The anomaly of entrapment.

• Author: Roth, Jessica A.
• Position: I. The Evolution of the Entrapment Defense D. Why Didn't the Court Treat Entrapment as a Procedural and Evidence Law Question? 2. The Exclusionary Rule from 1932 to 1958 through Conclusion, with footnotes, p. 1006-1034

2. The Exclusionary Rule from 1932 to 1958 (Sorrells to Sherman,)

   Between the Court's decision in Sorrells and the next time the Court considered entrapment, in Sherman (1958), there was considerable change in the Court-made exclusionary rules of evidence. First, the Court started to apply the exclusionary rule to state prosecutions pursuant to the Due Process Clause of the Fourteenth Amendment. Second, the Court articulated a doctrine of its own "supervisory power" from which the Court divined the authority to exclude evidence obtained in violation of a defendant's statutory, rather than constitutional, rights. But, for the reasons set forth below, neither development was sufficient to cause the Court to reframe entrapment when it had the opportunity to do so.

   The Court's extension of the exclusionary rule to state criminal prosecutions pursuant to the Fourteenth Amendment's Due Process Clause started, as the exclusionary rule first did, with coerced confessions. In Brown v. Mississippi, (130) the Court held that a state capital murder conviction based upon a confession that clearly was the result of torture violated the Due Process Clause of the Fourteenth Amendment. (131) The Court reaffirmed this principle in Chambers v. Florida, (132) another capital case, where the evidence of physical abuse was less clear, though not the extent of the psychological coercion. (133) In both instances, the Court grounded its decision in the Due Process Clause of the Fourteenth Amendment because the Court had not yet incorporated the Fifth Amendment's self-incrimination clause to the states. [134] Thus, the standard that the Court applied in determining whether a constitutional violation had occurred in Brown and Chambers was the fundamental fairness substantive due process test, which asked whether the official conduct '"offends some principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (135) The Court had no difficulty determining that the right against compelled self-incrimination was so fundamental.

   In the context of confessions coerced by state actors, this Due Process standard merged relatively soon with the Fifth Amendment voluntariness standard. (136) But in other contexts, the Court was slower to find that rights made applicable to the states by the Fourteenth Amendment were essentially equivalent to those guaranteed by the Bill of Rights against the federal government. (137) It also was slower to impose the exclusionary rule on the states for violations of rights guaranteed by the Fourteenth Amendment. Thus, for example, in Wolf v. Colorado (138) the Supreme Court held that the Fourteenth Amendment Due Process Clause protected individuals from unreasonable searches and seizures by state actors, much like the Fourth Amendment protected individuals from similar action by federal officials, finding that this right was "implicit in the concept of ordered liberty." (139) Yet in the very same opinion, the Court declined to require that state courts exclude evidence obtained in violation of this Due Process right. Rather, implicitly finding the exclusionary rule was not constitutionally mandated, the Court left the appropriate remedy to the states. (140) It was not until Mapp v. Ohio (141) that the Supreme Court overruled this portion of Wolf and held that the Due Process Clause also required the exclusion at criminal proceedings of evidence obtained in violation of this right. (142)

   The period between Sorrells and Sherman also saw the Court exclude evidence obtained in violation of federal statutes. In Nardone v. United States, (143) the Court held that evidence obtained in violation of the Federal Communications Act, pursuant to an unlawful wiretap, was inadmissible. (144) And in McNabb v. United States, (145) the Court excluded a confession obtained by federal agents who failed to comply with federal statutes requiring that an arrested individual promptly be presented before a neutral magistrate. (146) In McNabb, the Court articulated a theory of its authority for excluding such evidence, which it dubbed the Court's inherent "supervisory authority." (147) The Court viewed this authority as the power to formulate rules of evidence and procedure for federal criminal trials not "derived solely from the Constitution" nor "limited to the strict canons of evidentiary relevance." (148)

