the exclusionary rule in historical perspective: the

University of Michigan Law SchoolUniversity of Michigan Law School Scholarship Repository

Articles Faculty Scholarship

1979

The Exclusionary Rule in Historical Perspective:The Struggle to Make the Fourth AmendmentMore than 'An Empty Blessing'Yale KamisarUniversity of Michigan Law School, [email protected]

Available at: https://repository.law.umich.edu/articles/631

Follow this and additional works at: https://repository.law.umich.edu/articles

Part of the Criminal Procedure Commons, Evidence Commons, Fourth Amendment Commons,Law Enforcement and Corrections Commons, and the Supreme Court of the United StatesCommons

This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It hasbeen accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For moreinformation, please contact [email protected].

Recommended CitationKamisar, Yale. "The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment More than 'An EmptyBlessing'." Judicature 62, no. 7 (1979): 337-50.

https://repository.law.umich.edu?utm_source=repository.law.umich.edu%2Farticles%2F631&utm_medium=PDF&utm_campaign=PDFCoverPages

https://repository.law.umich.edu/articles?utm_source=repository.law.umich.edu%2Farticles%2F631&utm_medium=PDF&utm_campaign=PDFCoverPages

https://repository.law.umich.edu/faculty_scholarship?utm_source=repository.law.umich.edu%2Farticles%2F631&utm_medium=PDF&utm_campaign=PDFCoverPages

https://repository.law.umich.edu/articles/631

https://repository.law.umich.edu/articles?utm_source=repository.law.umich.edu%2Farticles%2F631&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/1073?utm_source=repository.law.umich.edu%2Farticles%2F631&utm_medium=PDF&utm_campaign=PDFCoverPages






mailto:[email protected]

The exclusionary rulein historical perspective:the struggle to makethe Fourth Amendmentmore than 'an empty blessing'by Yale Kamisar

n the 65 years since the Supreme Courtadopted the exclusionary rule, few criticshave attacked it with as much vigor and onas many fronts as did Judge Malcolm Wilkeyin his recent Judicature article, "The exclu-sionary rule: why suppress valid evidence?"(November 1978).

According to Judge Wilkey, there is virtu-ally nothing good about the rule and a greatdeal bad about it. He thinks the rule is partlyto blame for "the distressing rate of streetcrimes" (page 215). He tells us that it "dis-courages internal disciplinary action by thepolice themselves" (page 226); "actually re-sults in encouraging highly pernicious po-lice behavior" (e.g., perjury, harassment andcorruption) (page 226); "makes it virtuallyimpossible for any state, not only the federalgovernment, to experiment with any meth-ods of controlling police" (page 227); and"undermines the reputation of and destroysthe respect for the entire judicial system"(page 223).

Judge Wilkey claims, too, that the rule"dooms" "every scheme of gun control ...

to be totally ineffective in preventing thehabitual use of weapons in street crimes"(page 224). Until we rid ourselves of thisrule, he argues, "the criminal can parade inthe streets with a great bulge in his pocket ora submachine gun in a blanket under hisarm" and "laugh in the face of the officerwho might wish to search him for it" (page225).

Unthinking, emotional attachment?Why, then, has 'the rule survived? "Thegreatest obstacle to replacing the exclusion-ary rule with a rational process," JudgeWilkey maintains, is "the powerful, un-thinking emotional attachment" to the rule(page 217). If you put the issue to a repre-sentative group of lawyers and judges, heconcedes, "you would doubtless hear somesupport" for the rule, but only from those"heavily imbued with a mystique of theexclusionary rule as of almost divine origin"(page 223).

It is hard to believe that nothing moresubstantial than "unthinking emotional at-

HeinOnline -- 62 Judicature 337 1978-1979

tachment" or mystical veneration accountsfor support for the rule by Justices Holmesand Brandeis (which I discussed in myearlier article) and, more recently, by suchbattlescarred veterans as Roger Traynor,Earl Warren and Tom Clark.

In the beginning, Judge Traynor was notattached to the rule, emotionally or other-wise. Indeed, in 1942 he wrote the opinionof the California Supreme Court reaffirmingthe admissibility of illegally-seized evi-dence.' But by 1955, it became apparent toTraynor that illegally seized evidence "wasbeing offered and admitted as a routineprocedure" and "it became impossible toignore the corollary that illegal searches andseizures were also a routine procedure, sub-ject to no effective deterrent."-2

[W]ithout fear of criminal punishment or otherdiscipline, law enforcement officers . . . casuallyregard [illegal searches and seizures] as nothing

1. People v. Gonzales, 20 Cal.2d 165, 124 P.2d 44(1942).

2. Roger Traynor, Mapp v. Ohio at Large in the FiftyStates, 1962 DUKE L.J. 319, 321, 322.

more than the performance of their ordinaryduties for which the City employs and paysthem.3

In light of these circumstances, Traynoroverruled the court's earlier decision. 4

And consider Earl Warren. During the 24years he spent in state law enforcement workin California (as deputy district attorney,district attorney and attorney general), Cali-fornia admitted illegally seized evidence.Indeed, Warren was the California AttorneyGeneral who successfully urged Judge Tray-nor and his brethren to reaffirm that rule in1942. In 1954, during his first year as ChiefJustice of the United States, he heard a caseinvolving police misconduct so outrageousas to be "almost incredible if it were notadmitted" (the infamous Irvine case), but heresisted the temptation to impose the exclu-

3. People v. Cahan, 44 Cal.2d. 434,282 p.2d 905, 907(1955) (Traynor, J.).

4. Roger Traynor, Lawbreakers, Courts and Law-Abiders, 31 MO.L.REv. 181, 201 (1966). See alsoMonrad Paulsen, Criminal Law Administration: TheZero Hour Was Coming, 53 CALIF. L.REv. 103, 107(1965).

Why California adopted the ruleRoger Traynor was the chief justice of Cali-fornia in 1955 when the state supreme courtadopted the exclusionary rule. He explainshis position on the rule in this excerpt fromhis article, "Mapp v. Ohio at Large in theFifty States" (1962 Duke L. J. 319, 322).

My misgivings about (the admissi-bility of illegally seized evidence) grewas I observed that time after time it wasbeing offered and admitted as a routineprocedure .. .It was one thing to con-done an occasional constable's blun-der, to accept his illegally obtainedevidence so that the guilty would notgo free. It was quite another to condonea steady course of illegal police proce-dures that deliberately and flagrantlyviolated the Constitution of the UnitedStates, as well as the state constitution.

Ah, but surely the guilty should stillnot go free? However grave the ques-

tion, it seemed improperly directed atthe exclusionary rule. The hard answeris in the United States Constitution aswell as in state constitutions. Theymake it clear that the guilty would gofree if the evidence necessary to con-vict could only have been obtainedillegally, just as they would go free ifsuch evidence were lacking becausethe police had observed the constitu-tional restraints upon them.

It is seriously misleading, however,to suggest that wholesale release of theguilty is a consequence of the exclu-sionary rule. It is a large assumptionthat the police have invariably exhaust-ed the possibilities of obtaining evi-dence legally when they have reliedupon illegally obtained evidence. It ismore rational to assume the oppositewhen the offer of illegally obtainedevidence becomes routine.

