and regularity. As noted in Chapter 1, people and institutions pursue legal cases in order to correct alleged wrongs. Courts provide a forum to fairly adjudicate whether the allegations are true. If plaintiffs or prosecutors prevail, they seek remedies such as winning money damage awards, obtaining injunctions to prevent ongoing illegal practices, or imposing punishment on convicted defendants. This practical business is the embodiment of the second purpose of the Constitution set out in its Preamble—to “establish Justice.” Chief Justice John Marshall understood that a stable, successful, and just country could not exist without a reliable, impartial, and independent justice system, which was confirmed by the Court’s action in Marbury v. Madison (1803) of declaring an act of Congress unconstitutional. And in a just coun- try founded on the principle of liberty, as announced in the Preamble, the justice system has to be impartial not only between private litigants but between the citizen and the state. Thus Chief Justice Marshall recognized that the Rule of Law requires that where the government is proven to have violated the law, a private citizen can go to court and can obtain a legal remedy for that violation. The necessity of legal remedies is therefore embedded in the Constitution. Marbury v. Madison (1803), the foundation of federal judicial power, stated

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.

* * * The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested right.

“According to Marbury’s ideal,” asserts Professor Cornelia Pillard, “legal rights are not mere precatory or aspirational statements, but remediable claims, redressable in courts, for violations of law.”1 Legal remedies reflect the legitimacy of the government’s constitutional promise to do justice (U.S. Const., Preamble). To put it bluntly, constitutional rights become meaningless plat- itudes unless officers and the state are held accountable and are made to pay if and when their acts trample on the rights of individuals. Without effective legal remedies, the Rule of Law ceases to exist.

REMEDIES AND THE EXCLUSIONARY RULE The focus of this chapter is on one of the most highly contested issues in criminal procedure: the Fourth Amendment exclusionary rule. The contest is ideological and theoretical. Liberal proponents of the ‘Due Process Model’ seek to expand the scope of the rule and view it as a constitutional right. Conservative proponents of the ‘Crime Control Model’ seek to limit its scope and view it only as a device to protect Fourth Amendment values. But in order to understand the exclusionary rule, it is first necessary to briefly review the legal remedies for constitutional violations in general.

What legal remedy does a person have if the government violates his or her constitutional rights? There is no doubt that federal or state civil lawsuits against police and municipalities for money damages are personal legal remedies. Beyond civil lawsuits the answer becomes more tenuous. Injunctions are civil remedies where courts can order specific compliance to remedy an ongoing wrong. They are rare in criminal procedure, but when an injunction has been obtained against police action for widespread Fourth Amendment violations, the benefit is more for the public than for an individual. The criminal prosecution of police officers who egregiously vio- late rights can be viewed as a public remedy for past violations, even though individuals who have been victimized are not compensated. This chapter also includes a discussion of ‘administrative measures’. These are clearly not legal remedies. Nevertheless, many discussions of the exclusionary rule correctly surmise that it would be far better if constitutional violations never occur because police agencies train and supervise personnel to adhere to the Constitution; to round out an understanding of measures that seek to correct legal wrongs, a brief discussion of administrative measures is helpful.

Is the exclusionary rule a real remedy? Can the prosecution rely on evidence that was obtained by breaking the law or violating the Constitution? Can such evidence be used to convict

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the defendant? Or used in some other way to benefit the state? A major argument in favor of incorporating the exclusionary rule and applying it against the states in Wolf v. Colorado (1949) and Mapp v. Ohio (1961) was that other remedies, such as civil lawsuits, were rarely effective and so were of little use in gaining police compliance with the Constitution. It was felt that excluding illegally obtained evidence was the only way of legally remedying Fourth Amendment violations. Because of changed legal and social conditions in the last half century, it appears that civil lawsuits and administrative measures have a better chance of modifying police behavior. In Hudson v. Michigan (2006), Justice Scalia gave the “increasing professionalism of police forces, including a new emphasis on internal police discipline,” as a reason to deny the application of the exclusionary rule to violations of the Fourth Amendment “knock and announce” rule. These views give support to the view that the exclusionary rule ought to be partly reduced in scope if not eliminated as a legal remedy.

This policy approach indirectly confronts the question about whether the rule is a real rem- edy, a debate that has proceeded on two tracks. A utilitarian track focuses on the effectiveness of the exclusionary rule as a deterrent to unconstitutional police action in comparison to other remedies and considers empirical questions as to the “costs” of the exclusionary rule (discussed later in this chapter). The other track involves philosophical questions about the meaning of legal remedies, the status of the exclusionary rule as a constitutional doctrine, whether the rule is con- stitutionally required, and the extent to which the rule can be manipulated. To provide a founda- tion to understand the theories of the exclusionary rule later in this chapter, the next section describes a theory of remedies that is relevant to the exclusionary rule debate.

A Theory of Remedies

Exclusionary rule opponents argue that it is not a legal remedy at all. In answer to the critics and as a prelude to the concluding sections, consider Professor William Heffernan’s analysis. Unlike most commentators who discuss remedies as a unitary concept, Heffernan demonstrates that there are three types and goals of remedies. First-party remedies aim at reparation, to restore the injured party to the position he or she occupied before the injury occurred. Second-party reme- dies have the goal of disgorgement, to place the wrongdoer (the second party) in no better posi- tion than the one he or she occupied prior to the wrongful conduct. Third-party remedies aim at deterring future wrongdoing, to the benefit of the general public—that is, “plac[ing] the public in a better position than it would be in if deterrence were not undertaken.”2 In practice, these types and goals of remedies may overlap in a single case and may be mutually supportive or at odds with one another. All three rationales have been used by the Supreme Court to support the exclu- sionary rule.

The Fourth Amendment protects three distinct rights—liberty, property, and privacy—not just privacy alone. It is true, as conservative justices have said, that once a suspect’s privacy rights have been breached by a wrongful search and seizure, it is irreversible. The privacy viola- tion by an illegal search and seizure “is fully accomplished by the original search” (United States v. Calandra, 1974, opinion of Powell, J., emphasis added). In this view, the only true remedy for a completed violation of privacy rights is reparation, a first-party remedy, via a civil lawsuit for money damages against the officer. However, if the state exploits the privacy violation by also violating a defendant’s property or liberty interests, these are ongoing violations that can be repaired by returning the property or freeing the defendant. When the various interests protected by the Fourth Amendment, especially liberty, are considered, the exclusionary rule can be con- sidered as much a true legal remedy as a lawsuit for money. While the invasion of privacy may have been “fully accomplished” at the time police illegally entered a premises, the invasion of the suspect’s liberty interests continues during the prosecution, and the exclusionary rule pro- vides a familiar remedy that courts are competent to administer.

The reparation remedy of monetary damages does not exhaust the range of available reme- dies. Note, by analogy, that a person harmed by a convicted criminal can sue the criminal in a civil suit. Nor does the existence of civil actions against police for Fourth Amendment violations undermine the legitimacy of the additional remedial goals of disgorgement and deterrence. In civil lawsuits for injunctions or specific performance, for example, disgorgement may be ordered where possible to prevent one who violated a person’s rights from benefiting from the wrong. In the section “Exclusionary Rule Theories,” we return to this idea to demonstrate that a disgorgement theory of the exclusionary rule is not only plausible, but is embedded in the Fourth

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Amendment. Also by way of example, punitive damages may be paid to an injured party in a civil suit above what is needed to compensate for actual losses, specifically to deter the wrong- doer from doing the acts in the future—that is, to protect the public. Although the Supreme Court now rests the exclusionary rule solely on the deterrence rationale, it has so hedged in the rule that it is reasonable to ask whether the Supreme Court is “soft” on civil liberties.

Civil Lawsuits for Money Damages

The king’s officers who invaded the homes of John Wilkes and his associates in the 1760s were sued in English common law courts, found liable for trespass, and ordered to pay substantial sums for violating the rights of British subjects. The colonials challenging writs of assistance were, in effect, seeking injunctions to prevent the Crown from issuing general search warrants. (These cases are discussed in detail in the introduction to the exclusionary rule, in following sec- tions.) When the Bill of Rights was ratified, the Framers likely assumed that violations of privacy by the government would lead to lawsuits, which in turn would embarrass the government into preventing further abuses. As dissenting justices in Wolf v. Colorado and the majority in Mapp v. Ohio noted, however, police officers were almost never held responsible for violating individu- als’ Fourth Amendment rights. Mapp was predicated in part on the belief that Weeks’s exclusion- ary rule was the best way of deterring police breach of rights. More recently, exclusionary rule critics have argued that alternate remedies are preferable.

STATE COMMON LAW TORT SUITS These exist in every state and are lineal descendants of the English common law suits for trespass. A person whose dwelling was invaded by another who entered without right—whether a burglar, a civilian entering without criminal intent, or a police officer entering without a warrant or probable cause—can sue the intruder for the intentional tort of trespass and related property damage. Such lawsuits can be brought against local, state or fed- eral law enforcement officers who violate a dweller’s privacy. Symbolically, such suits put offi- cers’ violations of fundamental constitutional rights on the same plane as a civil privacy violations. As a practical matter, juries may be less willing to hold police officers liable, even though their powers to enter and search, and the fright and humiliation to residents where no criminal evidence was found, might be greater.

Private lawsuits against government units or agents were at one time blocked by the com- mon law doctrine of sovereign immunity that was inherited from England. States have lifted sovereign immunity in part, but actual rules differ in different states. In a Florida case, for example, a sheriff’s deputy gratuitously beat a suspect in handcuffs during a booking proce- dure, and the injured person sued the deputy and the Volusia County Sheriff’s Department. Under Florida law, the deputy could be held liable for a civil battery if he acted within the scope of his employment. The department could be liable only if the deputy’s acts exceeded the scope of his employment. Florida law was structured so that either the agency could be held liable or the deputy, but not both.3

SECTION 1983 SUITS: STATE OFFICERS IN FEDERAL COURTS Most civil rights lawsuits against municipal police officers are conducted in federal court under the Civil Rights Act of 1871, which is found in Title 42 United States Code, section 1983, and consequently are com- monly known as Section 1983 suits. This right of action in federal courts against state and local officers was created by Congress after the Civil War, under the authority of the Fourteenth Amendment, in order to counteract Ku Klux Klan terrorism against African Americans. Such a lawsuit is based on a violation of a person’s federal statutory or constitutional rights by someone “acting under the color of state law” or custom.

The law was not much used for a century. After the Supreme Court held in Monroe v. Pape (1961) that a Section 1983 claim could be based on a Fourth Amendment violation, thousands of Section 1983 suits proliferated. In Monroe, Chicago police officers entered the plaintiff’s home at night without a warrant, rousted his family, and arrested and detained him for ten hours without probable cause before he was released. The history and wording of Section 1983 prevent lawsuits against state governments. In 1978, the Court reexamined the statute’s history and extended Section 1983 lawsuits to cases against municipal and county governments, but not against the quasi-sovereign states (Monell v. Department of Social Services, 1978). This made civil lawsuits against police more attractive to plaintiffs, because cities and counties have

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“deeper pockets” (i.e., greater funds) than do individual officers. Municipal liability under Monell does not automatically flow from the fact that officers are employees, a doctrine known in the common law of torts as respondeat superior. Rather, for municipalities to be held liable for the errors of police officers in violating rights or in the use of excessive force under Section 1983, plaintiffs must prove that the municipality was deficient in its supervision or training of officers.

A study of hundreds of Section 1983 appeals decided between 1989 and 1993 found that 58 percent were for excessive force, false arrest, and illegal search and seizure. Plaintiffs suing the police won 24 percent of the illegal search and seizure cases. The police prevailed in 44 percent of these cases, and in 32 percent, the case was remanded for further findings. This study indi- cated that this form of civil lawsuit is not rare, that plaintiffs who sue law enforcement for rights violations have an opportunity to gain redress, but that a strong legal and factual case is needed to prevail.4

BIVENS SUITS: FEDERAL CONSTITUTIONAL TORT In Bivens v. Six Unknown Named Agents (1971), the Supreme Court held, for the first time, that a federal constitutional tort remedy exists for violations of constitutional rights by federal agents. Prior to Bivens, a person whose rights were violated by federal officers could only sue for common law trespass in state courts (see above). The Civil Rights Act of 1871 (creating Section 1983 suits) created a distinct remedy for instances where local officers violated the constitutional rights of people, but no such remedy existed where federal officers violated constitutional rights.

Webster Bivens was arrested at home by federal narcotics agents who searched his Brooklyn apartment “from stem to stern” and was strip-searched at booking. He was never pros- ecuted, so exclusion of evidence was a meaningless remedy. Because it was unlikely that he would again be arrested, an injunction suit made no sense. This made a civil lawsuit for money damages the only logical remedy for the wrongs done to him. His suit for damages based on an illegal arrest and search and seizure, however, was thrown out of federal court because no such cause of action existed in federal law. If Bivens sued in state court, the federal government might have tried to remove the case to federal court, where it would be dismissed on jurisdictional grounds. This created a catch-22 that made it impossible for people to ever sue federal agents who violated their rights. A federal tort remedy was therefore of real practical as well as sym- bolic importance.

The Supreme Court agreed with Bivens, saying that the fundamental rule that there must be a legal remedy for every legal wrong outweighed the doctrine of sovereign immunity that had pre- viously blocked the creation of a federal constitutional tort. The Court noted that the constitutional interests in a federal suit were more serious than a trespass suit under state law, especially after Katz v. United States (1967) created the “expectation of privacy” doctrine, wherein the Fourth Amendment was held to be based on constitutional interests and not simply on property rights that are vindicated by the law of civil trespass. These federal lawsuits are known as Bivens suits.

STATE CONSTITUTIONAL TORTS: STATE OFFICERS IN STATE COURT In addition to shoehorn- ing a constitutional violation into the shape of a common law tort, some state supreme courts, fol- lowing the federal example, have established distinct state constitutional torts: a direct cause of action for damages for violation of a state constitutional right against a government or individual defendants. Unlike a state common law tort, which is designed to vindicate personal interests, a constitutional tort “reinforces the moral accountability of the state and vindicates the reliance interest of the people;...[it] holds the government responsible as an agent of the people.”5

By 1998, twenty-one states had recognized an implied cause of action for state constitu- tional violations. Three additional states had indicated that they would do so under certain nar- row circumstances. A private cause of action has been recognized in a twenty-fifth state by federal courts, and four states have enacted statutes that authorize causes of action for violation of state constitutional rights. Seven states have specifically rejected state constitutional causes of action.6 For example, the New York Court of Appeals, that state’s highest court, established a constitutional tort based on a violation of the New York constitution’s search and seizure clause. In that case, state police and local law enforcement officials embarked on a five-day “street sweep” in which every nonwhite male found in and around the city of Oneonta was stopped and interrogated for a reported crime.7

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In addition to these standard avenues of redress, lawyers may seek other remedies that exist in state or federal common law. A startling example, in a ruling by a Reagan-appointed fed- eral trial judge, allowed the Los Angeles Police Department to be sued in August 2000 under the RICO (Racketeer Influenced and Corrupt Organizations) Act for the notorious Ramparts Division scandal. The scandal involved many police officers systematically arresting at least one hundred innocent people, planting incriminating evidence on them, giving perjured testimony, improperly using immigration officials in making arrests, and physically assaulting people with- out cause. The RICO law was first established to attack organized crime families but has been extended to other organizations that use illegal means to further their goals and interfere with interstate commerce. The benefit to the plaintiffs in the suit is that the RICO statute of limitations is ten years, and it allows triple damages. The potential damages to Los Angeles were put at $100 million.8 Plaintiffs have not been successful in these cases, however, because a private RICO suit requires a showing of injury to business or property.9

Immunity from Civil Lawsuits

There are several kinds of legal immunity. Prosecutors acting under statutes can grant individu- als immunity from criminal prosecution in order to obtain their testimony by overcoming the privilege against self-incrimination. Privileges to not testify granted to spouses, clergy, lawyers, and other professionals are forms of immunity. The doctrine of sovereign immunity prevents any lawsuits against the federal or state governments, unless they agree to waive such immunity, as occurred in the Federal Tort Claims Act and Bivens (1971). Each kind of immunity is justified by different reasons.

This section examines governmental tort immunity from civil lawsuits against those who perform public functions. Governmental immunity may be absolute or qualified. Immunity from suit, whether absolute or qualified, is not just a defense but requires a dismissal of a suit on a motion for summary judgment. This saves the public official from the time-consuming pretrial discovery process, depositions, document review, and conferences about litigation strategy. A successful claim of immunity prevents a plaintiff from getting a court to consider a violation of rights in the first place. Because of this, trial courts must “resolve immunity questions at the ear- liest possible stage in litigation” (Hunter v. Bryant, 1991, cited in Saucier v. Katz, 2001).

Absolute immunity has been granted to the president of the United States and close coun- selors (Nixon v. Fitzgerald, 1982), federal and state legislators (Eastland v. U.S. Servicemen’s Fund, 1975; Tenney v. Brandhove, 1951), judges (Stump v. Sparkman, 1978), and prosecutors (Imbler v. Pachtman, 1976)—in the exercise of their official duties.10 Absolute immunity is given for the acts performed and not for the official. Trial witnesses also receive absolute immunity form lawsuits, even if they may be prosecuted for perjury (Briscoe v. LaHue, 1983). A prosecu- tor’s official actions, protected by absolute immunity, include supervision, training, and informa- tion system management (Van de Kamp v. Goldstein, 2009). A prosecutor, however, does not enjoy absolute immunity for such actions as conducting a press conference (Buckley v. Fitzsimmons,1993) or testifying at a preliminary hearing about the facts in a certification for probable cause, because that is not the function of an advocate (Kalina v. Fletcher, 1997).

The policy underlying absolute immunity is that the “public interest requires that persons occupying such important positions . . . should speak and act freely and fearlessly in the discharge of their important official functions” (Gregoire v. Biddle, U.S. Court of Appeals, 2d Circuit, 1949).11 It is a very hard policy because it applies even if the officer in fact acted out of real mal- ice. As the great federal judge Learned Hand explained, the policy is a balance of evils:

It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not con- nected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be

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founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing pub- lic officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. . . . [I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. (Gregoire v. Biddle, 177 F.2d 579, 581 [1949])

A similar form of governmental immunity—qualified immunity—holds “that government officials performing discretionary functions, generally are shielded from liability for civil dam- ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald, 1982). When a police officer is sued for violating the Fourth Amendment rights of a person stopped, arrested, or searched and the officer claims qualified immunity, the judge on a pretrial motion must deter- mine (1) if the officer violated a constitutional rule and (2) if the rule was clearly established. The “clearly established” rule is designed to give officers fair warning that their actions are illegal.

For example, in Hope v. Pelzer (2002), Alabama prison guards disciplined Larry Hope by handcuffing him to a “hitching post” while in leg irons, shirtless, and under a hot sun, for approx- imately seven hours, during which he was given water only once or twice and was given no bath- room breaks. The lower court found that while this action clearly violated the Eighth Amendment prohibition on cruel and unusual punishment, it was not clearly established. The Supreme Court reversed. Although the Eleventh Circuit did not have a prior case with the precise facts of Hope, the contours of cruel and unusual punishment law established in earlier cases were sufficiently clear, banning “unnecessarily and wantonly inflicted pain.” The violation of Hope’s rights were so obvious that the prison guards had fair notice that it was unconstitutional.

In Saucier v. Katz (2001) the Court ruled that lower courts deciding qualified immunity claims must first determine whether a constitutional right was violated and only then determine whether it was clearly established, for the purpose of deciding constitutional questions and pre- venting “constitutional stagnation.” This was reversed in Pearson v. Callahan (2009), which found that “consent-once-removed” could be based on consent extended to an undercover informant (see Chapter 3). In Pearson the circuit court assumed that the right was clearly estab- lished in the circuit but would not be upheld by the Supreme Court and refused to extend quali- fied immunity. The Supreme Court held that the Saucier ordering was too rigid, created inefficiency, and again allowed lower courts to tackle the qualified immunity prongs in the order that was most efficient for disposing the issue. Saucier did make it clear, however, that in civil claims based on the Fourth Amendment, courts look to the objective reasonableness of the actions of police officers (Graham v. Connor, 1989; see Chapter 4, “Use of Force” section). As a result, “qualified immunity can apply in the event the mistaken belief was reasonable” (Saucier v. Katz, 2001, emphasis added). Therefore, as is the case in probable cause errors, qualified immu- nity protects an officer from a lawsuit even if the police action in question in fact violates the Fourth Amendment, as long as the officer’s action was objectively reasonable.

Injunctions

Injunctions are not common remedies for Fourth Amendment violations. An injunction is a judi- cial order that either (1) commands a defendant to perform a particular act, (2) prohibits specified activity, or (3) orders a defendant to cease wrongful activity. Injunctions may be granted by a court where plaintiffs can prove that rights violations are persistent and repeated and that an injunction is the only effective remedy. Injunctions are enforced by the judicial power of contempt of court, which can include fines or jail for disobedience.

A prohibitory injunction was issued by a lower federal court and upheld on appeal by the Fourth Circuit in Lankford v. Gelston (1966) against a local police department that had been con- ducting a “dragnet” type search. Police officers searching for the killers of fellow police officers had, over a three-week period, entered three hundred houses based on anonymous tips and with- out legal justification. Because there were no arrests, the exclusionary rule could not be used to

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deter the officers; police activity was flagrant and persistent. Under these circumstances, the injunction was justified.12

The Supreme Court, however, has struck down federal injunctions against local police departments. In Rizzo v. Goode (1976), the Court reversed a federal injunction against the Philadelphia Police Department’s cumbersome procedural process for investigating citizens’ complaints about the use of excessive force. The Court reasoned that complainants had failed to demonstrate that the existing policy resulted in routine and persistent patterns of excessive force and civil rights violations. It did so despite the fact that the District Court heard a “staggering amount of evidence, including 250 witnesses over a 21-day period,” who testified to widespread police abuses.13 In Los Angeles v. Lyons (1983), the Court also struck down an injunction against the Los Angeles Police Department that prohibited the use of chokeholds, which were not specif- ically prohibited or authorized by departmental regulations. “At the time Lyons was decided, the chokehold had caused the deaths of over a dozen persons; by 1991, twenty-seven people had died as a result of this restraint technique. The Court dismissed the suit, holding that in order to have standing to sue for an injunction, the plaintiff must show that he is likely to be a future victim of that same technique.”14

These cases demonstrate that courts generally, and the Supreme Court specifically, are not the best avenues to initiate systemic reform. It is noteworthy that effective federal oversight of police misconduct is now beginning to occur under congressionally authorized pattern and practices lawsuits (discussed in following sections).

Criminal Prosecution

STATE PROSECUTIONS Criminal prosecutions of police officers for acts committed in the line of duty are rare and are limited to egregious cases, typically involving the death of a suspect.15 It is difficult to obtain such a conviction if the defense attorney convinces the jury that the officer acted reasonably to enforce the law or if the victim suffered little or no personal injury. A notable example was the acquittal in February 2000 of four New York City Street Crime Unit police offi- cers of the murder of Amadou Diallo, an African immigrant who was shot nineteen times as he reached for his wallet. The late James Fyfe, an expert who more often testified against police, concluded that the facts showed that the officers, who believed Diallo had a gun, had acted prop- erly. A juror said the prosecution had not proved that the officers acted criminally.16

Notorious prosecutions of police officers often capture headlines. Memorable cases include the trial and first acquittal of Los Angeles police officers for beating Rodney King, a speeding motorist, which was videotaped and played to a national audience.17 In Detroit, police officers were convicted and imprisoned for the beating death of Malice Green.18 Three white suburban Pittsburgh police officers were acquitted of manslaughter in the asphyxiation death of an African- American motorist, Jonny Gammage.19 In 2005, a New York City police officer who shot an immi- grant during a warehouse chase was found guilty of criminally negligent homicide by a judge after a jury deadlocked on more serious charges. It was the first conviction of an onduty New York offi- cer since a civil rights conviction in 1998 for killing a civilian in a chokehold.20

Such prosecutions are proper responses to specific cases but have no impact on systemic errors or abuse unless they spark reforms. In the aftermath of the Louima case, which involved the sexual brutalization of Haitian immigrant Abner Louima by New York City police officers, for example, the city bowed to pressure and agreed to federal monitoring of the way in which officers accused of abuse are investigated and disciplined.21

FEDERAL PROSECUTIONS OF LOCAL POLICE OFFICERS A federal civil rights law originally enacted in 1866 authorizes federal prosecution of local officers who, acting under color of local law or custom, deprive a person of rights under the Constitution (18 U.S.C. § 242). A conviction requires an intent to deprive a person of a specific constitutional right (United States v. Screws, 1945). In recent decades, federal prosecutors have become more active in investigating and pros- ecuting crimes by local police. Federal civil rights prosecutions have included several high- profile cases, such as the second trial of the police officers involved in the Rodney King beating and the trial of officers involved in the brutalization of Haitian immigrant Abner Louima. If the sexual torture inflicted on Louima was perpetrated by a private person, all bystanders would justly be horrified. But the additional concern in a civil rights violation was captured by the words of the federal judge who sentenced the police officer to thirty years’ imprisonment: “Short

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of intentional murder, one cannot imagine a more barbarous misuse of power than [officer] Volpe’s.”22 Misuse of power undermines trust in the government, makes people—especially the poor and dispossessed—skeptical of protection by the criminal justice system, and leads to the suspicion that honest police officers are actual or potential rights violators.

