"The ""Exclusionary Rule"": Time for Reform"

198 July 21, 1982 I THE "FXCLUSIONARY RULE RME FOR REFORM INTRODUCTION A conviction for an aggravated murder, committed in 1964 oolid e v. New Hampshire was reversed by the Supreme Court i n sionary rule an extremely controversial rule of criminal proce dure, which prohibits the introduction into evidence in a criminal I trial of material obtained by an illegal search and seizure An illegal search and seizure violates the Fourth Amendment o f the United States Constitution, which guarantees that Wn reversing the conviction, the Court applied the "exclu I The right of the people to be secure in their persons houses, papers, and effects, against unreasonable searches and seizures, shall not be v iolated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized Coolidge is a state case. It is doubtful that the exclusionary ru l e is sufficiently a command of the Constitution to have been required of the states by the Supreme Court. However, this paper considers only what Congress can do about the rule in the'federal courts, thereby putting aside the question of continuing to req uire the rule of the states.

Supreme Court in state cases about the rule itself is nevertheless relevant to a discussion of the rule at the federal level Not only searches but also arrests require a warrant based on the Fourth Amendment's "probable cause" standard and obtained from a neutral magistrate.

That is, the magistrate,must be convinced that "probable cause" for either an arrest or a search exists before he issues the warrant. Searches or arrests made without a warrant, or without meeting the few "exceptions" permitted for searching or arresting w ithout a warrant, are illegal confession, fingerprints, etc.) or information gained from either are generally inadmissible under the exclusionary rule What has been said by the Evidence .(e.g a 2 What happened in this murder case? What was the result of a p plying the exclusionary rule A 14-year old girl had been lured from her house on the pre text of a babysitting job. Eight days later, her body was found by the side of the road several miles from her home town. When evidence pointed increasingly to Edward Coolidge as the murderer warrants to arrest Coolidge and to search his car were obtained by the police from the State's Attorney General, who was directing the investigation. Coolidge was arrested in his house. The car sitting in the driveway, was towed t o police headquarters It was searched two days later, and twice again after a year had passed.

At Coolidge's jury trial, vacuum sweepings from the car, including particles of gunpowder, were introduced as evidence that the mur dered girl had been in the car, and they were part of the evidence which convinced the jury of Coolidge's guilt.

But the Supreme Court reversed Coolidge's conviction and re d turned the case to New Hampshire to be retried without the admis sion of the gunpowder evidence. The Court ru led that the search which had obtained the evidence from the car was illegal Thus the exclusionary rule prevented the introduction in Coolidge's new trial of reliable evidence of his guilt.

Chief Justice Warren E. Burger protested This Court's decision dr amatically represents a mechanically inflexible response to widely varying degrees of police error and the resulting high price that society pays A fair trial by jury has resolved doubts about Coolidge's guilt. But now his conviction on retrial is placed i n serious question by the remand for a new trial-=years after the crime--in which evidence found relevant and reliable.wil1 be withheld from the jury's consideration.2 This is not a new complaint. A famous, oft-quoted charge was levelled against the rule i n 1926 by Judge Benjamin Cardozo The criminal is to go free because the constable has blundered A room is searched against the law, and the body of a murdered man is found The privacy of the home has been infringed and the murderer goes free In the years b etween Cardozo's and Burger's protests, the exclu sionary rule has been invoked frequently to prevent the admission The search was illegal because the search warrant, issued by the Attorney General, had not been issued by a sufficiently neutral and detach e d judicial officer and because the search, in effect conducted without a warrant, met the criteria of none of the limited permissible exceptions for searching without a warrant which the state claimed justified its search 3 of evidence which, in many case s, would have led to conviction and imprisonment. Concurrently, the rate of serious crime has increased, along with public concern about crime.

Burger's dissent in Coolidqe stimulated renewed criticism of the exclusionary rule. Critics echo Cardozo and Bur ger in charg ing that freeing the guilty by suppressing evidence gained from an illegal search, no matter how trivial the illegality, exacts a disproportionate cost from society's right to enforce its laws convict the law's violators, and protect itself f r om future transgressions. Burger has said Freeing either a tiger or a mouse in a schoolhouse is an illegal act, but no rational person would suggest that these two acts should be punished in the same way society has at least as much right to expect ration a lly graded responses from judges in place of the universal capital punishment we inflict on all evi dence when police error is shown in its acqui~ition A variety of other criticisms also are lodged against the rule: it does not deter police illegality it r ewards only the guilty it ignores the guilt of the offending officer major charge remains that it perversely punishes society by returning the criminal to the streets for want of known, reliable evidence with which to convict increasing leniency by courts that prevents society from protect ing itself against lawbreakers As such, it thereby also under mines public respect for the law But the The rule is seen as part of an Yet, the rule has its ardent defenders. Yale Kamisar, a noted professor of constitutio n al law at the University of Michigan in testimony to Congress in March of 1982, argued Almost always the court is asked to I'unring the bell1 to reconstruct events as though the damaging, often damning, evidence never existed. Hence the strong re sistance to the...rule. The damaging evidence Ifflaunts before us the price we pay for the Fourth Amendment.If5 Because the rule reverses the illegality, many proponents believe the rule is commanded by the Constitution.

Consistently until June 21 and 23, 1982, th e application of the rule and its justifications had been minimized by recent Supreme and lower federal court decisions tion, the rule is extremely controversial. Along with the reform of the federal Criminal Code, Congress has been considering what if an y thing, can or should be done to realign the balance between the rights of society to enforce its laws and the right of the criminal defendant to due process, including the protection afforded by the exclusionary rule Even with that limita The need for con gressional action has become even more urgent since June 21 and 23, 19

82. On those dates the Supreme 4 Court decided two cases which might be used by ardent proponents of the rule to claim that the Court has refuted the constitutional ity of any legislate d change in the rule. That would be an absolutely false charge. However, the application of one of the decisions will reinforce some of the most undesirable effects of the current rule The Attorney General's Task Force on Violent Crime recommend ed a reas o nable, Ifgood faith" exception to the rule.6 This exception would I1prunei1 the exclusionary rule so that it applied only when a search or seizure was not made by an officer believing his action conformed to law and having reasonable grounds for that beli ef. It retains a large proportion of the original rule requiring that the officer at least intend to obey the law.

Justice Department has proposed such legislation.

The Other recommendations would completely abolish the rule or apply it only when the illegality is willful and substantial.

Abolition of the rule would admit evidence despite any official illegal activity, intentional or unintentional; a willful and substantial exception would admit evidence only when the inten tional illegality of the office r reached a certain unacceptable level government for an illegal search--a civil damages remedy-also have been proposed as an alternative to or a supplement for the exclusionary rule. And proposals for disciplinary procedures against the offending law off i cer have been suggested proposals combine two or more of these recommendations. Congress thus far has been unable to decide among them Procedures to obtain monetary compensation from the Some Each alternative proposal imposes costs that offset some of its benefits. What clearly would offer more benefits than costs is a package combining a reasonable, good faith legislative exception to the rule, a civil damages remedy, and congressional enactment of federal rules of evidence to mitigate some of the current technicalities and contradictions of Fourth Amendment law.