338 Judicature/Volume 62, Number 7, February, 1979


sionary rule on the states, even in suchextreme cases. 5 It was not until 1961 that hejoined in the opinion for the Court in Mapp,which imposed the rule on the states.

Chief Justice Warren knew the exclusion-ary rule's limitations as a tool of judicialcontrol,6 but at the end of an extraordinarypublic career-in which he had served moreyears as a prosecutor than any other personwho has ascended to the Supreme Court-Warren observed:

[I]n our system, evidentiary rulings provide thecontext in which the judicial process of inclusionand exclusion approves some conduct as con-porting with constitutional guarantees and disap-proves other actions by state agents. A rulingadmitting evidence in a criminal trial, we recog-nize, has the necessary effect of legitimizing theconduct which produced the evidence, while anapplication of the exclusionary rule withholdsthe constitutional imprimatur. 7

The author of the Mapp opinion, TomClark, was, of course, U.S. Attorney Generalfor four years before he became a SupremeCourt justice and he was assistant attorneygeneral in charge of the criminal divisionbefore that. Evidently, nothing in his experi-ence gave Clark reason to believe that therule had "handcuffed" federal officials orwould cripple state law enforcement. Andhe never changed his views about the needfor the exclusionary rule during his 18 yearson the Court or the 10 years he spent in theadministration of justice following his re-tirement.8 Indeed, shortly before his death,he warmly defended Mapp and Weeks.9

Moreover, nothing in Justice Clark's ca-reer suggests that he endorsed Mapp out of"sentimentality" or in awe of the "divineorigins" of the exclusionary rule. More like-ly, he was impressed with the failure of Wolf

5. Irvine v. California, 347 U.S. 128, 132 (1954).Perhaps he was confident that at least in such a flagrantcase the transgressing officers would be prosecuted orotherwise disciplined. If so, his confidence was mis-placed. See Comment, 7 STAN. L.REv. 76, 94n. 75(1954).

6. See his opinion for the Court in Terry v. Ohio, 392U.S. 1 (1968), at 13-15.

7. Id. at 13.8. See Larry Temple, Mr. Justice Clark: A Tribute, 5

AM. J. CRIM. L. 271, 272-73 (1977).9. See Tom Clark, Some Notes on the Continuing

Life of the Fourth Amendment, 5 AM. J. CRIM. L. 275(1977).

and Irvine to stimulate any meaningful al-ternative to the exclusionary rule in the morethan 20 states that still admitted illegallyseized evidence at the time of Mapp.10

I do not mean to suggest that JudgeWilkey's views on the exclusionary rule areaberrational among lawyers and judges;many members of the bench and bar sharehis deep distress with the rule. Indeed,when Judge Wilkey asks us to abolish theexclusionary rule now-without waiting fora meaningful alternative to emerge-he butfollows the lead of Chief Justice Burger,who recently maintained:

[T]he continued existence of the rule, as present-ly implemented, inhibits the development of ra-tional alternatives ... It can no longer be as-sunmed that other branches of government will actwhile judges cling to this Draconian, discrediteddevice in its present absolutist form."

Because so many share Judge Wilkey'shostility to the exclusionary rule, it is impor-tant to examine and to evaluate Wilkey'sarguments at some length.12 Only then canwe determine whether the rule is as irration-al and pernicious as he and other criticsmaintain-and whether we can abolish itbefore we have developed an alternative.

Crime and the ruleA year before the California Supreme Courtadopted the exclusionary rule on its own-and years before the "revolution" in Ameri-can criminal procedure began-William H.Parker, the Chief of the Los Angeles PoliceDepartment, said:

[O]ur most accurate crime statistics indicate thatcrime rates rise and fall on the tides of economic,social, and political cycles with embarrassinglylittle attention to the most determined efforts ofour police.13

10. See Elkins v. United States, 364 U.S. 205, 224-25(1960) (App.)

11. See Stone v. Powell, 428 U.S. 465, 496, 500(1976) (Burger, C.J., concurring); and Bivens v. SixUnknown Federal Narcotics Agents, 403 U.S. 388, 411(1971) (Burger, C.J., dissenting).

12. Though I discussed the empirical challenge tothe exclusionary rule in my first article, I do notexamine Judge Wilkey's use of empirical data in thisarticle because two political scientists-Bradley Canonand Steven Schlesinger-will discuss that issue inJudicature next month.

13. William Parker, The Police Challenge in OurGreat Cities, Annals, Jan. 1954, pp. 5, 11-12.


Almost as soon as the California SupremeCourt adopted the exclusionary rule,though, Chief Parker began blaming the rulefor the high rate of crime in Los Angeles,calling it "catastrophic as far as efficient lawenforcement is concerned," and insisting"that the imposition of the exclusionary rulehas rendered the people powerless to ade-quately protect themselves against the crim-inal army."'

14

Such criticism of the Cahan rule'- wasonly a preview of the attack on Mapp. ChiefJustice Traynor, speaking about the debatefollowing the Mapp decision, rightly ob-served that: "Articulate comment about[Mapp] ... was drowned out in the dinabout handcuffing the police. '" 16

Thus, it is not surprising that JudgeWilkey would claim on his very first pagethat "[we can see [the]huge social cost [ofWeeks and Mapp] most clearly in the dis-tressing rate of street crimes ... whichflourish in no small degree simply becauseof the exclusionary rule." Nevertheless, it isdisappointing to hear a critic repeat thischarge, because after 65 years of debate,there was reason to hope that this criticism,at least, would no longer be made. As Pro-fessor James Vorenberg pointed out, shortlyafter he completed his two years of serviceas Executive Director of the President'sCommission on Law Enforcement and Ad-ministration of Justice:

What the Supreme Court does has practically noeffect on the amount of crime in this country, andwhat the police do has far less effect than isgenerally realized. 17

Even Professor Dallin Oaks (now a univer-sity president), upon whose work JudgeWilkey relies so heavily, advised a decadeago:

The whole argument about the exclusionaryrule 'handcuffing' the police should be aban-

14. W. Parker, POLICE 117, 120-21, 114, 118 (0.Wilson ed. 1957).

15. See, e.g., ABA, Summary of Proceedings of Sec-tion of Criminal Law 54, 58 (1956).

16. Traynor, supra n. 4, at 198.17. James Vorenberg, Is the Court Handcuffing the

Cops?, N.Y. TIMES MAC., May 1, 1969, in CRIME ANDCRIMINAL JUSTICE 82. Chicago: Quadrangle Books, D.Cressey ed. 1971.


doned. If this is a negative effect, then it is aneffect of the constitutional rules, not an effect ofthe exclusionary rule as the means chosen fortheir enforcement.

