In defense of the search and seizure exclusionary rule.

AuthorKamisar, Yale
PositionDebate: Exclusionary Rules - Federalist Society 2002 Symposium on Law and Truth
  1. INTRODUCTION II. THE PRE-MAPP ERA III. THE LAW ENFORCEMENT COMMUNITY'S REACTION TO MAPP IV. HAS THE EXCLUSIONARY RULE INHIBITED THE DEVELOPMENT OF ALTERNATIVE REMEDIES ? V. ARE TODAY'S POLITICIANS MORE LIKELY TO IMPOSE EFFECTIVE "DIRECT SANCTIONS" AGAINST THE POLICE THAN THE POLITICIANS OF YESTERYEAR? VI. POLICE PERJURY AND JUDICIAL "WINKING" VII. THE COSTS OF THE EXCLUSIONARY RULE VIII. JUDGE CALABRESI'S PROPOSAL I. INTRODUCTION (1)

    About a quarter-century ago, after my co-authors and I had published the fourth edition of our criminal procedure casebook, (2) I attended a conference with A. Kenneth Pye, then the Dean of the Duke Law School. During a break in the conference proceedings, Dean Pye, a strong admirer of the Warren Court, (3) took me aside to give me some advice about casebook writing. This is a fairly accurate recollection of what Dean Pye said:

    On thumbing through the new edition of your casebook, I couldn't help noticing that you have eliminated a number of the pre-Warren Court cases you had in the earlier editions. I realize you were responding to the need to add a good deal of new material to the book without letting an already big book get any larger. But taking out the old cases has serious costs. In the years ahead, as more and more interesting new cases are handed down, you will feel much pressure to take out still more older cases. But this is a process you must resist. Otherwise, by the time you and your co-authors publish your eighth or tenth edition, the confessions chapter will begin with Miranda (4) and the search and seizure chapter with Mapp. (5) This would be calamitous. For many law students (and a few young criminal procedure professors) won't appreciate Mapp and Miranda--won't really understand why the Court felt the need to take the big steps it did--unless casebooks like yours contain material that enables readers of the books to get some idea of how unsatisfactory the prevailing rules and doctrines were before the Warren Court arrived on the scene. I think Dean Pye's advice about casebook writing was sound, (6) and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.

  2. THE PRE-MAPP ERA

    Perhaps we should begin with People v. Cahan, (7) the pre-Mapp case in which California adopted the exclusionary rule on its own initiative. (8) At first, Justice Roger Traynor, who wrote the majority opinion, had not been a proponent of the exclusionary rule. Indeed, thirteen years earlier, he had written the opinion of the California Supreme Court reaffirming the admissibility of illegally seized evidence. (9) By 1955, he and a majority of his colleagues felt compelled to overrule state precedents and adopt the exclusionary rule. Why? The Cahan majority explained:

    [O]ther remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule [of admissibility] have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers. (10) Justice Traynor and his colleagues seemed astounded by how casually and routinely illegally seized evidence was being offered and admitted in the California courts. After noting that Los Angeles police had candidly admitted that they had illegally installed listening devices in the defendants' homes and had described, with equal candor, how they had forcibly entered buildings without bothering to obtain warrants by breaking windows and kicking in doors, (11) Justice Traynor observed:

    [W]ithout fear of criminal punishment or other discipline, law enforcement officers ... frankly admit their deliberate, flagrant [unconstitutional] acts.... It is clearly apparent from their testimony that [Los Angeles police officers] casually regard [their illegal acts] as nothing, more than the performance of their ordinary duties for which the City employs and pays them. (12) Perhaps we should go back in time still further, three-quarters of a century, to People v. Defore, (13) the occasion for Judge (later Justice) Cardozo's famous opinion explaining why New York would not adopt the federal exclusionary rule. Cardozo maintained, as have most critics of the exclusionary rule ever since, that excluding the illegally seized evidence was not the only effective way to enforce the Fourth Amendment (or its state constitutional counterpart): "The [offending] officer might have been resisted, or sued for damages, or even prosecuted for oppression. He was subject to removal or other discipline at the hands of his superiors. (14)

