Off the Mapp: parole revocation hearings and the Fourth Amendment.

• Author: Stevens, Duncan N.

Pennsylvania Board of Probation & Parole v. Scott, 118 S. Ct. 2014 (1998).

1. INTRODUCTION

   In Pennsylvania Bd. of Probation & Parole v. Scott,(1) the Supreme Court held that the exclusionary rule prohibiting the introduction of illegally obtained evidence does not apply to parole revocation proceedings.(2) The Pennsylvania Supreme Court had proposed that the federal exclusionary rule should apply when the officers conducting a search know that the suspect is a parolee, on the grounds that excluding evidence in those situations would deter deliberate Fourth Amendment violations.(3) The Supreme Court rejected that proposal, arguing that the deterrence value was slight.(4) The Court reasoned that courts should not apply the rule when the social costs of excluding inculpatory evidence outweigh the deterrence benefits.(5) Under the Court's analysis, parole revocation hearings are not sufficiently similar to criminal prosecutions to warrant exclusion as a remedy for illegal searches or seizures.(6)

   This Note will first argue that the Court's rejection of the Pennsylvania Supreme Court's rule represents another step in its limitation of Fourth Amendment rights. The Court has turned to cost-benefit principles in weighing the reach of the exclusionary rule, ignoring the constitutional arguments that led to its adoption, and has thereby produced an exclusionary rule based solely on the Court's policy preferences. Second, this Note will argue that the Court's cost-benefit analysis of Pennsylvania's rule, which minimized deterrence benefits and exaggerated social costs, was faulty. Likewise, the Court missed the parallels between parole revocation proceedings and criminal trials. Third, this Note will argue that the Court broke with its own precedent to strike down the rule, since the Court has repeatedly held that the good faith of the law enforcement officer plays a part in determining whether courts should exclude evidence. Yet the Court rejected a Pennsylvania test that hinged on the officer's knowledge about whether the suspect was a parolee, a criterion that mirrors the good-faith exception that the Court has upheld elsewhere. Finally, this Note will argue that the fundamental limitation on parolees' Fourth Amendment rights lies in Griffin v. Wisconsin(7) and other decisions regarding the rights of probationers and parolees, and that applying the exclusionary rule to remedy Fourth Amendment violations, even if theoretically appealing, would be largely futile when parolees have almost no substantive Fourth Amendment rights anyway.

2. BACKGROUND

   1. THE EXCLUSIONARY RULE

      The Fourth Amendment(8) to the U.S. Constitution provides for security against unreasonable searches and seizures, setting out warrant and probable cause requirements as restraints on law enforcement. As with the rest of the Constitution, however, the amendment specifies no remedies in the event of a violation, and legislatures have not, in the view of many commentators, effectively filled that void.(9) Courts have accordingly developed the doctrine that evidence seized in violation of the Fourth Amendment's prohibitions is inadmissible in subsequent criminal prosecutions. A recurring debate regarding the application of the rule concerns whether the Constitution itself mandates exclusion, or whether the rule as it stands is merely a judicial remedy with no constitutional backing.

      A strong belief that the Constitution requires the exclusionary rule animated the Supreme Court's first statement on the subject in Weeks v. United States,(10) when it ruled that "prejudicial error" occurs when a federal court allows evidence illegally seized by a federal officer to be introduced at trial.(11) Justice Day wrote that, if courts admit illegally seized evidence at trial, the Fourth Amendment's protections are "of no value,"(12) meaning that the Constitution mandates rather than merely suggests the rule. The Court's statement that "[t]o sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution" likewise suggests that the Constitution requires the rule and implicitly sets out a notion of judicial complicity.(13) The Weeks decision was silent regarding the deterrent value of the rule and its potential to prevent police misconduct via the threat of exclusion, but it clearly believed that the terms of the Fourth Amendment demand that federal courts apply the rule.