Administrative Measures

Ideally, violations of constitutional rights should rarely, if ever, occur. External legal sanction, such as the exclusionary rule or civil suits, may control police behavior to some extent, but such sanctions are reactions to past violations. They encourage future compliance through punish- ment, which has had limited effectiveness. (See the “Law in Society” section in this chapter.) Police officers are most likely to obey constitutional mandates like the Fourth Amendment when support and rewards for doing so come from within their departments. William Bratton, the inno- vative former New York City police commissioner, made obedience to the Constitution a key goal for the NYPD.23 Nonjudicial and administrative methods, therefore, are essential to encour- age police to adhere to the Rule of Law.

Many methods have been suggested for making police officers more understanding of the people they police and more mindful of their rights: community policing, civilian review boards,24 police ombudsman programs,25 accreditation of police departments,26 civilianizing many roles in police departments,27 tightening rules on the use of lethal force,28 cultural diversity and sensitivity training,29 higher standards for police recruits,30 training in Asian martial arts,31

and similar improvements. Better academy and in-service training in constitutional law is impor- tant. Professor Slobogin has proposed replacing the exclusionary rule with a legal–administrative procedure in which a judge would hear defendants’ complaints of privacy violations. If the judge found that a violation had occurred, he or she would require the officer personally to pay liqui- dated damages of between 1 and 5 percent of the officer’s salary unless the violation was in good faith, in which case the police department would be financially responsible. In addition, class actions and injunctions would be available remedies.32 This proposal may prove less than fully effective because the qualified immunity doctrine would protect officers from liability where it is not apparent that a suspect’s rights have been violated. A more promising alternative approach was enacted by Congress: the pattern and practice review.

PATTERN AND PRACTICE REVIEW A 1994 federal law brought the weight of the Department of Justice (DOJ) to bear to create nonjudicial solutions to police violations of constitutional rights. Title 42 U.S.C. §14141 prohibits governmental authorities from engaging in a “pattern or practice of conduct by law enforcement officials” that deprives persons of constitutional rights. When the attorney general has reasonable cause to believe that a violation has occurred, the Justice Department is authorized to sue for equitable and declaratory relief “to eliminate the pat- tern or practice.” DOJ monitoring is not triggered by isolated incidents of unlawful acts but by conditions where unlawful acts have virtually become “standard operating procedure.”33 This law is the best method available to get police agencies and officers to follow the Constitution, although lasting reform will depend on a willingness of the U.S Attorney General to use the law and on effecting real changes in police agency culture.

According to leading police scholar Samuel Walker, pattern and practice suits are an impor- tant new way of thinking about policing that focuses on organizational and management problems as causes of police misconduct. Instead of relying on the discredited “rotten apple” theory of police misconduct, which faults individual officers, pattern and practice suits respond to a new consensus— the “rotten barrel” theory.34 The new model offers organizational strategies to improve policing.

In 1999, two police departments (Pittsburgh, Pennsylvania, and Steubenville, Ohio) entered the first pattern and practice consent decrees for excessive force, improper searches and seizures, and false arrest. Since that beginning, other major departments, including Cincinnati, Detroit, Los Angeles, and the New Jersey State Police, were investigated and have entered into monitoring processes designed to improve critical police performance.35 By 2007 “21 investiga- tions have reached some kind of formal outcome”36 Pattern and practice suit outcomes “fall into three categories: consent decrees, Memoranda of Agreement (‘MOA’), and Investigative Findings Letters.”37 Consent decrees and MOAs involve the appointment of monitors and impose requirements that police agencies reform the pattern of practices that led to widespread constitu- tional violations.

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Investigative Findings Letters are far more limited in scope, typically focusing on one issue or a narrow range of issues; they are advisory only, and no Independent Monitor is appointed to oversee implementation. Implementation of the recommen- dations contained in an Investigatory Finding Letter is entirely voluntary. Under the Bush Administration, the Special Litigation Section made greater use of Letters rather than consent decrees or MOAs, and to a large extent the investigation of law enforcement agencies virtually ceased.38

The initiation of a civil rights investigation of Maricopa County (Phoenix) Sheriff Joe Arpaio for “patterns or practices of discriminatory police practices and unconstitutional searches and seizures” by the DOJ may revive use of Section 14140 in the Obama administration. This pattern and practice investigation appears to be the first that is related to immigration enforcement.39 It seems significant that in 2000, Eric Holder, now the Attorney General, was one of the Justice Department lawyers “most responsible for forcing L.A. officials to sign a consent decree requir- ing reforms to end the LAPD’s ‘pattern and practice’ of violating people’s civil rights.”40

Most Section 14141 settlements impose requirements in three areas: police “training; the receipt and investigation of referrals and complaints concerning improper police behavior; and the development and maintenance of an early warning system.”41 Early intervention systems are deemed one of the most important new management tools for monitoring officer performance,42

because instead of waiting for misconduct to become egregious and then reacting punitively, they proactively monitor officer behavior and seek to correct the behavior of officers who accumulate a disproportionate number of complaints.43

A few evaluations of complete pattern and practice suits have suggested success in some departments in reducing inappropriate police behavior. A successful conclusion in Pittsburgh shows that “a pattern or practice suit can be an effective instrument for enhancing police accountability.” Success, however, depends on leadership by the chief, having a meaningful implementation plan, and a process that in fact changes the culture of a department away from one that tolerates misconduct.44 There is also a concern with sustaining positive changes where they had occurred. For example, after the successful implementation of a consent decree in Pittsburgh, the city cut 22 percent of its officers in a budget crisis, and a new mayor elected with the support of the police union that opposed the pattern and pracice suit fired the police chief who had successfully implemented it.45 Despite these caveats, the pattern and practice suit remains the most promising vehicle for ensuring that police departments adhere to constitutional standards in law enforcement. Indeed, Walker and Macdonald recommend expanding the model by having the federal law adopted by states to allow pattern and practice suits under state Attorneys General.46

Although some jurists and scholars have argued that the remedies and administrative meas- ures described in this section are so effective that they can replace the exclusionary rule, a safer course suggests that the entire spectrum of remedies, including the exclusionary rule, is neces- sary to ensure that police comply with fundamental constitutional law and values.

THE FOURTH AMENDMENT

COMMON LAW ORIGIN The old English saying that “a man’s home is his castle” at first applied to protection against private intrusion, but from the 1600s onward came to mean legal protection of landowners against “promiscuous searches” by government officers47 This reflected the spread of the political and individual liberty in the eighteenth century, and came to a head in two famous British legal cases decided in the 1760s that influenced the Constitution’s framers. The first, the Writs of Assistance Case, was decided in colonial Massachusetts in 1761. Colonials protested against the issuance of writs of assistance, a type of general warrant authorizing a Crown official “to command the assistance” of a peace offi- cer or a nearby person to execute the writ. These were used to enforce hated revenue laws imposed on the colonies and passed by Parliament, and even to “impress” (i.e., kidnap) “able bodied men for service in the royal navy.”48 General warrants were issued by judicial or nonju- dicial government officials, did not require probable cause for a search, and “allowed officers to search wherever they wanted and to seize whatever they wanted, with few exceptions.”49 By the 1760s public opinion had turned against such warrants and searches, although British authorities continued to issue them.

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A customs officer in Massachusetts, petitioning for a new writ of assistance in 1761, was opposed by leading Boston merchants who challenged the legality of the application before the colony’s high court. James Otis, a leading attorney who represented the merchants, offered a learned and passionate argument: The law authorizing the writs of assistance “is against the fun- damental principles of English law” and is therefore unconstitutional and void. John Adams, a young attorney and future president of the United States, was deeply impressed by Otis’s argu- ment. In 1776, as a delegate to the Continental Congress and as a signer of the Declaration of Independence, Adams reflected that the movement for American independence began with the writs of assistance dispute. The Boston merchants lost their case, but the suit implanted the idea of challenging the state. As the unpopular writs continued to be used to generate revenue under Parliament’s Townshend Act (1767), they became a major source of friction that ultimately led to the Revolutionary War and overthrow of English control and the establishment of a republic that embodied the political ideals of the Enlightenment era and the Rule of Law.50

The second legal precedent arose from civil lawsuits against Crown officers following the political persecution of John Wilkes (1725–1797)—a British agitator, journalist, member of Parliament, and a critic of King George III—by the Crown. In 1763 Wilkes published a newslet- ter sharply critical of the royal government. The government retaliated by charging him with seditious libel, a serious political crime. An English secretary of state issued general warrants to officers to search for the newsletter and other writings. “Crown agents enforcing the warrants had unfettered discretion to search, seize, and arrest anyone as they pleased. They ransacked printer’s shops and houses, and arrested forty-nine persons, including Wilkes, his printer, pub- lisher, and bookseller. The officers seized his private papers for incriminating evidence after a thorough search; thousands of pages and scores of books belonging to persons associated with him were also seized.”51

Wilkes and colleagues charged in civil lawsuits that these general searches were illegal. The courts upheld Wilkes and his allies, finding that the searches were not authorized by law and were excessive. As a legal remedy, officers of the Crown could be sued, even though the king, as sovereign, was personally immune from lawsuit. “[T]he government paid a total of about 100,000 pounds in costs and judgments” in all of the lawsuits arising out of the Wilkes affair, an enormous sum at the time.52 The most important case was Entick v. Carrington (1765).53 Lord Camden, chief justice of the Court of Common Pleas, demolished every govern- ment argument supporting the legality of the warrants. He ruled that (1) general warrants were not authorized by act of Parliament or by case law; (2) that general warrants to search for papers were not like specific search warrants for stolen goods; and (3) that although the government had issued such warrants since the Glorious Revolution of 1688, that fact does not make the warrants legal “simply through long usage” or the previous silence of the courts. The court firmly rejected the blatantly political argument (4) that the needs of the state took precedence over individual rights: “Political policy is not an argument in a court of law.”54 Lord Camden stressed that the case was of constitutional importance—it upheld the liberal “social contract” political theory, which stressed that a primary function of government is to protect the property of individuals.

These cases laid the foundation of the Fourth Amendment. Illegal searches and seizures and general warrants violated core principles for which the revolutionaries fought for independence: privacy of the home, individual liberty, and the Rule of Law above the executive power of the state. As the American states wrote new constitutions in the years during and after the Revolutionary War (1776–1781), they included prohibitions on general warrants.55 This reflected the evolving com- mon law that had in effect outlawed general warrants in Entick and culminated in the Fourth Amendment. Tellingly, when Representative James Madison presented his draft of the Bill of Rights to the First Congress in 1789, what came to be the Fourth Amendment, with the novel phrase “unreasonable search and seizure,” drew heavily on the Massachusetts provision, written by none other than John Adams, the young lawyer present in 1761 in the Boston courtroom where James Otis inveighed against writs of assistance, and now vice president of the United States.

The Fourth Amendment was silent about remedies for search and seizure violations. As will be explained shortly, the conditions of the time made it seem unlikely that violations would be common. The precedent of Entick v. Carrington was that government searches of private property by officers without a warrant or with defective warrants or general warrants were ille- gal. A person whose privacy rights under the Fourth Amendment were violated could sue govern- ment officers and recover damages. Although a rule had emerged in English and American

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common law courts at that time excluding coerced confessions, there was no common law rule excluding the use of illegally seized evidence from a criminal trial.

FOURTH AMENDMENT STRUCTURE The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. (U.S. Const. amend. IV)

The Fourth Amendment did not simply outlaw “general warrants” in specific terms, although that was its original motivation. The modern interpretation, stated in many cases, is that the amend- ment contains two clauses: the Reasonableness Clause and the Warrant Clause. Under this con- struction, the ultimate test of constitutionality of any search or seizure is whether it is reasonable. Not all searches have to be authorized by a judicial warrant. If a search or arrest warrant is required, then it must meet the particularity requirements stated in the Warrant Clause.

Conservative and liberal justices and scholars strongly disagree about the relative impor- tance of the Warrant Clause. Conservative jurists apply a general-reasonableness construction that establishes a balancing test to determine if search and seizures are proper without a warrant; this comes close to saying that search warrants are not actually required by the Fourth Amendment. This construction has gained ground in recent decades and allows the Court to give police greater leeway to search and seize without prior judicial authorization.

The more traditional warrant-preference construction, favored by liberal jurists, holds that warrantless searches and seizures are presumptively unreasonable. A narrow group of search warrant exceptions, which goes back to the common law, is allowed under this interpreta- tion: entries in hot pursuit, the search of mobile vehicles, and a “search incident to arrest” (the search of a person who has just been arrested). All modern legal thinkers, whether favoring the general-reasonableness or the warrant-preference approach, agree on this two-clause way of understanding the Fourth Amendment.56 Indeed, until the recent findings of historians, they believed that the Framers intended this two-clause construction.57 More recent studies conclude that the original intent of the Fourth Amendment’s Framers and ratifiers was to prevent Congress from authorizing general warrants and to ban judges from issuing them—nothing more.58

This interpretation threatens the more conservative view but is unlikely to overthrow the Court- established two-clause interpretation.

This seemingly arcane historical debate offers a lesson on constitutional interpretation. The idea that the Fourth Amendment has two discrete clauses, not easily inferred from its obscure text, is a modern invention. Pressing needs of modern law enforcement to allow a vari- ety of warrantless arrests are so great that modern commentators have “read back” the two- clause understanding of the Fourth Amendment to color their perceptions of the Framers’ intent. Why were the Framers not concerned about warrantless searches by police officers? The answer is simple. As Professor Thomas Davies notes, there were no police officers in 1791—at least not in the modern sense. Constables were few, were viewed as untrustworthy, and had no discretion to make warrantless arrests or probable cause searches in the late colonial era or at the time of the framing.59 Like any citizen, a constable could lawfully arrest or search only if the arrestee in fact committed the crime or if contraband was actually found. The constable could not act on suspi- cion or probable cause, as police officers now do; if the constable was wrong, he would be sued for false imprisonment or trespass. Thus, misconduct by an officer was seen not as official mis- conduct, but as personal wrongdoing. The government therefore never committed a wrongful arrest or search, and officers who made arrests or conducted searches almost always did so under the authorization of a warrant. “[F]raming-era common law never permitted a warrantless officer to justify an arrest or search according to any standard as loose or flexible as ‘reasonableness.’”60

There was, consequently, no proactive policing at this time and no need to justify warrantless searches under the Fourth Amendment.

The needs of modern society eroded the original understanding and its tight rein on official discretion. The Supreme Court began to erect modern Fourth Amendment law in the late nineteenth and early twentieth centuries, when municipal police forces first became routine. The Court recognized police discretion, but shifted its locus of control from the warrant to the

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exclusionary rule. Organized police departments are so actively involved in performing warrant- less arrests, stops, and searches that any Court that took Fourth Amendment values seriously would inevitably attempt to provide reasonable controls. Virtually none of the hundreds of Supreme Court Fourth Amendment cases deal with issues of general warrants. Indeed, the Supreme Court seems to have authorized, even required, general warrants for administrative searches (e.g., Camara v. Municipal Court, 1967, discussed in Chapter 3).

The historical debate is relevant because the Supreme Court (or at least some of its jus- tices) purports to base its jurisdiction and the legitimacy of its decisions on being true to “the intent of the Framers.” If the justices are mistaken regarding the intent of the Fourth Amendment, the body of law they have created comes into question. Worse still, the Framers’ intent that con- stables have absolutely no authority to act “reasonably” when interfering with a person’s liberty or privacy, and must instead be strictly controlled by judicial warrant, threatens the constitution- ality of modern law enforcement. Much depends on the philosophy of judging held by members of the Court. Ironically, it is Justices Antonin Scalia and Clarence Thomas who most vocifer- ously claim that their decisions are guided by the original intent of the Framers who would seem most likely to be swayed by Davies’s “authentic” reading of the Fourth Amendment; this, how- ever, would conflict with their conservative crime control policy orientation. In fact, in most major cases the justices are guided by societal needs, whether or not they openly admit it, and have not been distracted by recent historical interpretation.61

Two points need be emphasized. First, some changes to Fourth Amendment doctrines may occur if the “authentic” understanding of the amendment is accepted, making it important to understand the underlying reasons for doctrines rather than simply memorizing the rules. Second, however, the large body of constitutional law is kept fairly stable by the operation of stare decisis, and it is unlikely that there will be a wholesale revolution in Fourth Amendment law. For that reason, the text presents the standard two-clause understanding of Fourth Amendment law, based primarily on the analysis of Supreme Court decisions.

THE FOURTH AMENDMENT EXCLUSIONARY RULE

Development of the Exclusionary Rule, 1886–1921

Court challenges against government misconduct became possible only with the advent of con- stitutional monarchies and republics in the Age of Enlightenment that recognized individual lib- erties. In the common law, as represented by Entick v. Carrington (1765), criminal defendants could not exclude physical evidence that was seized during illegal searches from their trials, even though an exclusionary rule for coerced confessions originated at this time. This lack of a com- mon law exclusionary rule is reflected in the Fourth Amendment’s text, which offers no remedy for illegal search and seizures committed by the state. Nevertheless, the Supreme Court estab- lished an exclusionary rule by constitutional interpretation, as it has done in many other areas. Few Fourth Amendment cases were decided by the Supreme Court in the nineteenth and early twentieth centuries, but these cases were sensitive to the Fourth Amendment’s civil liberty val- ues. Ex Parte Jackson (1878), for example, stated in dictum that postal authorities could not open sealed letters sent through the mails without a warrant. Although in the major case of Boyd v. United States (1886) the Supreme Court did suppress the use of evidence obtained illegally by federal customs authorities, it did not establish a clear Fourth Amendment exclusionary rule.

Boyd was an odd case. There was no actual search and seizure; instead, a subpoena was issued to E. A. Boyd & Co. to turn over an invoice on cases of imported glass to determine whether proper customs taxes had been paid (penalties included forfeiture, imprisonment, and fine). If the invoice was not produced, a court could presume it proved the defendant’s guilt. Boyd challenged the subpoena and the Supreme Court agreed that the law authorizing the order was unconstitutional and void under the Fourth Amendment and the Fifth Amendment privilege against self-incrimination together. “In this regard the Fourth and Fifth Amendments run almost into each other.” The Court reasoned that the Fourth Amendment could be violated even though an actual, physical search had not taken place, as long as the government intruded on the defen- dant’s “indefeasible right of personal security, personal liberty and private property,” which was the real concern of the amendment. This is no longer good law: a subpoena does not violate the Fourth Amendment. However, by conflating the Fourth and Fifth Amendments, Boyd implied that the Fifth Amendment exclusionary rule (see Chapter 7) applied to the Fourth Amendment as

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well. In fact, Boyd did not establish a stand-alone Fourth Amendment exclusionary rule. But its rhetoric, drawing on the lessons of Entick v. Carrington and extolling “the sanctity of a man’s home and the privacies of life,” placed the Court firmly in the position envisioned by the Founders as in James Madison’s speech to Congress in 1789, introducing the adoption of the Bill of Rights: to act as an “independent tribunal of justice” and a “guardian” and “impenetrable bul- wark against every assumption of power in the legislative or executive” branches, to uphold the “great rights of mankind.”62

The Supreme Court moved hesitantly toward the exclusionary rule. It affirmed the tradi- tional rule in Adams v. New York (1904), saying that “courts do not stop to inquire as to the means by which the evidence was obtained.” Allowing the introduction of illegally seized evidence while maintaining the Boyd exclusionary rule suggested that the Court felt exclusion required some element of self-incrimination. This changed radically in Weeks v. United States (1914), which adopted a straightforward Fourth Amendment exclusionary rule not tied to the Fifth Amendment privilege against self-incrimination. Fremont Weeks was arrested by local police without a warrant at his place of work; at the same time, a U.S. marshal entered Weeks’s home without a warrant and “carried away certain letters and envelopes found in the drawer of a chif- fonier.” Weeks’s demand for the return of incriminating papers before trial was denied. He was convicted in federal court for using the mails to transport lottery tickets. The Supreme Court held that all evidence seized without warrant violated the Fourth Amendment and had to be returned; it could not be used against the defendant to prove his guilt. Its language was expansive, protec- tive of individual privacy, and made exclusion a constitutional rule:

The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, . . . should find no sanc- tion in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. (Weeks v. United States, 1914)

The exclusionary rule was limited to federal law enforcement only. Weeks firmly tied the remedy of exclusion to the constitutional right, making it a part of the Constitution. A deterrence ration- ale was also hinted at: “If letters and private documents can . . . be seized and held and used in evidence against a citizen accused of an offense [as in this case], the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”

The constitutional basis of the exclusionary rule was confirmed and strengthened in Justice Oliver Wendell Holmes’s opinion in Silverthorne Lumber Co. v. United States (1920). Frederick W. Silverthorne and his father were indicted for a federal crime and arrested at home while federal agents entered their business offices without a warrant and took business docu- ments. The district court agreed with the defendants’ contention that their Fourth Amendment rights were violated and, on their demand, ordered the documents returned. Before complying, the government photographed the documents and used these copies to get a subpoena for the originals. Silverthorne refused to comply with the subpoena. The district court found that the documents had originally been seized illegally but nevertheless ordered Silverthorne to comply with the subpoena. Silverthorne refused, the company was fined, and he was ordered jailed until he turned over the original documents.

The Supreme Court reversed the lower court’s judgment. In Holmes’s words, to allow the government to seize evidence in violation of the Fourth Amendment, and then use the knowledge gained by that wrong to obtain the evidence “legally,” “reduces the Fourth Amendment to a form of words.” Therefore, “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” This is the crux of one exclusionary rule theory that will be addressed

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later in this chapter: The government cannot profit from its illegal action. As Professor William Heffernan notes, this “no use” rule was fully rights-based and went further than the scope of the exclusionary rule established in 1974, which allows illegally obtained evidence to be used in a variety of legal arenas (see “Undermining the Exclusionary Rule” section).63

Holmes added an important exception to the exclusionary rule: “Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” These rules later became known as the “fruits of the poisonous tree” doctrine and the ‘independent source exception’. The rationale is that government violation of a defendant’s Fourth Amendment rights does not lead to a windfall in the guise of the dismissal of the case. The government can use other evidence to convict, if that evidence is obtained by legal means.

Gouled v. United States (1921) filled out the law on the development of the exclusionary rule. It first held that the Fourth Amendment is as much violated by a “fraudulent” entry into a home or business office as by a forcible entry. In this case, a government investigator who hap- pened to know Gouled, a fraud suspect, pretended to make a friendly call on Gouled at his busi- ness office. While Gouled was out of the room, the investigator furtively took incriminating papers. The Court ruled that the admission of these papers violated the Fifth Amendment privi- lege against self-incrimination, thus continuing to conflate the Fourth and Fifth Amendments when papers that communicated a person’s state of mind were in question.

In this case, search warrants were issued to seize papers that were not the direct fruits of crime but were only evidence of Gouled’s fraudulent conspiracy. The Court elevated a common law rule, known as the “mere evidence rule,” part of the Fourth Amendment exclusionary rule, by holding that these papers could not be admitted into evidence. The theory was that property that was not itself a part of the crime (as opposed to items such as stolen goods, the document on which a fraud was based, weapons, or burglar’s tools used to commit a crime) could not be seized. The mere evidence rule demonstrates that the Court saw Fourth Amendment rights as essentially resting on property rights. The government simply could not seize evidence (other than contraband) owned by the suspect, even temporarily and even though it could be used to prove the suspect’s guilt. The Court eventually dropped this rule in Warden v. Hayden (1967), one of a series of cases that shifted the conceptual basis of the Fourth Amendment from a prop- erty to a functional basis.

State Action Doctrine

In general, the Constitution protects people from the excessive action of government officers that threaten individual liberties and the Rule of Law. By analogy, the criminal law protects people from criminal harms committed by private persons and institutions; an ordinary crime is not a constitutional violation. As a result, the Fourth Amendment and the exclusionary rule apply only to evidence illegally seized by the government. When a private party turns over evidence to a prosecutor, courts follow the common law rule and do not ask about the source of the incriminat- ing evidence, even if obtained by a civil trespass or a burglary (Burdeau v. McDowell, 1921). In legal terms, the Fourth Amendment applies only when there is state action. State, or government, action also exists when a private person acts as a proxy for or at the direction of the police. Evidence illegally seized by a private person acting as a proxy for the government is not admis- sible. Although this is the law, the Constitution does prohibit some private action, such as the holding of slaves (U.S. Const. Amd., XIII). The state action doctrine was injected into the law in the Civil Rights Cases (1883) as part of a strategy to prevent the expansion of the civil rights of African Americans.64 In general, the state action doctrine favors the prosecution.