Enactment of federal rules of evidence is probably a long range project, if simply because no prior work has been done on it. Legislation proposing the reasonable, good faith alternative and a civ il damages remedy has been introduced and hearings have been held. These proposals could be enacted as amendments to the Violent Crimes and Drug Enforcement Act soon to be considered by Congress.

Such a package would permit rearticulation of broader sound er justifications of the rule than merely its deterrence of future violations of constitutional guarantees by law enforcement personnel and it would mitigate criticisms of the rule as it now See attached Appendix for a discussion of these cases. 5 operate s . It offers a better balance between the two partially conflicting objectives, society's right to enforce its law and the criminal defendant's right to constitutionally guaranteed protections. And by continuing to require that law enforcement officers int end to obey the law, this package constitutes a strong symbolic position from which to begin an assault on crime.

That re,quirement of intent, combined with the reasonable flexibil ity granted law enforcement officers by the good faith exception should help restore faltering public confidence in the law.

DEVELOPMENT OF THE RULE the law Boyd v. United States7 and Weeks v. United Statess established exclusionary rule for the federal courts. Boyd held that a compelling submission of private papers to a court for use as evidence, in effect compelling someone t o be a witness against himself in violation of the Fifth Amendment, also resembled the unreasonable search and seizure prohibited by the Fourth Amendment even though physical entry of the defendant's house had not occurred. The law was declared unconstitu tional; the papers were returned, or "excluded" from evidence. Weeks "suppressed" incrimi nating papers seized by a law officer searching a defendant's house without a warrant, in his absence, and without his consent.

The search, it was ruled, violated the Fourth Amendment; to protect those rights, the documents had to be excluded.

In Boyd and Weeks the material excluded was neither contra band nor weapons, but private papers core of personal liberty secured by law.

Day said in Weeks Their protection is a t the As Justice William R I It was the] determination of the framers of the Amend ments...to provide a Bill of Rights, securing to the American people...those safeguards which had grown up in England to protect the people from unreasonable searches and s e izures by which there had been inva sions of the home and the privacy of the citizens and the seizure of their private papers in support of charges, real or imaginary, made against them under the so-called writs of assistance in the American colonies Resi s tance to these practices had established the principle enacted into the fundamental law in the Fourth Amendment, that a man's house was his castle and not to be invaded by any general authority to search and seize his goods and paper The rule's applicabil i ty has been extended, probably because there is no sufficient way to protect privacy in constitutionally secure places without the extension The rule now applies even Schlesinger argues that illegally possessed items do not enjoy an equal protection. Stev en R. Schlesinger, Testimony before the U.S. Senate Judiciary Subcommittee on Criminal Law, October 5, 1981, esp. pp. 2-

5. For purposes of this paper, it is sufficient to note that this is not a widely accepted argu ment although it deserves further consi deration. 6 to contraband or illegally possessed items and weapons. In 1920 it was ruled that illegally obtained evidence cannot be used to procure further evidence; the derivative evidence was called the llimpermissible fruit of the poisonous tree.1110 v e rbal testimony obtained through an illegal seizure has also been excluded.ll Since 1963 Not only has there been expansion of the types of evidence excluded, but since 1960, evidence obtained illegally by state officers has been excluded from federal crimi n al trials even if the federal officers did not participate in the il1egality.l2 The Warren Court, moreover, several times expanded the range of collateral review proceedings in which illegally seized material could be ~ha1lenged.l~ The two most extensive e xpansions of the rule's application, however, resulted from extending the rule to the states and strengthening the rules of Fourth and Fourteenth Amendment search and seizure law process. In 1949, in Wolf v. Colorado,14 Justice Felix Frank furter argued t h at the concept of Itprivacy against arbitrary intrusion by the police Ill5 at the heart of the Fourth Amend ment guarantee was required of the states by the due process clause of the Fourteenth; in short, the states, too, were prohi bited from making unre a sonable searches and seizures. But Frank furter believed the Fourteenth Amendment did not require the same means of enforcement as the Fourth Ohio l6 the Supreme Court had determined that suppression of illegally seized evidence was the only way to insure the privacy rights guaranteed against the states Requiring state conformance with the rule was a two-step By 1961, in MapE v.

The effect of expanded application was magnified by the development of search and seizure law. The Warren Court in creased the st ringency of all criminal procedure requirements for both state and national government. Under the Fouith and Four teenth Amendments, for example, standards for obtaining warrants were tightened and exceptions to searches without warrants greatly narrowed. With more searches and seizures made illegal, the rule suppressed more evidence.

Despite the expansion, however, the rule never has been fully applied. For instance, illegally seized evidence can be used to attack credibility in response to perjurious tes timony on cr~ss-examination rights were violated can successfully request suppression of the damaging evidence; co-defendents and co-conspirators do not have standing. Significantly, even the Warren Court declined to apply Mapp's requirement of state adhe rence to the rule to cases concluded prior to Mapp.

In recent years, the Court has refused to expand further the rule's application. Indeed, its use has been cut back. The 1974 Calandra decision,20 for instance, did not allow a grand jury witness to refuse to answer questions based on the illegal seizure Or only the person whose constitutional 7 of evidence Stone v. Powel121 held that where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, collateral federal habe as corpus relief may not be granted on the basis that illegally seized evidence had been introduced at the trial.

Both the original and subsequent limitations imply recogni tion of the exclusionary rule's costs to society, particularly as its scope was expanded and evidence was suppressed more frequently.

This train of events has been accompanied by a deemphasis of the rule's broader justifications.

RATIONALES OR JUSTIFICATIONS OF THE RULE Five interrelated justifications have been developed over the life of the rule I. The Exclusionary Rule Is of Constitutional Origin.

Proponents of the rule claim that it is a necessary, even if implied, component of constitutional guarantees against unreason able searches and seizures If true, Congress cannot modify the rule by simple legislation modification label it a Itjudicially created rule of evidence It seems, however, that the extreme formulation of either argument is incorrect But those proposing abolition or The rule is not, as its critics insist, Ita judicial l y created rule of evidence any more than is the prohibition on coerced confessions, which has been developed to implement the Fifth See, e.g., Kamisar, 9. cit.; Stephen H. Sachs, "Statement of Attorney General of Maryland," Testimony before the U.S. Senat e Judiciary Subcommittee on Criminal Law, October 5, 1981, esp. pp. 3-5 expanded.

Clark when requiring the exclusionary rule of the states in Mapp (367 US 643 649, 654-655 Recently, Justices William Brennan, Thurgood Marshall, and William 0. Douglas have m ade this argument in an unsuccessful protest to diminishing the rule's application. See, e.g., Justice Brennan in Calandra 414 US 338, 360 makes such comments, in Wolf or Mapp, however, they are in single concurring opinions expressing his belief that Fif th Amendment guarantees have to be added to those of the Fourth in order to necessitate the exclusionary rule.

