The writings of John Barker Waite and Thomas Davies on the search and seizure exclusionary rule.

• Author: Kamisar, Yale

INTRODUCTION

After browsing through many volumes of the Michigan Law Review, searching for the article I would discuss on the occasion of the law review's 100th anniversary, I wound up with two "finalists": a 1955 article by Professor John Barker Waite on the law of arrest search and seizure (on further reflection, four Michigan Law Review commentaries on the general subject written by Waite between 1933 and 1955) (1) and a monumental 200-page article (surely one of the longest articles ever to appear in the Michigan Law Review) by Thomas Davies on the "original Fourth Amendment." (2)

Convincing myself that their writings could be made to fit together, I resolved the matter by choosing the works of both commentators. One important consideration was my belief that each had something important to say about the search and seizure exclusionary rule, a controversy that, despite eighty years of intense debate, shows no signs of letting up. (3) Waite and Davies are a study in contrasts. Waite was sympathetic to the needs and interests of the police and he resented the attempts of the courts "to control police conduct by the indirection of rules of evidence judicially made for that purpose." (4) If anything, Davies believes the courts are too timid in placing restrictions on the police.

Waite was a colorful, crusty law professor who wrote with power and passion. Sometimes, as he noted, he drew upon his own frequent contacts with the police and his observations of their methods. (5) Although the author of a major empirical study, (6) Davies, as his Michigan article well demonstrates, is a prodigious "library researcher." His arguments are spelled out painstakingly and his writing is heavily footnoted. (7)

Professor Waite was a member of the University of Michigan law faculty from 1912-51. (8) Although the grandson of the seventh Chief Justice of the United States, Morrison R. Waite, he did not treat judges (or Supreme Court justices) kindly. He blamed them for "deliberately restrict[ing] police efficiency in the discovery of criminals." (9) By protecting "discovered criminal[s]" from "deserved punishment," charged Waite, "judges are derogating from the force of deterrence and contributing to the country's already too heavy and increasing burden of crime." (10)

As might be expected from what has already been said, Professor Waite was an implacable and outspoken opponent of the exclusionary rule. Then, as now, he has had a lot of company. (11) Among those who have shared Waite's view are Chief Justice Burger and Chief Justice Rehnquist. Each has made arguments against the rule reminiscent of those made by Professor Waite decades earlier. (12)

Waite was quite familiar with the claims made by proponents of the exclusionary rule: if illegally obtained evidence is excluded, police overzealousness "will diminish and cease"; if illegally obtained evidence is admitted, police misconduct "will flourish and increase." (13) But he was highly skeptical: "It is a logical enough theory, impregnable in the library." (14) (I consider this one of the most memorable statements ever made in the long debate over the exclusionary rule.) (15)

Thomas Davies has been a member of the University of Tennessee law faculty since 1986. While he was an American Bar Foundation project director, and prior to entering teaching, he published what is widely regarded as the most careful and most balanced evaluation of the exclusionary rule's effects on criminal law enforcement. (16) (A decade earlier, as a law student, Davies had published a much-cited "critique" of empirical evaluations of the exclusionary rule.) (17)

It should be made plain that Davies' Michigan Law Review article does not focus on the search and seizure exclusionary rule. (18) Nevertheless, his "recovering [of the Fourth Amendment's] original understanding from the historical sources" (19) and his discussion of how dramatic changes in legal and social institutions turned out to undercut the Framers' premises, make his article indispensable reading (and re-reading) for anyone interested in the exclusionary rule debate. While Davies' interest in search and seizure has never wavered, one might say that, in turning to legal history, he has shifted methodology as the course of the search and seizure debate has shifted grounds. Although Davies has a Ph.D. in political science, he has no formal training in history. His political science training and his litigation experience, however, have given him a strong background in digging out data and making sense of it. His 200-page Michigan Law Review article is the result. (20)

1. PROFESSOR WAITE'S ATTACK ON THE EXCLUSIONARY RULE

   1. Judges of the federal courts and those in eighteen of the states have evolved a policy of rebuking police who transgress [search and seizure] limitations by reversing the convictions of criminals discovered through the transgression. Any evidence of guilt so obtained must, these courts insist, be suppressed and kept from the knowledge of trial juries....

      This odd procedure of exempting known criminals from punishment as a means of keeping the police in order has been discussed, applauded, or condemned by many commentators. (21)

      Is the exclusionary rule procedure odd, clumsy or awkward? I think not. When the defendant seeks to prevent the government from using the fruits of police illegality, the protagonists are in place. This is the occasion when the defendant has the maximum incentive to challenge the police conduct and, if he is indigent--as some eighty percent of criminal defendants are (22)--the services of court-appointed counsel. Why make the alleged victim of police illegality start a new proceeding in another court? Why require the criminal defendant to look for a lawyer willing to bring a civil lawsuit, often without any fee, against "a team of professional investigators and testifiers"? (23) Why make the criminal defendant look for a lawyer willing to run the risk of antagonizing the police? (24)

      As Professor Stuntz has observed:

      One of the [exclusionary] rule's great virtues is its efficiency. Claims are inexpensive to raise, and the facts on which they rest usually do not involve much independent digging by defense counsel. (25) [The fact that the exclusionary rule is tied to criminal prosecutions] ensures that lots of claims are raised, which in turn allows courts to serve as reasonably good watchdogs for certain kinds of police misbehavior. Using criminal litigation to regulate the police thus has enormous administrative and remedial advantages. The point goes well beyond search and seizure law--police interrogation is much more easily monitored through Miranda claims than through damages actions. Indeed, it goes well beyond the police. It is much easier to regulate misbehavior in jury selection by reversing convictions than by encouraging lawsuits by potential jurors; that is why our law uses criminal litigation to protect not only defendants but jurors as well. (26) It is worth remembering that American criminal procedure "imposes procedural regulations on the criminal process by constitutional command." (27) Why should Fourth Amendment litigation be exempted from that process?

      "The survival of our system of criminal justice and the values which it advances," observed a distinguished Attorney General's Committee forty years ago, "depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process." (28) In context, it is clear that the Committee meant the criminal process. Because the danger is plain that a criminal will destroy or hide evidence of his crime if given advance notice, we must postpone an opportunity for a hearing on the issue. But why does it follow that no meaningful challenge of the police action should be permitted at any stage of the criminal process--not even long after the suspect is in custody and the evidence is in the police station? This would be the result if the exclusionary rule were to be abolished.

   2. [J]udges have themselves imposed [a number of] narrowly restrictive limitations on police activity. Then, having created these limitations, they themselves undertake to assure police obedience to them. To this end they ignore the possibility of direct action against individual officers and proceed by indirection. (29)

      To assume the ineffectiveness of direct action by suit against an overzealous officer merely from the absence of such suits in appellate court reports is unjustifiable; the relation of appeals to suits begun depends too largely upon the nature of the action; these may be so simple and successful as to provoke no appeal. That no guilty gun-carrier has ever brought suit for damages may be conceded; he would find small sympathy before a jury.... As for unlawful arrest of innocent persons, the writer has seen overzealous policemen sweating copiously in fear of results and has known judgments rendered against them. If suits are not begun, it is far more likely that no real damage was suffered than that suit would be unsuccessful. (30)

      As Justice Frankfurter pointed out on one of the last occasions he wrote about the pre-Miranda due process/"totality of the circumstances"/"voluntariness" test for admitting confessions:

      [I]n many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification ... we were constrained to find that the procedures leading to [the defendant's] conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees. (31) Why can't the criminal justice system make use of an involuntary confession that is so impressively corroborated that there is no doubt about its trustworthiness? The exclusion of a reliable confession, no less...