The initial seizure by a private party does not mean that a police agent can proceed without obtaining a warrant. When a private individual turns suspicious items over to police, they may subject the items to only minimal investigation before requesting a search warrant. In Walter v. United States (1980), a box with pornographic videos was mistakenly sent to a company, which turned it over to the FBI. Without obtaining a warrant, agents screened all of the films to deter- mine their content. This screening was held to be state action, and the evidence was inadmissible because it constituted an investigation into an area of privacy. The labels on the outside of the film boxes created probable cause of the films’ content, and a further search had to be authorized by a search warrant. To the contrary, in United States v. Jacobsen (1984), Federal Express employees

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opened a suspiciously wrapped package, discovered white powder, and turned it over to federal Drug Enforcement Administration (DEA) agents. The agents chemically “field tested” the powder and found it to be cocaine. The action by the FedEx employees was not state action. The warrant- less examination by DEA agents was held proper because it was not a significant expansion of the earlier private search. The agents later obtained a warrant and the evidence was admissible.

The state action doctrine applies to searches conducted by any government officer, not just by police officers acting for law enforcement purposes. Searches by public school teachers, pub- lic hospital supervisors, probation officers, municipal building inspectors, Occupational Safety and Health Administration (OSHA) inspectors, federal mine-safety investigators, municipal fire department investigators, and customs agents must adhere to Fourth Amendment rules. Illegal search and seizures by these personnel require the exclusion of evidence. This branch of search and seizure law comes under the “special needs beyond normal law enforcement” doctrine, with lower standards for valid searches (see Chapter 5).

PRIVATE SECURITY PERSONNEL Is a detention or search by a private security agent state action? The issue arises in federal civil lawsuits (under 42 U.S.C. § 1983, discussed earlier in this chapter) alleging that security personnel have violated a person’s civil rights while acting “under color of state law.” The Supreme Court has not decided this issue (Flagg Bros. v. Brooks, 1978). Lower federal courts have ruled that private police are state actors “when the state delegates a public function to a private entity.”65

Privately employed railroad policemen who brutally beat vagrant trespassers, and private security personnel at a Chicago hospital who detained a person, were held liable under the fed- eral civil rights lawsuit as “state actors.” The reason is that legislation gave them the powers of regular police officers. They were known as “special police officers,” were licensed by the city, underwent background checks, wore “suitable badges” issued by the superintendent of police, and conformed to police officer regulations.66

On the other hand, security guards at a private mall who exercised no “police powers” were held not to be state actors.67 Similarly, a private security guard hired by a Chicago public housing agency who shot a person in the groin was not a state actor. The housing authority did have a pri- vate police force with police powers, but this guard was a contract person and not part of the pri- vate police force. Although the guard was in uniform and armed, he was assigned specifically to guard lobbies and had no authority to act outside the lobby of the assigned building.

A grandmother was arrested by security guards in a Detroit casino for taking a token worth five cents from the tray of an abandoned slot machine. She was banned from the casino and ejected forthwith. In a federal civil suit against the casino, the district court held that the security personnel acted under “the color of state law.” Under Michigan law, an employer may either maintain private security guards in order to protect its property or may employ private security police. The casino’s licensed private security police met state training requirements and, when working on the employer’s property, had the same authority to arrest a person with- out a warrant as a municipal police officer. Private guards, on the contrary, did not come under state action because they only had the same right as private business owners to protect their property; at most they could temporarily detain an individual clearly stealing something.68 In this case, the officers detained the grandmother, displayed handcuffs, photographed her, obtained personal information, including her Social Security number, and banned her from the casino for six months.

The enormous growth of the private security industry has led some to question the general rule that arrests and searches by private security agents are not state action. Critics would extend the Fourth Amendment exclusionary rule to unreasonable searches and seizures commit- ted by private security personnel.69 For others, the issue is not clear-cut, and the state action doc- trine is a poor way of ascertaining the liability of security personnel. Meanwhile, the issue has become more urgent with the expansion of the private police role in protecting the nation against terrorism.70

“Fruits of the Poisonous Tree” Doctrine—Derivative Evidence

Silverthorne v. United States (1920) added a necessary corollary to the exclusionary rule: Secondary or addition evidence (the “fruits”) derived from evidence obtained in illegal search and seizure (the “poisonous tree”) is not admissible. Were such derivative evidence admissible,

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police officers could violate Fourth Amendment rights with impunity and then, after the original evidence is excluded, use information gained from the illegality to get a “legal” search warrant.

The derivative evidence rule reflects the axiom that under the Fourth Amendment, justification for searches must be provided prior to the search. Retroactive justification turns the amendment into a sham. An example is the per curiam decision of Smith v. Ohio (1990).71 Two plainclothes police officers, without a warrant and without probable cause or reasonable suspi- cion, stopped Smith while he was exiting a convenience store carrying a brown paper grocery bag marked with the store’s logo. The officers identified themselves, and Smith put the sack on the hood of his car. Smith did not answer a question about the bag’s content and tried to push an officer’s hand away as he opened the bag. Drug paraphernalia was found. Smith was arrested. His conviction was reversed by the Supreme Court. The search was not justified on any Fourth Amendment ground—neither as a self-protective Terry stop, nor as abandoned property. There could be no search incident to arrest—indeed, in Smith, the arrest occurred after the search. The obvious point is that the police simply cannot search whatever they choose and then make a “legal” arrest or seizure if their hunch or baseless action turns up contraband. If they could, the Fourth Amendment would be worthless. The exclusionary rule is essential to prevent this or the police could take their chances and search people who would not be likely to sue or win lawsuits against the police.

The Silverthorne derivative evidence rule is called the “fruits of the poisonous tree” doc- trine in a metaphor penned by Justice Felix Frankfurter in Nardone v. United States (1939): What is excluded is not only the illegally seized evidence (the “poisonous tree”), but also other evi- dence derived from the illegally seized evidence (the “fruits”). Allowing the use of derivative evi- dence would create a rule “inconsistent with ethical standards and destructive of personal liberty.” The Court in Nardone excluded not only the exact words overheard in a wiretap that vio- lated a federal statute but also any information derived from the overheard conversations.

Silverthorne and Nardone recognize, however, that the exclusionary rule, including the exclusion of derivative evidence, is not a windfall to the defendant—it does not lead to an auto- matic dismissal of charges or to a prohibition on the use of other, properly obtained, evidence. The Supreme Court has recognized three exceptions to derivative evidence exclusion: (1) evi- dence obtained from an independent source, (2) inevitable discovery, and (3) attenuation. One case noted that the inevitable discovery exception is an extrapolation of the independent source exception (Murray v. United States, 1988).

INDEPENDENT SOURCE EXCEPTION The Supreme Court has allowed illegally seized evidence when the evidence was obtained in a constitutional manner that was entirely uncon- nected to the illegality—that is, from an independent source. In Segura v. United States (1984), a group of police officers illegally entered Segura’s apartment and saw incriminating evidence in plain view. A search warrant was later obtained based on information developed before the illegal entry took place. The Supreme Court excluded the evidence in plain view during the illegal search but allowed use of evidence obtained under the search warrant because it was independent of the illegal entry. In Murray v. United States (1988), police ille- gally entered a warehouse and saw suspicious bales believed to contain marijuana. This illegal entry was not mentioned in an affidavit for a search warrant. Nevertheless, the Court allowed the use of evidence obtained under the warrant because it was lawfully issued on the basis of other competent evidence.

INEVITABLE DISCOVERY EXCEPTION Illegally seized evidence is admissible if it would have been inevitably discovered independently of the unconstitutional action. Brewer v. Williams (1977, known as Williams I) held that evidence of a murdered girl’s body was excluded because it was discovered based on an unconstitutional interrogation (a so-called Christian burial speech; see Chapter 7). On retrial, Williams’s confession was excluded, but the location of the dead girl’s body was introduced into evidence. In Nix v. Williams (1984, known as Williams II), the Supreme Court held that this evidence was properly introduced because a search party was within two and a half miles of the body when it was found. Members of the search party were instructed to look into culverts (where the body was placed) and would have covered the area where the body was located. Thus the body would inevitably have been found, whether or not the defendant divulged its location to the police.

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The motivations of the police who improperly took the confession were irrelevant to the Fourth Amendment issue.

ATTENUATION EXCEPTION Evidence derived from an illegal or unconstitutional source is admissible when, for some reason, the link between the initial illegality and the evidence sought to be introduced has become so weak or tenuous that the “fruits” have become “untainted.” In Nardone, Justice Frankfurter wrote: “Sophisticated argument may prove a causal connection between information obtained through illicit wiretapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”

Wong Sun v. United States (1963) explicates the attenuation doctrine. Six or seven nar- cotics officers illegally entered the San Francisco apartment of James Wah Toy behind his laun- dry shop at 6 A.M., looking for drugs. They rousted the inhabitants and questioned Toy. No drugs were found, but Toy named some people whom the agents questioned about drug dealing, includ- ing Wong Sun. The Supreme Court excluded from evidence an incriminating statement made by Toy as well as confessions and drugs obtained from a person questioned immediately after the raid on Toy’s apartment because this evidence was derived from the illegal entry into Toy’s apart- ment (i.e., “fruit of the poisonous tree”). Wong Sun was arrested but then released; a few days later, he returned voluntarily and made an incriminating statement. The Court held that this vol- untary statement was admissible because the connection between the arrest and the statement had “become so attenuated as to dissipate the taint.” The test for determining whether attenuation exists is this: “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Attenuation issues arise when a “proper,” Mirandized, confession is made after an illegal arrest. The fact that Miranda warnings are given does not automatically break the link between the illegal arrest and a resulting confession, nor does the passage of two hours between the ille- gal arrest and the confession attenuate the illegality (Brown v. Illinois, 1975). To make Miranda warnings a “cure-all” for illegal police action would encourage illegal arrests and would dilute the effectiveness of the Miranda exclusionary rule. Likewise, a six-hour delay between an illegal arrest and a confession, followed by a ten-minute meeting between the defendant and friends, did not attenuate the initial illegality despite three Miranda warnings (Taylor v. Alabama, 1982).

On the contrary, a confession following an illegal arrest was allowed into evidence in New York v. Harris (1990). Police illegally arrested Harris at his home without a warrant, read Miranda warnings, and obtained a confession in the house. Taken to the police station, Harris again was read his rights, signed a waiver form, and confessed. The first confession was sup- pressed as the fruit of an illegal police action: entry into the home without a warrant when no exi- gency existed (Payton v. New York, 1980). But the Court held the station house confession to be admissible. The Court ruled that because Harris was legally in custody because an illegal arrest does not deprive the court of jurisdiction to try the suspect. Therefore “the statement, while the product of an arrest and being in custody, was not the fruit of the fact that the arrest was made in the house rather than somewhere else” (New York v. Harris, emphasis added). The Court did not apply attenuation analysis but rather saw the case as a straightforward example of evidence not being the “fruit,” or actual result of, a prior illegal police action. The 5–4 decision in Harris may be explained by the hostility of a growing conservative majority on the Court toward the exclu- sionary rule. The majority, however, distinguished the facts of Harris from those of Brown and Taylor because in Harris, the police had probable cause to arrest the defendant, unlike the earlier cases. The opinion said that excluding the first confession vindicated the rule that made in-home arrests without a warrant unconstitutional, but as for allowing the second confession, “it does not follow from the emphasis on the exclusionary rule’s deterrent value that ‘anything which deters illegal searches is thereby commanded by the Fourth Amendment’” (New York v. Harris, 1990).

Determining whether the original illegality has become attenuated is not found by apply- ing mechanical rules. It depends on whether, considering the totality of the circumstances, the questioned evidence in the case would have been discovered had not the original violation taken place. If the subsequent evidence is considered to be independent of the original “tainted” search and seizure, then it can be used against the defendant in court. In United States v. Ceccolini (1978), a police officer, without any design to investigate gambling, discovered betting slips in the defendant’s flower shop by improperly looking into an envelope with cash sticking out located behind the customer counter. Ceccolini denied that gambling occurred in his place of

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business to a grand jury, but was convicted of perjury after an employee testified about illegal gambling at his shop. The Court of Appeals, ruling that the employee’s statement was the fruit of the officer’s original unconstitutional search, excluded the testimony. The Supreme Court reversed. The link between the search and the witness’s testimony had become so attenuated that the testimony could no longer be considered to be caused by the officer’s unconstitutional act. The Court relied on a variety of facts: Federal officials previously had the shop under suspicion and observation; several months passed between the officer’s telling the FBI about the slips and the initial questioning of the employee; the witness was in no way coerced or induced to testify, but did so for honorable motives; the betting slips were not used in the questioning of the wit- ness; and the officer had no intent to investigate gambling. In this case, the Court also felt that the deterrent effect on police misconduct of excluding the evidence would be very limited.

The Movement to Incorporate the Exclusionary Rule, 1949–1963

Shortly after Adamson v. California (1947), the Supreme Court considered incorporating the Fourth Amendment and its exclusionary rule into the Fourteenth Amendment, making them applicable to the states. (See Chapter 1.) In Wolf v. Colorado (1949), authorities in Denver received “definite information” that Dr. Wolf had performed an abortion. Sheriff’s deputies under the district attorney’s instruction “went to the office of Wolf without a warrant and took him into custody and there they took possession of . . . his day books of 1944 and 1943 up to the time of the arrest. They were records of patients who consulted him professionally.” The records were introduced in evidence and used to convict Dr. Wolf, who received a twelve- to eighteen- month prison sentence. The Colorado Supreme Court held the evidence admissible, although the search was illegal.72 Had this been a federal search, it would have violated the Fourth Amendment, and the evidence would have been ruled inadmissible under the Weeks exclusionary rule. The Fourth Amendment, however, did not bind local or state police and courts at that time. The U.S. Supreme Court held, in an opinion by Justice Frankfurter, that (1) the Fourth Amendment is “incorporated” but (2) the exclusionary rule is not “incorporated.” That is, “in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure” (Wolf v. Colorado, 1949). As to the first holding, Justice Frankfurter dismissed the idea of “total incorporation” as one that had consistently been rejected by the Supreme Court in many cases. Turning to “selec- tive incorporation” under the Due Process Clause, Justice Frankfurter noted that due process encompasses rights that are basic to a free society. As a free society advances, so may its rights. To this conservative justice, therefore, the Constitution is a living document whose meaning evolves with society, instead of being immutable and unchangeable:

The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prel- ude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional doc- uments of English-speaking peoples.

Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. (Wolf v. Colorado, 1949)

This elegant language, interspersed among paragraphs that disparage the incorporation doctrine, incorporates the substance of the Fourth Amendment; that is, it forbids the states from creating rules that violate the Fourth Amendment. However, the Court’s majority refused to impose the exclusionary rule on the states via incorporation:

But the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions

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which spring from an allowable range of judgment on issues not susceptible of quan- titative solution.

In Weeks v. United States, this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. This ruling was made for the first time in 1914. It was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The deci- sion was a matter of judicial implication. Since then it has been frequently applied and we stoutly adhere to it. But the immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logi- cally relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue as to which men with complete devo- tion to the protection of the right of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. The contrariety of views of the States is particularly impressive in view of the careful reconsideration which they have given the problem in the light of the Weeks decision. (Wolf v. Colorado, 1949)

Justice Frankfurter emphasized that the basic Fourth Amendment right, now applicable against state as well as federal encroachment, was protected by the “remedies” of civil lawsuits in all states, whether or not they had adopted their own exclusionary rules. As of 1949, sixteen states had adopted the Weeks exclusionary doctrine as a matter of local law, while thirty-one had rejected it.

Justice Black, the leading proponent of incorporation, surprisingly joined the majority because he felt that “the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate”—that is, it is not a con- stitutional requirement. He managed to combine judicial activism with originalism—a seem- ingly incongruous combination. He agreed that the Due Process Clause incorporated the Fourth Amendment’s substance as a fundamental right. Limiting the Weeks exclusionary rule only to federal law enforcement, because it was absent from the Fourth Amendment’s text, necessarily meant that the majority viewed the exclusionary rule as based on the Court’s supervisory power and not as a constitutional rule. Whether or not inconsistent, Black’s position in Wolf would later create an anomaly in Mapp v. Ohio (1961) that he would have to explain away when he changed his position.

Three liberal justices, William O. Douglas, Frank Murphy, and Wiley Rutledge, dissented in Wolf, arguing for incorporating the exclusionary rule. They argued that civil lawsuits and crim- inal prosecutions against police and prosecutors are virtually never successful, especially if the person claiming an unconstitutional search has a criminal record. For all practical purposes, without exclusion the Fourth Amendment was a right without a remedy. Justice Murphy noted that police are carefully trained in the law of search and seizure in states with the exclusionary rule, whereas the subject was virtually ignored in states without it. “The conclusion is inescapable that but one remedy exists to deter violations of the search and seizure clause. That is the rule which excludes illegally obtained evidence” (Wolf v. Colorado, 1949).

Three years after Wolf, the Supreme Court in Rochin v. California (1952) did suppress evidence obtained in a state search and seizure, not via Weeks’s Fourth Amendment exclusionary rule, but under the more flexible due process rule of the Fourteenth Amendment. Los Angeles police officers, believing that Rochin was dealing drugs, invaded his home without a warrant, went up the stairs, and forced open a door to his bedroom.

Inside they found [Rochin] sitting partly dressed on the side of the bed, upon which his wife was lying. On a “night stand” beside the bed the deputies spied two cap- sules. When asked “Whose stuff is this?” Rochin seized the capsules and put them in his mouth. A struggle ensued, in the course of which the three officers “jumped upon him” and attempted to extract the capsules. The force they applied proved unavailing against Rochin’s resistance. He was handcuffed and taken to a hospital. At the direc- tion of one of the officers a doctor forced an emetic solution through a tube into

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Rochin’s stomach against his will. This “stomach pumping” produced vomiting. In the vomited matter were found two capsules which proved to contain morphine. (Rochin v. California, 1952)

The justices unanimously agreed that the evidence obtained by this outrageous police action was inadmissible, but for different reasons. Justice Frankfurter’s majority opinion avoided the Weeks automatic exclusionary rule. It relied instead on a due process exclusionary rule where the totality of the circumstances “shocked the conscience” of the appellate court. To him, the “shocks the conscience” test was an objective standard that would guide lower courts. Justice Douglas concurred in the decision but strongly disagreed with the ‘shocks the con- science’ test. As with any due process test that rests on the “totality of the circumstances,” the application of the rule could differ from one judge to another. As he saw it, unlike the “unequiv- ocal, definite and workable rule of evidence” of the Weeks exclusionary rule, the rule fashioned in Rochin “turn[s] not on the Constitution but on the idiosyncrasies of the judges who sit here” (Rochin v. California, 1952).

Justice Douglas’s criticism was proven true in Irvine v. California (1954). Local police, suspecting Irvine of illegal bookmaking, secretly entered his home and, without a judicial search warrant, wired the house for sound, including the bedroom. The police listened in on the private conversations of Irvine and his wife for weeks and testified to what they heard at Irvine’s trial. The overheard conversations were used to convict Irvine. Justice Robert Jackson’s majority opinion stated, “Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment” (Irvine v. California, 1954). Despite this, the Supreme Court upheld the use of this evidence. The Weeks exclusionary rule did not apply to the states, and the majority refused to apply the Rochin “shocks the conscience” test because the facts of Rochin included the element of coercion not found in the Irvine case. This was too much for Justice Frankfurter, who dissented on the grounds that Rochin did apply, arguing fruitlessly that “a State cannot resort to methods that offend civilized standards of decency and fairness.” The subjectivity of the ‘shocks the conscience’ test was exposed when the majority in Irvine did not find such a flagrant violation of Fourth Amendment privacy to “shock the conscience.” In a spirited dissent, Justice Douglas called again for incorporating the exclusionary rule, saying, “The search and seizure conducted in this case smack of the police state, not the free America the Bill of Rights envisaged.”

As the 1950s wore on, more states adopted the exclusionary rule by court action, most notably the California Supreme Court.73 The tide in favor of reversing Weeks was “halting but seemingly inexorable.”74 A harbinger of the exclusionary rule was the Court’s abolition of the “silver platter” doctrine. Soon after Weeks (1914), local and federal police began to practice end-runs around the exclusionary rule. If state or local police seized evidence of a federal crime by an illegal search and seizure, the evidence was admissible in a federal trial as long as the fed- eral officers did not participate in the illegal search. This, of course, put a premium on “pious perjury,” or winking at the truth.

The Supreme Court signaled its unhappiness with this in Rea v. United States (1956). The Court exercised its supervisory authority to prevent a federal narcotics agent, who illegally seized marijuana that was excluded from a federal prosecution, from testifying about the mari- juana in a state prosecution. This eliminated a federal-to-state “silver platter” (or “reverse silver platter”) delivery of tainted evidence. In Elkins v. United States (1960), the Supreme Court put an end to the state-to-federal transfer of illegally seized evidence, bringing the behavior of local police under the federal exclusionary rule. Justice Potter Stewart, writing for the majority (5–4), noted that Wolf v. Colorado’s (1949) holding that substantive Fourth Amendment rights applied against the states eroded the basis of the silver platter doctrine. The four dissenting justices com- plained that the Court was interfering with states’ rights. In reply, Justice Stewart wrote, “The very essence of a healthy federalism depends upon the avoidance of needless conflict between federal and state courts.” Thus, in states with state exclusionary rules, the ‘silver platter’ doctrine undermined state policy. Elkins was decided not on constitutional grounds but on “the Court’s supervisory power over the administration of criminal justice in the federal courts.” Nevertheless, Justice Stewart’s strong defense of the exclusionary rule, and its grounding in “the imperative of judicial integrity” foreshadowed the decision in Mapp v. Ohio (1961) and its basis as a constitutional rule.

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Incorporating the Exclusionary Rule: Mapp v. Ohio

The due process revolution of the 1960s, which incorporated a host of rights (see Chapter 1), was initiated by Mapp v. Ohio (1961). Although the movement is associated with a five-justice liberal majority of the Warren Court sitting from 1962 to 1969, the Mapp opinion was authored by Justice Tom Clark, who more often than not voted for the prosecution.

Dollree Mapp, an independent-minded African-American woman, was thirty-three years old in 1957. She had left an abusive husband and owned a house in the Shaker Heights neighbor- hood of Cleveland, Ohio, where she took in boarders. She had many friends in the professional prizefighting community and in illegal numbers gambling. The house of Don King (later a well- known boxing promoter), an acquaintance of Ms. Mapp, was bombed in May 1957. King told police he believed the bombers were involved in the Cleveland numbers racket. Days after the bombing an anonymous tip informed police that a suspect, Virgil Ogletree, was at Ms. Mapp’s house. Police showed up at 1:30 p.m. and spotted Ogletree’s car. Mapp refused the entry of police detectives into her home. The police waited. Mapp caller her lawyer, who told her that they could enter only if they had a search warrant. A standoff continued until 4:30 p.m. Just as Mapp’s lawyer arrived at the house, police forced their way in through the front door. The lawyer asked if they had a warrant but never got a satisfactory answer. He tried to enter the house but was kept out by the police. Inside the house, an officer waved a paper as if it were a warrant. Mapp grabbed it and “put it down the front of her dress.” An officer retrieved it after a scuffle with Mapp. For the next hour Mapp was handcuffed while the police searched every nook and cranny of her house. Ogletree was found and arrested in the apartment of Minerva Lockheart, a renter. In the basement a trunk was found with “policy paraphernalia” and books thought to be obscene that belonged to a former tenant, Morris Jones. Nevertheless, Mapp was arrested and later convicted for possession of obscene literature. A search warrant was never obtained. Her case got to the Supreme Court as a First Amendment obscenity issue. By a narrow majority, how- ever, the Court decided to treat it as a Fourth Amendment case.75 The Ohio courts acknowledged that the books were unlawfully seized during an unlawful search of her home but still allowed the evidence to be used, relying on Wolf v. Colorado.

The majority opinion in Mapp v. Ohio (1961) overruled that portion of Wolf holding that the Weeks exclusionary rule applied only to federal prosecutions and not to the states. Under Wolf, the exclusionary rule was necessarily created by the Court’s supervisory authority over fed- eral law enforcement, and was not in itself a fundamental right under the Due Process Clause that would have made it a constitutional rule binding on the states under an “incorporated Fourth Amendment.” Justice Clark’s majority opinion changed this. “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court” (Mapp, emphasis added). The Fourth Amendment exclusionary rule was now incorporated into the Due Process Clause, applicable to state prosecutions as “part and parcel” of the Fourth Amendment. Considering that the language of Weeks grounded the exclusionary rule in the Constitution, Mapp could be viewed as returning the rule to its proper constitutional status after being demoted by a Court too unsure about incorporation in 1949.