These words, thus, do not indicate the judgment of the Court and are not an authoritative statement of the origin of the rule Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary Rule Washington, D.C 11; Steven R. Schlesinger, Exclus i onary Injustice Obtained Evidence (New York: Marcel Dekker, Inc., 1977 The claim of constitutional origin is usually made when the rule's use is Justice Day so argued in Weeks 232 US 383, 391-393), as did Justice The phrase is Justice Black's in Wolf 388 U S 25, 40 When the Justice See also, Malcolm Richard National Legal Center for the Public Interest 1982 p The Problem of Illegallya Amendment's literal ban on compulsory self-incrimination. Yet the exclusionary rule, like the coerced confession ban, is not specifically commanded by the words of the Constitution. And there is merit in the claim of the rule's proponents that the constitutional grant requires a means of enforcement; the rule is one such means. Like the prohibition on coerced confessions, the r ule is a judicially implied rule of evidence, but grounded in constitutional principle.

Because the rule is not the direct, specific command of the Constitution, Congress has power to revise the rule. But such revision must not nullify the underlying const itutisnal principle 11 life from unwarranted governmental invasions. It was at the heart of Justice Joseph P. Bradley's opinion in Boyd The principles laid down in this opinion affect the very essence of constitutional liberty and security they apply to a l l invasions on the part of the govern ment...of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indef eas ible right of personal security, personal liberty, and The Exclusionary Rule Secures Constitutional Privacy.

This principle is the security of the privacy of individual private property 22 Or, as Justice.Brennan phrased it Every householder, the good a nd the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house 1

11. The Exclusionary Rule Deters Official Violations of Fourth Amendment Guarantees.

Proponents believe the ru1e.k necessary because it deters law enforcement officials from lawless invasions of constitutional ly guaranteed privacy. Originally, suppression of illegally seized evidence was "the only way to deter" such invasions.24 Lately, deterrence is thou g ht to be the ''only rationale of the rule In Calandra, for instance, Justice Lewis Powell argued The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim Instead the rule's prime purpose is to deter future unla w ful police conduct and thereby effectuate the guarantee against unreasonable searches and seizures 25 Justice William Rehnquist confirmed the exclusivity of this rationale for at least a plurality of the Court in 1980.26 9 IV. The Exclusionary Rule Preser ves Judicial Integrity.

Originally, a tlclean-handstl or judicial integrity" argument was made on behalf of the rule.27 If the courts admit illegally seized evidence, this justification argues, they participate in and condone illegalities and violations of constitutional rights.

Declared Justice Oliver Wendell Holmes If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such inequities to succeed.28 The Exclusionary Rule Is Neces sary to a Government of Laws.

The final justification is even more expansive V It builds on judicial integrity and goes to the heart of constitutional government It proclaims that a government of laws must itself obey the law, that no part of that governm ent may bene.fit from the illegal actions of another part, lest the government as a whole become a lawbreaker If so, the people will lose respect for-and ultimately deny obedience to-the government theme was prominent in the earliest cases, and argued by J ustice Louis Brandeis This Decency, security and liberty alike demand that govern ment officials shall be subjected to the same rules of conduct that are commands to the citizen. In a govern ment of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.

Our Government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it i nvites every man to become a law unto himself it invites anarchy of the criminal law the end justifies the means-to declare that the Government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retrib~tion To d eclare that in the administration It was pivotal in map This justification is still used but as with judicial integrity, only by a minority of the Court.31 government integrity are legitimate justifications of the rule.

They note that only the U.S. governm ent, of all governments with a legitimate claim to being a Ilgovernment of laws,Il automatically excludes all illegally seized evidence from criminal trials Beyond that, critics of the rule deny that judicial and Courts in other countries considered to ha v e a government of laws usually do not "inquire into the source of the evidence" and accept or reject it depending on its legal 6r illegal origin. If certain kinds of illegally 10 Nevertheless, the judicial integrity, and governmental integrity rationales argue for retention and against major or precipitous, modification of the rule and must be taken seriously.

They exemplify the common sense adage that 'Itwo wrongs do not make a right which is a reasonable rule of thumb. There were also problems in the yea rs between Weeks and Mapp when states did not rule out all illegally seized evidence but allowed judges to determine if Voo muchit illegality had tainted the seizure requiring exclusion of the evidence idiosyncratic decisions. For example: pumping a man's stomach to retrieve capsules was "too m~ch~l repeated illegal entry to install and reposition a secret microphone, finally in the bedroom was not Voo much. Complaints that this constituted judicial caprice rather than legal judgment mounted. Such judicial activism is not desirable. From this perspective, a IIrule1I is an improve ment This discretion produced Finally, Chief Justice Burger in Coolidge warned against abolishing the rule before establishing alternative measures to take its place, saying that p r ecipitous action would send a Ilwrong signalf1 to the law enforcement community.34 Burger's argument can be expanded. Once having chosen to use the rule as the means of enforcing the Fourth Amendment, excessive modification of it as well would send that i m proper signal It could indicate that judicial integrity and government integrity have become less important CRITICISMS OF THE RULE I. The Exclusionary Rule Does Not Deter It is indicative of the current unease with Lie exclusionary rule that the Supreme C ourt now justifies the rule and applies it primarily if not solely, on the grounds of its deterrent value.

Yet one of the strongest and most frequent criticisms is that the rule does not deter either illegal conduct by officials or unwar ranted invasions o f individual privacy. Given its high social obtained evidence, such as coerced confessions, are to be excluded from intro duction into evidence, the exclusion is specifically mandated by the Constitu tion or law. In addition, judges in these systems may h a ve the discretion to exclude evidence whose introduction they determine would violate the trial's fair character. See, for example G. Arthur Martin et al The Exclusionary Rule Under Foreign Law Journal of Criminal Law, Criminology and Police Science Volum e 52, 1961, pp. 271-292 This contention is substantiated by the typical protests of state law enforcement officers after Mapp imposed compliance with the rule on the states.

The complaints were little more than chaffing at now having to obey the law.

See, Yale Kamisar, "Is the Exclusionary Rule an 'Illogical' or 'Unnatural Interpretation of the Fourth Amendment Judicature, Volume 62, Number 2 August 1978, pp. 66-84, pp. 69-73 I I 11 cost, argue critics, a rule that claims deterrent value must give evi d ence that it deters.35 Numerous studies have looked at such statistics as the number of motions to suppress evidence and of convictions in various cities before and after the institution of the exclu sionary rule in an attempt to prove the rule's deterren t value But even Bradley Cannon, a foremost proponent and defender of the rule's deterrent value, has admitted Existing data...make it impossible to establish empiri cally a universal "yes, it works" or a ''no, it doesn't work" conclusion--or even approxim a ting such a conclu sion.36 Such inconclusiveness results in part from the excessive demands that have been made of the rule's deterrent ability character of Fourth Amendment law makes it unrealistic to expect the exclusionary rule to deter completely all i llegal searches and seizures. Search and seizure law is extremely confusing often turning on nuances or small peculiarities of factual circum stances, and constantly changing The This is evident from the rules concerning what can be searched without a war rant in an automobile stopped for probable cause.