Police officials and prosecutors should stopclaiming that the exclusionary rule prevents ef-fective law enforcement. In doing so they attrib-ute far greater effect to the exclusionary rule thanthe evidence warrants, and they are also in theuntenable position of urging that the sanction beabolished so that they can continue to violate the[constitutional] rules with impunity.'8

A weak linkOver the years, I have written about theimpact of Cahan, Mapp and other decisionson crime rates and police-prosecution effi-ciency. 19 1 will not restate my findings again,especially since Judge Wilkey has presentedno statistical support for his assertion. Iwould, however, like to summarize a fewpoints:

0 Long before the exclusionary rule be-came law in the states-indeed, long beforeany of the procedural safeguards in thefederal Constitution was held applicable tothe states-invidious comparisons weremade between the rate of crime in our nationand the incidence of crime in others.

Thus, in 1911, the distinguished ex-president of Cornell University, Andrew D.White, pointed out that, although London'spopulation was two million larger than NewYork's, there were 10 times more murders inNew York. 20 And in 1920, Edwin W. Sims,the first head of the Chicago Crime Commis-sion, pointed out that "[dluring 1919 therewere more murders in Chicago (with a pop-ulation of three million) than in the entireBritish Isles (with a population of forty

18. Dallin Oaks, Studying the Exclusionary Rule inSearch and Seizure, 37 U.CHI.L.REv. 665, 754 (1970).

19. See Kamisar, Public Safety v. Individual Liber-ties: Some "Facts" and "Theories," 53 J. CRIM. L.C.&P.S. 171 (1962); Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CoR-NELL L.Q. 436 (1964); Kamisar, How to Use, Abuse-and Fight Back with-Crime Statistics, 25 OKLA. L.REV. 239 (1972).

See also Kamisar, When the Cops Were Not "Hand-cuffed, " N.Y. TIMES MAC., Nov. 7, 1965, reprinted in A.Niederhoffer & A. Blumberg, eds., THE AMBIVALENTFORCE: PERSPECTIVES ON THE POLICE 319. Hinsdale,II: Dryden Press, 2d ed. 1976; and in CRIME ANDCRIMINAL JUSTICE 46. Chicago: Quadrangle Books, D.Cressey ed. 1971.

20. See 2 J. CRIM L. & CRIMINOLOGY at 107 (1911).


million)." 21 This history ought to raise somedoubts about the alleged causal link be-tween the high rate of crime in America andthe exclusionary rule.

0 England and Wales have not experi-enced anything like the "revolution" inAmerican criminal procedure which beganat least as early as the 1961 Mapp case.Nevertheless, from 1955-65 (a decade whichhappened to be subjected to a most intensivestudy), the number of indictable offensesagainst the person in England and Walesincreased 162 percent. 22 How do opponentsof the exclusionary rule explain such in-creases in countries which did not sufferfrom the wounds the Warren Court suppos-edly inflicted upon America?

* In the decade before Mapp, Marylandadmitted illegally seized evidence in all fel-ony prosecutions; Virginia, in all cases. Dis-trict of Columbia police, on the other hand,were subject to both the exclusionary ruleand the McNabb-Mallory rule, a rule which"hampered" no other police departmentduring this period.' 23 Nevertheless, duringthis decade the felony rate per 100,000 pop-ulation increased much more in the threeVirginia and Maryland suburbs of the Dis-trict (69 per cent) than in the District itself (apuny one per cent).24

* The predictions and descriptions ofnear-disaster in California law enforcementwhich greeted the 1955 Cahan decision findprecious little empirical support. The per-centage of narcotics convictions did drop

21.See 10 J. CRiM L. & CRIMINOLOGY at 327 (1919).22. F.H. McClintock and N.H. Avison, CRIME IN

ENGLAND AND WALES 37 (1968). Of course, much ofthe statistical increase in British crime may have beenan increase in reported crime, not actual crime. But thesame may be said for the statistical increase in Ameri-can crime.

23. Mallory v. United States, 354 U.S. 449 (1957),reaffirming McNabb v. United States, 318 U.S. 332(1943), excluded from federal prosecutions all confes-sions or admissions obtained during prolonged pre-commitment detention, regardless of whether they were"voluntarily" made, so far as the record showed.

24. See Kamisar, Public Safety v. Individual Liber-ties: Some "Facts" and "Theories," 53 J. CRIM L. C. &P.S. 171, 185 (1962).

During this same decade the national crime rate forthe seven major offenses rose 66 per cent and the overallnational crime rate soared 98 per cent. See id. at 184 &n. 100.

almost 10 points (to 77 per cent), but onlypossession cases were significantly affected.Meanwhile, both the rate of arrests andfelony complaints filed for narcotics offens-es actually increased! Thus, in 1959-60, 20per cent more persons were convicted ofnarcotics offenses in California superiorcourts than in the record conviction percent-age years before Cahan.2 5

The overall felony conviction rate was84.5 per cent for the three years beforeCahan, 85.4 per cent for the Cahan year and86.4 per cent in the three years after Cahan(even including the low narcotic percentag-es). 26 Conviction rates for murder, man-slaughter, felony assault, rape, robbery andburglary remained almost the same, thoughthe number of convicted felons rose steadi-ly.2

7

The exclusionary rule, to be sure, doesfree some "guilty criminals" (as would aneffective tort remedy that inhibited the po-lice from making illegal searches and sei-zures in the first place), but very rarely arethey robbers or murderers. Rather they are"offenders caught in the everyday worldof police initiated vice and narcotics en-forcement..."

Though critics of the exclusionary rule some-times sound as though it constitutes the mainloophole in the administration of justice, the factis that it is only a minor escape route in a systemthat filters out far more offenders through police,prosecutorial, and judicial discretion than it tries,convicts and sentences ...

Moreover, the critics' concentration on the for-mal issue of conviction tends to overlook the veryreal sanctions that are imposed even on defend-ants who 'escape' via the suppression of evidence[e.g., among the poor, most suffer at least severaldays of imprisonment, regardless of the ultimateverdict; many lose their jobs as a result and havea hard time finding another] ...

When one considers that many convictions inthe courts that deal with large numbers of mo-tions to suppress often amount to small fines,suspended sentences, and probation, the distinc-tion between conviction and escape becomeseven more blurred.28

25. See Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CoR-NELL L.Q. 437, 463 (1964).

26. Id. at 464.27. See Kamisar, supra n. 24 at 190.28. Critique, 69 Nw. U.L. REV. 740, 774-76 (1975).


Guns and the exclusionary rule

Judge Wilkey does advance what so far as Iknow is a new argument: that gun controlwill be totally ineffective "so long as theexclusionary rule hampers the police in en-forcing it." "Since [American] criminalsknow the difficulties of the police in makinga valid search," he observes, "the criminalsin America do carry guns," unlike criminalsin England and other countries.

Why, then, did so many criminals carryguns in New York and more than 20 otherstates that admitted illegally seized evidenceuntil 1961? New York, for example, passedthe Sullivan Act in 1911, making the owner-ship and carrying of pistols subject to apolice permit. But a British gun controlexpert said recently that, if we compare NewYork with London in the 10 years afterpassage of the Sullivan Act, we would prob-ably find

that New York, with its strict controls on theprivate ownership of pistols, suffered infinitelymore from the crininal use of firearms of all typesthan did London in a period when all firearmswere freely available. 29

Evidently, short of abolishing the exclu-sionary rule across the board, Judge Wilkeywould welcome an amendment to theFourth Amendment that read something likethis:

The guaranty against unreasonable search andseizure shall not be construed to bar from evi-dence in any crininal proceeding any dangerousweapon seized by a peace officer outside thecurtilage of any dwelling house.