This however, is not the end of the story. A scant thirteen years after Mapp, a changed and conservative Court went back to viewing the exclusionary rule not as a constitutional rule or a private right of a defendant but as a device to “deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures” (U.S. v. Calandra, 1974). Calandra began a train of cases the have continued, until Herring v. United States (2009), to whittle away the scope and effectiveness of the exclusionary rule. Thus, a student who looks to the Supreme Court as a rock of doctrinal stability ought to consider that from 1914 to 1949 the Court, under Weeks, saw the exclusionary rule as a constitutional require- ment. Yet, from 1949 to 1961, under Wolf, the exclusionary rule lost its constitutional status. Its constitutional status was regained in Mapp v. Ohio, and the rule was “part and parcel” of the Fourth Amendment from 1961 to 1974. Yet in 1974 to the present, the Court’s majority has treated the exclusionary rule as essentially nonconstitutional, but constitutional enough for fed- eral courts to apply it to the states in flagrant cases. As late as 2009, almost a century after Weeks, the Court split 5–4 over its view of the exclusionary rule in Herring.

To return to Mapp, the Court supplied a number of reasons for incorporating the Fourth Amendment exclusionary rule. First, it viewed Weeks (1914) as resting firmly on constitutional grounds: “the Court in that case clearly stated that use of the seized evidence involved ‘a denial

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of the constitutional rights of the accused,’” and “the plain and unequivocal language of Weeks— and its later paraphrase in Wolf—to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed.” Next, the Mapp majority agreed with the conclusion of Weeks and the concerns of liberal justices from the 1940s onward that the exclusionary rule was the only way to effectively protect individuals’ Fourth Amendment rights. Third, it took the position, grounded in Boyd, that when interpreting the Bill of Rights and other individual liberties, it “is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Fourth, it suggested that the holding of Wolf, incorporating the substance of the Fourth Amendment, weakened the nonapplicability of the exclusionary rule. Fifth, it noted a shifting trend in the states that undermined the factual basis of Wolf: Prior to Wolf in 1949 “almost two-thirds of the States were opposed to the use of the exclusionary rule” but more than half of the states adopted the rule by state legislative or judicial decision. Sixth, the discarding of the silver platter doctrine weakened opposition for the exclusionary rule and put the states and the federal government on an equal footing, which strengthened a “healthy feder- alism” and federal–state law enforcement cooperation. Finally, the decision rested on the Rule of Law and the nonutilitarian role of courts as guardians of liberty:

There are those who say, as did Justice (then Judge) Cardozo, that under our consti- tutional exclusionary doctrine “the criminal is to go free because the constable has blundered.” People v. Defore, [N.Y. Court of Appeals, 1926]. In some cases this will undoubtedly be the result. But, as was said in Elkins, “there is another considera- tion—the imperative of judicial integrity.” The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own exis- tence. (Mapp v. Ohio, 1961)

A curious feature of the majority ruling was its awkward reliance, in part, on the idea in Boyd (1886) that the exclusionary rule was based in part on the Fifth Amendment privilege against self-incrimination, which is an exclusionary rule. This was done essentially to garner Justice Black’s concurrence. Black, a leader of incorporation, had nevertheless joined the major- ity in Wolf (1949) based on his textualist philosophy that the exclusionary rule was not a consti- tutional rule because it was not included in the amendment’s text. He explained his switch in Mapp by saying he was “still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence” of items seized “in violation of its commands.” Upon “reflection,” he concluded “that when the Fourth Amendment’s ban against unreasonable searches and seizures is considered together with the Fifth Amendment’s ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule.” Thus, a majority for partially overruling Wolf was achieved. It could be argued that only a plurality supported a stand-alone Fourth Amendment exclusionary rule in Mapp, rendering the rule shaky, although in later cases clear majorities upheld the rule (One 1958 Plymouth Sedan v. Pennsylvania, 1965). Justice Stewart expressed no opinion on the search and seizure issue; he would have reversed the conviction on First Amendment grounds.

Justice Harlan dissented, joined by justices Frankfurter and Whitaker, based first on a com- plaint that stare decisis was not followed by overruling the fairly recent decision of Wolf. His main argument was opposed to incorporation in general—on the idea that the Bill of Rights’ criminal provisions did not apply to the states. Even if Wolf did incorporate the substance of the Fourth Amendment, it did not follow that every rule created and applied to federal courts under the amendment necessarily applied to the states under the Due Process Clause, through which an amendment is incorporated. The dissent emphasized federalism, and the freedom of the states, as “sovereign judicial systems,” to establish their own rules of criminal procedure. The dissenters did not see the use of illegally seized evidence as “going to the heart of our concepts of fairness in judicial procedure.”

Two years after Mapp, in Ker v. California (1963), the Court fully “federalized” the exclu- sionary rule, saying that the “standard of reasonableness is the same under the Fourth and Fourteenth Amendments.” Essentially, state courts would have to abide by the U.S. Supreme Court’s exclusionary rule interpretations. The Court noted that it had no supervisory authority over the states, only the jurisdiction to interpret the Constitution. The majority opinion said that

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Mapp “implied no total obliteration of state laws relating to arrests and searches in favor of fed- eral law. Mapp sounded no death knell for our federalism.” On the other hand, “Findings of rea- sonableness, of course, are respected only insofar as consistent with federal constitutional guarantees.” In practice, this meant that state search and seizure law had to conform to minimum constitutional standards as determined by the Supreme Court, but under the adequate and inde- pendent state grounds concept, a state could expand a suspect’s rights in a search and seizure case. (See Chapter 1.)

In 1965, the Supreme Court held, in Linkletter v. Walker, that the exclusionary rule was not retroactive to state cases decided prior to Mapp; its effect was prospective only. Applying the Court’s pragmatic approach to determining if a constitutional rule should be applied retroac- tively, the seven-to-two majority opinion stated that “Mapp had as its prime purpose the enforce- ment of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. . . . We cannot say that this purpose would be advanced by making the rule retrospective” (Linkletter v. Walker, 1965, emphasis added). At the time of this decision, the majority probably felt that the exclusionary rule was relatively secure. But these words in the Linkletter case became highly significant in the 1970s, when the theory of the exclusionary rule was reconsidered by a more conservative Court with a view to eliminating or weakening the rule.

The Warren Court’s positive approach to the exclusionary rule was underscored by apply- ing it to the civil forfeiture of an automobile that state liquor control officers stopped and searched because it was “low in the rear, quite low.” Upon inspection, the officers found thirty- one cases of liquor. In One 1958 Plymouth Sedan v. Pennsylvania (1965), the Court agreed with the state trial judge’s finding that the stop was made without probable cause. In applying the exclusionary rule, the Court noted that forfeitures are quasi-criminal procedures in which the penalty is often more onerous than a criminal sentence.

The exclusionary rule was subjected to judicial and political criticism during the remaining years of the Warren Court (to 1969). In fact, liberal Warren Court decisions regarding criminal suspects became a major issue in the 1968 presidential campaign. After his election, President Richard M. Nixon nominated justices who were hostile to these decisions. (See Chapter 1.) Within a decade of Mapp, a “counterrevolution” to erode the exclusionary rule was begun by a Supreme Court that had become more conservative.

Undermining the Exclusionary Rule

After 1972, the Court’s new conservative majority had a guarded, if not outrightly hostile, attitude toward the exclusionary rule. Chief Justice Warren Burger, dissenting in Bivens v. Six Unknown Agents (1971), called for its overruling and stated that the only foundation for the rule was the deter- rence of police illegality. The Court has never overruled the exclusionary rule, but it has limited its application since 1974. United States v. Calandra (1974) was the first case to limit the exclusionary rule. A six-justice majority held that a grand jury question could be based on information obtained from an unconstitutional search resulting from a defective search warrant. Justice Lewis Powell’s majority opinion set the foundation for the Court’s later exclusionary rule decisions. These reasons upended the constitutional foundation of the exclusionary rule established in Weeks and Mapp.

The heart of the majority’s reasoning in Calandra is that the “purpose of the exclusion- ary rule is not to redress the injury to the privacy of the search victim. . . . Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures” (United States v. Calandra, 1974, emphasis added). The logic of this reasoning is that the government has already “ruptured [the] privacy of the victims’ homes and effects, [which] cannot be restored. Reparation comes too late” (Calandra, quoting Linkletter v. Walker, 1965). An important con- sequence is that in deciding how and when to apply the exclusionary rule, the Court has to bal- ance the needs of law enforcement against individual rights. The Court emphasized that grand juries have broad powers to investigate crimes that are necessary to effective law enforcement. Applying the exclusionary rule to grand jury proceedings would turn them into protracted “preliminary trials” while adding little deterrence to police. Illegally seized evidence could still not be admitted at trial.

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Justice William Brennan, dissenting, held a very different view of the exclusionary rule. Although deterrence was one reason for the exclusionary rule, the Court’s primary goal was “to fashion an enforcement tool to give content and meaning to the Fourth Amendment’s guaran- tees” (Calandra, 1974, Brennan, J., dissenting). A “vital function of the rule [is] to insure that the judiciary avoid even the slightest appearance of sanctioning illegal government conduct,” he wrote. Otherwise, judges become “accomplices in the willful disobedience of a Constitution they are sworn to uphold” and undermine popular trust in the government (Calandra, quoting Elkins v. United States, 1960).

In Stone v. Powell (1976), the Supreme Court held that challenges to illegal searches from state courts under federal habeas corpus were no longer allowed if state courts already provided a full and fair opportunity to litigate a Fourth Amendment claim. Justice Powell stressed that the exclusionary rule was a judicially created means of enforcing Fourth Amendment rights by deter- ring police misconduct, rather than a right itself. He denied that the rule was based on “the imper- ative of judicial integrity.” He criticized the rule, noting that it “deflects the truthfinding process and often frees the guilty.” The Burger and Rehnquist Courts, by not limiting federal habeas cor- pus review of other constitutional guarantees, created a hierarchy of constitutional rights, with Fourth Amendment rights held in lower esteem than Fifth or Sixth Amendment rights.

Chief Justice Burger, who had earlier called for overruling the exclusionary rule, came to accept it but in a weakened form. He stated that “the exclusionary rule has been operative long enough to demonstrate its flaws. The time has come to modify its reach, even if it is retained for a small and limited category of cases” (Stone v. Powell, 1976, concurring). A majority of the Court may have felt constrained by stare decisis and uneasy with dismantling an important pro- tection of a fundamental constitutional right. Chief Justice Burger thus shifted toward limiting the exclusionary rule rather than eliminating it.76

Calandra and Stone set the foundation of constitutional reasoning on which the Court weak- ened the exclusionary rule. It held, in a series of cases, that the exclusionary rule does not apply to various procedures. These include the Internal Revenue Service in a civil tax proceeding (United States v. Janis, 1976) and Immigration and Naturalization Service deportation hearings (I.N.S. v. Lopez-Mendoza, 1984) (an illegal immigrant can be deported even though he was illegally arrested). Lopez-Mendoza did “leave the door open for suppression in cases of ‘egregious’ or ‘wide- spread’ constitutional violations. Subsequently, lower courts and the Board of Immigration Appeals (BIA) have recognized that egregious constitutional violations do warrant suppression in removal proceedings.” Despite this finding, a 2009 report on home raids by Immigration and Customs Enforcement (ICE) agents finds that sporadic suppression has not been effective in preventing wide- spread illegal entries and arrests.77 These rulings undercut the viability of One 1958 Plymouth Sedan (1965), although that decision was never overruled and has been reaffirmed in later civil forfeiture cases. The Court also declined to apply the exclusionary rule to parole revocation in Pennsylvania Board of Probation and Parole v. Scott (1998). Parole officers, without a warrant, entered the home of a parolee whom they believed possessed weapons in violation of parole conditions. The state courts ruled that the warrantless search of a parolee’s home violated the Fourth Amendment because “illegal searches would be undeterred when officers know that the subjects of their searches are parolees and that illegally obtained evidence can be introduced at parole hearings.” The Supreme Court reversed the lower court in an opinion by Justice Clarence Thomas that referred to the exclu- sionary rule as a “grudgingly taken medicant” (Scott, 1998). He reviewed the Court’s approach to the exclusionary rule in cases since Calandra and noted that the rule now applies only in criminal trials, and even there with some exceptions. Justice John Paul Stevens, writing for four dissenting justices in Scott, endorsed the view made by Justice Stewart in a journal article: The “rule is constitutionally required, not as a ‘right’explicitly incorporated in the fourth amendment’s prohibitions, but as a rem- edy necessary to ensure that those prohibitions are observed in fact.”78 Justice David Souter, in dis- sent, noted that parole revocation proceedings often serve the same function as criminal trials.

The Supreme Court also held that illegally obtained evidence can be used to impeach the credibility of a defendant who testifies—that is, to show that the defendant’s testimony is contra- dicted by the illegally seized evidence. This exception to the exclusionary rule was first recog- nized in Walder v. United States (1954), where a prosecutor was allowed to introduce heroin seized in an illegal search to undermine the credibility of the defendant’s testimony that he never possessed drugs. An impeachment exception has also been recognized in confessions law (Harris v. New York, 1971; Oregon v. Hass, 1975; see Chapter 7). In United States v. Havens (1980), the Supreme Court allowed the introduction of illegally seized drugs that were found in

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Havens’s specially constructed T-shirt, when on proper cross-examination Havens denied any connection to the shirt, which was designed to conceal drugs. The decision was based on the importance of getting at the truth in criminal trials and not allowing a constitutional shield to be “perverted into a license to use perjury.”

The Supreme Court drew the line to this exception in James v. Illinois (1990). In this case, the defendant was arrested without probable cause. During this illegal detention, he made a state- ment indicating that he tried to change his appearance on the day after a killing. The statement itself was inadmissible under the exclusionary rule. A defense witness testified that James’s appearance was the same after the killing as before, although several prosecution witnesses testi- fied that his appearance had changed. The prosecutor then introduced James’s illegally obtained statement to impeach the defense witness. The Supreme Court ruled that this was improper. The impeachment exception to the exclusionary rule is limited to the defendant’s testimony and not that of other witnesses. The Court reasoned that a witness will be more constrained by the risk of a perjury conviction than a defendant. Allowing the impeachment exception to expand to wit- nesses would give the prosecutor leverage to discourage honest defense witnesses from telling the truth. Thus the majority in James felt that expanding the impeachment exception would not clearly advance the truth-seeking value of a trial. In an opinion that bucked the trend of cases undermining the exclusionary rule, the James opinion reasserted that the exclusionary rule was essential to giving Fourth Amendment protections real effectiveness. Expanding the exception “would significantly weaken the exclusionary rule’s deterrent effect on police misconduct.”

The phenomenon of a line of cases weakening a major ruling is familiar in constitutional law. The Court often speaks of a rule having been “eroded” by a series of inconsistent cases, often preced- ing the overruling of the precedent. Although this has not happened to the Weeks–Mapp exclusionary rule, the law as it now stands has been permanently weakened. Most recently, the Court ruled in Hudson v. Michigan (2006) that evidence seized in a drug raid on a house was admissible after police, although armed with a warrant, did not obey the constitutionally required “knock and announce” rule (discussed in Chapter 3). Michigan courts found that waiting only three to five sec- onds before entering a home before executing a warrant to search for drugs and guns violated the Fourth Amendment, a finding not disputed by the Supreme Court. Justice Scalia’s majority opinion stated that a Fourth Amendment violation is a necessary but not a sufficient reason for exclusion. He reasoned that the “knock and announce” rule protected such values as the lives, safety, and dignity of inhabitants and the protection of property, but not the “interest in preventing the government from seeing or taking evidence described in a warrant.” Since the warrant was properly issued, this opinion used the reasoning of the “fruits of the poisonous tree” cases and argued that since the government could have lawfully obtained the drug evidence, the exclusionary rule did not apply. The majority also said that even if it were true that “without suppression there will be no deterrence of knock-and- announce violations at all,” it would make no difference because there are “many forms of police misconduct that are similarly ‘undeterred’” where civil lawsuits are available. Justice Stephen Breyer, writing for four dissenting justices, said that because the Supreme Court has ruled that the “knock and announce” rule is part of the Fourth Amendment (Wilson v. Arkansas, 1995), a search made in violation of the rule is unreasonable and illegal. The exclusionary rule therefore applies as a matter of “elementary logic.” There are many reported cases of “knock and announce” violations and no cases showing that victims of such government misconduct “have collected more than nominal damages” in civil suits. “The upshot is that the need for deterrence—the critical factor driving this Court’s Fourth Amendment cases for close to a century—argues with at least comparable strength for eviden- tiary exclusion here.” He further argued that relying on the reasoning from the derivative evidence (fruits of the poisonous tree) cases was misplaced. Even if evidence was seized improperly, the gov- ernment cannot avoid suppression of evidence by showing that it could have been properly seized.

The next two sections on the good faith exceptions and on the doctrine of standing analyze the further weakening of the exclusionary rule.

Good Faith Reliance Exceptions

The Supreme Court’s strongest attack on the exclusionary rule allowed illegally seized evidence to be introduced into the trial to prove the defendant’s guilt, unlike Calandra and similar cases that allowed tainted evidence only in peripheral proceedings. The “good faith exception” theory reasoned that allowing tainted evidence in the “case in chief” would not undermine the exclusionary rule’s deterrent effect. These cases consolidated the Court’s view that the rule is

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Read Case and Comments:

United States v. Leon

“only” a judicially created remedy designed to deter police from violating Fourth Amendment rights while modifying the original theory of the exclusionary rule.

The good faith exception in United States v. Leon (1984) was presaged by Michigan v. DeFillippo (1979). Evidence was allowed of illegal drugs, obtained in a search incident to an arrest made in good faith reliance on a local ordinance allowing police to demand personal iden- tification of a reasonably stopped person, even though on appeal state courts held the ordinance to be unconstitutional. The stage was set for a major reassessment and limitation of the exclu- sionary rule in United States v. Leon.

In Massachusetts v. Sheppard (1984), a companion case to Leon, a police officer filed a homicide search warrant affidavit on a form for controlled substances searches because it was Sunday, the courts were closed, and the officer could not find the proper form. Although the offi- cer and the magistrate modified the form, the search warrant erroneously authorized a search for controlled substances and did not incorporate the affidavit. (See Chapter 3.) The officers execut- ing the warrant searched Sheppard’s residence for items listed in the affidavit but not in the war- rant. Incriminating evidence was found and entered into the trial. The Supreme Court held that the police objectively relied in good faith on a defective warrant. In this instance, the good faith reliance exception avoided an unreasonable conclusion. Indeed, Justice Stevens, who concurred in the decision, felt that the warrant and affidavit were quite specific and that the magistrate and the police officers were fully aware of their contents. Thus he believed there was no Fourth Amendment defect and that the majority manufactured one in order to expand the good faith exception.

Leon was followed by Illinois v. Krull (1987), which held (5–4) that the exclusionary rule does not apply where the police violate a person’s rights in good faith reliance on a statute. Chicago police officers, acting under an Illinois regulatory statute, searched cars and records of an automobile wrecking yard without a search warrant. The statute was declared unconstitutional by a federal court. On appeal, the Supreme Court, applying the reasoning of Leon, found that because similar regulatory search schemes had been held constitutional in the past, the officers relied on the statute in good faith. Justice Sandra Day O’Connor, who joined the majority in Leon, dissented, joined by Justices Brennan, Marshall, and Stevens. Noting that the Fourth Amendment was originally designed to constrain the legislature, she minced no words: “Legislatures have, upon occasion, failed to adhere to the requirements of the Fourth Amendment.” She argued that a legislature could be deterred by applying the exclusionary rule in a case like this one. “Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might otherwise escape provides a positive incentive to promulgate unconstitutional laws.” Justice O’Connor’s experience as a leader of the Arizona Senate provided the insight that legislators sometimes intentionally pass laws for political gain that violate individual rights.

Arizona v. Evans (1995) is more disturbing. Evans was stopped by a Phoenix police offi- cer for driving the wrong way on a one-way street. A computer check indicated an outstanding misdemeanor warrant. He was arrested and marijuana was discovered. However, the arrest war- rant against Evans had actuality been quashed seventeen days prior to his arrest. An error in the court clerk’s office resulted in the information not being conveyed to the sheriff’s office to remove the arrest notation from the law enforcement computer database. The Arizona Supreme Court excluded the evidence because there was no legal basis for the arrest and the “application of the exclusionary rule would ‘hopefully serve to improve the efficiency of those who keep records in our criminal justice system.’”

The state appealed, and the Supreme Court reversed. Chief Justice William Rehnquist, writing for the Court, held that the exclusionary rule did not apply. The Court noted that the rule is designed to deter unconstitutional police activity, and not errors made by judges or personnel in judicial bureaucracies. It reasoned that there is no reason to believe that the exclusionary rule will deter errors by court clerks. Unlike police who are “zealous” in their desire to “get” sus- pects, court clerks “have no stake in the outcome of particular criminal prosecutions.”

This reasoning seems as wrongheaded as the application of the exclusionary rule in Sheppard. Justice O’Connor apparently recognized this in her concurring opinion, which expressed concern that widespread computer errors might undermine individual rights. Justice Stevens dissented on the grounds that the Fourth Amendment’s text and history have the more majestic goal of protecting individual privacy and liberty from encroachment from any part of

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CASE AND COMMENTS

United States v. Leon

468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)

JUSTICE WHITE delivered the opinion of the Court. This case presents the question whether the Fourth Amendment exclusionary rule should be mod-

ified so as not to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. [a] To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are “acquitted or convicted on the basis of all the evidence which exposes the truth.” * * *

I [Local police obtained a “facially valid” search warrant from a state judge based on information from a confidential informant “of unproven reliability.” A stakeout revealed suspected drug dealing at a house, and a car parked outside belonged to Leon, a previously convicted drug dealer. A search warrant affi- davit was prepared by an experienced drug enforcement officer and reviewed by several assistant prose- cutors. A warrant was issued by a state judge. The warrant was executed, and drugs were found. On this evidence, Leon and others were indicted in a federal district court for drug dealing. They moved to sup- press evidence and challenged the constitutionality of the search warrant. The federal judge overturned the warrant and suppressed the evidence because the informant’s reliability was not established and probable cause of drug sales was therefore not independently established. (This rule is covered in Chapter 3 under “Probable Cause and the Fourth Amendment.”) The court stated that the case was a close one and that the officers acted on the warrant in the good faith belief that it was based on probable cause, even though probable cause was not established. The federal court of appeals upheld the district court. The case is decided on the understanding that the search warrant was not valid under the Fourth Amendment and that, in effect, the search violated Leon’s Fourth Amendment rights.]

We have concluded that, in the Fourth Amendment context, the exclusionary rule can be modified somewhat without jeopardizing its ability to perform its intended functions. [b] Accordingly, we reverse the judgment of the Court of Appeals.

II Language in opinions of this Court * * * has sometimes implied that the exclusionary rule is a necessary corollary of the Fourth Amendment, * * * [or] the conjunction of the Fourth and Fifth Amendments. [Mapp v. Ohio] [c] * * * These implications need not detain us long. The Fifth Amendment theory has not withstood critical analysis or the test of time, * * * and the Fourth Amendment “has never been in- terpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all per- sons.” * * *

A

The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in vio- lation of its commands, and * * * the use of [unlawfully seized evidence] “work[s] no new Fourth Amendment wrong.” * * * The wrong condemned by the Amendment is “fully accomplished” by the un- lawful search or seizure itself, * * * and the exclusionary rule is neither intended nor able to “cure the in- vasion of the defendant’s rights which he has already suffered.” The rule thus operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” * * *

Whether the exclusionary sanction is appropriately imposed in a particular case is “an issue sep- arate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” * * * [d] Only the former question is currently before us, and it must be resolved by weighing the costs and benefits of preventing the use in the prosecution’s case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. [e] * * * “[U]nbending application of the

[a] Justice White states the issue and establishes a “judicial methodology”—the “balancing test”—to resolve the issue. This choice helps produce his desired outcome. Is anything left out of the “competing goals”?

[b] This conclusion is like a structural engineer constructing a bridge without using materials that maximize safety. Does this kind of cost/benefit analysis have a place in civil rights law?

[c] Justice White’s phrasing dismisses the Mapp holding that the exclusionary rule is a constitutional rule. The Fifth Amendment theory, used in Mapp to gain Justice Black’s vote, linked the Fourth Amendment to a clear-cut exclusionary rule in the Fifth Amendment. By relying on post-Mapp cases, Justice White, a long-standing critic of Mapp, is now able to use precedents he helped create to weaken its effect.