The Supreme Court in 1980 held that it was legitimate to search the zippered pocket of a jacket found in' an auto's passenger ompartment but not two packages wrapped in opaque green plastic in the luggage c ompartment.38 In each case, narcotics were found that from the jacket pocket was admissible in evidence that from the luggage compartment was not Police are often required to make on-the-spot judgments when the possibility of danger necessitates a search f or a weapon or when there is a need to prevent destruction of evidence they be required to know and act on such fine distinctions in these circumstances? Furthermore, if they are acting in accordance with what they presume to be valid--a statute a rule of the judicial circuit, a prior Supreme Court holding it is Can Steven Schlesinger's is the best presentation of the deterrence studies United States v. Ross, decided June 1, 1982, removed such fine distinc and their flaws. Schlesinger, Exclusionary Injusti c e, pp. 50-60 tions and allows more general searches of cars stopped for probable cause 443 US 31 (1979 This has not always happened, however The Court has also occasionally recognized this problem, as shown by United States v. Peltier, 422 US 531 (1975 Th i s is not always the case, as shown by the relation between Robbins and United States v. Chadwiclc, 433 US 1 (1977 A good statement of the Robbins/Chadwicb problem is contained in D. Lowell Jensen, "Statement...Assistant Attorney General, Before the U.S Se n ate Judiciary Subcommittee on Criminal Law," October 5, 1981, esp. pp. 6-8 he Court sometimes recognizes this problem. See Michigan v. DeFillippo, 12 unreasonable to law will change expect police to know, in 1975 or 1978,* that the when an appellate or th e Supreme Court in 1981 decides the legality of the search, and thus the admissibility of the seized evidence. It is unreasonable to expect the exclusionary rule to deter such actions by law enforcement officials.

Other misconceptions are caused by exagger ating the deterrent ability of the rule. For instance, it is argued that it is not the police officer but the prosecutor who is punished by the suppression of evidence-and it is not the prosecutor who needs to be deterred from making illegal searches. Or c ritics note that the rule exerts no deterrent effect on the large amount of law enforcement activity not aimed at prosecution-such as the common practice of harassing arrests of professional gamblers.39 Similarly, since information on the final decision o f a particular case, made several years after the search, usually does not flow back into the stationhouse, the I1errantlr police officer is not f1educated81 or lldeterred!r for the future. Furthermore, maintain the rule's critics, the officer not only is not disciplined, he may even receive a commendation because such rewards are often based on arrest records and solution of crimes.

These arguments may be true, yet ask too much of the rule.

They are more a criticism that the rule is unsupplemented by other measures. Although it cannot be expected to deter all offical illegal searches and seizures, the exclusionary rule probably can have a limited, long-range deterrent influence.

Particularly if supplemented by measures to educate and discipline law enforc ement officers, the rule could become sufficiently prominent in their thinking to encourage them to determine action more in line with what llprobably is the law It would be easier to accept this lessened deterrence if the rule were once again recognized as having other, broader justifications 11. There Are Significant Limits to the Rule's Protection of Privacy.

Just as it is unable to deter all illegal searches and seizures, the exclusionary rule does little to protect privacy By suppression of evidence, it protects somewhat the privacy of the guilty from whom that evidence was illegally seized. But it makes no recompense for possible personal injury or property damage in the area searched to the guilty or to other individuals innocently present when incr i minating evidence is seized. The rule does nothing for the violated privacy of the innocent victims of an illegal search. Nor does it protect those subjected to harassment searches or arrests performed without any intention of instituting prosecution. Eli minating the rule, however, will not correct these defects. Supplemental devices will he dates of the Belton and Robbins searches. 13 1

11. Only the Guilty Benefit-They Escape Punishment.

More weighty is the charge that only the guilty benefit-by escaping punishment. Just how many, and how dangerous, are the criminals released are matters of some dispute.

Sensational murder cases, to be sure, are certain to catch the public's attention and arouse its ire--for example, Coolidge which provoked Justice Burge r's protest. Most statistics, however indicate that the incidence of suppression of evidence in murder cases is low; it is far more common in cases involving weapons gambling, and narcotics violators.40 And the most frequently cited statistics about the n u mber of defendants released under the rule are contained in a 1979 survey by the Comptroller General of cases in U.S. Attorney's Offices. It found that evidence was excluded as a result of suppression motions in only 1.3 percent of the cases.* Even this, however, on a nationwide basis consti tutes a sizeable number of criminals. Society has the right to try them all, convict them if guilty, and remove both their example and their threat of further danger from the streets.

To this proponents of the rule rep ly: Conviction must be obtained by conformance to law. The exclusionary rule I is the price we pay for the Fourth Amendment The point of Yale Kamisar and other proponents is that, in cases in which the rule operates the police and courts would not have th e evidence and would not know that a person was guilty without the prior illegal act rule operates to return the situation to the status guo before illegality The Excluding evidence by the rule is thus no different than throwing out coerced confessions or i nvalidating a conviction for lack of a lawyer. Dallin Oaks, one of the ablest critics of the rule, admits that complaints that the rule helps only the guilty and hampers law enforcement are not the wisest arguments against it. He writes The whole argument about the exclusionary rule "hand cuffing1! the police should be abandoned. If this is a Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report of the Comptroller General, April 19, 1979.

Judge Wilhey, for instance, contends.this way of tabulating the effect of the rule is incorrect terms of the amount of judicial time expended by the rule pp. 14-

16. This a legitimate criticism federal cases understate the operation and effect of the rule: Since state and local law enforcement is more, in his terms, "proactive," there will be more of the on-the-spot police action precipitating the possibility of s earch and seizures not in conformance with Fourth and Fourteenth Amendment law.

Frank Carrington, "The Exclusionary Rule Paper Prepared for John Jay College of Criminal Justice, May 1982, pp. 5-7 He finds a greater burden imposed on the courts in Wilkey, 2 . e Similarly, Frank Carrington argues persuasively that figures taken from A Critique and Some Suggestions A 14 negative effect, then it is an effect of the constitu tional rules, not an effect of the exclusionary rule as the means chosen for their enfor c ement. Police officials and prosecutors should stop claiming that the exclusion ary rule prevents effective law enforcement. In doing so they attribute far greater effect to the exclusionary rule than the evidence warrants, and they are also in the untena ble position of urging that the sanction be abolished so that they can continue to violate the rules with impunity.4f IV. The Exclusionary Rule Excludes the Most Reliable Evidence of Guilt.

Opponents counter that the exclusionary rule is nevertheless diffe rent than other criminal procedure rules because the evidence it excludes is the most reliable evidence, thereby distorting the fltruth-findingfl objective of the trial process. Indeed, material evidence is extremely conclusive and more reliable than conf essions or line-up identifications.

These critics forget, however, that "the first premisell of the criminal justice system is not Itto find the truth and punish the guilty.Il That is the second premise. The first is the presumption of innocence, that an i ndividual is innocent until proved guilty and that guilt must be proved in a "fair trial."

Likewise, American law no longer considers the varying llreliabilitylt of different types of evidence as meriting much weight for the purposes of its introduction into criminal trials.

The reason coerced confessions, for instance, were originally excluded from trials was a concern that they were untrustworthy or unreliable, largely because of the suspect physical methods by which they were sometimes obtained. But U. S. law has moved toward discarding--or llsuppressingll--coerced confessions not only because of their untrustworthiness but mainly for their lack of due process Thus the greater reliability of physical evidence suppressed by the exclusionary rule is no lo nger a strong legal argument for the rule's critics V. The Exclusionary Rule Is Not Sufficiently Discriminating.