It may be surprising, but the 1963 Michi-gan Constitution (as well as its predecessor)contained just such a provision. Whenever itwas challenged after Mapp, the MichiganSupreme Court managed to avoid invalidat-ing it by finding that the search in questionhad been reasonably conducted. 30 In the

29. Colin Greenwood, FIREARMS CONTROL: ASTUDY OF ARMED CRIME ANI) FIREARMS CONTROL IN

ENGLAND AND WALES 3-4 (Introduction). London:Routledge & Kegan Paul Ltd., 1972.

30. See Edward Wise, Criminal Law atid Procedure,1971 Annual Survey of Michigan Law, 17 WAYNEL.REv. 381-83 (1971).

342 Judicatnre/Volnme 62, Numniber 7, Febrnary, 1979

1966 Blessing case, only two of the sevenstate court justices said the proviso violatedthe U.S. Constitution.3 ' Most state judgesthought that, despite Mapp, the Blessingcase had upheld the "anti-exclusionary"proviso 32; as late as 1969, a unanimouspanel of the court of appeals acted on thisbasis.

33

Thus, for nine years after Mapp the policeof Michigan were free to search suspects forweapons for almost any reason. What hap-pened? In six years, starting in 1964, crimi-nal homicides in Detroit more than tri-pled, rising from 138 to 488. 3 4 Why? Judge(and former Detroit Police Commissioner)George Edwards quotes the head of theDetroit Police Department's Homicide Bu-reau:

There are more homicides in the city becausethere are more handguns in the city. The relation-ship is that clear. You can't go by the increase in[gun] registration either. The bulk of handgunsused in violent crime are not registered. :'5

The National Commission on the Causesand Prevention of Violence likewise deter-mined that handguns had caused the up-surge in crime:

Between 1965 and 1968, homicides in Detroitcommitted with firearms increased 400 per centwhile homicides committed with other weaponsincreased only 30 per cent; firearms robberiesincreased twice as fast as robberies committedwithout firearms. (These rates of increase aremuch higher than for the nation as a whole).:36

31. People v. Blessing, 378 Mich. 51, 142 N.W.2d709 (1966). See also Wise, Criminal Law and Evidence,1966 Anmal Strvey of Michigan Law, 13 WAYNEL.REV. 114, 133-36 (1966).

32. See Wise, supra n. 30 at 382-83.33. People v. Pennington, 17 Mich. App. 398, N.W.

2c (1969), rev'd 383 Mich. 611, N.W.2d (1970).34. See Edwards, Commentary: Mnrder and Cnm

Control, 13 WAYNE L. REV. 1335, 1341 (1972).35. Id. at 1341. "[A] sample of 113 handguns confis-

cated by police during shootings in the City of Detroit(luring 1968 showed that only 25 per cent of theconfiscated weapons had been recorded previously inconnection with a gun permit application." G. Newtonand Franklin Zimring, Staff Report to the NationalCommission on the Causes and Prevention of Violencein America, FIREARMS AND VIOLENCE IN AMERICAN

LIFE 51 (1969).36. NATIONAL COMMISSION ON THE CAUSES AND

PREVENTION OF VIOLENCE, TO ESTABLISH JUSTICE,To INSURE DOMESTIC TRANQUILITY 171 (1969).


An undemonstrated connection

The availability of handguns clearly in-creases crime rates, but do changes in therules of evidence? Judge Wilkey hints dark-ly that there is a "connection" betweenAmerica's high crime rate and its "unique"

exclusionary rule. So far as I am aware, noone has been able to demonstrate such aconnection on the basis of the annual Uni-form Crime Reports or any other statisticaldata. In Michigan, for example, the rate ofviolent crime seems to have fluctuated with-out regard to the life and death of the state's"anti-exclusionary" proviso.

From 1960-64, the robbery rate increasedonly slightly in the Detroit MetropolitanStatistical Area but it quadrupled from 1964to 1970 (from 152.5 per 100,000 to 648.5).37

When the Michigan Supreme Court struckdown the state's "anti-exclusionary" provisoin 1970,38 the robbery rate fell (to 470.3 per100,000 in 1973), climbed (to 604.2 in 1975),then dropped again (to 454.3 in 1977, thelowest it has been since the 1960's).

From 1960-64, the murder and nonnegli-gent manslaughter rate remained almost thesame in the Detroit area, but it rose extraor-dinarily the next six years (5.0 in 1964 to14.7 in 1970). In the next four years itcontinued to climb (but less sharply) to 20.2in 1974. Then it dropped to 14.1 in 1977, thelowest it has been since the 1960's.

Finally, I must take issue with JudgeWilkey's case of the criminal who "pa-rade[s] in the streets with a great bulge in hispocket or a submachine gun in a blanketunder his arm," "laugh[ing] in the face ofthe officer who might wish to search him forit" (page 225). If American criminals "knowthe difficulties of the police in making avalid search," as Judge Wilkey tells us, theyknow, too, that the exclusionary rule has"virtually no applicability" in "large areas

37. All the data in this paragraph and the next arebased on the FBI UNIFORM CRIME REPORTS for theyears 1960 through 1977 (the latest year available).

The FBI reports crime nationally, by region, by stateand by "standard metropolitan statistical area." TheDetroit area includes five adjoining counties. From1960-1977, the statewide homicide and robbery fluctu-ations were consistent with the Detroit area's.

38. People v. Pennington, 383 Mich. 611, 178 N.W.2d 471 (1970).

of police activity which do not result incriminal prosecutions" 39 and that confisca-tion of weapons is one of them. 40 (Thecriminal might get back his blanket, but notthe submachine gun).

Moreover, it is not at all clear that anofficer who notices a "great bulge" in aperson's pocket or, as in the recent Mimmscase,41 a "large bulge" under a person'ssports jacket, lacks lawful authority to con-duct a limited search for weapons. Indeed,Mimms seems to say that a policeman doeshave the authority under such circumstanc-es. 42 Even if I am wrong, however, even ifthe Fourth Amendment does not permit anofficer to make such a limited search forweapons, abolishing the exclusionary rulewouldn't change that. If an officer now lacksthe lawful authority to conduct a "frisk"under these circumstances, he would stilllack the lawful authority to do so if the rulewere abolished. This is a basic point, onethat I shall focus on in the next section.

A basic confusion

In my earlier Judicature article, I pointedout how police and prosecutors have treatedthe exclusionary rule as if it were itself theguaranty against unreasonable search andseizure (which is one good reason for retain-ing the rule). At several places JudgeWilkey's article reflects the same confusion.

He complains, for example, that if a searchor frisk turns up a deadly weapon, thatweapon cannot be used in evidence if theofficer lacked the constitutionally requiredcause for making the search or frisk in thefirst place (page 224). But this is really anattack on the constitutional guaranty itself,not the exclusionary rule. Prohibiting theuse of illegally seized evidence may be poor

39. Burger, C.J., dissenting in Bivens v. Six Un-known Federal Narcotics Agents, 403 U.S. 388, 418(1971).

40. See Jerome Skolnick, JUSTICE WITHOUT TRIAL:LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 220.London: John Wiley & Sons, 2d ed. 1975. Cf. F. Miller,PROSECUTION: THE DECISION TO CHARGE A SUSPECTWITH A CRIME 247-48 (confiscation of automobiles).Boston: Little, Brown & Co., F. Remington ed. 1969.

