The exclusionary rule redux - again.

Author:Weinreb, Lloyd

According to whether one starts counting with Weeks v. United States, (1) decided in 1914, or Mapp v. Ohio, (2) decided in 1961, we are closing in on fifty or one hundred years since the exclusionary rule was made part of Fourth Amendment jurisprudence. One would have thought that there has been more than enough time for the Supreme Court to have clarified what the rule is about and whether it is worth having. In broad outline, at any rate, the rule is not very complicated: if the police obtain evidence by means that violate a person's rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision has been extended to violations of other constitutional rights (3) and freighted with innumerable epicycles, and epicycles on epicycles, but it is at bottom straightforward. Clarification has not happened. Instead the exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness like "separate but equal" (4) and, in criminal procedure, the right to counsel before formal proceedings have begun. (5) It survives, but its reach is uncertain, its rationale questioned, and its value doubted.

There has been no shortage of cases in which those issues are presented and discussed, usually in conflicting opinions that together leave no argument unsaid. It is something of a parlor game--with as much serious consequence--to browse through all that has been written for and against the exclusionary rule and extract just those words and phrases that support whatever position one has decided to take. Articles analyzing its constitutional underpinnings, ruminating about its likely effects, or studying its actual effects abound. Symposia, like this one, flourish. (6) Every few years, the demise of the rule is reported, but it then turns out that reports of its death were exaggerated. So here we are, at it again, prompted this time by two cases that follow the usual pattern but seem to make a more frontal, more threatening assault on the rule than we have been accustomed to, and so pose, yet again, the question what its future is, or rather, whether it has a future.

In view of the current fashion for behavioral studies of the judiciary, especially the Supreme Court, (7) there may be some temptation to explain the Court's on-again, off-again attitude toward the exclusionary rule as nothing more than a consequence of the Court's shifting membership, hardline liberals and hardline conservatives never gaining more than an incomplete and impermanent ascendancy. There has, certainly, been a marked unwillingness to find the rule's common ground, perhaps more so or more enduringly so, than about other controversial matters. But even taking that into account, the course of the rule's jurisprudence is remarkable. All the more so, because it is not a "hot button" issue. Abolishing the exclusionary rule--a possibility, it should be noted, that presumably depends constitutionally on what the Court has from time to time offered as the rule's rationale--is regularly proposed, but, despite its detractors' prophecies of gloom and doom, I doubt that the public cares very much either way. Although carefully phrased questions elicit predictable responses, elections are not won or lost over the exclusionary rule. And, in fact, as the rule is now understood and applied, there is little convincing evidence that it makes much difference either way. To a considerable extent, the rule is a distinctly legal matter, not political, social, or economic. It gives us legal scholars something to do--keeps us, as it were, off the streets.

The modern history of the rule begins with Mapp. But its early history, before Mapp, contained a preview of things to come. The exclusion of evidence was embraced but not wholeheartedly, rejected but not definitively. As one would expect, the Court's opinion in Weeks, where it all began, tilted toward the rights-based approach. It observed that if a person's property could be seized unlawfully and retained for use as evidence against its possessor, after an application for its return has been made,

the protection of the Fourth Amendment ... is of no value, and, so far as those placed are concerned, might as well be stricken from the Constitution.... To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution.... (8) This strong language was weakened inferentially by the Court's acknowledgment that courts generally did not inquire into the manner in which competent evidence was obtained, and that had the illegality of the seizure in Weeks not been established before the trial began, precedent dictated that the trial not be stopped to resolve that collateral issue and that the evidence be admitted. (9)

Wolf v. Colorado (10) looked the other way, but again, not clearly. Because Wolf was a state case and the Fourth Amendment had not yet been incorporated into the Due Process Clause, the attention of Justice Frankfurter, who wrote the opinion, was drawn to the latter issue and not to the Fourth Amendment itself. What he said ("stoutly adher[ing]" to Weeks) was that the exclusionary rule was not express in the Fourth Amendment but was, rather, "a matter of judicial implication." (11) That in itself was not so damaging; a great deal of constitutional law is a matter of judicial implication, and the first part of the Amendment, which declares the right that the Amendment protects, is, after all, an extraordinarily compressed statement of abstract principle. Frankfurter went on at length, however, to deprecate the value of exclusion and to suggest strongly that the right and the remedy were separate. On the other hand, focusing on the issue of incorporation, he said also that "the security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is ... implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause." (12) One might have found some room to argue that if a state were systematically to deny any effective remedy for violation of the right, that would be "affirmatively to sanction such police incursion into privacy," and, so doing, "would run counter to the guaranty of the Fourteenth Amendment." (13) Then what?

A mere five years later, there was another turn of the screw. In Irvine v. California, another state case, police secretly entered the defendant's house on several occasions to install a microphone, listened to conversations in the house for more than a month, and then entered the house to arrest the defendant and searched without a warrant. (14) A majority of the Court, following Wolf, concluded that although the conduct of the police was flagrantly unlawful, the admission of evidence so obtained did not violate the Due Process Clause, and it need not be excluded. Frankfurter, however, disagreed. Putting Wolf aside, he asserted that Rochin v. California, (15) another opinion that he had authored two years earlier, dictated that the evidence be excluded because the manner by which it was obtained "offend[s] elementary standards of justice." (16) Irvine was in truth a skirmish in the larger battle over incorporation of the whole Bill of Rights into the Due Process Clause of the Fourteenth Amendment, a battle Frankfurter and Justice Black were then waging, (17) with the other Justices mostly standing on the sidelines. Although the exclusionary rule itself was not involved, Irvine, following Wolf, considerably muddled matters. For there was Frankfurter, in dissent, arguing that the evidence should, indeed, have been excluded.

And then there is Mapp. It was itself an odd case, hardly likely to make much of a stir. The Court heard Mapp's appeal to consider a First Amendment issue. (18) The evidentiary issue was not raised in Mapp's brief, and when her attorney was asked at oral argument if he was asking the Court to overrule Wolf, he said that he had never heard of the case. (19) The American Civil Liberties Union, in its brief as amicus, raised the evidentiary issue in passing. If the due process rationale that Frankfurter had stated in Rochin was good law, Mapp was an obvious case for its application; the unlawful conduct of the police, described in detail in Justice Clark's opinion for the Court, was prolonged, included physical abuse, as in Rochin, (20) and, evidently, knowingly unlawful. But Justice Clark had indicated his disapproval of that "ad hoc'" approach in a concurring opinion in Irvine, (21) and the assignment of the majority opinion to him made it unlikely that Rochin would be followed. In fact, when the opinion was assigned to Clark, it was understood that the Court would reverse Mapp's conviction on the basis of the First Amendment argument. Clark later obtained the agreement of a majority to overrule Wolf. (22)

Clark referred to cases describing the Weeks exclusionary rule as a part of the constitutional right, but at the same time he emphasized its deterrent function. It was, he said, "a clear, specific, and constitutionally required--even if judicially implied--deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to 'a form of words.'" (23) Twice declaring that it was not "basically relevant," (24) he considered the States' experience since Wolf at some length. Then, reverting to the rights-based approach, he observed that not to exclude evidence unlawfully seized "is to grant the right but in reality to withhold its privilege and enjoyment." (25) Reading Clark's opinion, one could be...

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