The critics charge that the exclusionary rule acts with Wnproportionality,ll that it applies the same sanction in all cases. It does throw out evidence in petty theft trials as well as in murder trials. It does suppress evidence in cases where the police officer makes a good faith mistake as well as where the police officer either carelessly or willfully disregards the law.

Other criminal proced ures, however, operate with similar lack of discrimination. For instance, confessions are ruled inadmissible not only if they are coerced through physical abuse but also if a suspect has not been read his Miranda rights, or not taken before a magistrate s oon enough after his arrest 15 VI. The Exclusionary Rule Undermines the Law.

Probably the most serious major criticism of the rule indicts it on grounds of contradicting its own broadest justifications it undermines the law, to some extent even by encourag ing illegal activities, and it undermines public respect for the law because when the constable blunders, the criminal goes free, making a mockery of the law.

Law is undermined by the exclusionary rule. Plea bargaining is increased, for the prosecutor will be more likely to bargain if there is an exclusionary rule threatening to throw out evidence.

Reports that police render perjured testimony about the circum stances of searches-Whe weapon was in plain sight the suspect threw the narcotics to the ground in a futile attempt to get rid of itIt--are probably true.43 Even such conservative Justices as John M. Harlan feared that judges stretch the contours of the law in order to avoid suppressing evidence and turning a dangerous criminal out on the ~treets.~4 The matter of judges stretching the law should not be regarded with too much concern. For despite some decisions by the current Supreme Court, Fourth Amendment law has become more strict It is doubtful that plea bargaining would be greatly reduced if the r ule were abolished. There are many other factors which impel a prosecutor to plea bargain. It is suspected as well that law officers lie about the circumstances of the reading of Miranda rights or confessions and the procedures of lineups or witness ident i fications. That is, the rule is not the sole source of such abuses. It is unfortunate that these abuses Occur; but elimination of a rule of criminal procedure to which these activi ties respond is not the best solution. If the rule could be narrowed and s upplemented to moderate its defects, the value that such a pruned rule would have in symbolizing the commitment of constitutional government to the rule of law, even if it meant Itpolicing itself, would be overriding.

The most definitive argument against t he rule remains that public respect for the law can be undermined by freeing criminals in spite of concrete evidence of their guilt and giving rise to the perception that the rule allows the guilty to and law and society to l1lose.lt This is particularly t rue when, for example, a mere technical deficiency in a warrant renders it void and the search and seizure illegal, when the difference between legality and illegality rests on hairline distinctions, or when a law officer presumes the validity of a statut e or of an established judicial rule, later overruled. It is these excesses that have become intolerable and that tip the necessary balance between the rights of the individuals in society and the rights of the criminal defendant. 16 REASONABLE, GOOD FAITH EXCEPTION; CIVIL DAMAGES; CONGRESSIONAL RULES OF EVIDENCE Releasing a criminal may be the stiff !'price we have chosen to paym1 for enforcing the Fourth Amendment's protection of the security of private life from unwarranted, unreasonable, or unauthorized invasion by government. But the cost has been excessively magnified with the expanded application of the exclu sionary rule and the increasing stringency of,Fourth Amendment law It should and can be reduced, while other deficiencies of the rule can be mod e rated by supplemental measures. This can be accompanied by a congressional legislative Itpackage1' containing 1. a reasonable, good faith narrowing exception to the exclusionary rule 2. a waiver of flsovereign immunity,lI which now exempts the government f rom being sued, and institution of a monetary or civil damages remedy for illegal searches and seizures 3. enactment of rules of evidence to eliminate some of the peculiarities and technicalities of Fourth Amendment law and moderate its strictness to conf orm to the llreasonablenesslt stan dard of the Fourth Amendment itself.

The reasonable, good faith narrowing of the rule is recom mended by the Attorney General's Task Force on Violent Crime and has been proposed as legislation by the Justice Department. I t has already been accepted as the rule of the Fifth Court of Appeals in United States v. Williams.45 That Court reasoned: the exclusionary rule exists to deter willful or flagrant actions by police, not reasonable, good-faith ones. Where the reasons for t he rule cease, its appli cation must cease also. The costs to society of apply ing the rule beyond the purposes it exists to serve are simply too high-in this instance the release on the public of a recidivist drug smuggler-with few or no offsetting benef i ts.46 An ,advantage of this pruned version of the rule is its probable constitutionality A good, though not conclusive, indication that the Supreme Court accepts its constitutionality is the Court's denial of certiorari to review the Williams decision lo1 S. Ct. 946 (1981).

Frank Carrington also made this point and agreed that the denial of cer tiorari, in this instance, was a probable indication of Supreme Court acceptance of the reasonable, good faith exception in the original version of his article cited above. Carrington 9. c p. 2 Carrington article, explain the June 1982 Supreme Court decisions that, despite their surface appearance, do not completely undermine this conclusion The Appendix to this Backgrounder, and a forthcoming revision of the 17 Illegally seized eviden c e still would be.inadmissible, but only when the constable could not prove to the satisfaction of the court that his search and seizure had been carried out in full belief that he was acting in accordance with the law and that he had reasonable grounds fo r that belief. Acting with an arrest or search warrant would be an automatic way for the officer to show good faith, unless it could be proved that the warrant had been obtained with intent to deceive.

Determining whether the constable acted in reasonable good faith would, as claimed by those who argue for complete abolition of the rule, require, as currently, that time in the trial be allocated to consider Itthe guilt" of someone other than the criminal defendant. But this also occurs as a result of other criminal procedures and is an irremediable part of a criminal justice system seeking not only the truth but due process as well. And while plea bargaining would not cease, it could be minimized by pruning the rule because the prosecutor would have his llb ackbone stiffened" by the greater support for the police in the good faith exception.

Of equal import, fewer criminals would escape trial, convic tion, and punishment. Evidence would not be suppressed nor criminals released in those circumstances most irri tating to society which appear to make a mockery of the law=-the times when there is the greatest lack of proportion between the action of a law officer and the criminal defendant.

Contrary to the claims of both critics who would abolish the rule and its proponents, the good faith exception supplemented with the requirement of 'Ireasonable belief" that action conformed to the law does not put a Ifpremium on the ignorancell of the law enforcement officer. Thus it does not encourage violations of Fourth Ame ndment law This formulation of the rule might even encourage law enforcement agencies to increase training in Fourth Amendment law so that their personnel could prove the reasonable ness of their belief that their actions had conformed to the law.

This is particularly likely if the law enforcement agency's budget were liable for some set portion of the damages assessed the government under the supplemental civil remedy it would pay to educate As a result, even the minimal deterrent influence of the rule in protecting the privacy of personal life from unwarranted invasions would be enhanced.