[d] In criminal law, a crime definition is incomplete without the penalty provision—the public’s remedy is part of the right. Is the Fourth Amendment a true right without a remedy? Is the exclusionary rule a true remedy? (See the section on remedies in this chapter.)

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exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth- finding functions of judge and jury.”* * * Particularly when law enforcement officers have acted in ob- jective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. * * * Indiscriminate appli- cation of the exclusionary rule, therefore, may well “generat[e] disrespect for the law and administration of justice.” * * * Accordingly, “[a]s with any remedial device, the application of the rule has been re- stricted to those areas where its remedial objectives are thought most efficaciously served.” * * *

B

[This section reviews cases in which the Court has “demoted” the exclusionary rule, including Stone v. Powell (1976); United States v. Calandra (1974); and United States v. Janis (1976), among others.] [f]

III A

* * * * * * To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates, * * * their reliance is misplaced. [g] First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.

* * * [M]ost important, we discern no basis, and are offered none, for believing that exclusion of evi-

dence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magis- trate. [h] * * * [A]s neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. * * * Imposition of the exclusionary sanction is not necessary meaningfully to inform ju- dicial officers of their errors. * * *

B

If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments. One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presentations or “magis- trate shopping” and thus promotes the ends of the Fourth Amendment. Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. [i] We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.

We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. “No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect. * * *” But even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profes- sion as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.

* * * This is particularly true, we believe, when an officer acting with objective good faith has obtained

a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and thus nothing to deter. * * * [j]

C

* * *

Suppression * * * remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false ex- cept for his reckless disregard of the truth. * * * The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role. * * * Nor would an officer man- ifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” * * * [k] Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to

[e] The exclusionary rule is “put on the defensive” by stressing its costs, limits, and status as a “mere” remedy. The social costs of the exclusionary rule are still open to debate. Note how the “imperative of judicial integrity” of liberal justices becomes the “ideal of governmental rectitude” to conservative justices; the phrases convey different meanings.

[f] The text has reviewed these cases, showing the exclusionary rule’s erosion. Precedent is “ammunition” used by justices to get the desired result.

[g] The Bill of Rights protects individual rights against violations by all branches of government. Not applying the exclusionary rule to judges’ errors supports the interpretation that it is not constitutionally based.

[h] Judges have immunity from lawsuit for errors made on the bench, but are subject to reversal on appeal to correct their errors and deter them from not following precedent. Are not magistrates concerned if their warrants are overturned as illegal?

[i] Does Justice White select his assumptions? He brushes aside the educative function of the law—the idea that over time the exclusionary rule will educate police officers to follow the amendment. (See the “Law in Society” section on the effects of the exclusionary rule.)

[j] What does Justice White imply by “no police illegality”? Leon’s Fourth Amendment rights have been violated. If the officer is not civilly liable and there is no exclusion, what is the value of Leon’s rights?

[k] The good faith reliance-on-the- warrant exception is not a blank check to the police. Several examples that apply the exclusionary rule are given here. This cautions police to get warrants where possible. It might have been simpler for the Court to issue a bright line rule requiring warrants.

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particularize the place to be searched or the things to be seized—that the executing officers cannot rea- sonably presume it to be valid. * * *

* * * JUSTICE BLACKMUN, concurring.

* * * * * * [T]he Court has narrowed the scope of the exclusionary rule because of an empirical judgment that the rule has little appreciable effect in cases where officers act in objectively reasonable reliance on search warrants. * * * [l]

What must be stressed, however, is that any empirical judgment about the effect of the exclusion- ary rule in a particular class of cases necessarily is a provisional one. By their very nature, the assump- tions on which we proceed today cannot be cast in stone. To the contrary, they now will be tested in the real world of state and federal law enforcement, and this Court will attend to the results. If it should emerge from experience that, contrary to our expectations, the good-faith exception to the exclusionary rule results in a material change in police compliance with the Fourth Amendment, we shall have to re- consider what we have undertaken here. The logic of a decision that rests on untested predictions about police conduct demands no less.

* * * JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Ten years ago in United States v. Calandra (1974), I expressed the fear that the Court’s decision

“may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search-and- seizure cases” (dissenting opinion). [m] Since then, in case after case, I have witnessed the Court’s grad- ual but determined strangulation of the rule. It now appears that the Court’s victory over the Fourth Amendment is complete. * * *

* * * The majority ignores the fundamental constitutional importance of what is at stake here. * * *

[W]hat the Framers understood [in 1791] remains true today—that the task of combating crime and con- victing the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and priva- cy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. * * * [n] [T]he sometimes unpopular task of ensuring that the government’s enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts. * * * If those independent tri- bunals lose their resolve, however, as the Court has done today, and give way to the seductive call of ex- pediency, the vital guarantees of the Fourth Amendment are reduced to nothing more than a “form of words.” * * *

I

* * *

A

[JUSTICE BRENNAN restated the majority argument here: The exclusionary rule is a mere judicial remedy designed to deter police illegality; the constitutional wrong is complete when the police invade a person’s constitutionally protected privacy; and thus there is no constitutional violation if unconstitu- tionally seized evidence is admitted into evidence.]

Such a reading appears plausible, because * * * the Fourth Amendment makes no express provi- sion for the exclusion of evidence secured in violation of its commands. * * * [M]any of the Constitution’s most vital imperatives are stated in general terms and the task of giving meaning to these precepts is therefore left to subsequent judicial decision making in the context of concrete cases. [o] The nature of our Constitution, as CHIEF JUSTICE MARSHALL long ago explained, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which com- pose those objects be deduced from the nature of the objects themselves.” * * *

A more direct answer may be supplied by recognizing that the Amendment, like other provisions of the Bill of Rights, restrains the power of the government as a whole; it does not specify only a partic- ular agency and exempt all others. The judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected.

* * * Once that connection between the evidence-gathering role of the police and the evidence- admitting function of the courts is acknowledged, the plausibility of the Court’s interpretation becomes more suspect. * * * The Amendment therefore must be read to condemn not only the initial unconstitu- tional invasion of privacy—which is done, after all, for the purpose of securing evidence—but also the subsequent use of any evidence so obtained.

[l] Justice Blackmun’s concurrence says that the Court may reverse its rule in Leon if the police misuse it with pretext searches. Isn’t the Court supposed to establish firm rules of law? Is he being honest about the law’s flexibility or is he fooling himself?

[m] This strong language may be discounted as a tactic, but it is a way of reaching beyond the majority to stir a wider audience and future generations in the hope that a different Court might overturn this decision.

[n] Justice Brennan accuses the majority of “selling out” the constitutional rights of citizens because fear of crime was a popular political issue to the presidents who appointed them. Do you agree?

[o] This point might better apply to a more open-textured right such as “due process” than to the more narrowly focused Fourth Amendment.

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The Court evades this principle by drawing an artificial line between the constitutional rights and responsibilities that are engaged by actions of the police and those that are engaged when a defendant appears before the courts. [p] According to the Court, the substantive protections of the Fourth Amendment are wholly exhausted at the moment when police unlawfully invade an individual’s privacy and thus no substantive force remains to those protections at the time of trial when the government seeks to use evidence obtained by the police.

I submit that such a crabbed reading of the Fourth Amendment * * * rests ultimately on an im- poverished understanding of judicial responsibility in our constitutional scheme. For my part, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” comprises a personal right to exclude all evidence secured by means of unrea- sonable searches and seizures. The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures.

* * *

B

* * * * * * [T]he Court since Calandra has gradually pressed the deterrence rationale for the rule back to center stage. * * * [JUSTICE BRENNAN then reviewed the cost-benefit analysis utilized by the majority.] * * *

* * * To the extent empirical data are available regarding the general costs and benefits of the exclu- sionary rule, it has shown, on the one hand, as the Court acknowledges today, that the costs are not as sub- stantial as critics have asserted in the past, * * * and, on the other hand, that while the exclusionary rule may well have certain deterrent effects, it is extremely difficult to determine with any degree of precision whether the incidence of unlawful conduct by police is now lower than it was prior to Mapp. * * * The Court has sought to turn this uncertainty to its advantage by casting the burden of proof upon proponents of the rule. * * *

* * * [B]y basing the rule solely on the deterrence rationale, the Court has robbed the rule of le- gitimacy. A doctrine that is explained as if it were an empirical proposition but for which there is only limited empirical support is both inherently unstable and an easy mark for critics. [q] The extent of this Court’s fidelity to Fourth Amendment requirements, however, should not turn on such statistical uncer- tainties. * * * Rather than seeking to give effect to the liberties secured by the Fourth Amendment through guesswork about deterrence, the Court should restore to its proper place the principle framed 70 years ago in Weeks that an individual whose privacy has been invaded in violation of the Fourth Amendment has a right grounded in that Amendment to prevent the government from subsequently making use of any evidence so obtained.

* * *

[p] Do you agree that the line between Fourth Amendment rights and the exclusionary rule is artificial—that is, that the two should be inseparable? All legal doctrines involve line drawing. Do you think Justice Brennan provides a better rationale for the exclusionary rule as a constitutional right?

[q] This is a strong point. Should basic rights depend on measured effectiveness? If so, could a tyrant fail to uphold rights and then demand that they be abolished because they don’t “work”? Does this critique properly apply to a “remedy”?

the government. Arizona v. Evans (1995) shows that rights can be lost from the negligent main- tenance of modern technology as they can from more direct state action.

It is important to note that there is no free-floating “good faith exception” that allows police officers to enter homes or other areas in which people have an expectation of privacy because they reasonably feel they have probable cause. The Supreme Court has not approved an exclusionary rule exception for using illegally obtained evidence based on a police officer’s good faith observations leading to a warrantless stop, arrest, or search. Each good faith exception is tied to the officer’s objective reliance on the decision of a magistrate, a statute, or official records. According to Professors Charles Whitebread and Christopher Slobogin, the Court has deliberately avoided the issue of a general good faith exception.79 There may indeed be instances when police arrest or search without probable cause but do so in objective good faith. Nevertheless, the inherent human subjectivity that tends to make every person a “biased judge” about his or her own actions would make such an exception a more risky proposition for individ- ual rights than allowing the use of unconstitutional evidence obtained by the officer’s good faith reliance on the judgment of the legislature or a judge. It seems that allowing officers to dispense with warrants on their own evaluation would destroy the Warrant Clause and seriously damage Fourth Amendment protections.

The Supreme Court reminded police that they are personally liable in civil lawsuits to those whose houses they enter if they rely on obviously defective search warrants. Groh v. Ramirez (2004) held (5–4) that a search warrant failing to list any of the items to be seized is plainly unconstitutional. Joseph Ramirez was not prosecuted after a search of his ranch, and he sued Special Agent Jeff Groh, of the Bureau of Alcohol, Tobacco, and Firearms (ATF), for

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[c] Anderson targeted a person rather than a crime episode. Police in fact treat some people as always potentially guilty and may harass them. This can apply to those who have been rehabilitated—such as in the case of Calvin Johnson, a rehabilitated ex-burglary offender who was targeted by police and spent fifteen years in prison for a rape he did not commit.80

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violating his Fourth Amendment rights. The Supreme Court ruled that Agent Groh could not claim qualified immunity from the lawsuit because it was clear to a reasonably competent officer that his conduct was unreasonable. The Court, in Groh, quoted Leon: “[D]epending on the cir- cumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to par- ticularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” A law enforcement officer is not absolved from personal responsibility to read a warrant carefully and be sure it is constitutional on its face before execut- ing it merely because a magistrate has issued the warrant. (The case is discussed in Chapter 3.)

Groh was an example of a civil sanction applying against a police officer who flagrantly but objectively violated the Fourth Amendment. Herring v. United States (2009) shows the Roberts Court continuing the trend of the Burger and Rehnquist Courts in narrowing the scope of the exclusionary rule wherever possible. Herring provides a clear jurisprudential divide between the five majority and four dissenting justices, and illuminates their different views on the theories that underlie the exclusionary rule. Review Herring after reading the following sec- tions on the theories of remedies and the theories of the exclusionary rule. Herring demon- strates that these theories are not abstractions, but dynamic principles that reflect the justices’ deep-seated values.

Read Case and Comments: Herring v. United States

CASE AND COMMENTS

Herring v. United States

555 U.S. ___, 129 S. Ct. 695; 172 L. Ed. 2d 496 (2009)

CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires

the police to have probable cause or a warrant before making an arrest. What if an officer reasonably be- lieves there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent book keeping error by another police employee? [a] The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.

Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. [b] Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.

I . . . Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confir- mation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrest- ed him. [c] A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle.

There had, however, been a mistake about the warrant. * * * [The physical warrant was not in the Dale County Sheriff’s files.] Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. [d] For whatever reason, the information about the recall of the war- rant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.

[a] The Chief Justice is noted for his down-to-earth “conversational” writing style. His reference to a “negligent bookkeeping error” seems designed to diminish the rights at stake.

[b] As he does later in his opinion, the Chief Justice holds to the view that the only purpose of the exclusionary rule is to deter police misconduct. This is in clear contrast to the dissent, which emphasized other rationales.

[d] It seems obvious that any such subjective and personal data system, even operated by normally competent and well-meaning personnel, is prone to error, as happened here, especially in the often hectic atmosphere of police agencies. See dissenting opinion at Part III A.

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[j] The Court, at this point and in the next section, establishes flagrant police misconduct—that is, a deliberate attempt to circumvent the Fourth Amendment—as an element of the exclusionary rule. This is a significant change in the law.

Constitutional Remedies, the Fourth Amendment, and the Exclusionary Rule 85

[Herring, indicted for illegal gun and drug possession, moved to suppress the illegally seized ev- idence. The federal district court and the Eleventh Circuit Court of Appeals allowed the use of the ille- gally seized evidence because (1) the Dale County Sheriff Department’s error was negligent and not deliberate, and (2) the arresting officers relied, in good-faith, on an objective belief that the warrant was still outstanding.]

* * * We now affirm the Eleventh Circuit’s judgment.

II [The case could have been treated as a mistake about probable cause, which would not have violated the Fourth Amendment]. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied.

A

The Fourth Amendment * * * “contains no provision expressly precluding the use of evidence obtained in violation of its commands.” [e] Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States (1914). We have stated that this judicially created rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra (1974).

[The error in the Dale County Sheriff’s Office counts against the search made by Coffee County officers, even though they did nothing improper. The Eleventh Circuit] court also concluded that this error was negligent, but did not find it to be reckless or deliberate. That fact is crucial to our holding that this error is not enough by itself to require “the extreme sanction of exclusion.”

B

1. The fact that a Fourth Amendment violation occurred * * * does not necessarily mean that the exclu- sionary rule applies. Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan (2006), and our precedents establish important principles that constrain application of the exclusionary rule.

First, the exclusionary rule is not an individual right and applies only where it “‘result[s] in appre- ciable deterrence.’” We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. [f] [citing U.S. v. Leon (1984); Arizona v. Evans (1995); and Pennsy. Bd. of Prob’n and Parole v. Scott (1998).] Instead we have focused on the efficacy of the rule in deter- ring Fourth Amendment violations in the future.

In addition, the benefits of deterrence must outweigh the costs. “We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” * * * The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that “offends basic concepts of the criminal justice system.” Leon. “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” [g]

These principles are reflected in the holding of Leon: When police act under a warrant that is in- valid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. We (perhaps confusingly) called this objectively reasonable reliance “good faith.” In a companion case, Massachusetts v. Sheppard (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. [h]

* * * [I]n Evans, we applied this good-faith rule to police who reasonably relied on mistaken in- formation in a court’s database that an arrest warrant was outstanding. * * * Evans left unresolved “whether the evidence should be suppressed if police personnel were responsible for the error,”an issue not argued by the State in that case, but one that we now confront. [i]

2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct. As we said in Leon, “an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. * * *

* * * [Police behavior that led to suppression in Weeks, Silverthorne Lumber Co. v. U. S. (1920), and Mapp v. Ohio (1961) was egregious]. And in fact since Leon, we have never applied the rule to ex- clude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more in- tentional or culpable than this. [j]

3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level. [k]

[e] This simple review emphasizes the diminished status of the exclusionary rule initiated by the Burger Court, and refers to the creation of the exclusionary rule almost as a passing matter.

[f] This paragraph makes it crystal clear that the majority does not view the exclusionary rule to be a constitutional right.

[g] This emphasis on costs paves the way to another case that whittles down the scope of the exclusionary rule’s effect.

[h] The Chief Justice’s attention to the label, suggesting that the “good faith” rule is better called the “objectively reasonable reliance” rule, hints that the majority does not wish to create a free-floating good faith exception that immunizes all “”good faith” police action that violates the Fourth Amendment, only those where the officer relies on a warrant or other legal authorization.

[i] The Supreme Court often leaves issues that are suggested by a ruling unanswered, to be decided after the issues are decided in lower courts. This avoids premature and possibly erroneous rulings.

[k] The fact that a person’s rights under the Constitution have been violated is no longer a good enough reason, standing alone, to trigger the exclusionary rule.

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* * * The pertinent analysis of deterrence and culpability is objective, not an “inquiry into the subjective

awareness of arresting officers.” * * * 4. We do not suggest that all recordkeeping errors by the police are immune from the exclusion-

ary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. * * *

If the police have been shown to be reckless in maintaining a warrant system, or to have knowing- ly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. * * * Petitioner’s fears that our decision will cause police departments to deliberately keep their officers ignorant, are thus un- founded.

* * * In a case where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system. * * * But there is no evidence that errors in Dale County’s system are routine or widespread. * * *

* * * * * * [W]e conclude that when police mistakes are the result of negligence such as that described

here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deter- rence does not “pay its way.” In such a case, the criminal should not “go free because the constable has blundered.” [citation omitted].

JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SOUTER, AND JUSTICE BREYER join, dissenting.

[The sheriff’s deputies violated Herring’s Fourth Amendment rights.] The exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search. [l] The rule thus strongly encourages police compli- ance with the Fourth Amendment in the future. The Court, however, holds the rule inapplicable because careless recordkeeping by the police—not flagrant or deliberate misconduct—accounts for Herring’s arrest.

I would not so constrict the domain of the exclusionary rule and would hold the rule dispositive of this case: “[I]f courts are to have any power to discourage [police] error of [the kind here at issue], it must be through the application of the exclusionary rule.” [Although the police found] methampheta- mine in Herring’s pocket and a pistol in his truck, . . . the “most serious impact” of the Court’s holding will be on innocent persons “wrongfully arrested based on erroneous information [carelessly main- tained] in a computer data base.”

I [In a footnote, Justice Ginsburg took a bleaker view of the police computer error “It is not altogether clear how ‘isolated’ the error was in this case. When the Dale County Sheriff’s Department warrant clerk was first asked: ‘[H]ow many times have you had or has Dale County had problems, any problems with communicating about warrants,’ she responded: ‘Several times.’”]

II A

* * * As the Court recounts, * * * deterrence of police improprieties could be “sufficiently accom- plished” by confining the rule to “evidence obtained by flagrant or deliberate violation of rights.”

B

Others have described “a more majestic conception” of the Fourth Amendment and its adjunct, the exclusionary rule. Evans (Stevens, J., dissenting). Protective of the fundamental “right of the people to be secure in their persons, houses, papers, and effects,” the Amendment “is a constraint on the power of the sovereign, not merely on some of its agents.” . . . I share that vision of the Amendment.

The exclusionary rule is “a remedy necessary to ensure that” the Fourth Amendment’s prohibi- tions “are observed in fact.” . . . The rule’s service as an essential auxiliary to the Amendment earlier inclined the Court to hold the two inseparable. See Whiteley v. Warden, (1971). Cf. Olmstead v. United States, (1928) (Holmes, J., dissenting); (Brandeis, J., dissenting). [m]

Beyond doubt, a main objective of the rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Elkins v. United States (1960). But the rule also serves other important purposes: It “enabl[es] the judiciary to avoid the taint of partnership in official lawlessness,” and it “assur[es] the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.” * * * [n]

[l] Justice Ginsburg makes two points: (1) the exclusionary rule requires all unconstitutionally seized evidence to be excluded; and (2) the disgorgement theory is a fundamental basis of the exclusionary rule (see later discussion, this chapter).

[m] The dissent adheres to the position of Weeks and Mapp that the exclusionary rule is a fundamental right—part and parcel of the Fourth Amendment. Two of the greatest justices, Holmes and Brandeis, are cited as supporters of this interpretation.

[n] Again, the dissent asserts that deterrence is not the only rationale for the exclusionary rule. By affirming the judicial integrity and disgorgement theories, the dissent provides the foundation for the position that the exclusionary rule is a constitutional right.

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[o] The functional impotence of other remedies was a reason why the exclusionary rule was adopted in the first place.

The exclusionary rule, it bears emphasis, is often the only remedy effective to redress a Fourth Amendment violation. * * * Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” * * * Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry. [o]

III The Court maintains that Herring’s case is one in which the exclusionary rule could have scant deterrent effect and therefore would not “pay its way.” I disagree.

A

* * * “[T]he risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems.” [cita- tion omitted]

Consider the potential impact of a decision applying the exclusionary rule in this case. * * * [T]here is no electronic connection between the warrant database of the Dale County Sheriff’s Department and that of the County Circuit Clerk’s office. * * * When a warrant is recalled, one of the “many different people that have access to th[e] warrants,” must find the hard copy of the warrant in the “two or three different places” where the department houses warrants, return it to the Clerk’s office, and manually update the Department’s database. The record reflects no routine practice of checking the database for accuracy, and the failure to remove the entry for Herring’s warrant was not discovered until Investigator Anderson sought to pursue Herring five months later. Is it not altogether obvious that the Department could take further precautions to ensure the integrity of its database? [p] The Sheriff’s Department “is in a position to remedy the situation and might well do so if the exclusionary rule is there to remove the incentive to do otherwise.” * * *

B

Is the potential deterrence here worth the costs it imposes? In light of the paramount importance of accurate recordkeeping in law enforcement, I would answer yes, and next explain why, as I see it, Herring’s motion presents a particularly strong case for suppression.

Electronic databases form the nervous system of contemporary criminal justice operations. In recent years, their breadth and influence have dramatically expanded. Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watch- lists, the Federal Government’s employee eligibility system, and various commercial databases. Moreover, States are actively expanding information sharing between jurisdictions. As a result, law enforcement has an increasing supply of information within its easy electronic reach.

The risk of error stemming from these databases is not slim. Herring’s amici [q] warn that law enforcement databases are insufficiently monitored and often out of date. Government reports describe, for example, flaws in NCIC databases, terrorist watchlist databases, and databases associated with the Federal Government’s employment eligibility verification system.

Inaccuracies in expansive, interconnected collections of electronic information raise grave con- cerns for individual liberty. [r] “The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base” is evocative of the use of general warrants that so outraged the authors of our Bill of Rights.

C

The Court assures that “exclusion would certainly be justified” if “the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.” This concession provides little comfort.

[(1) A civil lawsuit in a case like the present one would fail because officers are protected by immunity from lawsuit, and it would be close to impossible to identify the employee who created the data error. (2) Without the exclusionary rule police forces do not possess sufficient incentives to main- tain up-to-date records. (3) Poor defendants have difficulty proving even good cases, and relying on civil lawsuits places a burden on the police systems that have to answer discovery motions. (4) The rule of Herring that requires proof of deliberate police misconduct runs counter to the Fourth Amendment doc- trine that only objective factors that do not involve analysis of the officer’s intention may be relied on in civil suits.]

* * *

[p] This point seems unarguable. One could argue, however, that installing a modern, integrated electronic system would more routinely protect rights than the operation of the exclusionary rule. The answer depends on the state of recordkeeping systems in the more than 3,000 sheriff’s offices and almost 13,000 local police departments in the nation.

[q] In addition to the briefs (written arguments) submitted to the Court by the petitioner and respondent, briefs are submitted by “friends of the Court.” In Latin these are known as amicus curiae briefs (plural, amici curiae).

[r] The dissent cites powerful evidence that the poor state of various American law enforcement databases puts a large number of innocent people at risk of “good faith” police harassment because of database errors. See Amici Curiae brief by the Electronic Privacy Information Center (EPIC), supported by conservative and liberal organizations.

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Standing

To have standing to sue, a party must have a real stake in a legal controversy to bring a lawsuit. In federal cases, standing is predicated on Article III of the Constitution, which confers jurisdic- tion on federal courts only in “cases or controversies.” A “stranger” to a controversy, who does not have a real legal claim, is not allowed to file a case or to pursue an issue in a court case. As applied to Fourth Amendment issues, rules of standing weaken the exclusionary rule because they prevent defendants from challenging the legality by which the evidence is obtained, unless they have standing.

