IS THE EXCLUSIONARY RULE A PROHIBITION-ERA RELIC?

• Author: Hardiman, Thomas M.
• Position: Book review

THE PROHIBITION ERA AND POLICING: A LEGACY OF MISREGULATION. By Wesley M. Oliver. Nashville: Vanderbilt University Press. 2018. Pp. x, 202. Cloth, $69.95; paper, $27.95.

INTRODUCTION

In his engaging new book, The Prohibition Era and Policing: A Legacy of Misregulation, Wesley M. Oliver. (1) advances a novel view: the legal regime that regulates modern policing is a vestige of the Prohibition Era. During Prohibition, when intrusive and unreasonable police searches were commonplace, courts attempted to deter these affronts to privacy by introducing the exclusionary rule. Decades later, the Warren Court continued to adhere to this approach, expanding the exclusionary rule's reach from the search-and-seizure context to new and very different problems, like coerced confessions and the excessive use of force. Oliver argues that excluding evidence in excessive-force cases was problematic because that remedy fails to address the underlying police misconduct and precludes the admission of reliable evidence.

Oliver's insights into the provenance of the exclusionary rule lead him to conclude that the Supreme Court's apparent retreat from it in recent years is less an outright rejection (as is commonly thought) than a course correction. After all, the remedy of exclusion has been unmoored from its original purpose--deterring unconstitutional searches and seizures of illegal alcohol-for nearly a century. Oliver's hope is that the Court's focus will shift away from the exclusion of reliable evidence (however obtained) and toward remedies he views as better suited to addressing the types of police misconduct that are more pressing today: coerced confessions and excessive force.

The erosion of the exclusionary rule has been a recurring theme in criminal procedure scholarship for years, and many of the arguments predicting its demise are by now familiar. (2) But The Prohibition Era and Policing adds a new prologue to this story. Oliver rejects the prevailing view that the exclusionary rule originated around the turn of the twentieth century and then went dormant, only to be resurrected by the Warren Court decades later. (3) Instead, he claims the exclusionary rule actually became the default judicial remedy for search-and-seizure violations in state courts during Prohibition, in response to societal concerns about police overreach. The exclusion from evidence of illegally seized alcohol was a sensible remedy when courts and citizens alike were primarily concerned with overzealous searches and seizures. And because much of the country disagreed with Prohibition anyway, there was little outrage when prosecutions were discontinued. But after Prohibition ended, illegal searches and seizures became a less pressing concern than coerced confessions and the use of force by police.

Oliver's thesis is that the law of criminal procedure has not evolved to keep up with the changing times. Instead of formulating new legal doctrines and remedies to address these new concerns, the Warren Court stretched Prohibition-Era search-and-seizure precedent--including the exclusionary rule--to apply to these other forms of police misconduct as well. In Oliver's view, it was a poor fit, and the Court's Fourth and Fifth Amendment case law fails to deter police excesses, excludes reliable evidence in a manner that undermines prosecutions, and frustrates the development of a body of law that would provide officers with more specific guidance regarding the appropriate use of force.

By supplying historical context, The Prohibition Era and Policing ties together subjects that are of interest to both constitutional scholars (the erosion of the exclusionary rule) and the general public (police use of force, coerced confessions, and wrongful convictions).

1. MODERN POLICING AND ITS EFFECTS ON CRIMINAL PROCEDURE

   In Part One of his book, Oliver begins with an interesting discussion of the history of policing. During the founding era, the state interacted with the people very differently than it has since modern police departments were first created in the mid-1800s (p. 13). Investigatory power during the colonial period rested with British customs officers, whose flagrant use of the dreaded general "writs of assistance" was among the factors that motivated the colonists to revolt against King George III (p. 13). Although these writs did not survive independence, customs officers retained much of their authority (pp. 14-15). Ordinary law enforcement officers had little power by comparison, and the extent to which a crime was prosecuted at all depended heavily on the willingness of the victim to seek a remedy (pp. 15-16). British rule was still fresh in the minds of early Americans, and their wariness of standing armies led them to resist the creation of "military-style police force[s]" (p. 21).