The greatest benefit from so pruning the rule would be the rejuvenation of the rule's justification on the basis of its contribution to judicial and governmental integri ty. This in turn would add support to more moderate and realistic expectations for the rulels ability to deter violations of constitutionally guaranteed privacy against illegal searches and seizures. The mistakes permitted by the exception would be Ilhone s t mistakesIl Ifblunders,lt in Cardozo's words, not willful violations-and could be recognized as one category of those llharmless errorsn1 which do not vitiate the overall fairness of the trial. Furthermore, 18 courts would not be tempted to stretch Fourt h Amendment law to accommodate technical blunders, honest mistakes, and subsequent changes in the law to prevent suppression and acquittal. The trial might not be perfect; but, as Justice Rehnquist has noted the duty is not to provide a perfect trial but r a ther a fair one It4 Requiring the government to act in accordance with the law but allowing for flexibility to accommodate honest mistakes is a necessary adjustment of society's and the criminal defendant's rights. It is also a far better moral stance fro m which to begin a tougher law-and-order assault on serious crime. With the increase in crime and the mounting public concern about it, this assault is legitimate. At the same time, preserving a pruned exclusionary rule does not sacrifice constitutional pr i nciples to combat crime; "It manifests our refusal to stoop to conquer.114g What Clark said in Mapp can be said even more accurately once the police-and the society for which they work--are allowed honest mistakes committed without illegal intent I Our de c ision g ives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administra ti on of justice.50 To raise a barrier to illegal invasion of privacy, the government must be made liable to civil suit by those wronged.

Waiving sovereign immunity and allowing monetary compensation (a civil damages remedy approximating the current Federal T ort Claim Act) from the government as the representative of the law enforce ment agency* would answer a number of criticisms currently lodged against the rule. There should be a minimum amount awarded to compensate for honest mistakes, and the award shoul d increase with increasing illegality and willful disregard of the law It is precisely this award even for honest mistake ille galities that neutralizes critics' complaints that a premium is put on ignorance by the good faith exception that fail to educate their personnel will nonetheless be held responsible for damages. Courts could consider the sufficiency of law enforcement agencies' training programs as part of the reasonableness standard, both when deciding if the good faith exception has been met as w e ll as when determining the amount of damages awardable Police departments It would be impossible because of the probable limited size of law enforcement officials' personal resources to assess damages against them It would be unconscionable to assess dama ges against an individual law officer making an honest mistake. 19 For the first time, the innocent victim of a fruitless search, as well, would have recourse and receive recompense.

Compensation cannot completely repair ruptured privacy, but it is better than no recourse at all ing in the damages suit--especially if supplemented by financial responsibility for some proportion of the monetary damages awarded might stimulate law enforcement agencies to educate their personnel better and to stiffen internal discipline. For those critics who still believe the prosecution is unfairly singled out, the result of this civil damages supplement would target some punishment more directly toward the perpetrator of the.illega1 search.

Again, the combined effect of impr oved education and discipline might upgrade the deterrent influence of the total package And having to spend time testify Those who favor abolishing the rule charge, however, that as long as it exists in any form, courts or other reviewing agencies will h e sitate to award damages or punish offending officers, partially for fear that these judgments will filter back into criminal proceedings and trigger application of the rule.51 There is also fear of a general reluctance to punish law enforcement officers, with or without any version of the rule.

Yet, recognition of honest mistakes now will not provoke suppression. Only intentional illegality will. This should make courts less hesitant to award damages or impose punishment Interestingly, Canadian juries have been harsh on offending law officers.52 especially if the flexibility of a good faith effort is permitted the law officer Possibly American juries and courts will be also Finally, it is the substance of Fourth Amendment law that even more than the exclus i onary rule, seems 1udicrous.and tends to create public disrespect. Fourth Amendment law probably was carried to an extreme in the Warren Court years and distorted a reasonable tension between the rights of the individuals in society to enforce law and ord er and of the individual criminal defendant to due process. The Fourth Amendment, after all, prohi bits only unreasonable searches and requires only a standard of probable cause, not "near certainty," for issuance of warrants.

To redress this imbalance, in connection with long-term reform of the federal Criminal Code, Congress could enact rules of evidence to alleviate some of the extremes and technicalities of Fourth Amendment law. This would make the law easier to understand, easier to teach to law enfor cement personnel, and more reasonable to demand obedience to, and respect for, from the law enforcement community and the public alike.

For instance, Congress could have legislated what was recent ly decided in United States v. Ross--that all containers in all cars stopped on probable cause suspicion of illegal activity can be searched for evidence of crime. Or Congress might try to itemize in broad terms what constitutes probable cause or what information from an informer is sufficient for requesting and 20 obtaining a warrant. Such legislated, rather than judicially created, rules are more politically acceptable.

CONCLUSION The exclusionary rule, which suppresses illegally seized evidence from introduction into criminal trials, is a rule of evidence adopt ed to enforce the constitutional guarantee against unreasonable search and seizure by reinstating the legal knowledge of a criminal defendant's guilt to what it was before law enforce ment officers violated those guarantees. It might not have been necessa ry for U.S. law to adopt this particular means of enforce ment. Since it has been adopted, however, to abolish the rule altogether probably would send the l'wrong signa1,I' as it would appear to condone illegal activity by law enforcement personnel.

Nevertheless, the rule now exacts too high a cost for enforc ing those constitutional guarantees because its application can effect the release of guilty defendants without conviction and punishment for want of legal possession of reliable evidence.

Exces sive application of the exclusionary rule unbalances the tension between society's right to protect its citizens from lawbreakers-the most fundamental civil liberty of all individual citizens-and the right of the individual criminal defendant to due proce s s and a fair trial. This imbalance makes a mockery of the law and undermines the respect of the ordinary law-abiding citizen. Only on the continued respect for, and confidence in the law by the citizenry can a government of law rest As the exclusionary ru l e's costs have become more obvious with its expanded application and more stringent Fourth Amendment law, courts often have tried to limit its operation. They have justified retaining the rule mainly by stressing that it deters future illegal invasions of individual privacy. Paradoxically on its own, that is the weakest justification of the rule. The most that can be expected from it is a minimal deterrent influ ence which may encourage law enforcers to act in accord with Fourth Amendment guarantees.

Deemp hasizing the more generalized justifications of the rule, judicial and government integrity, in which all citizens have an interest, has only intensified criticism-that the rule does not deter, does not protect privacy, benefits only the guilty, and acts d isproportionately. Recognition of the rule's contribution to judicial and governmental integrity is a necessary addition to the minimal deterrent influence justification in order to remind society of the benefits it gets in return for the cost it pays in f reeing the criminal These justifications can be rejuvenated by a legislative package which narrows the rule to the reasonable, good faith exception recommended by the Justice Department and supplements it by making government liable through monetary damag es for 21 illegal searches. In addition, Congress should enact rules of evidence clarifying Fourth Amendment law.

The reasonable, good faith exception maintains the commit ment of the government to abide by the law, yet tolerates honest mistakes by law enf orcement officials. This should eliminate the imbalance that causes disrespect for law: if so pruned, the public, if grudgingly, should be more willing to recognize the exclusionary rule as "the price we pay for the Fourth Amendment.Il Supplementing the p r uned rule with the possibility of monetary damages against the government would blunt several complaints now made against the rule as well as the guilty; do more to protect individual privacy, if only by recompense; and, perhaps, improve somewhat the dete r rent influence of the rule by enhancing the education, if not the internal discipline, of law enforcement personnel It would be available to the innocent Federal rules of evidence could make Fourth Amendment law less strenuous, more reasonable, and more c omprehensible to law enforcement personnel As a result, the rule is likely to be invoked less frequently and only rarely, if at all, in the parti cular instances so annoying to society.