41. Pennsylvania v. Mimms, 434 U.S. 106, 107 (1977)(per curiam). See also Terry v. Ohio, 392 U.S. 1 (1968).

42. Pennsylvania v. Mimms, 434 U.S. 106, 111-12(1977) ( per curiam).


"public relations" because by then we knowwho the criminal is, 43 but an after-the-factprohibition

prevents convictions in no greater degree thanwould effective prior direction to police to searchonly by legal means ... [T]he maintenance ofexisting standards by means of exclusion is notopen to attack unless it can be doubted whetherthe standards themselves are necessary. 44

If we replace the exclusionary rule with"disciplinary punishment and civil penal-ties directly against the erring officer in-volved," as Judge Wilkey proposes (page231), and if these alternatives "would cer-tainly provide a far more effective deterrentthan . . . the exclusionary rule," as the judgeassures us (page 231), the weapon stillwould not be brought in as evidence in thecase he poses because the officer would notmake the search or frisk if he lacked therequisite cause to do so.

Judge Wilkey points enviously to En-gland, where "the criminals know that thepolice have a right to search them on theslightest suspicion, and they know that if aweapon is found they will be prosecuted"(page 225, emphasis added). But what is therelevance of this point in an article discuss-ing the exclusionary rule and its alterna-tives? Abolishing the rule would not confera right on our police to search "on theslightest suspicion"; it would not affect law-ful police practices in any way. Only achange in the substantive law of search andseizure can do that. (See the accompanyinginsert, "Liberalizing the law of search andseizure: a separate issue.") And replacingthe exclusionary rule with a statutory reme-dy against the government would not bringabout an increase in unlawful police activityif the alternative were equally effective-and Judge Wilkey expects it to be "a farmore effective deterrent."

I venture to say that Judge Wilkey has

43. See J. Kaplan, CRIMINAL JUSTICE 215-16. Mine-ola, New York: The Foundation Press, 2d ed. 1978.

44. Note, 58 YALE L.J. 161-62 (1948). (Emphasisadded.) See also Paulsen, The Exclusionary Rule andMisconduct by the Police, 52 J. CRIM. L.C. & P.S.225-26, in POLICE POWER AND INDIVIDUAL FREEDOM

87-88. Chicago: Aldine, Sowle ed. 1962.

344 Judicature!Volume 62, Number 7, February, 1979

confused the content of the law of searchseizure (which proponents of the exclusion-ary rule need not, and have not always,defended, as the accompanying insertshows) with the exclusionary rule-which"merely states the consequences of a breachof whatever principles might be adopted tocontrol law enforcement officers." 45 Theconfusion was pointed out more than 50years ago by one who had the temerityto reply to the great Wigmore's famouscriticism of the rule. 46 Every student ofthe problem knows Wigmore's views onthis subject, but very few are familiarwith Connor Hall's reply. It is worthrecalling:

When it is proposed to secure the citizen hisconstitutional rights by the direct punishment ofthe violating officer, we must assume that theproposer is honest, and that he would have suchconsistent prosecution and such heavy punish-ment of the offending officer as would causeviolations to cease and thus put a stop to theseizure of papers and other tangible evidencethrough unlawful search.

If this, then, is to be the result, no evidence inany appreciable number of cases would be ob-tained through unlawful searches, and the resultwould be the same, so far as the conviction ofcriminals goes, as if the constitutional right wasenforced by a return of the evidence.

Then why such anger in celestial breasts? Jus-tice can be rendered inefficient and the criminalclasses coddled by the rule laid down in Weeksonly upon the assumption that the officer will notbe directly punished, but that the court willreceive the fruits of his lawful acts, will do nomore than denounce and threaten him with jail orthe penitentiary and, at the same time, with itstongue in its cheek, give him to understand howfearful a thing it is to violate the Constitution.This has been the result previous to the ruleadopted by the Supreme Court, and that is whatthe courts are asked to continue.... If punishment of the officer is effective toprevent unlawful searches, then equally by this isjustice rendered inefficient and criminals cod-dled. It is only by violations that the great godEfficiency can thrive. 47

45. Paulsen, supra n. 44, at 87.46. John Wigmore, Using Evidence Obtained by Ille-

gal Search and Seizure, 8 A.B.A.J. 479 (1922).47. C. Hall, Evidence and the Fourth Amendment, 8

A.B.A.J. 646 (1922). See also insert at p. 338, supra;Francis Allen, The Wolf Case: Search and Seizure,Federalism and the Civil Liberties, 45 ILL. L. REV. 1,19-20; Paulsen, supra n. 4, at 88.


Waiting for alternativesJudge Wilkey makes plain his agreementwith Chief Justice Burger that "the contin-ued existence of [the exclusionary rule] ...inhibits the development of rational alterna-tives" and that "incentives for developingnew procedures or remedies will remainminimal or nonexistent so long as the ex-clusionary rule is retained in its presentform ."48

48. Stone v. Powell, 428 U.S. 465, 496, 500 (1976)(Burger, C.J., concurring). Earlier, the Chief Justice hadbalked at abandoning the exclusionary rule "until somemeaningful alternative can be developed" because "aflat overruling" of Weeks and Mapp might give lawenforcement officials "the impression, however erro-neous, that all constitutional restraints on police hadsomehow been removed-that an open season on 'crim-inals' had been declared." Bivens v. Six UnknownFederal Narcotics Agents, 403 U.S. 388, 411, 420-21(1971) (dissenting).

Thus, Judge Wilkey warns that "we willnever have any alternative in operation untilthe rule is abolished. So long as we keep therule, the police are not going to investigateand discipline their men, and thus sabotageprosecutions by invalidating the admissibil-ity of vital evidence . . ." (pages 217-18). Heargues that Mapp "removed from the statesboth the incentive and the opportunity todeal with illegal search and seizure bymeans other than suppression" (page 227).And he concludes his first article with thesewords:

[Let us . . . by abolishing the rule permit in thelaboratories of our fifty-one jurisdictions the ex-perimentation with the various possible alterna-tives promising far more than the now discredit-ed exclusionary rule.

Liberalizing the law ofsearch and seizure: a separate issue

As Professor (now Dean) Monrad Paulsenhas noted, and as his own writings illustrate,supporters of the exclusionary rule need not,and have not always, defended the contentof the law of search and seizure. Thus, morethan 20 years ago, Paulsen maintained thatin several respects the law of search andseizure was "too restrictive of police workand ought to be liberalized." '1 I share hisview that if the substantive rules of searchand seizure "make sense in the light of apoliceman's task, we will be in a strongerposition to insist that he obey them." 2

In the early 1960's, Professor Fred Inbaucriticized the Court for handing down Mappv. Ohio, warning state prosecutors "You'llexperience some real jolts" if such federaldoctrines as the ban against seizing items of"evidentiary value only" (first articulated inGouled v. United States, 255 U.S. 298, 309-11 [1921]) "are applied to your own cases." 3

1. Paulsen, Safeguards in the Law of Search andSeizure, 52 Nw. U.L. REv. 65, 66 (1957).

2. id.3. Inbau, Public Safety v. Individual Civil Liberties:

The Prosecutor's Stand 53 J. CRIM. L.C. & P.S. 85, 87(1962) (keynote address at 1961 annual meeting ofNational District Attorney's Association).

