More about public safety v. individual civil liberties.

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 53, p. 329, 1962 - Reprint

Whenever a champion of individual civil liberties is branded as anti-American or as a fellow traveler of the communists he becomes highly incensed. And rightly so, because there is nothing un-American about being a civil libertarian, even of the starry-eyed variety; and a person can be an avid civil libertarian without embracing Communism. But many civil libertarians are themselves subject to the same fallacious reasoning with which their critics are sometimes afflicted. They assume that when a person criticizes court decisions which he considers too restrictive of police functions, that critic must be in favor of a "police state"; he must be of a Fascist bent of mind; he must be interested in allowing the police to do anything they please; he must favor the use of the "third degree, illegal searches and seizures, and all other police practices that the courts have condemned.(1)

It is high time that we shed ourselves of the kind of intolerance and misconceptions that prevail on both sides.

The police will have to accept the fact that in any democratic society police efficiency must necessarily incur a considerable measure of sacrifice in deference to the rights and liberties of the individual. They must realize that the public at large has made that decision and the police have no right to change it. On the other hand, the civil libertarian must appreciate the fact that some sacrifice of individual rights and liberties has to be made in order to achieve and maintain a safe, stable society in which the individual may exercise those rights and liberties. They cannot be exercised in a vacuum. In the recent words of a federal district court judge, "Pure liberty with no restraints produces anarchy, while pure discipline brings in the police state."(2)

In Professor Yale Kamisar's 23 page article in the last issue of this Journal, replying to the four page reproduction of a speech I had delivered at a meeting of the National District Attorneys' Association, he quotes with approval Reinhold Niebuhr's statement that "democracy is a method of finding proximate solutions for insoluble problems."(3) Let me apply that fine statement to the differing viewpoints which Professor Kamisar and I have expressed with reference to the United States Supreme Court's decision in Mapp v. Ohio--the 1961 case which imposed the exclusionary rule upon all the states as a requirement of due process.(4)

For many years the people of the State of Michigan sought to find a "proximate solution" to the "insoluble problem" of illegal search and seizure, and they were struggling with the problem during the time when the Supreme Court was holding that the exclusionary rule was only a rule of evidence which the states were at liberty to accept or reject.

By constitutional amendments in 1936 and 1952, the people of the State of Michigan--not just their representatives in the legislature--worked out what they thought to be a "proximate solution" to this "insoluble problem." They decided that the exclusionary rule was a good rule except as regards its application to narcotics and dangerous instrumentalities such as firearms and explosives. As to these various articles, the prosecution could use them as evidence regardless of the illegality of their seizure, provided the seizure did...