Redressing the balance between law and order and the criminal defendan t's procedural rights, while nevertheless retaining a commitment to governmental obedience to law, would build a power ful position from which to begin the long overdue assault on violent crime As two first steps, a reasonable, good faith exception to the exclusionary rule and a civil damages remedy for violation of Fourth Amendment guarantees should be enacted.

Roberta B. DUM, Ph.D.

Policy Analyst 22 FOOTNOTES 1 2 3 4. 5 6 7 8 9 10 11 12 13. 14. 15. 16 17 18. 19 20 21 403 US 443 (1971 29 LEdPd 629, 639-6 40 his dissent in Bivens v. Six Unknown Federal Narcotics Agents, 403 US 338 The Chief Justice's Coolidge dissent was part of 1971 People v. Defore, 150 W.E. 585 (1926 587-588 Justice Burger in Coolidge, 29 LEd2d 619, 640 Yale Kamisar, "How We Got the Fou r th Amendment Exclusionary Rule and Why We Need It," Testimony before the U.S. Senate Judiciary Subcomittee on Criminal Law, March 25, 1982, p. 7 Attorney General's Task Force on Violent Crime, Final Report, August 17 1981, pp. 55-56 116 US 616 (1886 232 U S 383 (1914 232 US 383, 390 Silverthorne Lumber Co. v. United States, 251 US 385 (1920 see also Nardone v. United States, 302 US 379 (1931 Wong Sun v. United States, 371 US 471 (1963 Elkins v. United States, 364 US 206 (1960 See, e.g. Kaufman v. United Sta t es, 394 US 206 (1960 338 US 25 (1949 338 US 25, 27 367 US 643 (1961 See, e.g., Walder v. United States, 347 US 62 (1954 See, e.g., Jones v. United States, 362 US 257 (1950 Alderman v. United States, 394 US 165 (1969 Linkletter v. Walker, 381 US 618 (1965 U nited States v. Calandra, 414 US 338 (1974 428 US 465 (1976 22. 6 S.Ct. 524, 532. 23 23. 24 25. 26. 27 28. 29. 30 31 32 33 34. 35. 36 37. 38. 39. 40 41 Miller v. United States, 357 US 301 (1958 313-314 The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guarantee in the only effectively available way--by removing the incentive to disregard it."

Elkins 364, US 206 (1960 217 414 US 338, 347 California v. Minjares, 443 US 916, 61 LEd2d 892, 896 P owell even gave it a passing nod in Stone. 428 US 465, 484-486 Olmstead v. United States, 277 US 438 (1928 470 Olmstead, 227 US 438, 485 Nothing can des.troy a government more quickly than its failure to observe its own laws, or worse, its disregard of th e charter of its own existence The ignoble shortcut to conviction left open to the State tends to destroy the entire system of consitutional restraints on which the liberties of the people rest 367 US 643, 660 See, for example, BreMan's dissent in Calandra , 414 US 338, 356-357 Rochin v. California, 342 US 165 (1952 I-rvine v. California, 347 US 128 (1954 403 US 388, 420-421 Steven R. Schlesinger, "The Exclusionary Rule: Have Proponents Proven that It Is a Deterrent to Police Judicature, Volume 62, Number 8, March 1979 pp. 404-409 Bradley Cannon, "The Exclusionary Rule Deter Police Judicature, Volume 62, Number 8, March 1979, pp. 398-403 p. 4

03. See also the Schlesinger reply in Judicature, cited above.

New York v. Belton, 49 LW 4915 (1981 Have Critics Proven that It Doesn't Robbins v. California 49 LW 4906 (1981 Both Wilkey and Schlesinger make these points.

Dallin H. Oaks, "Studying the Exclusionary Rule in Search and Seizure,"

The University of Chicago Law Review, Volume 37, Number 4, Summer 1970, pp 66 5-757, pp. 681-689 Ibid., p. 754 42 See, e.g., Rogers v. Richmond, 365 US 534 (1951) and Jackson v. Denno, 378 US 368 (1964). 43 44 45 46 47 48 49 50. 51. 52 Oaks s. c pp. 697-699.

Coolidge, 403 US 443, 491 622 F2d 830 (1980 622 F2d 830, 840.

Not only opponents but also proponents of the rule so criticize the good faith exception. See Wilkey o cit., p. 36; Schlesinger, "It Is Time to Abolish the Exclusionary &E;''Xll Street Journal, September 10 19

81. See also Wayne R. LaFave, "Statement I' Before the U.S. Senate Judiciary Subcommittee on Criminal Law," March 25, 1982.

Michigan v. Tucker, 417 US 433 (1974 446 Sachs, s. G p. 3 367 US 643, 660 See, e.g., Schlesinger; "It Is Time Wilkey, 2. e pp. 35-36.

Martin s. e p. 272.

APPENDIX Legislation to prune the exclusionary rule so that it operates only when the rule can reasonably be expected to deter and to make clear that it is unreasonable to expect police to act other than in accord with current law became even more desirable on June 21 and 23 , 1982, when the Supreme Court decided United States v. Johnson1 and Taylor v. Alabama,2 respectively. These cases might be used by the rule's proponents to claim that the Court has decided against the reasonable, good faith exception.

This is not, however, what the court decided.

In Taylor v. Alabama, the Court ruled that a robbery suspect's confession should not have been admitted into evidence in his trial because it was "the poisonous fruit1' of an illegal arrest.

At the conclusion of his majority opi nion, Justice Marshall commented Alternatively, the State contends that the police conduct here argues for adopting a Ilgood faith" excep tion to the exclusionary rule. To date, we have not recognized such an exception, and we decline to do so here.

That comment is gratuitous-in legal terms it is obiter dictum, a by the way remark which is not involved in the determination of the case at hand.

The only question at issue in Taylor was whether, despite the illegal arrest, the confession should have been adm itted because intervening events [broke] the casual connection between the illegal arrest and the confession so that the confession [was] Il'sufficiently an act of free will to purge the primary taint.

The dissent specifically agreed that this was the pro per rule of law.5 The question was the interpretation of the facts times, been in custody (mostly alone) for six hours, and visited with his girl friend and a neighbor these events did not break the connection between the illegal arrest and the confession so it had to be excluded at the trial.