In my response, I said that the Gouled rule(which put objects of "evidentiary valueonly" beyond the reach of the police evenwhen they act on the basis of "probablecause" or pursuant to an otherwise validwarrant) "is unsound and undesirable...[It] is wrong because it departs from thefundamental principles pervading searchand seizure law."-4

If the Fourth Amendment had indeedcarved out a "zone" that the police couldnever enter, abolition of the exclusionaryrule, either across the board or along thisparticular front, would not have authorizedthe police to enter the zone. The properresponse, if criticism of the Gouled rule wasvalid (and it was), was not to overrule Mappor Weeks but to abolish the Gouled rule-which the Court subsequently did.5 0

-Y.K.

4. Kamisar, Public Safety v. Individual Liberties:Some "Facts" and "Theories,"53 J. CRIM. L.C. & P.S.171, 177 (1962).

5. See Warden v. Hayden, 387 U.S. 294 (1967) (Bren-nan, J.) (Distinction between "mere evidence" andinstrumentalities, fruits of crime or contraband finds nosupport in Fourth Amendment). See also Berger v. NewYork, 388 U.S. 41, 44 & n. 2 (1967).


In light of our history, these comments(both the Chief Justice's and JudgeWilkey's) are simply baffling. First, the fearof "sabotaging" prosecutions has never in-hibited law enforcement administratorsfrom disciplining officers for committing the"many unlawful searches of homes and au-tomobiles of innocent people which turn upnothing incriminating, in which no arrest ismade, about which courts do nothing, andabout which we never hear." 49

Second, both defenders of the rule and itscritics recognize that

there are large areas of police activity which donot result in criminal prosecutions [e.g., arrestor confiscation as a punitive sanction, (commonin gambling and liquor law violations), illegaldetentions which do not result in the acquisi-tion of evidence, unnecessary destruction ofproperty]-h6nce the rule has virtually no appli-cability and no effect in such situations."0

Whatever the reason for the failure to disci-pline officers for "mistakes" in these "largeareas of police activities," it cannot be theexistence of the exclusionary rule.

Finally, and most importantly, for manydecades a majority of the states had noexclusionary rule but none of them devel-oped any meaningful alternative. Thirty-fiveyears passed between the time the federalcourts adopted the exclusionary rule and the.time Wolf was decided in 1949, but none ofthe 31 states which still admitted illegallyseized evidence5 1 had established an alter-native method of controlling the police.Twelve more years passed before Mapp im-posed the rule on the state courts, but noneof the 24 states which still rejected the ex-clusionary rule52 had instituted an alternativeremedy. This half-century of post-Weeks"freedom to experiment" did not produceany meaningful alternative to the exclu-sionary rule anywhere.

49. Brinegar v. United States, 338 U.S. 160, 181 (1949)(Jackson, J., joined by Frankfurter and Murphy, JJ.dissenting) (self-styled prologue). But cf. Jackson, J., inIrvine v. California, 347 U.S. 128, 135-37 (1954).

50. See note 39 supra and accompanying text.51. See Wolf v. Colorado, 338 U.S. 25, 29, 38 (1949).52. See Elkins v. United States, 364 U.S. 205, 224-25

(1960).


Disparity between fact and theoryOf course, few critics of the exclusionaryrule have failed to suggest alternative reme-dies that might be devised or that warrantedstudy. None of them has become a reality.

In 1922, for example, Dean Wigmoremaintained that "the natural way to do jus-tice" would be to enforce the FourthAmendment directly "by sending for thehigh-handed, over-zealous marshal who hadsearched without a warrant, imposing a 30-day imprisonment for his contempt of theConstitution, and then preceeding to affirmthe sentence of the convicted criminal." 53

Nothing ever came of that proposal. Anothercritic of the rule suggested that a civil rightsoffice be established, independent of theregular prosecutor, "charged solely with theresponsibility of investigating and prosecut-ing alleged violations of the Constitution bylaw-enforcement officials.5 4 Nothing cameof that proposal either.

Judge Wilkey recognizes that "policementraditionally are not wealthy," but "[t]hegovernment has a deep purse." Thus, as didChief Justice Burger in his Bivens dissent,55

Judge Wilkey proposes that in lieu of theexclusion of illegally seized evidence therebe a statutory remedy against the govern-ment itself to afford meaningful compensa-tion and restitution for the victims of policeillegality. Two leading commentators, CalebFoote and Edward Barrett, Jr. made thesame suggestion 20 years ago, 56 but none ofthe many states that admitted illegallyseized evidence at the time seemed interest-ed in experimenting along these lines.

Indeed, the need for, and the desirability

53. Wigmore, supra n. 46, at 484. To the same effectis 8 Wigmore, EVIDENCE §2184, at 40 (3d ed. 1940). Butsee Hall, supra n. 47, at 647, doubting "whether themarshal would ever be compelled to live upon jailfare."

54. Peterson, Restrictions in the Law of Search andSeizure, 52 N. U.L.REv. 46, 62 (1957). The disadvantag-es of this proposal are discussed in Paulsen, supra n. 44,at 94.

55. Biven vs. Six Unknown Federal NarcoticsAgents, 403 U.S. 388, 411, 422-23 (1971).

56. Foote, Tort Remedies for Police Violations ofIndividual Rights, 39 MINN.L.REv. 493 (1955). Barrett,Exclusion of Evidence Obtained by Illegal Searches-AComment on People vs. Cahan, 43 CALIF. L.REv. 565,592-95 (1955).


of, a statutory remedy against the govern-ment itself was pointed out at least as longago as 1936. In a famous article publishedthat year, Jerome Hall noted that the pros-pects of satisfying a judgment against apolice officer were so poor that the tortremedy in the books "collapses at its initialapplication to fact." Said Hall:

[W]here there is liability (as in the case of thepoliceman), the fact of financial irresponsibilityis operative and, presumably, conclusive; while,where financial responsibility exists (as in thecase of a city), there is no liability.57

"This disparity between theory and fact,between an empty shell of relief and sub-stantial compensation," observed ProfessorHall-43 years ago-"could not remain un-noticed."518

This disparity-no longer unnoticed, butstill uncorrected-has troubled even thestrongest critics of the rule. Thus, more than35 years ago, J.A.C. Grant suggested "imple-ment[ing]the law covering actions for tres-pass, even going so far as to hold the govern-ment liable in damages for the torts of itsagents.5 9 And, William Plumb, Jr., accompa-nied his powerful attack on the rule with asimilar suggestion.60

Mapp's traumatic effectsAt the time of Plumb's article, the admissi-bility of illegally-seized evidence had "oncemore become a burning question in NewYork." 61 Delegates to the 1938 constitution-al convention had defeated an effort to writethe exclusionary rule into the constitution,but only after a long and bitter debate. 62 Thebattle then moved to the legislature, wherebills were pending to exclude illegally ob-tained, or at least illegally wiretapped, evi-dence.