The search and seizure standing doctrine grew out of the older concept that Fourth Amendment rights are based on property rights: One had to have some level of property interest in a place or thing to assert a claim that it was illegally searched or seized. Standing was first lim- ited to owners, renters, or others with a legal connection to a place, such as a hotel guest. House guests did not have standing. Suspects charged with possessory crimes (e.g., drugs) or crimes where possessing an item proved guilt (e.g., burglar’s tools) had standing only by claiming pos- session of the seized item, which was an admission of guilt.

Jones v. United States (1960) eased standing rules. Police entered an apartment with a war- rant, discovered drugs inside, and charged Jones with possession. Jones did not rent the apartment, but the owner gave him a key to the place and allowed him to sleep and keep some clothing there. The Supreme Court held that a defendant who is “legitimately on the premises” and has some connection to the place has standing to raise a Fourth Amendment challenge. Jones therefore did not have to assert ownership of the drugs to claim that the search warrant was unconstitutional. In Jones, the Court rejected technical property law classifications as the basis of standing.

The Jones opinion used broad language that suggested the target theory of standing: that anyone charged with a crime based on evidence obtained in a search and seizure (except burglars or trespassers) could challenge the legality of the seizure. The Court, however, rejected the target the- ory and retained the standing requirement in Alderman v. United States (1969). Alderman held that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” In Alderman, conversations made by co-defendants that did not include Alderman were picked up by electronic eavesdropping. The Court ruled that Alderman’s Fourth Amendment right to privacy was not violated by eavesdropping on the conversations of others.

The Court has continued to uphold standing and the specific rule of Jones. In fact, a person without a key has standing to challenge an apartment entry as long as there is enough of a con- nection to create an expectation of privacy. Minnesota v. Olson (1990) affirmed a state court rul- ing holding that a defendant who was an overnight guest had standing to challenge the introduction of evidence taken from the apartment. Olson had indefinite permission to stay and had the right to allow or deny visitors entry. “To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. . . . From the overnight guest’s perspective, he seeks shelter precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by any- one but his host and those his host allows inside” (Minnesota v. Olson, 1990).

Business occupants of an apartment, to the contrary, generally do not have standing. In Minnesota v. Carter (1998), police entered an apartment on a tip that illicit drug business was being conducted there and found two men bagging cocaine. They were from out of town and “had come to the apartment for the sole purpose of packaging the cocaine. [They] had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. In return for the use of the apartment, [they] had given [the renter] one-eighth of an ounce of the cocaine.” On these facts, the Court held that the defendants had no standing to challenge the

[JUSTICE BREYER, in a separate dissent joined by JUSTICE STEVENS, agreed with JUSTICE GINSBURG but added that Arizona v. Evans (1995) held that recordkeeping errors made by a court clerk, as opposed to a police clerk, do not trigger the exclusionary rule because the exclusionary rule was designed to deter police misconduct. Chief Justice Roberts, in a footnote, disputed that this reason was dispositive of the decision in Evans.]

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constitutionality of the police search. The majority noted that the apartment was not the dealers’ home and that they had less connection to the apartment than an employee has in his or her pri- vate office. The Court characterized the facts of this case as “between” the expectation of pri- vacy of the apartment dweller in Olson and a case where someone who is “legitimately on the premises” has no standing. Factors that negated standing included “the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder” (Minnesota v. Carter, 1998). Justice Ginsburg dissented, arguing that the decision undermines the security of short-term guests and that anyone whom a homeowner or renter invites “into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, . . . should share his host’s shelter against unreasonable searches and seizures.”

These holdings reflect the impact of Katz v. United States, which created the “expectation of privacy” doctrine in 1967. (See Chapter 3.) The idea that a person, under Katz, has a subjec- tive and objective expectation of privacy in a premises where a search took place would tend to expand Fourth Amendment standing. The Supreme Court, however, has not applied Katz consis- tently, as seen in Rakas v. Illinois (1978). A police officer on a routine patrol stopped an automo- bile fitting the description of a getaway car used in a robbery and ordered the four occupants to exit. Two officers searched the vehicle’s interior and found a box of rifle shells in the locked glove compartment and a sawed-off rifle under the front passenger seat. The woman who owned the car was the driver. The issue was whether Rakas, as a passenger, had standing to claim that the automobile search was unconstitutional in a prosecution in which the shells and rifle were entered into evidence against him. Rakas did not claim ownership or possession of the gun and shells. He argued that he had standing because he was legitimately in the car.

The Supreme Court, refusing to expand the Jones rule, and even narrowing it, held that Rakas did not have standing. Justice Rehnquist, writing for a five-justice majority, said that the concept of standing added little to the analysis of the case. The real issue was whether the search violated the defendant’s personal Fourth Amendment rights, which had to be determined by examining the facts of the case. The Rakas majority stated that the phrase “legitimately on the premises” is too broad and would extend standing too far. Instead, a court must examine the defendant’s connection with the premises. A casual visitor to an apartment, for example, has no standing to challenge a search, while an overnight guest does have standing. By analogy, the Court ruled that a passenger in a car does not have enough of a connection to challenge the seizure of a weapon that he claimed not to own.

Justice Byron White dissented. He felt that Katz’s “expectation of privacy” doctrine clari- fied the focus of Fourth Amendment analysis as being on the defendant’s privacy right, uncou- pled from ownership. Because Rakas was legitimately in the car, he had as much a privacy interest against an improper police search as did the driver. The flaw in the majority opinion was that “[t]he distinctions the Court would draw are based on relationships between private parties, but the Fourth Amendment is concerned with the relationship of one of those parties to the gov- ernment” (Rakas v. Illinois, 1978, White, J., dissenting). The dissent noted that “the ruling today undercuts the force of the exclusionary rule in the one area in which its use is most certainly jus- tified—the deterrence of bad-faith violations of the Fourth Amendment.” The Rakas holding tempts police to engage in questionable automobile searches in which there is a passenger, in the hope that the passenger would not have standing to challenge an illegal search.

The extremes to which police may go when unconstrained by the exclusionary rule is seen in United States v. Payner (1980). Jack Payner was convicted of income tax fraud on the basis of information illegally seized from the briefcase of Michael Wolstencroft, the vice president of a Bahamian bank. Richard Jaffe, an Internal Revenue Service (IRS) special agent, hired Norman Casper, a private investigator, to study the bank. Casper struck up a friendship with Wolstencroft and introduced him to Sybol Kennedy, also a private investigator. On a business trip to Miami, Wolstencroft went to Kennedy’s apartment, and the two went out to dinner. Wolstencroft left his briefcase in the apartment. Using a key supplied by Kennedy, Casper delivered the briefcase to Jaffe, who had four hundred bank documents photographed. A “lookout” observed Kennedy and Wolstencroft at dinner to ensure that the “briefcase caper” would not be discovered. Because the seizure violated only Wolstencroft’s privacy, Payner had no standing to attack the legality of the seizure, even though the evidence was used against him.

Justice Powell, in his majority opinion, wrote, “No court should condone the unconstitu- tional and possibly criminal behavior of those who planned and executed this ‘briefcase caper’”

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(United States v. Payner, 1980). The majority nevertheless upheld the use of the evidence, noting that the Court had to weigh the benefits of the exclusionary rule “against the considerable harm that would flow from indiscriminate application of an exclusionary rule.” Justice Marshall, dis- senting, commented that the Court’s “holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person’s Fourth Amendment rights in order to obtain evi- dence against another person.” The dissent made sense because the lower courts found that the IRS “affirmatively counsel[ed] its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel.”

Professor Heffernan points out that the Supreme Court’s restrictive standing rule is in con- flict with its theory that the only purpose of the exclusionary rule is to deter police illegality. If the Court were more serious about deterrence, it would allow a broader scope for challenging possibly illegal searches.81 It seems clear that the Burger and Rehnquist Courts’ restrictive stand- ing doctrine is tied to their distaste for the exclusionary rule, a distaste that continues into the Roberts Court (Hudson v. Michigan, 2006).

Exclusionary Rule Theories

The Supreme Court’s development and interpretation of the exclusionary rule from 1886 to 2009 has been conflicted. The justices perennially divide over whether it is a truly constitutional rule, a real remedy, and a personal right, or whether it just an instrument to deter especially bad police violations of privacy. The Court has not recently threatened to abolish the exclusionary rule, but the open hostility to the rule by the Court’s conservative majority, calling it a “grudgingly taken mendicant” (Pa. Board v. Scott, 1998), has added many exceptions and limited it to deliberate and flagrant violations of the Constitution (Herring v. U.S., 2009). At base, the difference between opponents and proponents of the exclusionary rule reflects the ideological divide sepa- rating ‘Due Process Model’ justices from ‘Crime Control Model’ justices. Their differences have been reflected in (1) their view as to whether the exclusionary rule is a constitutional rule, and (2) the theories propounded to explain the exclusionary rule.

IS THE EXCLUSIONARY RULE A CONSTITUTIONAL RULE? Regarding the constitutional stature of the rule, to simplify to some extent, it was noted earlier that from 1914 to 1949 the Court, under Weeks, applied the exclusionary rule to federal courts as a constitutional require- ment. Yet, from 1949 to 1961, under Wolf, the Court’s majority—while extending the prohibition on unreasonable searches and seizures to the states as a substantive constitutional rule—held that the exclusionary rule did not apply to the states because it was only a device to enforce the Fourth Amendment among federal officers. This changed in 1961, when the rule’s constitutional status was regained in Mapp v. Ohio, and the rule was seen as “part and parcel” of the Fourth Amendment, equally applicable to federal and state law enforcement. The pendulum swung again in 1974, when, under Calandra and fortified by Leon (1984), the Court’s majority treated the exclusionary rule as essentially non-constitutional, but constitutional enough for federal courts to apply it to the states in flagrant cases. As late as 2009, almost a century after Weeks, the Court split 5–4 over its view of the nature of the exclusionary rule in Herring.

Several reasons are given for viewing the rule as a non-constitutional device to protect the Fourth Amendment prohibition on unreasonable searches and seizures. (1) The rule is not included in the text of the Fourth Amendment and there was no a common law exclusionary rule in 1791. (2) When police violate the Fourth Amendment, the invasion of a person’s privacy is “fully accomplished” and cannot be repaired by excluding the evidence in court. (3) Mapp (1961) was held not to be retroactive in Linkletter v. Walker (1965) because “all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. We cannot say that this purpose would be advanced by making the rule retrospective” (Linkletter v. Walker, 1965). (4) In Walder v. U.S. (1954), the Court held that the Weeks exclusionary rule did not prevent the government from alluding to illegally seized drugs on cross-examination to impeach the defendant’s testimony (he denied on direct examina- tion ever having drugs in his possession). Any exception to a Supreme Court ruling under a pro- vision of the Bill of Rights proves that the right is not constitutional.82 (5) Elkins v. United States

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(1960), in eliminating the silver platter doctrine, stated that the purpose of the exclusionary rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” The deterrence rationale is thus the rule’s pri- mary goal. (6) Crime control should be seen as the higher goal whenever possible: “The pertinent general principle, responding to the deepest needs of society, is that society is entitled to every man’s evidence. As the underlying aim of judicial inquiry is ascertainable truth, everything rationally related to ascertaining the truth is presumptively admissible” (Elkins v. U.S., 1960, Frankfurter, J., dissenting). (7) The exclusionary rule encourages police perjury. While very few rogue police officers manufacture or plant evidence on innocent suspects, many officers appar- ently “shade the truth” when testifying in court, especially in possession cases. (See the “Law in Society” section in Chapter 3.) This undermines a sense of fairness in the courts, but makes police cynical because they learn that they can reduce the effectiveness of the exclusionary rule by their own success in undermining it.83

A number of arguments support the view that the rule is constitutional. (1) If it is not a constitutional rule, the federal courts have no jurisdiction under Article III to impose it on the states, and yet they do.84 (2) The fact that the text of the Fourth Amendment does not mention exclusion is not an impediment because the Court has established rights in the Constitution by interpretation, including the due process privacy right that has voided state laws that banned contraceptive devices or advice to married couples or that prohibited the abortion of a fetus. Under the theory of the Constitution as a living document, the Court has expanded its civil lib- erties protection over time. (3) The “fully accomplished” argument fails to understand that an illegal search and seizure violates not only privacy rights but property and liberty rights as well, which can be remedied by the return of noncontraband and the exclusion of evidence. (4) As for retroactivity, the Court said in Linkletter that it no longer adhered to the English com- mon law rule that a court only declares what the law is and that an unconstitutional law or rule was totally void; the Court is free to make its rulings retroactive depending upon circum- stances. Other reasons for not making Mapp retroactive were “interests in the administration of justice and the integrity of the judicial process . . . To make the rule of Mapp retrospective would tax the administration of justice to the utmost.” The Court concluded: “All that we decide today is that though the error complained of might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it.” (Linkletter v. Walker, 1965, emphasis added). (5) The use of illegally seized evidence to impeach a defendant (Walder v. U.S., 1954) does create an exclusionary rule exception, but modern constitutional law upholds exception to constitutional rules (e.g., Dickerson v. U.S., 2000, holding that Miranda warnings are constitutional, see Chapter 7). (6) Elkins (1960) relied not only upon the deter- rence rationale for the exclusionary rule but also on the rule of law: “But there is another con- sideration—the imperative of judicial integrity.”

It can be seen that those who wish to strengthen or diminish the exclusionary rule have an armory of arguments on which to rely. We now turn to a number of exclusionary rule theories propounded to justify the existence of the rule, and to help determine whether it is of constitu- tional stature. It is worth reexamining Herring v. United States (2009) to notice that the five “conservative” justices relied exclusively on the deterrence theory to justify a narrow rule, while the four “liberal” justices relied on deterrence and a number of non-utilitarian rules to support a constitutional rule with broader scope.

FIFTH AMENDMENT THEORY Boyd v. United States (1886) excluded evidence on the idea that the “Fourth and Fifth Amendments run almost into each other,” basing the exclusion of seized evidence on the Fifth Amendment exclusion of “compelled” evidence. Several cases relied on Boyd’s Fourth � Fifth formula (Gouled v. United States, 1921), and Justice Black’s crucial fifth vote in Mapp was based on this theory. It made some sense because letters or documents were seized in many early exclusionary rule cases, including Weeks. Nevertheless, the Court discarded the theory in Andresen v. Maryland (1976), which held that seizing business records under a war- rant did not violate the Fifth Amendment self-incrimination clause. Justice White, in Leon (1984), buried the Fifth Amendment theory, stating that it “has not withstood critical analysis or the test of time.”85 The idea that a search compels the disclosure of evidence would virtually make prosecutions based on seized evidence impossible, because “the Fifth Amendment excludes all compelled testimony, whether or not it was obtained by police who had probable cause.”86 This could not have been contemplated by the Fourth Amendment’s Framers.

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PROPERTY THEORY Weeks (1914), Silverthorne (1920), and other cases seemed to rest on the idea that a defendant has a greater property right over evidence illegally seized than the state does. Several inconsistencies undermine the property theory as a basis for the exclusionary rule. A successful defendant, for example, will not have contraband returned, even if the evidence is suppressed.87 Under existing forfeiture laws, all sorts of “innocent” items used in the commission of a crime may be forfeited. In theory, the “expectation of privacy” doctrine of Katz v. United States (1967) abolished the property basis of Fourth Amendment jurisprudence. (See Chapter 3.) Thus, for example, a “seizure” of conversations by electronic eavesdropping violates Fourth Amendment privacy even if there is no trespass to property. The Katz doctrine was confirmed and strengthened by Warden v. Hayden (1967), which abolished the “mere evidence” rule. After Warden, police could lawfully seize any property relevant to a criminal investigation, not just con- traband, loot, or instruments used to commit the crime, and they could hold “mere property” until the case was completed. The Katz doctrine balances law enforcement needs against individual pri- vacy and property rights. As will be seen later in this text, however, the Court in some cases has implicitly relied on the value of property, especially private homes, in applying the rule.

DUE PROCESS THEORY Both Professors Slobogin and Heffernan recall that a rights-based exclusionary rule exists under the “shocks the conscience” test of Rochin v. California (1952).88

This test has not been advanced as a basis of a Fourth Amendment exclusionary rule. It might be viewed as a “back-up” test, somewhat analogous to the due process exclusionary rule for coerced confessions that continues to exist after Miranda v. Arizona (1966) (see Chapter 7). An open question arises under Herring v. United States (2009). Herring ruled that the exclusionary rule operates where police act in “reckless disregard of constitutional requirements.” If this rule comes to be the same as the ‘shocks the conscience’ test, it could be argued, either that Herring overruled Weeks (1914) and Mapp (1961) sub silentio, or that such an effect requires an exclu- sionary rule for Fourth Amendment violations that creates greater protection.

THE IMPERATIVE OF JUDICIAL INTEGRITY/RULE OF LAW In Weeks (1914) and Mapp (1961), the Court justified the rule as one required by the Constitution and enforceable against viola- tions by federal and (later) state legislatures, executive agencies (i.e., the police), and courts. In Elkins v. United States (1960), which banned the ‘silver platter’ doctrine, Justice Potter Stewart reasoned that Wolf v. Colorado (1949), by incorporating the Fourth Amendment’s substantive ban on illegal search and seizures into the Due Process Clause, undermined its other ruling that the exclusionary rule did not apply to the states. This was so because while the exclusionary rule rested in part on deterring police illegality, “there is another consideration—the imperative of judicial integrity” (Elkins, 1960). In other words, courts undermine the Rule of Law if they allow illegally seized evidence to be admitted in trials. This a nonutilitarian rationale, with sev- eral aspects. First, it enables “the judiciary to avoid the taint of partnership in official lawless- ness,” no small matter in a branch of government destined by the Founders to be the guardian of civil rights and liberties (Calandra, 1974, Brennan, J., dissenting). Second, it is an “enforce- ment tool [that] give[s] content and meaning to the Fourth Amendment’s guarantees” (ibid.). In other words, it serves a similar function as the penalty portion of a criminal statute, which, by prescribing a sanction for wrongful conduct, gives moral substance to the rule, whatever its effectiveness. Third, the imperative also assures “the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior” (ibid.). This is the disgorgement rationale, discussed in the section on theories of remedies. As nonutil- itarian and ethical foundations, the imperative of judicial integrity implies that courts must never allow evidence seized in violation of the Constitution to be used. As Justice Holmes wrote in Silverthorne (1920), “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”

DETERRENCE THEORY All cases that developed and rely on the exclusionary rule, including Weeks (1914) and Mapp (1961), rest on the theory that the exclusion of evidence deters the gov- ernment from violating constitutional rights. The big divide between “liberal” and “conserva- tive” justices is whether deterrence is the only theoretical support. The current Supreme Court’s majority, since Calandra (1974), has made deterrence the only basis for the exclusionary rule.

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Where deterrence is thought to be minimal, therefore, the rule has not been held applicable.89

Because deterrence is a utilitarian rationale, its legitimacy turns largely on whether it is effective, a subject of debate that is the focus of the “Law in Society” section in this chapter.

STATUS QUO ANTE THEORY The exclusionary rule returns the parties to where they would have been had the Constitution been followed. This is a commonsense and ethical rationale. It also explains the inevitable discovery exception to the ‘fruits of the poisonous tree’ doctrine: Because the police would have legally obtained the evidence in any event, they should not be placed in a difficult position because an unconstitutional search occurred. Prof. Slobogin claims that the theory is inade- quate because it does not result in the return of contraband, but this is no answer to the underlying logic that this would not have been an issue if the Constitution had been obeyed. His objection that the rule cannot restore the “ruptured privacy” of the person subjected to an illegal search and seizure misses the multiple values protected by the amendment. Slobogin also objects that the status quo ante does not allow introduction of evidence where the police could have lawfully obtained the evi- dence. This idea is the basis of the “inevitable discovery” exception to the derivative use corollary (i.e., ‘fruits of the poisonous tree’) to the exclusionary rule. Professor Slobogin pushes this argument too far because it is always possible to conjure up some way in which police might have properly obtained evidence—such reasoning makes any compliance rule impossible.90

The per curiam decision of Smith v. Ohio (1990), enforcing the rule against retrospective justification, was discussed earlier in the section on the ‘fruits of the poisonous tree’ doctrine. The rule is simplicity itself. Police cannot search without any legal justification and then argue that the search is proper if they find incriminating evidence. The Fourth Amendment, which pro- tects individual privacy, liberty, and property, requires that government officers have justification before they search or seize. This rule is so basic that it is rarely discussed, but it embodies all of the justifications of the exclusionary rule: deterrence, status quo ante, and judicial integrity.

According to Prof. Heffernan, the internal logic of the Fourth Amendment against retroactive justification requires the “remedy” of exclusion even if the Framers did not consider exclusion, because without the exclusionary rule the amendment “collapses on itself.”91 The government cannot insist on holding on to illegally seized evidence in order to determine if it discloses incriminating information, for that would allow seizures before probable cause is obtained. “Absent exclusion, all personal property is held on a probationary basis: government agents can seize personal property at will, inspect it, and return it only if it is found not to provide evidence of a crime.”92 The internal logic of the Fourth Amendment cannot allow this kind of retroactive legitimation. If the exclusionary rule were totally eliminated, police could choose to violate Fourth Amendment rights in specific cases they deem important and be willing to pay the price in a tort action if it came to that. Thus Heffernan believes that Justice Holmes and the Court had it right in Silverthorne (1920). Whatever the Framers thought about exclusion as a remedy, the Court in Weeks and Silverthorne intuited correctly that the exclusionary principle “emerges from an analysis of the internal logic of the Amendment itself.”93

This is so even if exclusion does not repair the violation of first-party privacy interests and extracts a heavy cost to the public whose third-party interest in deterrence is offset by an interest in convicting the guilty. Nevertheless, the liberty-protecting function of the Constitution coa- lesces with and is required by the second-party remedy of disgorgement via exclusion that is required by the logic of the Fourth Amendment.

LAW IN SOCIETY Debating the Exclusionary Rule

Inherent Limits of Deterrence

The dislike of the exclusionary rule is also connected to the belief that the exclusionary rule is a completely ineffective deterrent to police illegality. This argument seems logical because (1) the impact of exclusion is directly felt by the prosecutor rather than the officer, (2) police know and count on the fact that the rule is rarely applied, (3) judges are reluctant to find a Fourth Amendment violation when they know that evidence points to guilt (hindsight biasing),94

(4) negative sanctioning for improper searches occurs indirectly via prosecutors’ complaints to police administrators, which are relayed down the chain of command, and (5) negative sanction- ing for illegal searches is offset by the praise and recognition that officers receive for making

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good arrests.95 Aside from logical arguments that downplay deterrence, it is important in forming a sound policy to examine the empirical evidence about the “costs” and the deterrent effect or “benefits” of the exclusionary rule.

Costs and Benefits of the Exclusionary Rule

Since 1974, the Supreme Court has confronted two empirical issues concerning the exclusionary rule: its deterrent effect and its costs in lost convictions. Both issues have been used in arguments for and against the rule, such that studies and findings have been examined with partisan intensity. In the course of examining these empirical questions, the Supreme Court has used and, on occasion, mis- used social science data. This section reviews some of the findings on these sensitive issues.

To understand human behavior, social scientists first attempt to measure behavior accu- rately, systematically, and with quantitative precision to the greatest extent possible. Statistical tests are applied to data to determine the extent to which the collected data (a sample) reflect actual behavior (the universe). These rigorous attempts to quantify knowledge contrast with the human tendency to generalize—that is, to make overly broad conclusions about human behavior based on a small number of personal experiences or on the basis of a few secondhand stories.

The Deterrent Effect of the Exclusionary Rule

United States v. Calandra (1974) “adopted the view that the primary rationale for the federal exclusionary rule is the factual premise that suppression of illegally seized evidence will deter the police from conducting illegal searches.”96 Only a few studies of the exclusionary rule had been published by 1974. The most prominent, by Dallin Oaks, appeared to show that the exclu- sionary rule had no effect on police behavior in several cities.97 Oaks’s data did not conclusively show whether the exclusionary rule deterred police misconduct. Rather, his stated personal opin- ion was that the rule failed to deter and should be abolished. According to Thomas Davies, “the Oaks study has probably established something of a record for being widely cited as empirical support for a finding it did not really claim to make.”98

Proponents of the exclusionary rule were fearful that the Supreme Court would use a find- ing of no deterrence to abolish the rule. For example, in his Bivens dissent, Chief Justice Burger stated: “If an effective alternative remedy is available, concern for official observance of the law does not require adherence to the exclusionary rule.” This would be especially troublesome if the Court made constitutional law based on flawed research. Indeed, Oaks’s research conclusion, if not his data, was flawed in that he believed the exclusionary rule failed simply because Fourth Amendment violations continued to occur after the Mapp decision. This was a conceptual fail- ure: The more appropriate question was whether the number and rates of such violations increased, decreased, or remained level after Mapp. Oaks failed to make these comparisons.99

In United States v. Janis (1976), a careful and exhaustive review of the deterrence research in Justice Harry Blackmun’s majority opinion finally put to bed the deterrence issue. The issue in Janis was whether the exclusionary rule would be extended to federal IRS civil tax assessment hearings to exclude illegally seized evidence. A strong finding about the deterrent effect could sway the Court to extend the rule or to abolish it. Justice Blackmun’s honest review of the research liter- ature concluded that there is no conclusive evidence that the rule has or does not have a deterrent effect: “The final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect even in the situations in which it is now applied” (Janis, fn. 22). The way in which the Court applied this equivocal and correct empirical conclusion is interesting. Justice Blackmun said that even if the exclusionary rule has a strong deterrent effect, “the additional marginal deterrence provided” by -extending the rule to federal civil tax proceedings “surely does not outweigh the cost to society of extending the rule to that situation” (Janis, pp. 453–54, emphasis added). The majority in Janis clearly did not want to extend the exclusionary rule, and so its analysis had a “heads I win, tails you lose” quality, switching the focus of inquiry from deterrence to the costs of the exclusionary rule.