The dissent agreed with the trial and Alabama Supreme Court that all the circumstances, taken together, sufficiently broke the Ittaint of the illegal arrest,Il6 and thus they would have admitted the confession. Other wise, Justice Sandra O'Connor and the other dissenters-such known critics of the rule as Burger, Rehnquist and Powell-would have suppressed the confession Taylor had, for instance, been read his Miranda rights three The majority decided that A-2 In other w ords, all nine justices agreed that the arrest was illegal, that it was based on information insufficient to establish Itprobable causett and to obtain a warrant, and that absolutely no effort was made by the police to get sufficient information The polic e men making the arrest did not act in good faith--it had been the law for years that the minimal information in the infor mant's tip was insufficient to obtain a warrant or support a warrantless arrest.8 Furthermore, the Supreme Court had handed down a dec i sion in 1975,9 three years before Taylor's arrest ruling that confessions obtained via such illegal arrests would be excluded, unless intervening events attenuated the illegality and made the confession a product of free will A policeman acting in reasona b le good faith would have known both that the arrest was illegal and that the confession would be inadmissible in most instances. No wonder Justice Marshall said that the Court declined to adopt a good faith exception in this case--this was not an instance of good faith, and both majority and dissent clearly knew that to be so Furthermore, if the Court had wished to reject a reasonable good faith exception, Marshall had the opportunity to do so in Taylor. remark, indicating that the Court was specifically o v erruling the Fifth Circuit's adoption of the reasonable, good faith exception in Williams, which the Supreme Court previously had let stand in its denial of certiorari. But Marshall did not even mention the Williams case, much less cast doubt on the denia l of cert. or overrule the Williams holding. The legitimacy of the reasonable, good faith exception is not in the l.east diminished by Taylor and Marshall's obiter dictum.

The Johnson case, however, demands congressional legislation of the reasonable, good faith exception, not because Johnson denies the legitimacy of such an exception altogether but because it makes the standard of Itreasonable knowledge required of the law officer unreasonably high. Johnson held that all Supreme Court decisions construing the Fourth Amendment but not overruling clear prior precedent or practice and constituting a l'clean break" with past law will be applied retroactively to all cases not yet finally decided in the standard appellate process As a result, the exclusionary ru l e will be applied l'retroactivelyll to exclude evidence gained from a search or seizure in which the principles of law had been, as the Johnson Court labelled them unsettled." The Court claimed Johnson was such a case entered Johnson's home without a warr a nt and, in effect, without his consent to make a routine.felony arrest. Johnson confessed to his crime while the agents were searching his house, and his confession was admitted as part of the evidence which convicted him. But, in 1980, almost three years after Johnson's arrest the Supreme Court decided Payton v. New York.lo Since Payton held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into the suspect's home to He could have appended a footnote to his g r atuitous In the Johnson case, in 1977 the United States Secret Service A-3 make a routine felony arrest, any evidence obtained pursuant to that arrest is llillegally seized" and prevented by the exclusionary rule from presentation as evidence in a crimina l trial applying Payton's 1980 holding to the 1977 Johnson search meant that Johnson's arrest was illegal, his confession excluded, and his conviction reversed So Justice Harry Blackmun, also for Justices Powell, BreMan Marshall, and John Paul Stevens, arg u ed that unless evidence in non-final cases was excluded when decisions were finally made in Iunsettled areas" of law law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious con s titutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case defini tively r e solving the unsettled question-ll Nevertheless, Blackmun's majority accepted the reasonable, good faith exception when police had acted in accordance with clearly established precedents and practices. This is the rationale for Johnson's acceptance of Unit ed States v. Peltier and its refusal to apply another Fourth Amendment decision-one it considered to be a "sharp breakI1--retroactively.

Isn't it a distortion of the proper balance between society's rights to enforce its laws and the criminal defendant's rights to due process to expect so much of law enforcement personnel?

Certainly it would be desirable to have the exclusionary rule exert a 'ldeterrent influencell on officials to nudge their action to higher constitutional standards able to expect the rule to deter all action taken with the intent to obey the law which, nevertheless, does not precisely tally with standards articulated lat e r. And certainly it is unreasonable for society to pay the price of exclusion of evidence and loss of conviction in these cases. Even Justice Blackmun admitted as much when he refused to extend further the application of the rule in United States v. Janis 1 3 and quoted Professor Amsterdam But certainly it is unreason I'[I]t will not do to forget that the Weeks rule is a rule arrived at only on the nicest balance of competing considerations and in view of the necessity of finding some effective judicial sanc t ion to preserve the Consti tution's search and seizure guarantees unsupportable as reparation or compensatory dispensation to the injured criminal, its sole rational justification is the experience of its indispensability in 'exert[ing general legal press u res to secure obedience to the Fourth Amendment on the part of federal law enforcing officers As it serves this function, the rule is a needed, but grud[g]ingly taken, medicament; no more The rule is A-4 I should be swallowed than is needed to combat the disease.

Granted that so many criminals must go free.as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest as declared by the Congress A. Amster dam, Search Seizure, and Section 2255, 112 U. Pa. L. Rev. 378 388-389 (1964 14 A careful reading of Johnson indicates that Justice Blackmun was probably swayed by arguments against judicial activism to impose retroactivity uniformly on non-final cases quo t ations from Justice Harlan reflecting on the previous non predictabil.ity of the Court in decisions determining whether to apply new rules of law retroactively is strong proof of this concern. Likewise, that argument was probably responsible for capturing Justice Powell!s vote for the Johnson majority As admirable as the goal of judicial restraint is, however, it has the undesirable result after Johnson of requiring too much of police officers and exacting too high a price from society. The Johnson Court d i d not rule out a reasonable, good faith exception to the rule, but it clearly made it necessary for Congress to legislate a more sensible definition of that rule His constant It is also important to note that between Johnson and Taylor the members of the Court majority and the dissents shifted.

Justices Byron White, Burger, Rehnquist, and O!Connor dissented in Johnson; Justices O!Connor, Burger, Powell, and Rehnquist in Taylor. At one time or another, the four among those five who are not recent appointees have indicated dissatisfaction with the rule and a desire at least to cut it back. Justice O!Connor!s dissent in both cases, as well as her votes in criminal cases her first term, indicate her apparent agreement. Thus, noting the votes, the combination o f Johnson and Taylor means that only a plurality of four Justices can in any way be counted as hesitant to prune the rule-even under the most liberal reading possible of those two cases A majority of five Justices is still countable for revision of the rul e. And, as noted, Justice Blackmun, the author of Johnson, is on record as having qualms about extending application of the exclusionary rule to instances when it cannot be expected to deter, bringing the total to six Justices.

Thus, Johnson and Taylor in no way reverse the Williams case or the Supreme Court's denial of certiorari in it. Because of Johnson!s unreasonably high standard of knowledge required of law enforcement personnel, albeit the result of commendable motives by at least Justice Blackmun, h owever, these cases add urgency to the necessity for Congress to revise the exclusionary rule and legislate the proposed reasonable, good faith exception. A-5 FOOTNOTES 1. 50 LW 4742 (1982 2 NO. 81-5152 (1982 3 No. 81-5152, Court opinion, p. 5 4. Ibid pp. 2-3 5. No. 81-5152, Dissent, p 4 6 Ibid pp. 7-8 7. No. 81-5152, Court opinion, pp. 1, 3; Dissent, pp. 1, 4 8. See, e.g., Aguilar v Texas 378 US 108 (1964 sippi, 394 US 721 (1969), in which the Court chastised police action taken without any effort of good faith compliance with the law and there fore suppressed evidence See also Davis v. Missis 9 Brown v. Illinois; 422 US 590 (1975 10. 445 US 573 (1980 11. 50 LW 4748 12. 50 LW 4748 13. 44 LW 5303 (1976 14. 44 LW 5310.