    Two decades later, in Wolf v. Colorado, (15) when the Supreme Court declined to impose the federal exclusionary rule on the states as a matter of Fourteenth Amendment Due Process, the Wolf majority, per Justice Frankfurter, made a similar argument. Indeed, the Court relied partly on what it called Cardozo's "[w]eighty testimony" about the availability of various alternatives to the exclusionary rule. (16)

    The states that had rejected the federal exclusionary rule, Justice Frankfurter assured us, had "not left the right to privacy without other means of protection." (17) It could not, therefore, be regard[ed] as a departure from basic standards to remand [victims of unlawful searches and seizures] to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford." (18)

    A majority of the Court took a very different view of the various alternatives (perhaps one should say, theoretical alternatives) to the exclusionary rule a dozen years later when it handed down Mapp v. Ohio, (19) overruling Wolf. This time the Court dismissed alternatives to the exclusionary rule, noting that "[t]he experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States." (20) But the Court had nothing specific to say about the experience in any state other than California nor did it rely on empirical studies. Instead, the Court relied on comments by Justice Traynor in Cahan.

    Asserting that the various alternatives to the exclusionary rule are worthless (or quoting statements by the California Supreme Court to the same effect) does not necessarily make them so--just as asserting (or assuming) that alternative remedies are meaningful (as both Cardozo and Frankfurter did) does not make that so. Fortunately, impressive evidence of the ineffectiveness of the so-called alternatives to the exclusionary rule does exist. But it is not to be found in the Mapp opinion itself. It is to be found rather in the reaction of law enforcement officials to the Mapp decision. To borrow a phrase, this reaction is the "weighty testimony" (21) that (despite the claims of Cardozo, Frankfurter, and others) reliance on tort remedies, criminal prosecutions, and the internal discipline of the police indeed left "the right to privacy without other means of protection." (22)

  3. THE LAW ENFORCEMENT COMMUNITY'S REACTION TO MAPP

    Although Michael Murphy, the police commissioner of New York City at the time, did not say so in so many words, he left no doubt that because New York courts (relying on the Defore case) had permitted the prosecution to use illegally seized evidence up to the time of Mapp, neither the commissioner nor the thousands of officers who worked for him had been taking the law of search and seizure at all seriously. As the commissioner recalled some time later:

    I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect as [Mapp]. As the then commissioner of the largest police force in this country I was immediately caught up in the entire problem of reevaluating our procedures, which had followed the Defore rule, and ... creating new policies and new instructions for the implementation of Mapp.... [Decisions such as Mapp] create tidal waves and earthquakes which require rebuilding of our institutions sometimes from their very foundations upward. Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen and detectives engaged in the daily basic enforcement function. (23) Why was Mapp's effect so "dramatic and traumatic"? Why did it create "tidal waves and earthquakes"? Why did it require "retraining" from top to bottom? Had there been any search and seizure training before Mapp?

    What did the commissioner mean when he told us that prior to Mapp his police department's procedures "had followed the Defore case"? Defore did not set forth any procedures or permit the police to establish any procedures other than those that complied with the Fourth Amendment. It did allow New York prosecutors to use illegally seized evidence, but it did not (as the commissioner seemed to think) allow New York police to commit illegal searches and seizures. Is there any better evidence of the inadequacies of the existing alternatives to the exclusionary rule than the police reaction to the imposition of the rule? (24)

    It appears that, prior to Mapp, New York prosecutors were also unfamiliar with and uninterested in the law of search and seizure. Professor Richard Uviller, a New York prosecuting attorney at the time Mapp was handed down, recalled that he "cranked out a crude summary" of federal search and seizure law just in time for the next state convention of district attorneys and that summary turned out to be "an instant runaway best seller. It was as though we had made a belated discovery that the fourth amendment applied in the State of New York.... (25) That, I think, says it all.

    The response of New York law enforcement officials to the imposition of the search and seizure rule is hardly unique. Six years earlier, when the California...

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