Nevertheless, the Court’s conclusion in Janis in regard to the empirical research is support- ed by Davies’s most thorough review of the issue.100 The problem is not so much that of poor research designs, but of the special difficulty of defining and studying legal deterrence. According to Davies, “It is quite unlikely that there will be any rigorous measurement of the rule’s specific deterrent effect in terms of how often illegal searches have been prevented.”101 This problem arose partly because the research community paid little attention to the exclusionary rule

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when criminal justice research made it clear that the rule was a minor factor in the total disposi- tion of cases. Thus studies on the effectiveness of deterrence and on its “costs” were left to poli- cy-relevant studies that framed the issue narrowly.102

The Educative Effect of the Exclusionary Rule

Another empirical question is whether the exclusionary rule has had a broad educative effect. Proponents have not been able to establish this by rigorous empirical research, but there is some anecdotal evidence suggesting that because of the rule, police are now trained in the law, police and prosecutors seriously discuss search and seizure rules, and the police community generally takes the Fourth Amendment more seriously than it did before Mapp.103 A study comparing drug, weapons, and gambling arrests in nineteen cities before and after Mapp appears to indicate that Mapp had a decided effect in six cities, an intermediate effect in three cities, and no effect in ten cities.104 This suggests that “Mapp’s impact largely has been mediated by differentials in attitudes and styles among police and civic leaders . . . . [T]he police are likely to behave differently in a city where the chief almost openly encourages evasion of a Supreme Court decision than in one where the chief insists on obedience.”105

This is supported by the observational study of police by law professor Richard Uviller, who noted that honest police officers bring to their work an “innate sense of limits” that prevails “over the broad license allowed by law” in many situations.106 Too often the “legal focus” por- trays police as overly aggressive, overly zealous, and guided only by a crime control mentality. Uviller’s closely observed police officers displayed common sense, decency, and a real desire to operate within the limits of the law, even if they were not always precisely correct about the operative rules. This perspective suggests that over the long run, police behavior actually will become more law-abiding. One may also speculate that as Court decisions become more favor- able to the police, it will be easier for officers to obey the rules of constitutional criminal proce- dure. A more cynical possibility may be that successful evasion of the exclusionary rule is a factor in police acquiescence to the rule. All these factors may be at play simultaneously. In any event, to bring police behavior into line with constitutional norms requires practical training for police officers. Where the law does place limits on what the police may do, departments are well advised to include some training into the reasons for these limits.

Costs of the Exclusionary Rule

The Court, in its anti-exclusionary-rule mood, tended to emphasize the costs of lost convictions in broad terms. Justice White’s concurrence in Illinois v. Gates (1983) is an example of the poor review of social science studies. For example, White’s broad conclusion—“We will never know how many guilty defendants go free as a result of the rule’s operation”107—is wrong. To make mat- ters worse, he quoted a misleading National Institute of Justice (NIJ) study that reported that “pros- ecutors rejected approximately 30 percent of all felony drug arrests because of search and seizure problems.”108 As we shall see, this was a gross exaggeration of the costs of the exclusionary rule.

Unlike deterrence, which is inherently difficult to measure, lost cases can be more precise- ly measured. Because the total number of arrests and the number of cases dismissed owing to search and seizure errors can be obtained from prosecution and court records, the proportion of “lost cases” can be calculated. Several research studies are in general agreement that the “costs” of the exclusionary rule are not great. In almost all instances, the percentage of cases dropped because of search and seizure problems is less than 1 percent:

1. Forst, Lucianovic, and Cox (1977). In Washington, D.C., prosecutors rejected 168 out of 17,534 arrests (1 percent) for all kinds of due process problems, including search and seizure violations.109

2. Brosi (1979). Prosecutors declined to issue complaints for all types of due process errors in 1 percent of the cases in Washington, D.C.; 2 percent in Cobb County, Georgia; 2 percent in Salt Lake City; 4 percent in Los Angeles; and 9 percent in New Orleans.110

3. Forst et al. (1977 and 1982). Due process violations led to dismissals in less than 1 percent of arrests in six cities, 2 percent in Los Angeles, and 6 percent in New Orleans.111

4. General Accounting Office (1979). Prosecutors declined to accept 46 percent of all cases; 6.6 percent of the declined cases were rejected for legal violations overall, and 0.4 percent of all cases were declined because of illegal searches.112

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5. Nardulli (1983). A review of 7,500 cases in nine counties in three states found that motions to suppress physical evidence were filed in fewer than 5 percent of the cases and were successful in 0.69 percent of the cases, and motions to suppress illegal confessions or identifications were filed in 2 percent of the cases and were successful in 4 percent of these. Some defendants were convicted even after the evidence was suppressed. In the entire sample, 46 out of 7,500 cases were lost (less than 0.6 percent) because of the three exclusionary rules combined.113

6. Feeney et al. (1983). Nine out of 885 nonconvictions (1 percent) were lost due to illegal searches; since about half of the arrests resulted in nonconvictions, 0.5 percent of the cases in Jacksonville and San Diego were lost because of the exclusionary rule.114

7. Uchida and Bynum (1991). In seven cities, 1.4 percent of all defendants (19 out of 1,355) in cases based on search warrants were granted motions to suppress.115

Despite the virtually unanimous conclusion that about 1 percent or less of cases are lost because of the rule, Justice White claimed in Gates that 30 percent of the cases were lost due to excluded evidence. He based this on a federal study of California case processing and repeated the figure put forward in the solicitor general’s brief. Davies notes that the NIJ study was serious- ly flawed and that the 30 percent figure is grossly misleading. First, the NIJ study showed that 4.8 percent of all rejected felony cases are lost because of search and seizure problems. This in no way indicates the cost of the exclusionary rule; it instead shows that among those cases that prosecutors rejected, 4.8 percent were lost due to the exclusionary rule. This is meaningless because the percentage calculated in this way can change dramatically depending on changes in the other reasons for dismissals. When the NIJ data of lost cases are calculated against a base figure of total arrests, those lost due to the exclusionary rule drop to about 0.8 percent, more in line with the other studies. As for the 30 percent figure, it was drawn from a sample of 150 drug cases from two local prosecutors’ offices in Los Angeles, which was not at all representative: As Davies indicates, between 1978 and 1982, California prosecutors rejected 2.4 percent of felony drug arrests because of illegal searches.

Further, the studies show that the number of cases rejected on Fourth Amendment grounds in serious violent felonies is lower, about 0.2 percent of all arrests, and somewhat higher for drug offenses. Davies makes the point that many such rejected arrests in drug cases may not be those of carefully planned raids, but rather are arrests on suspicion where drugs are found and the probable cause basis is very weak to begin with. Thus, unlike the inconclusive result of the exclusionary rule’s deterrent effect, research findings of its costs firmly show that fewer than 1 percent of arrests are lost because of the exclusionary rule. In half of these lost cases, convictions are still obtained because of other evidence.

Do these findings mean that the costs are low? This is a normative issue. The figures show that the exclusionary rule is not subverting law enforcement efforts. Yet its effect may still be un- acceptably high to some. “Indeed, some critics have taken the position that even one lost arrest is an excessive cost.”116 Thus when Justice White had to confront this new evidence, he stated that “the small percentages with which [the researchers] deal mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures” (United States v. Leon, 1984, fn. 6). Of course, in a country with a population of 300 million, virtually any small percentage will generate large numbers. I would tend to agree with Uchida and Bynum “that the exclusionary rule, though seldom invoked, serves as an incentive for many police officers to follow the limits imposed by the Fourth Amendment as defined in their jurisdictions.”117 Thus the exclusionary rule debate presents an interesting case history of the use and misuse of social science data in the judicial decision-making process.

The Effectiveness of Tort Remedies

Another aspect of the exclusionary rule debate is the effectiveness of tort suits against the police. The evidence is generally that they do not provide strong control over police misbehavior, including police brutality. Empirical studies of Bivens suits, for example, disclose that they virtu- ally never lead to findings of police officer liability.

Government figures reflect that out of approximately 12,000 Bivens claims filed between 1971 and 1985, Bivens plaintiffs actually obtained a judgment that was not reversed on appeal in only four cases. While similar figures have not been systematically kept since 1985, recoveries from both settlements and litigated judgments continue to be extraordinarily rare. According to

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one estimate, plaintiffs obtain a judgment awarding them damages in a fraction of 1 percent of Bivens cases and obtain a monetary settlement in less than 1 percent of such cases. The low rate of successful claims indicates that, notwithstanding Bivens, federal constitutional violations are almost never remedied by damages. The low success rate of these claims also reflects that the courts are processing a tremendous amount of Bivens litigation. When analyzed by traditional measures of a claim’s “success”—whether damages were obtained through settlement or court order—Bivens litigation is fruitless and wasteful because it does not provide the remedies con- templated by the decision, and it burdens litigants and the judicial system.118

While recovery in other kinds of tort cases against the police does exist, such recovery is hard to obtain, and monetary claims are low. In a study based on telephone interviews with civil rights attorneys in southern California, a variety of reasons were given for the lack of success:119

• Civil rights attorneys are unwilling to take weak cases. • Witnesses with past criminal records are not credible to jurors. • Police have a qualified immunity defense for acts done in good faith. • Municipalities provide the costs of defense and pay for any settlement in cases won by

plaintiffs. • It is more difficult for plaintiffs to discover facts in the hands of defendants in these cases

compared to other civil litigation. • Defendants can tie up plaintiffs, who tend to have limited resources, with interlocutory

appeals in Section 1983 suits. • The “blue curtain” of silence makes police witnesses very reluctant to testify. • Police perjury is rampant. (See the “Law in Society” section in Chapter 3.) • Jurors almost always believe the police.

As a result, the likely deterrent effect of lawsuits on police brutality is very low. Commissions on police brutality report that many cases of abuse are committed by officers who are repeat offenders, indicating that departments do a poor job of sanctioning officers with a his- tory of excessive violence. Many cities in the last decade have paid millions of dollars in tort damages for police brutality, and the numbers do not appear to have substantially diminished. Although there seems to be a slight, growing public interest in police brutality currently, there is virtually no political pressure for police departments to abide by the Constitution.120 As Professor Bradley Canon noted in his study of police departments that follow warrant procedure, much depends on the attitudes of the police chief. “The chief and higher-ranking supervisors establish the tone and culture within a police department. If the upper ranks do not enforce violations of department policy, there will be no curb on officers’ misconduct out on the street.”121 Chiefs who are concerned with the legal conduct of their officers can affect policy and action by the selection of field training officers, by their own disciplinary decisions, by the emphasis given to legal issues in academy and in-service training, and by having records of tort cases become part of an officer’s file and be taken into account in promotions.122 All such measures should not lead to demoralization or overdeterrence that causes police officers to shy away from performing their difficult jobs effectively. But there are examples, such as William Bratton’s tenure as New York City police commissioner, demonstrating that, to paraphrase Justice Tom Clark, there is no war between effective policing and law-abiding policing.

Summary

Legal remedies against the government for constitutional vio- lations are indispensable to the Rule of Law and constitution- alism. The theory of remedies includes three types: first-party remedies—reparations—that restore the injured party to the position occupied before the injury occurred. Second-party remedies—disgorgement—that place the wrongdoer (the sec- ond party) in no better position than the one occupied prior to the wrongful conduct. Third-party remedies—deterring future wrongdoing—that benefit the general public, putting it in a better position than if no deterrence were undertaken.

Aside from the exclusionary rule, individuals whose Fourth Amendment rights have been violated have other poten- tial sources of relief. These include lawsuits against the police of- ficer or the department. The different types of tort lawsuits include state common law tort suits, state constitutional torts wherein state officers are sued in state courts, Section 1983 civil rights suits against state and local officers and municipalities (but not state governments) in federal courts, and Bivens suits against federal officers in federal courts. Judges and prosecutors enjoy absolute immunity against lawsuits for acts performed in the

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ocurse of their duties. Police officers enjoy qualified immunity for performing discretionary functions if their conduct does not violate clearly established rights which a reasonable person would have known existed.

For violations likely to persist against specific individ- uals, injunctions that prohibit the illegal police activity from recurring are available, but the Supreme Court generally dis- favors injunctions. Federal and state criminal prosecutions may also be brought against police officers, but they are typ- ically reserved for the most egregious violations involving unnecessary violence. Police departments can improve their record of abiding by the law by adopting better recruitment, training, and supervision procedures and by other adminis- trative measures. Congress passed 42 U.S.C. § 14141 in 1994, allowing the Department of Justice to bring suits against police departments to correct violations by means such as improved hiring, training, and complaint procedures where a pattern or practice of conduct by law enforcement officials that deprives people of constitutional rights has been proven.

The Fourth Amendment is grounded in the English com- mon law rule of home privacy against government invasion, which was established shortly before the framing of the Constitution (1787) in the Writs of Assistance case and the Wilkes cases. They held that general warrants are illegal and that a victim of a general warrant could sue the government for damages.

Fourth Amendment interpretation can follow either gener- al reasonableness (conservative) or warrant-and-exception (lib- eral) approaches. The Fourth Amendment was intended to elim- inate the government’s use of general search warrants. In the founding era, police had no power to conduct warrantless arrests or searches based on probable cause; a warrant was required. Nevertheless, modern constitutional interpretation authorizes warrantless arrests and searches upon probable cause under the general-reasonableness construction of the Fourth Amendment. The warrant-preference construction holds that warrants are re- quired except in hot pursuit, vehicle searches, and search inci- dent to arrest.

The Fourth Amendment exclusionary rule states that illegally seized evidence may not be introduced into evidence in a trial. It was established in Weeks v. United States and Silverthorne Lumber Co. v. United States, based on the Constitution, that illegally seized evidence shall not be used at all. The rule applies only to government officers, not to illegal searches by private individuals. Evidence derived from illegally seized materials cannot be introduced into evidence (‘fruits of the poisonous tree’ doctrine). However, illegally obtained evi- dence of a crime may be introduced if it is obtained from an in- dependent source, by inevitable discovery, or because the link between the primary illegality and the evidence seized has be- come attenuated.

The Supreme Court incorporated the exclusionary rule (extended it to the states) in Mapp v. Ohio after having refused to do so in Wolf v. Colorado and Rochin v. California. In the latter case, the Court excluded evidence that was seized by methods that “shocked the conscience.” This was a due

process, “totality of the circumstances” test, and criticism of its subjectivity was a factor in the Mapp decision. The basis of Mapp was that the exclusionary rule is required by the Fourth Amendment and that exclusion is the best deterrent of police misbehavior.

After Mapp, a more conservative Supreme Court erod- ed the exclusionary rule. It upheld the use of illegally seized evidence as a basis of a grand jury question in United States v. Calandra, which modified the theoretical basis of the exclusionary rule. It became viewed as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect on future unlawful police conduct, rather than a personal constitutional right of the aggrieved party. This concept was expanded by United States v. Leon, which allowed the introduction of illegally seized evidence for the proof of guilt where the evidence was obtained by police officers in the “good faith” reliance on a statute or search warrant. It also held that the exclusion- ary rule does not apply to unconstitutional acts committed by the judiciary. A ruling that evidence is admissible where police execute a search without complying with the knock and announce rule, a constitutional requirement, exemplifies the Court’s distaste for the exclusionary rule (Hudson v. Michigan). In Herring v. United States the Supreme Court held that the exclusionary rule does not apply to an illegal search based on an officer’s good faith reliance on errors in police computers.

To challenge evidence taken in violation of the Fourth Amendment, a party must have standing—that is, the party must have suffered a personal invasion of privacy rights rather than suffered harm because of the invasion of the pri- vacy rights of another person. In Rakas v. Illinois, the Court held that a passenger of an automobile does not have such a personal right. A personal interest to raise a Fourth Amendment challenge does not depend on the defendant’s strict property right but on his or her level of interest in a place; thus overnight guests in an apartment have standing, but guests invited into an apartment for business purposes do not have standing.

Fourth Amendment law has been confused because there are overlapping and conflicting theories of the exclusionary rule. These include the idea that the rule is required by the Constitution; that it is only a judicially created rule designed to deter police from violating individuals’ rights; that it is based on the Fifth Amendment privilege against self-incrimination; that it is based on property rights; that it is based on returning the parties to their original position; that, once breached, priva- cy rights can never be repaired; and that violations of privacy interests involve property or liberty violations that should be repaired under a theory of disgorgement. Each of these theo- ries has at least one weakness. Thus there is some level of pol- icy choice open to jurists in deciding how to justify the exclusionary rule. The most philosophically coherent view is that the exclusionary rule is a Fourth Amendment requirement; otherwise, the government could justify illegal searches retroactively, subject only to tort remedies, which causes the amendment to collapse.

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Legal Puzzles

HOW HAVE COURTS DECIDED THESE CASES?

Qualified Immunity

2-1. During the night and early morning of June 24–25, Albert Sheldon and his girlfriend Dora Williams attended a party in Ambler, Alaska, and consumed alcohol. They left the party and walked around the village, fighting and yelling at each other. At about 6:00 a.m., friends went to Ambler’s Village Police Officer (VPO) Bryan Jones, asking him to restrain Sheldon.

VPO Jones, wearing his police uniform and equipment, recorded the encounter. He tried but failed to subdue Sheldon by orders, threats, pepper spray, and striking Sheldon on his hands and the back of his knees with his police baton. VPO Jones then struck Sheldon on the back of his head with the baton, non-fatally according to a medical expert. Sheldon continued to hold on to the handlebars of a four-wheeler. VPO Jones then put Sheldon in a “bear hug,” wrapping his arms over Sheldon’s arms and shoving him, performing a “take-down.” The two men fell. Sheldon was unable to use his arms, and he struck his head on the ground when he landed underneath Jones. Within an hour Sheldon was dead, caused by the blow to his head from hitting the ground while in VPO Jones’s bear hug and take-down.

In a civil lawsuit, was the officer’s “bear hug and “take- down” maneuver entitled to qualified immunity?

Held. YES 2. In Saucier v. Katz (2001), the U.S. Supreme Court empha-

sized that deciding whether an officer is eligible for qualified immunity depends not merely on whether an officer’s actions were objectively reasonable, but also on whether the officer might have reasonably believed that his actions were reason- able. Was a reasonable officer “on notice” that his particular use of force would be unlawful? Or could he have reasonably believed that his actions were legal? This test recognizes that there may be behavior that is objectively unreasonable but that nonetheless an officer might have reasonably believed was reasonable. If so, then the officer should be entitled to qualified immunity for his behavior.

If VPO Jones had “fair notice” that a bear hug and take- down were unlawful, and if there is a factual disagreement over whether he used excessive force, then the case should go to trial. The legal standard in Alaska statutes—that a police officer mak- ing an arrest may not use any restraint that is not necessary and proper for the arrest or detention of a person—is too general to give officers notice that specific actions taken in specific cir- cumstances may or may not be reasonable. There is only one federal case that suggests that a bear hug and take-down may be reasonable, which is not sufficient to establish clear law that says that a bear hug and a take-down are excessive uses of force when applied to an intoxicated and assaultive arrestee.

However, if Jones’s use of a bear hug was so egregious, so excessive, that he should have known it was unlawful, then the nature of the act gave sufficient warning that a bear hug and a take-down were excessive means to restrain someone. One should not let the lack of explicit law in an area be a substitute for the reasonable officer’s common sense.

Although the events in this case resulted in tragedy, Jones’s conduct was not shocking. He did not do anything we can now, on reflection, say that he should have known at the time was excessive and unlawful. Cognizant of the reality that

officers must often make quick judgments that might have unanticipated consequences, we must resist the urge to second guess those actions when things turn out badly. Jones, in act- ing as he did, could have reasonably believed that his actions were not excessive. Jones is entitled to immunity.

Sheldon v. City of Amber, 178 P.3d 459 (Alaska Supreme Court 2008)

State Action or Private Action?

2-2. Rowley was taken into police custody on an unrelated matter. He asked his parents to take care of the things in the bed of his pickup truck, parked in front of his parents’ home. Rowley’s father, concerned about possible weather damage to the heavy items in the bed of the truck, moved it inside the garage. While in the cab of the truck, his father saw a syringe and a porcelain cup both containing an unknown substance in an open cubby hole under the dashboard. Father took these items into the house and showed them to his wife. Mother then searched the bags that were in the back of Rowley’s truck and found a digi- tal scale. Father contacted a sheriff’s officer, whom Father knew, and informed him of what he and Mother had found in their son’s truck. Father followed Officer’s instructions and re- turned the items to where they had been found. When the offi- cer arrived at Father’s home, Father invited him into the garage and Officer retrieved the evidence in question from Rowley’s truck. The substances were later tested and determined to be methamphetamine.

Did Father’s obedience to Officer’s order constitute state action, making Officer’s seizure of the syringe and cup without a warrant unconstitutional? Holding available from instructor

Exclusionary Rule

2-3. Tamika Smith, driving a rental car, was stopped driving west on I-94 between Detroit and Chicago for speeding. Her two small children and Todd Fletcher were passengers. Drivers’ licenses were checked; Smith’s had been suspended; Fletcher’s was valid, but he was a person of “officer safety caution” based on previous arrests for cocaine possession and weapons offenses. The trooper searched the trunk of the rental car without consent and discovered $180,975 in cash in a backpack. Smith was cited for speeding and driving on a suspended license but with no crimes. Neither she nor Fletcher could provide a good ex- planation for possession such a large sum of cash.

State law requires the forfeiture of money when the state can prove on a preponderance of evidence that the money was intended to buy drugs. In a civil forfeiture proceeding by the state, the prosecutor admitted the search and seizure of the cash violated the Fourth Amendment. The cash itself was not intro- duced in evidence but the prosecutor presented evidence to show that Smith was a drug courier and that the $180,975 seized by the trooper had been intended for the purchase of ille- gal drugs.

Was the civil forfeiture invalid because the state introduced evidence about illegally seized cash? Holding available from instructor.

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Standing

2-4. Darold Jorlantin was charged with driving under the influence. An officer answered a possible gang fight report at a gas sta- tion. People pointed to a departing van, saying that individuals inside the van wanted to fight. The officer went to the van, ob- served the driver and multiple passengers inside, and directed the driver to stop. The officer smelled the odor of an alcoholic beverage emanating from the driver’s side of the van, and he saw a nearly empty bottle of brandy on the floor of the driver’s side of the van. The driver’s eyes were bloodshot and watery, and he stated that he had consumed “a little bit” of alcohol. The driver failed to perform satisfactorily on roadside sobriety tests and was arrested.

Jorlantin made a pretrial motion to suppress the arresting officer’s observations on the grounds that the officer lacked rea- sonable suspicion to stop the van and lacked probable cause to arrest him, thus violating the Fourth Amendment. In his testi- mony at the suppression hearing, the officer did not expressly identify Jorlantin in the courtroom as the van’s driver. No evi- dence was introduced that Jorlantin was a passenger, and not the driver, of the van.

Does Jorlantin have standing to challenge the stop and ar- rest on Fourth Amendment grounds? Holding available from instructor.

Further Reading

Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties (Madison: University of Wisconsin Press, 1981).

J. David Hirschel, Fourth Amendment Rights (Lexington, Mass.: Lexington Books, 1979).

H. Richard Uviller, The Tilted Playing Field: Is Criminal Justice Unfair? (New Haven, Conn.: Yale University Press, 1999).

Useful Web Site

National Criminal Justice Reference Service

http://www.ncjrs.gov/index.html

Essential information for everyone interested in criminal justice. Includes reports from the National Institute of Justice, the Bureau

of Justice Statistics, and the Office of Juvenile Justice and Delinquency Prevention. Provides links for courts, crime, justice, law enforcement, and other topics.

End Notes

1. Cornelia T. L. Pillard, “Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability under Bivens,” Georgetown Law Journal 88 (1999): 65–105, 69.

2. William C. Heffernan, “Foreword: The Fourth Amendment Exclusionary Rule as a Constitutional Remedy,” Georgetown Law Journal 88, no. 5 (2000): 799–878, 806.