63

57. Jerome Hall, The Law of Arrest in Relation toContemporary Social Problems, 3 U.CHI. L.REv. 345,346 (1936).

58. Id. at 348.59. J.A.C. Grant, Search and Seizure in California, 15

SO. CALIF. L.REv. 139, 154 (1942).60. William Plumb, Illegal Enforcement of the Law,

24 CORNELL L. Q. 337, 387 (1939).61. Id. at 349.62. 1 NEW YORK CONSTITUTIONAL CONVENTION,

Revised Record 358-594 (1938).63. Plumb, supra n. 60, at 349 n. 40 and 357 n. 94.

Against this background, Plumb offered awhole basketful of alternatives to the rule 64

and he said the state legislature "shouldmake a thorough study of the problem ofdevising effective direct remedies [such asthose he had outlined] to make the constitu-tional guarantee 'a real, not an empty bless-ing."' 65 But nothing happened.

Otherwise why would a New York CityPolice Commissioner say of Mapp some 20years later:

I can think of no decision in recent times in thefield of law enforcement which had such a dra-matic and traumatic effect as this . . . I was im-mediately caught up in the entire problem ofreevaluating our procedures which had followedthe Defore rule, and modifying, amending, andcreating new policies and new instructions forthe implementation of Mapp. The problems weremanifold. [Supreme Court decisions such asMapp] create tidal waves and earthquakes whichrequire rebuilding of our institutions sometimesfrom their very foundations upward. Retrainingsessions had to be held from the very top admin-istrators down to each of the thousands of footpatrolmen... 66

In theory, Defore,67 which rejected theexclusionary rule in New York, had notexpanded lawful police powers one iota.Nor, in- theory, had Mapp reduced thesepowers. What was an illegal search beforeDefore was still an illegal search. What wasan unlawful arrest before Mapp was still anunlawful arrest.

The Defore rule, of course, was basedlargely upon the premise that New York didnot need to adopt the exclusionary rule be-cause existing remedies were adequate toeffectuate the guaranty against illegal searchand seizure. Cardozo said that:

The officer might have been resisted[!], or suedfor damages or even prosecuted for oppression.He was subject to removal or other discipline atthe hands of his superiors. 68

Why, then, did Mapp have such a "dramat-

64. Id. at 387-389.65. Id. at 385.66. Murphy, Judicial Review of Police Methods in

Law Enforcement: The Problem of Compliance byPolice Departments, 44 TEXAS L.REv. 939, 941 (1966).

67. People v. Defore, 242 N.Y. 13, 19, 150 N.E. 585(1926).

68. Id. at 586-587.


ic" and "traumatic" effect? Why did it ne-cessitate "creating new policies?" Whatwere the old policies like? Why did it neces-sitate retraining sessions from top to bot-tom? What was the old training like? Whatdid the commissioner mean when he saidthat before Mapp his department had "fol-lowed the Defore rule"?

On behalf of the New York City Police Depart-ment as well as law enforcement in general, Istate unequivocally that every effort was directedand is still being directed at compliance with and

implementation of Mapp . . . 69

Isn't it peculiar to talk about police "con-pliance with" and "implementation of" aremedy for a violation of a body of law thepolice were supposed to be complying withand implementing all along? Why did thepolice have to make such strenuous efforts tocomply with Mapp unless they had not beencomplying with the Fourth Amendment?

69. Murphy, supra n. 66, at 941.

Are comparisonswithother countries meaningful?

Though it may be tempting to think that theserious defects of our criminal justice sys-tem are the result of our failure to adoptEuropean models of investigation and trial,it may be that the faults of our system are

better explained by such factors as our ethnic andracial differences, the traditional lawlessness ofour people and our officials, and our insistence onusing the criminal law to combat every form ofsocially disapproved conduct ... We can nomore import our solutions than we can export ourproblems. 1

Nevertheless, it is plain to judge Wilkeythat "one proof of the irrationality of theexclusionary rule is that no other civilizednation in the world has adopted it." "Howdo all the other civilized countries controltheir police?" he asks. "Why does the Unit-ed States, alone, rely on the irrational exclu-sionary rule?"

In his reliance on comparisons with othercountries to attack the exclusionary rule,Judge Wilkey parts company with the twoacademicians he has chiefly leaned on,Steven Schlesinger and Dallin Oaks. Schles-inger saw little point in making comparisonsbetween Canada and the United States. 2 Herecognized that there may be no comparableneed for the exclusionary rule in Canada(and Western European countries) for sever-al reasons:

1. P. Johnson, Book Review, 87 YALE L.J. 406, 410,414 (1977).

2. S. Schlesinger, EXCLUSIONARY INJUSTICE: THEPROBLEM OF ILLEGALLY OBTAINED EVIDENCE 107(App. II). New York: Marcel Dekker, 1977.

348 Judicature/Volume 62, Number 7, Februanj, 1979

0 Their police "are simply better disci-plined than their American counterparts." 3

* Canada's crime rate, "especially that ofviolent crime, is substantially less than thatof the United States, thus putting less pres-sure on the police to deal with crimes byillegal methods."

4

0 Canada's problem with crime is notexacerbated by the level of racial tensionexperienced in the United States. ' 5

Finally, Schlesinger noted, "it wouldseem that these factors which differentiatethe Canadian law enforcement situationfrom the American are likewise present inthe nations of Western Europe." 6

Legislative oversightSome 20 years ago, Justice Jackson suggest-ed another possible factor when he said:

I have been repeatedly impressed with the speedand certainty with which the'slightest invasion ofBritish individual freedom or minority rights byofficials of the government is picked up in Parlia-ment, not merely by the opposition, but by theparty in power, and made the subject of persistentquestioning, criticism, and sometimes rebuke.There is no waiting on the theory that the judgeswill take care of it ... [T]o transgress the rightsof the individual or the minority is bad politics.In the United States, I cannot say that this is so. 7

3. Id.4. Id. at 107-08.5. Id. at 108.6. Id.7. R. Jackson, THE SUPREME COURT IN THE AMERI-

CAN SYSTEM OF COVERNMENT 81-82. New York: Harp-er Torchbooks, 1963 (originally published in 1955 byHarvard University Press).


Flowing from the Mapp case is the issue ofdefining probable cause to constitute a lawfularrest and subsequent search and seizure. 70

Doesn't this issue flow from the FourthAmendment itself? Isn't that what the

Fourth Amendment is all about?The police reaction to Mapp demonstrates

70. Id. at 943. For similar reaction to Mapp by otherlaw enforcement officials, see Kamisar, On the Tacticsof Police-Prosecution Oriented Critics of the Courts, 49CORNELL L.Q. 436, 440-43 (1964).