   Although these statements by Justice Frankfurter (who would go on to write the concurring opinion in Sherman) sound like a sweeping assertion of authority, in the context of the McNabb case, the Court's invocation of the supervisory authority was actually rather modest. It was tethered to particular federal statutes requiring a prompt presentment that were silent as to what consequence, if any, followed if their terms were violated. Citing the legislative policy reflected in these statutes to protect against the abuses associated with the "third degree" (149)--and also the particularly egregious facts of the case (150)--the Court reversed the convictions to remedy the unlawful introduction of the confessions. (151) But signaling perhaps that the Court's agenda was indeed to expand its authority to exclude evidence beyond constitutionnal violations, the Court made clear that it was not reversing because the confessions were involuntary under the Fifth Amendment standard. (152) The Court did not reach that issue. Rather, the basis for the Court's decision was the violation of the federal statutes. (153) The Court offered a fig-leaf, however, to those who might read its opinion as purporting to directly regulate the practices of federal law enforcement agents: the opinion stated that the Court's only concern with such practices arose at the point when the "courts themselves become instruments of law enforcement." (154) Justice Frankfurter wrote, "a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law." (155)

   McNabb thus reads like a vindication of Justice Roberts' view in Sorrells (and Justice Brandeis' view in Casey) (156) that the courts have the authority to protect the purity of their own functions from becoming tainted by improper conduct committed by officers of the Executive Branch. Indeed, had the Court revisited entrapment immediately following McNabb, there is a chance that the Roberts/Brandeis/Frankfurter view might have garnered more support. But the McNabb aura, if there was one, did not last long. Many lower courts, and Congress, greeted McNabb with hostility. (157) The Court's narrow holding regarding the requirements of the federal statutes requiring prompt presentment was challenged repeatedly in a number of cases between 1943 and 1958, and Congressional opponents of McNabb made a serious, although ultimately unsuccessful, effort to overrule it by legislation in 1958. (158) Although the Court invoked the supervisory authority articulated by Justice Frankfurter's opinion to announce various procedural rules for the federal courts in the years following McNabb, (159) it did not invoke its supervisory authority to expand the exclusionary rule further until Elkins v. United States, (160) decided two years after Sherman. (161)

   During this same period (the post-Sorrels, pre-Sherman era) the Court also decided Rochin v. California. (162) Like Brown, Chambers, Wolf, and McNabb, Rochin reflected the Court's increasing concern with overly aggressive police practices. In Rochin, police officers broke into a man's home, tried to force out of his mouth several morphine capsules that he had swallowed, and ultimately took him to a hospital where a doctor pumped his stomach. (163) As a consequence, the police obtained the capsules, which were introduced into evidence at Rochin's trial. Justice Frankfurter wrote the opinion for the Court holding that Due Process Clause of the Fourteenth Amendment required the exclusion of this evidence. (164) In the Court's view, this conduct "shock[ed] the conscience" (165) and l"offend[ed] those cannons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.'" (166) The methods used by the officers were "too close to the rack and the screw to permit of constitutional differentiation." (167)

   Two decades later, the Court would cite Rochin to suggest that the Due Process Clause provided an independent limit on undercover governmental action, on top of the entrapment defense, such that a conviction could not stand if the conduct of government officials was so outrageous as to "shock the conscience," even if the defendant were predisposed. (168) As set forth below, the existence of this Due Process limit remains a matter of dispute--a dispute that largely has been papered over by the fact that (with one exception) courts have never found that it was breached. (169) Today, defendants asserting entrapment frequently also assert (unsuccessfully) a government misconduct Due Process claim. And yet neither party in Sherman even cited Rochin in its brief--a testament to the fact that, by the time Sherman was before the Court, Rochin was not understood as a major expansion of Due Process protection but instead as an instance of case-specific error correction driven by its rather unique and brutal facts. (170)

   In sum, although there were significant developments in the Supreme Court's application of the exclusionary rule for violations of defendant's constitutional and statutory rights between 1932 (Sorrells) and 1958 (Sherman), those developments were not sufficient to cause a majority of the Court to view entrapment doctrine through that lens--or even to cause the parties in Sherman to ask the Court to reassess the principles articulated in Sorrells. In 1958, the Due Process Clause of the...