3. McGhee v. Volusia County, 679 So.2d 729 (Fla. 1996). 4. Kathryn Scarborough and Craig Hemmens, “Section 1983

Suits against Law Enforcement in the Circuit Courts of Appeal,” Thomas Jefferson Law Review 21 (1999): 1–21.

5. T. Hunter Jefferson, “Note: Constitutional Wrongs and Common Law Principles: The Case for the Recognition of State Constitutional Tort Actions against State Governments,” Vanderbilt Law Review 50 (1997): 1525–76, 1549–50.

6. Gail Donoghue and Jonathan I. Edelstein, “Life after Brown: The Future of State Constitutional Tort Actions in New York,” New York Law School Law Review 42 (1998): 447–556, 447, n. 2.

7. Brown v. New York, 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223, 75 A.L.R. 5th 769 (1996).

8. Henry Weinstein, “Judge OKs Use of Racketeering Law in Rampart Suits; Scandal: LAPD Can Be Sued as a Criminal Enterprise, He Rules. The Decision Could Triple the City’s Financial Liability for Mistreatment of Citizens, Experts Say,” Los Angeles Times, August 29, 2000, A1; and David Rosenzweig, “L.A. Seeks to Appeal Racketeering Ruling; Rampart: The City

Asks Judge’s Permission to Challenge His Decision That the LAPD Can Be Sued under RICO Law,” Los Angeles Times, August 31, 2000, B3.

9. Diaz v. Gates, 354 F.3d 1169 (9th Cir. 2004). 10. Paul W. Hughes, “Not a Failed Experiment: Wilson-Saucier

Sequencing and the Articulation of Constitutional Rights,” University of Colorado Law Review 80 (2009): 401–30.

11. Gregoire v. Biddle, 177 F.2d 579 (1949). 12. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). 13. Samuel Walker, The New World of Police Accountability

(Thousand Oaks, Calif.: Sage, 2005), 34 (internal quotation marks ignored).

14. Alison L. Patton, “Note: The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality,” Hastings Law Journal 44 (1993): 753–808, 766–67.

15. P. Applebome and R. Suro, “Texas Slaying: A Tale of Two Counties,” New York Times, May 11, 1990. In 1990, a local jury in Tyler, Texas, convicted three white police officers of the killing of Loyal Garner Jr., an African-American man with no prior criminal history, while he was held in jail for alleged drunk driving.

16. Jan Hoffman, “Police Reformer Draws on His Experience,” New York Times, February 24, 2000; Somini Sengupta, “The Diallo Case: The Jurors; 2 Jurors Defend Diallo Acquittal,” New York Times, February 27, 2000; and Winnie Hu, “The Diallo Case: The Deliberations; When Case Was Weighed,

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Prosecution Was Wanting, Juror Says,” New York Times, February 28, 2000.

17. M. Zalman and M. Gates, “Rethinking Venue in Light of the ‘Rodney King’ Case: An Interest Analysis,” Cleveland State Law Review 41, no. 2 (1993): 215–77.

18. J. Wilson, “Ex-Cops Get Prison, Budzyn, Nevers Are Remorseful over Death,” Detroit Free Press, October 13, 1993.

19. Robyn Meredith, “Jurors Acquit White Officer in the Death of Black Driver,” New York Times, November 14, 1996.

20. Anemona Hartocollis, “Officer Guilty of Negligence in ‘03 Killing,” New York Times, October 22, 2005.

21. William K. Rashbaum, “A Reversal on Oversight of the Police,” New York Times, July 7, 2000.

22. Joseph P. Fried, “Volpe Sentenced to a 30-Year Term in Louima Torture,” New York Times, December 14, 1999.

23. William Bratton and Peter Knobler, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), 241–44.

24. Samuel Walker, Police Accountability: The Role of Citizen Oversight (Belmont, Calif: Wadsworth, 2001).

25. Suggested in Whitebread and Slobogin, Criminal Procedure, 65. 26. Jerome H. Skolnick and James J. Fyfe, Above the Law: Police

and the Excessive Use of Force (New York: Free Press, 1993), 243–45.

27. Skolnick and Fyfe, Above the Law, 255–57. 28. D. Johnston, “Reno Tightening Rules on Use of Lethal Force

by Federal Agents,” New York Times, October 18, 1995. 29. M. Newman, “Training for Trust; A Course for Police Recruits

Examines How They Judge and Are Judged,” Pittsburgh Post- Gazette, April 10, 1996.

30. Editorial, “Higher Standards for Police Recruits,” New York Times, November 28, 1995.

31. J. McKinnon, “Police Add Japanese Martial Art to Skills,” Pittsburgh Post-Gazette, January 23, 1996.

32. Christopher Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” University of Illinois Law Review 1999 (1999): 363–446, 405–6.

33. See generally, Walker, The New World of Police Accountability; Debra Livingston, “Police Reform and the Department of Justice: An Essay on Accountability,” Buffalo Criminal Law Review 2 (1999): 815–57; Samuel Walker and Morgan Macdonald, “An Alternative Remedy for Police Misconduct: A Model State ‘Pattern or Practice’ Statute,” George Mason University Civil Rights Law Journal 19 (2009): 479–552.

34. Walker & Macdonald, 484. 35. M. L. Elrick and Ben Schmitt, “U.S. Plans to Oversee Detroit

Cops; Costly Changes May Be Required,” Detroit Free Press, June 11, 2003; David Shepardson and Darren A. Nichols, “Detroit Cop Reform Launched; Federal Watchdog Takes over Today, Says Five-Year Oversight Plan Will Top $6 Million,” Detroit News, July 23, 2003; and Eugene Kim, “Note: Vindicating Civil Rights under 42 U.S.C. 14141: Guidance from Procedures in Complex Litigation,” Hastings Constitutional Law Quarterly 29 (2002): 767–805.

36. Walker and Macdonald, 502. 37. Ibid. 38. Walker and Macdonald, 503. 39. Daniel González, “Feds investigate Arpaio,” Arizona Republic

(Phoenix), March 11, 2009. 40. Tim Rutten, “Change Has Come to the LAPD Too,” Los

Angeles Times, January 21, 2009. 41. Livingston, “Police Reform,” 826. 42. Walker and Macdonald, 508.

43. Livingston, “Police Reform,” 846–48. 44. Walker and Macdonald, 527–30. 45. Walker and Macdonald, 533–34. 46. Walker and Macdonald, 536–51. 47. William J. Cuddihy, “The Fourth Amendment: Origins and

Meaning, 602–1791” (unpublished doctoral dissertation, Claremont Graduate School, 1990), c.

48. Levy, Original Intent, 224. 49. Leonard W. Levy, Original Intent and the Framers’

Constitution (New York: Macmillan, 1988), 226. 50. Levy, Original Intent, 222–29; and Catherine Drinker Bowen,

John Adams and the American Revolution (New York: Grosset and Dunlap, 1950), 208–19. See also Cuddihy, “Fourth Amendment,” 757–825; and M. H. Smith, The Writs of Assistance Case (Berkeley: University of California Press, 1978).

51. Levy, Original Intent, 229. 52. Levy, Original Intent, 231. 53. 95 Eng. Rep. 807. See C. Stephenson and F. Marcham, Sources of

English Constitutional History (New York: Harper, 1937), 705–10. 54. C. R. Lovell, English Constitutional and Legal History (New

York: Oxford University Press, 1962), 454. 55. Cuddihy, “Fourth Amendment,” 1231–1358; and Thomas Y.

Davies, “Recovering the Original Fourth Amendment,” Michigan Law Review 98, no. 3 (1999): 547–750 , 668–93.

56. Davies, “Recovering the Original Fourth Amendment,” 557–60.

57. Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven, Conn.: Yale University Press, 1997), 1–45. Professor Amar’s scholarship is refuted in detail by Professor Davies, “Recovering the Original Fourth Amendment.”

58. Gerard V. Bradley, “The Constitutional Theory of the Fourth Amendment,” DePaul Law Review 38, no. 4 (1989): 817–72; and Davies, “Recovering the Original Fourth Amendment.”

59. Davies, “Recovering the Original Fourth Amendment,” 577. 60. Davies, “Recovering the Original Fourth Amendment,” 578,

620–29, 632–34, 660–64. 61. Planned Parenthood v. Casey (1992); and Dickerson v. United

States (2000). 62. Bernard Schwartz, The Great Rights of Mankind: A History of

the American Bill of Rights (Madison, Wis.: Madison House, 1992) 162–68.

63. Heffernan, “Foreword,” 812. 64. Beermann, Jack M., “The Supreme Common Law Court of the

United States,” Boston University Public Interest Law Journal 18 (2008): 119–170, 134.

65. Payton v. Rush, 184 F.3d 623, 628 (7th Cir. 1999) (emphasis added).

66. Payton v Rush, 184 F.3d at 624; United States v. Hoffman, 498 F.2d 879, 881–82 (7th Cir. 1974).

67. Payton v. Rush, 184 F.3d at 628, citing district court cases. 68. Romanski v. Detroit Entertainment, L.L.C., 265 F. Supp.2d 835

(E.D. Mich. 2003). 69. John M. Burkoff, “Not So Private Searches and the

Constitution,” Cornell Law Review 66 (1981): 627; and Lynn M. Gagel, “Comment: Stealthy Encroachments upon the Fourth Amendment: Constitutional Constraints and Their Applicability to the Long Arm of Ohio’s Private Security Forces,” University of Cincinnati Law Review 63 (1995): 1807–50.

70. David A. Sklansky, “The Private Police,” UCLA Law Review 46 (1999): 1165–1287; and Elizabeth E. Joh, “Conceptualizing the Private Police,” Utah Law Review (2005): 573–617.

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71. The case was brought to my attention by Heffernan, “Foreword,” 838–40.

72. Wolf v. People, 117 Colo. 279, 187 P.2d 926 (1947). 73. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955). 74. Elkins v. United States (1960), 218. 75. Carolyn N. Long, Mapp v. Ohio: Guarding against

Unreasonable Searches and Seizures (Lawrence: University Press of Kansas, 2006).

76. Justice Burger’s thinking is examined in M. Braswell and J. Scheb II, “Conservative Pragmatism versus Liberal Principles: Warren E. Burger on the Suppression of Evidence, 1956–86,” Creighton Law Review 20 (1987): 789–831.

77. Bess Chiu, Lynly Egyes, Peter L. Markowitz, and Jaya Vasandani (2009). Constitution on Ice: A Report on Immigration Home Raid Operations (New York: Cardozo Immigration Justice Clinic).

78. Potter Stewart, “The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases,” Columbia Law Review 83 (1983): 1365–1404, 1389.

79. Charles H. Whitebread and Christopher Slobogin, Criminal Procedure: An Analysis of Cases and Concepts, 4th ed. (New York: Foundation Press, 2000), 33–34.

80. Innocence Project, http://www.innocenceproject.org/Content/ 186.php (accessed July 16, 2009); Calvin C., Johnson, Jr., with Greg Hampikian, Exit to Freedom (Athens: University of Georgia Press, 2003).

81. Heffernan, “Foreword,” 859. 82. Slobogin, “Why Liberals Should Chuck the Exclusionary

Rule,” 435–36. 83. Slobogin, “Why Liberals Should Chuck the Exclusionary

Rule,” 376, n. 40. 84. Lawrence Crocker, “Can the Exclusionary Rule Be Saved?”

Journal of Criminal Law and Criminology 84 (1993): 310–51, 329. Crocker provides a refined explanation of why U.S. v. Payner (1980) necessarily implied a Fourth Amendment basis for the ex- clusionary rule, despite the fact that Justice Scalia suggested that Weeks (1914) was an exercise of the Court’s supervisory authority in United States v. Williams (1992); see Crocker, 328–31.

85. See Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” 425–27.

86. Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” 427.

87. Federal Rules of Criminal Procedure 41(e). Heffernan notes that several lower courts in the 1920s did return contraband, but the issue never reached the Supreme Court (“Foreword,” 813).

88. Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” 436–41; Heffernan, “Foreword,” 815–17.

89. Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” citing U.S. v. Havens (1980) and U.S. v. Janis (1976).

90. Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” 430–33.

91. Heffernan, “Foreword,” 832–40, 848–60, quote at 840. 92. Heffernan, “Foreword,” 837. 93. Heffernan, “Foreword,” 838. 94. Slobogin, “Why Liberals Should Chuck the Exclusionary

Rule,” 372–76. 95. Slobogin, “Why Liberals Should Chuck the Exclusionary

Rule,” 378–79. 96. Thomas Davies, “A Hard Look at What We Know (and Still

Need to Learn) about the ‘Costs’ of the Exclusionary Rule: The NIJ Study and Other Studies of ‘Lost’ Arrests,” American Bar Foundation Research Journal 1983 (1983): 611–90, 626.

97. Dallin Oaks, “Studying the Exclusionary Rule in Search and Seizure,” University of Chicago Law Review 37 (1970): 665.

98. Davies, “A Hard Look,” 628. 99. This criticism is raised by Donald Horowitz, who is generally

not an advocate of an activist judiciary. See D. Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977), 224–25.

100. Davies, “A Hard Look.” 101. Davies, “A Hard Look,” 619. 102. For example, D. Oaks, “Studying the Exclusionary Rule in

Search and Seizure,” University of Chicago Law Review 37 (1970): 665; and J. Spiotto, “Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives,” Journal of Legal Studies 2 (1973): 243. These were sharply criticized by Davies, “A Hard Look,” 627–28.

103. Davies, “A Hard Look,” 630. 104. Bradley C. Canon, “Testing the Effectiveness of Civil Liberties

Policies at the State and Federal Levels: The Case of the Exclusionary Rule,” American Politics Quarterly 5, no. 1 (1977): 57–82.

105. Canon, “Testing the Effectiveness,” 71. 106. H. R. Uviller, Tempered Zeal (Chicago: Contemporary Books,

1988), 131. 107. Illinois v. Gates (1983), 257. 108. National Institute of Justice, The Effects of the Exclusionary Rule: A

Study in California (Washington, D.C.: U.S. Dept. of Justice, 1982). 109. B. Forst, J. Lucianovic, and S. Cox, What Happens after

Arrest: A Court Perspective of Police Operations in the District of Columbia (Washington, D.C.: U.S. Dept. of Justice, Law Enforcement Assistance Administration, 1977).

110. K. Brosi, A Cross City Comparison of Felony Case Processing (Washington, D.C.: U.S. Dept. of Justice, Law Enforcement Assistance Administration, 1979).

111. B. Forst et al., Arrest Convictability as a Measure of Police Performance (Washington, D.C.: U.S. Dept. of Justice, National Institute of Justice, 1982).

112. Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions (Washington, D.C.: U.S. General Accounting Office, 1979).

113. P. Nardulli, “The Societal Cost of the Exclusionary Rule: An Empirical Assessment,” American Bar Foundation Research Journal 1983 (1983): 585–609.

114. F. Feeney, F. Dill, and A. Weir, Arrests without Conviction: How Often They Occur and Why (Washington, D.C.: U.S. Dept. of Justice, National Institute of Justice, 1983).

115. Craig D. Uchida and Timothy S. Bynum, “Search Warrants, Motions to Suppress and ‘Lost Cases’: The Effects of the Exclusionary Rule in Seven Jurisdictions,” Journal of Criminal Law and Criminology 81, no. 4 (1991): 1034–66.

116. Davies, “A Hard Look,” 679 (emphasis in original). 117. Uchida and Bynum, 1065, quoting from R. Van Duizend, L.

Sutton, and C. Carter, The Search Warrant Process: Preconceptions, Perceptions, and Practices (National Center for State Courts, 1985), 106.

118. Pillard, “Taking Fiction Seriously,” 65–105, 69, 66 (footnotes excluded).

119. Patton, “The Endless Cycle,” 753–808, 755–67. See John L. Burris, Black vs. Blue (New York: St. Martin’s Press, 1999).

120. Patton, “The Endless Cycle,” 767–79. 121. Canon, “Testing the Effectiveness,” 122. Patton, “The Endless Cycle,” 780–90, drawing heavily on the

Christopher Commission Report, issued after the Los Angeles riots following the Rodney King beating case.

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Constitutional Remedies, the Fourth Amendment, and the Exclusionary Rule 103

JUSTICES OF THE SUPREME COURT

The Adversaries: Black and Frankfurter

It is ironic that two New Deal liberals appointed by President Franklin Roosevelt came to be bitter foes on the Supreme Court. For many years, Justices Hugo Black and Felix Frankfurter clashed over vital issues, including the incorporation of the Bill of Rights, the extent to which speech could be regulated by the government, and whether the Supreme Court should intervene to equalize the voting representation of electoral districts. In the 1940s and 1950s, Justice Frankfurter usually had the upper hand as the intellectual leader of the conservative wing of the Court. But over time, Black’s dogged pursuit of a more liberal agenda bore fruit, preventing Frankfurter from imposing his views on the entire Court.

Both justices championed democracy, yet each took a different approach to modern government and the Court’s role in it. Their disagree- ments, based on deeply held philosophies of judging, became a matter of personal antagonism. On the question of incorporation, Justice Black was motivated by a strong belief that the Supreme Court must adhere as closely as possible to the strict meaning of the Constitution and should not use the Due Process Clause to insert its notion of what is “reasonable” into constitutional law. He recalled that a conservative Supreme Court had done this very thing prior to the New Deal, and he understood that unfettered power allowed courts to be as unjust as the legislative or executive branch- es. Out of this emerged the idea that the Supreme Court had to apply the Bill of Rights totally and literally to the states. Justice Frankfurter, al- though a great proponent of the philosophy of judicial restraint, came to opposite conclusions. He believed not only that the justices ought to fill out the contours of the Due Process Clause in order to achieve fundamental fairness in criminal procedure, but also that the Fourteenth Amendment was not intended to incorporate the Bill of Rights.

Hugo LaFayette Black

Alabama, 1886–1971

Democrat

Appointed by Franklin Delano Roosevelt

Years of Service: 1937–1971

Life and Career. The son of a country storekeeper, Black received a law degree from the University of Alabama. He practiced law in Birmingham, representing poor people, white and black, in civil cases against large corporations and in criminal matters. He also served terms as a district attorney and as a city judge, where he tried to mitigate the harsh treat- ment of poor people. Active in politics, he was elected to the U.S. Senate in 1926 as a populist. He was a key supporter of President Roosevelt’s New Deal program, backed the “court-packing” legislation to increase the size of the Supreme Court, and was Roosevelt’s first choice to fill a vacancy on the Court.

Contribution to Criminal Procedure. Justice Black was the chief architect of modern constitutional criminal proce- dure. His foremost contribution was to champion the incorporation doctrine, picking up the mantle of the first Justice Harlan and ultimately get- ting the Court to agree in the 1960s that the criminal provisions of the Bill of Rights should apply to the states as a matter of Fourteenth Amendment due process. He also wrote powerful opinions against coerced confessions and took the lead in formulating the doctrine that an attor- ney was an absolute requirement in all criminal cases.

Signature Opinion. Gideon v. Wainwright (1963). In 1942, Justice Black dissented in Betts v. Brady, which held that a state felony trial in which an indigent had to defend himself or herself was fair under the Due Process Clause. He strongly believed that a fair trial is impossible without a defense attorney and that if a person cannot afford a lawyer, the government must provide one without cost. Prior to Betts, he wrote the majority opinion in Johnson v. Zerbst (1938), which held that in a federal felony prosecution, the assistance of counsel is essential unless the defendant knowingly and intelligently waives counsel. His persistence in pursuing this goal succeeded in Gideon, where the Court incorporated the Sixth Amendment right to counsel into the Fourteenth Amendment, thus requiring the states to provide counsel for indigent defendants.

Assessment. Justice Black is widely recognized as one of the greatest justices, an intellectual leader of the Warren Court, and the single greatest influence on the development of modern constitutional criminal procedure. In other constitutional areas, he led the Court, along with Justice Douglas, toward an “absolutist” vision of First Amendment free speech, and he spearheaded the move to require states to reapportion voting dis- tricts to equalize the voting power of voters in different districts.

Although many of the positions he supported defined a “liberal” policy agenda, he was not as liberal in judicial philosophy as were other Roosevelt appointees, such as Justices Douglas, Murphy, and Rutledge. Rather, his judicial philosophy may be better described as “strict construc- tionist” or “constitutional fundamentalist.” He believed that the Court should strictly adhere to the terms of the Constitution, which he tended to define rather narrowly.

Thus even in the incorporation area, he maintained an independent stance. He did not vote for the incorporation of the Fourth Amendment exclusionary rule in Wolf v. Colorado (1949) because the rule was not stated explicitly in the Constitution. He later developed the perspective that the exclusionary rule could be incorporated only if it were seen as also protecting Fifth Amendment values against self- incrimination.

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Further Reading

Gerald T. Dunne, Hugo Black and the Judicial Revolution (New York: Simon and Schuster, 1977).

Felix Frankfurter

Massachusetts, 1882–1965

Independent

Appointed by Franklin Delano Roosevelt

Years of Service: 1939–1962

Life and Career. Frankfurter emigrated to America with his family from Vienna at the age of twelve and grew up in the Lower East Side Jewish ghetto in New York City. He graduated from the City College of New York and attended Harvard Law School, becoming editor of the Harvard Law Review on the basis of his top grades. After graduating in 1906, he worked in a large law firm for a while but soon chose a public service career. As a protégé of Henry L. Stimson, a lead- ing Progressive, he went to Washington in 1911 when Stimson became secretary of war, forming an intellectual circle of young lawyers who befriended Justice Holmes.

In 1914, Frankfurter was appointed to the Harvard Law School faculty, a position he held until his appointment to the Court. During his tenure, he became a nationally known liberal activist who served as a labor mediator during World

War I, attended the Paris Peace Conference in 1919, represented Zionist interests, cofounded the American Civil Liberties Union, contributed to the New Republic magazine, spoke out for the convicted anarchists Sacco and Vanzetti, and provided free counsel for the National Consumers’ League. His coauthored book, The Labor Injunction, attacked the federal courts for stifling the labor movement. He was the codirector in 1921 of the groundbreaking Cleveland Crime Survey, a multidisciplinary social scientific study of the administration of justice. He appeared frequently be- fore the Supreme Court on behalf of unions and other progressive causes.

As a Harvard professor, he developed a following among his students as a result of his passion for academic excellence and his zeal for pub- lic service. He had a close rapport with several Supreme Court justices and selected law clerks from among his students for Justices Oliver Wendell Holmes and Louis Brandeis. During the New Deal, he became an important advisor to President Roosevelt and placed many of his former students in important administrative and policy-shaping positions, thus enhancing his influence.

Contribution to Criminal Procedure. Justice Frankfurter’s liberal policy temperament clashed with his philosophy of judicial restraint. As a re- sult, his positions in criminal procedure were inconsistent but must generally be counted as conservative. For example, he staunchly opposed the total incorporation of the Bill of Rights championed by Justice Black and favored by the liberal wing of the Court; he voted for the rule that a judge’s comment on a defendant’s silence does not undermine the privilege against self-incrimination; he opposed the extension of the right to counsel to all defendants in state cases; and he characterized the Fourth Amendment exclusionary rule as a mere remedy and not a constitutional rule. Nevertheless, he was sharply critical of abuses of power by the police, and when interpreting the flexible Due Process Clause, he ruled in favor of defendants in cases involving coerced confessions and search and seizures that “shocked the conscience.” In the entrapment area, he fa- vored the objective test.

Signature Opinion. Rochin v. California (1952). The “stomach pump” case perfectly expressed Justice Frankfurter’s judicial philosophy of re- straint and respect for the authority of the states, except where the actions of local police or state courts have so grossly violated a person’s right to fair treatment that a judge could exercise judgment to deem the actions as violations of due process. In these instances, Frankfurter’s standard was that due process is violated where police action “shocks the conscience.” He trusted the wisdom of courts to determine what shocks the con- science, and he somehow believed that such judgment would be objective and not simply private notions of what is acceptable. Justices Black and Douglas dissented in Rochin, arguing that this vague standard gave judges too much power.

Assessment. Justice Frankfurter was a giant of American constitutional law as a scholar, a public servant, and a justice. He was expected to be a leading liberal on the Court, but his judicial philosophy of restraint overcame his liberal instincts. As the Court’s agenda swung from economic is- sues to civil liberties, he failed to sense the direction of the country and the Court’s special role as a guardian of liberty. Thus he adopted cramped positions in many free speech cases and ruled against finding that seriously imbalanced state electoral districts violated the Equal Protection Clause. In supporting the school desegregation case, Frankfurter played a leading liberal role, but thereafter he took a more cautious approach than did other justices. His conservative views were generally repudiated by the liberal Warren Court, although some of his rulings, including the shocks the conscience test, have been relied on by today’s far more conservative Court.

Further Reading

Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (Boston: Twayne, 1991).

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