More recently, an American political sci-entist furnished examples of "zealous legis-lative oversight" of the police-of Scotland,Sweden, West Germany and France, indi-cating that it is still "good politics" in manyEuropean countries to observe civil liber-ties.8 It was noted, too, that "[clivilians donot just oversee but actually run most Euro-pean police departments"; 9 that several Eu-ropean countries reserve hundreds of posi-tions for lawyers who are recruited directlyinto the upper ranks'°; that "Europeanpolice departments place much more em-phasis on education"'"; and that some Euro-pean countries actually encourage com-plaints against police and, not infrequently,sustain them. 12

Canada's differencesHow do other countries control their policewithout the exclusionary rule? At least withrespect to Canada, Professor Oaks offersexplicit answers, 13 but his answers do not

8. Berkley, Europe and America: How the PoliceWork, THE NEW RUPUBLIC, Aug. 2, 1969, in A. Nieder-hoffer & A. Blumberg, eds., THE AMBIVALENT FORCE:PERSPECTIVES ON THE POLICE 51. Hindale, Ill:Dryden Press, 2d ed. 1976.

9. Id. at 50.10. Id. at 49.11. Id.12. "German police departments set up special

booths at public events, asking visitors to make com-plaints. The number of complaints against policemenin such cities as London and Berlin far exceeds thenumber filed against policemen in New York City. Anda much higher ratio of complaints is sustained, nearly20 per cent in West Berlin." Id. at 51.

the unsoundness of the underlying premiseof Defore. Otherwise why, at a post-Mapptraining session on the law of search andseizure, would Leonard Reisman, then theNew York City Deputy Police Commission-er in charge of legal matters, comment:

The Mapp case was a shock to us. We had toreorganize our thinking, frankly. Before this, no-body bothered to take out search warrants. Al-though the U.S. Constitution requires warrants inmost cases, the U.S. Supreme Court had ruled[until 1961] that evidence obtained without a

demonstrate the "irrationality" of the rule inthe American setting. Rather, they indicatewhy Canada may not need an exclusionaryrule, but why the United States still does.

First, "police discipline is relativelycommon ... Second, police officers are oc-casionally prosecuted for criminal miscon-duct occurring in the course of their officialduties." Oaks considers a third factor per-haps most important of all: ". . . an ag-grieved person's tort cause of action againstan offending police officer is a real ratherthan just a theoretical remedy ... "

But he suggests that the difference is morethan simply the remedies. "[Plolice aregreatly concerned about obeying the rulesand very sensitive to and quick to be influ-enced by judicial criticism of their conduct,"he writes. And Canadian prosecutors playa different role from that of American prose-cutors. A prosecutor there "will sometimesexercise what he considers to be his teachingfunction with the police by refusing to intro-duce evidence that he considers to havebeen improperly obtained." Moreover, "Ca-nadian prosecutors are part of the Ministryof Justice, which has . .. command authori-ty over most of the police organizations ... "and channels by which to correct offensivepractices. -Y.K.

13. Oaks, Studying the Exclusionary Rule in Searchand Seizure, 37 U. CHI. L. REV. 665, 702-03, 705-06(1970). Canada, of course, "has no written law compa-rable to the fourth amendment prohibition againstunreasonable searches and seizures." Id. at 704,


warrant-illegally if you will-was admissible instate courts. So the feeling was, why bother?71

No incentive for changeAs I have already indicated, critics of theexclusionary rule have often made proposalsfor effectuating the Fourth Amendment bymeans other than the exclusionary rule-butalmost always as a quid pro quo for rejectingor repealing the rule. Who has ever heard ofa police-prosecution spokesman urging-ora law enforcement group supporting-aneffective "direct remedy" for illegal searchesand seizures in a jurisdiction which admit-ted illegally seized evidence? 72 Abandoningthe exclusionary rule without waiting for ameaningful alternative (as Judge Wilkey andChief Justice Burger would have us do) willnot furnish an incentive for devising analternative, but relieve whatever pressurethere now exists for doing so.

I spoke in my earlier article of the greatsymbolic value of the exclusionary rule(pages 69-72, 83-84). Abolition of the exclu-sionary rule, after the long, bitter struggle toattain it, would be even more important as asymbol.

During the 12-year reign of Wolf, somestate judges

remained mindful of the cogent reasons for theadmission of illegally obtained evidence andclung to the fragile hope that the very brazennessof lawless police methods would bring on effec-tive deterrents other than the exclusionary rule. 73

Their hope proved to be in vain. Wolf estab-lished the "underlying constitutional doc-trine" that "the Federal Constitution, byvirtue of the Fourteenth Amendment, pro-hibits unreasonable searches and seizuresby state officers" 74 (though it did not requireexclusion of the resulting evidence); Irvinewarned that if the states "defaulted and

71. N.Y. TIMEs, April 28, 1965, p. 50.72. Before the Cahan decision "[liaw enforcement

groups preferred the ambiguity of seldom-litigatedrules and had no real incentive to take the risks in-volved in seeking legislative action. And there was littleevidence that other groups would take the initiative toforce the police to come before the legislature." Barrett,supra n. 56, at 592-595.

73. Traynor, supra n. 2, at 324.74. Elkins v. United States, 364 U.S. 206, 213 (1960)

(the Court, per Stewart, J., describing Wolf).


there were no demonstrably effective deter-rents to unreasonable searches and seizuresin lieu of the exclusionary rule, the SupremeCourt might yet decide that they had notcomplied with 'minimal standards' of dueprocess." 7 5 But neither Wolf nor Irvine stim-ulated a single state legislature or a singlelaw enforcement agency to demonstrate thatthe problem could be handled in other ways.

The disappointing 12 years between Wolfand Mapp give added weight to FrancisAllen's thoughtful commentary on the Wolfcase at the time it was handed down:

This deference to local authority revealed in theWolf case stands in marked contrast to the posi-tion of the court in other cases arising within thelast decade involving rights 'basic to a free socie-ty.' It seems safe to assert that in no other area ofcivil liberties litigation is there evidence that thecourt has construed the obligations of federalismto require so high a degree of judicial self-abnegation.

* * ' [I]n no other area in the civil liberties hasthe court felt justified in trusting to public protestfor protection of basic personal rights. Indeed,since the rights of privacy are usually asserted bythose charged with crime and since the demandsof efficient law enforcement are so insistent, itwould seem that reliance on public opinion inthese cases can be less justified than in almost anyother . 76

Now Judge Wilkey asks us to believe thatthe resurrection of Wolf (and evidently theoverruling of the 65-year-old Weeks case aswell) will permit "the laboratories of our 51jurisdictions" to produce meaningful alter-natives to the exclusionary rule. (Again, seetext following note 48). His ideological ally,Chief Justice Burger, is even more optimis-tic. He asks us to believe that a return to thepre-exclusionary rule days "would inspire asurge of activity toward providing somekind of statutory remedy for persons injuredby police mistakes or misconduct.- 77

And to think that Judge Wilkey (on page232) accuses defenders of the exclusionaryrule of being "stubbornly blind to 65 yearsof experience"! E

75. Traynor, supra n. 2, at 324.76. Allen, supra n. 47 at 11, 12-13.77. Stone v. Powell, 428 U.S. 465, 496, 501 (1976)

(dissenting).


the exclusionary rule in historical perspective: the

Documents