   That changed by the mid-nineteenth century, however, when "[t]he realities of modern urban life put pressure on even a staunchly democratic society to create methods of social control" (p. 21). As the nation grew in size and population, violent crime and riots prompted large cities like New York and Chicago to establish police forces modeled after the 1829 police force the British Parliament created to keep order in London (p. 21). Once these police forces were established, the investigatory role shifted from magistrates to police officers. (4) As police assumed more power, they were criticized for their "brutality and corruption." (5) But instead of moving to reduce police power, the public's response was to reform and professionalize officers' behavior. (6) Even progressives like Teddy Roosevelt, who was then police commissioner in New York City, believed proper training and management would ameliorate some of the abuses by helping officers to distinguish between "appropriate" and "inappropriate" uses of violence, which "was not necessarily a bad thing so long as it was directed against the criminal element" (pp. 24-26).

   Once Prohibition took effect, however, the aggressive tactics that police used to enforce it called this approach into question. (7) Prohibition had begun not as a national phenomenon but in the states. (8) Often led by private groups like the Temperance Watchmen or the Societies for the Suppression of Vice, several states enacted legislation banning alcohol (p. 27). The first to pass a prohibitory law was Maine, which did so in 1846 (pp. 28-29). Until that time, alcohol had been controlled by local licensing laws that were especially permissive in rum-soaked Portland, which was then a bustling commercial seaport (pp. 28-29). That system changed when Neal Dow, a resident of Portland and a Quaker temperance advocate, successfully pushed the state government to enact a prohibition law. (9)

   Oliver adeptly explains how Maine's experiment with prohibition during the second half of the nineteenth century presaged what was to come nationwide on January 16, 1920, when the Eighteenth Amendment and the Volstead Act made Prohibition the law of the land. (10) Just as Maine's courts had begun to supervise and limit aggressive enforcement of prohibition by police in that state, so too would other courts around the country attempt to regulate police conduct during national Prohibition. (11) Courts did so primarily by enforcing Fourth Amendment limits on intrusive searches for and seizures of alcohol. (12) Applications for search warrants came under heavier scrutiny, and courts required individualized suspicion where little or none had been required previously. (13) Ultimately, every state but Maryland enacted a version of the Volstead Act, and the judicial approaches to criminal procedure that courts adopted in response--which Oliver examines in Part Two of the book--gradually made their way to the Supreme Court. (14)

   The first case Oliver discusses arose in the United States Court of Appeals for the Third Circuit. The home of one J.J. Nathanson had been searched pursuant to a warrant based upon a Prohibition agent's conclusory averment "that he had 'cause to suspect and does believe' that untaxed liquor from Canada was in" Nathanson's residence. (15) The Third Circuit upheld the search, concluding that it was for state legislatures to decide whether a warrant required a factual foundation. (16) The Supreme Court reversed in 1933 in Nathanson v. United States, (17) holding that a magistrate could not properly issue a warrant to search a home without probable cause (p. 45). The Court thus confirmed that judicial scrutiny of the underlying basis for an affiant's belief--or, in lay terms, "the legitimacy of [the] search"--was required under the Fourth Amendment (p. 45). Although that procedural safeguard had been in use since the Maine law and had become "standardized" as prohibition spread throughout the country, it was now a federal constitutional requirement (p. 45).

   1. The Exclusionary Rule

      Oliver's discussion of Prohibition's impact on the development of the remedy for constitutional violations--the exclusionary rule--is even more incisive. The highlight is his interesting and enlightening clarification of its provenance. The exclusionary rule is usually attributed to the Court's decisions in Boyd v. United States, (18) an 1886 civil forfeiture case, and Weeks v. United States, (19) a 1914 criminal case involving the return of a defendant's illegally seized property. (20) While it is true that those cases introduced early versions of the exclusionary rule into the Supreme Court's precedent, Oliver argues convincingly that Prohibition's role in establishing the rule as a fixture of criminal procedure has not been given its due. (21)

      Before Weeks, only Iowa had adopted a generic exclusionary rule barring evidence discovered during an illegal search. (22) The number of states that adopted the exclusionary rule did not truly spike until national Prohibition went into effect several years later; eighteen more states adopted the rule while Prohibition was in...