      Several decades passed before the Court considered the rule's effect on the states, but in Wolf v. Colorado,(14) the Court held that the exclusionary rule did not apply to state prosecutions.(15) Integral to the Wolf holding was the Court's insistence that the exclusionary rule is a remedy for Fourth Amendment violations, not mandated by the Constitution itself; the Court insisted that states should remain free to develop their own means of deterring illegal searches and seizures.(16) Since the Constitution requires no single remedy, states need not apply the exclusionary rule, as long as "equally effective" remedies to accomplish the same end are in place.(17) That requirement, in theory, could have radically altered Fourth Amendment rights; had states been forced to devise some system of police deterrence to head off illegal searches and seizures (or face the prospect of having evidence excluded), criminal procedure would have changed overnight. But the real effect of the decision was simply to continue to allow the admission of illegally seized evidence in state prosecutions.(18) The landscape changed slightly in 1952, however, when the Court ruled that evidence gathered in a manner that "shock[ed] the conscience" must be excluded from state prosecutions.(19) A shift back in the direction of Weeks occurred in Elkins v. United States,(20) which rested in part on the "imperative of judicial integrity"(21) and quoted Justice Brandeis's dissent in Olmstead v. United States: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously ... If the Government becomes a lawbreaker, it breeds contempt for law."(22) Elkins therefore reaffirmed the theoretical constitutional basis for the exclusionary rule, and set the stage for Mapp v. Ohio.(23)

      Mapp applied the exclusionary rule to the states via the Due Process Clause of the Fourteenth Amendment.(24) Justice Clark, writing for the Court, found that the factual bases for the Wolf decision had vanished, and with them the reasoning for applying the Fourth Amendment to federal but not state prosecutions.(25) For example, while most states at the time of the Wolf decision had declined to adopt the rule, several states had since changed position and applied the rule, enough that the majority now favored exclusion.(26) The Mapp majority also rejected the argument in Wolf that other remedies, such as a civil damages remedy or internal police discipline proceedings, could adequately safeguard Fourth Amendment rights.(27) The Court relied in part on the decision in People v. Cahan,(28) in which the California Supreme Court adopted the exclusionary rule.(29) That holding rested in part on the finding that "civil actions against police officers are rare" and "successful criminal prosecutions against officers are nonexistent,"(30) meaning that two other primary avenues for protection of Fourth Amendment rights are largely ineffective. The Mapp Court echoed the argument in Weeks that those rights are meaningless without an adequate remedy, stating that the rule is "an essential ingredient of the Fourth Amendment."(31) The Court in Mapp also recognized the deterrent aspect of the exclusionary rule, and argued that allowing states to ignore the rule "encourage [d] disobedience to the federal Constitution."(32)

      The Court's subsequent decisions restricted the principle, articulated in Weeks and reiterated in Mapp, that Fourth Amendment rights required exclusion of illegally obtained evidence.(33) The Court ruled in United States v. Calandra(34) that the exclusionary rule does not apply to grand jury proceedings, reasoning in part that the deterrent value of excluding such evidence is slight, and that applying the rule would unacceptably disrupt the grand jury process.(35) The Court reasoned further that admitting illegally seized evidence is "only a derivative use of the product" of a prior illegal act, and as such "work[s] no new Fourth Amendment wrong."(36) That argument led to the holding that the rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved."(37) The Calandra court looked to Elkins for support of its argument that the function of the rule is to deter,(38) even though Mapp, which succeeded Elkins, had emphasized judicial integrity over deterrence, and even though Elkins had relied on the language in Weeks that articulated the integrity of the judiciary as a basis for the exclusionary rule.(39) Justice Brennan's Calandra dissent noted the majority's clear conflict with Mapp's reasoning, and argued that the "imperative of judicial integrity" articulated in Elkins demands that the judiciary avoid endorsing police misconduct.(40) The Court later ruled in Stone v. Powell,(41) relying on Calandra,(42) that federal courts, in reviewing habeas corpus petitions, need not undertake collateral review of Fourth Amendment claims, on grounds that the deterrent effects of such a review are insignificant.(43) Pragmatic considerations of administrative efficiency rather than substantive Fourth Amendment concerns again carried the day. Justice Brennan in dissent again criticized the majority for ignoring the constitutional basis for Mapp.(44)

      Elkins's "imperative of judicial integrity" received even shorter shrift in United States v. Leon,(45) which modified the exclusionary rule to allow for...