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The Limits of the Exclusionary Rule
John Kaplan*
It is to Herbert Packer that we owe in their clearest forms two of our
major modern insights into the criminal system. First, it is he who most
clearly identified the major tensions in our adversary system as two fundamentally different ways of looking at the criminal process-the crime control and the due process models The crime control model focuses on the
role of the legal system in repressing criminal conduct. Its primary value
is efficiency, both in the apprehension and punishment of the guilty and
in the screening out of the innocent at as early a stage as possible. It conceives of the processes of justice in terms of managerial efficiency. The due
process model is more complex. It is designed, beyond the mere separation
of the guilty from the innocent, to assure basic rights of fairness to the
accused and to protect his personal dignity. In Professor Packer's astute
phrase, "If the Crime Control Model resembles an assembly line, the Due
Process Model looks very much like an obstacle course."'
Second, he engendered in a whole generation of criminal law scholars
an extreme skepticism about the use of the criminal sanction in the area of
nonvictim crime.3 It is his outlook, developed in The Limits of the Criminal
Sanction4 and a host of earlier writings,5 which has become the conventional wisdom among those thinking most about the criminal law.
Though across-the-board denunciations of nonvictim offenses are sometimes heard today, Packer himself was much more careful and sophisticated about the problem. His view was not that all nonvictim crimes are
a misuse of the criminal sanction. That category, after all, includes minimum wage laws and rules concerning safety appliances on automobiles.6
Rather, he pointed out that gambling, drug offenses, prostitution, and a
relatively small number of other nonvictim crimes put an undue strain upon
*A.B. 1951, L.L.B. 1954, Harvard University. Professor of Law, Stanford Law School. I would
like to express my appreciation to Andrew Lipps, Stanford Law School, Class of 1974. His research
and criticism were above and beyond the call of duty.
I. H. PACKER, THE Lrtrrs OF Tim CRnnNaL SANCTioN L49-246 (1968); see Goldstein, Reflections
on Two Models: InquisitorialThemes in American CriminalProcedure, 26 STAzq. L. REV. 1009 (x974).
2. H. PACKER, supra note r, at 163.
3. Id. at 249-366.
4. H. PACKER, supranote x.
5. E.g., Packer, The Crime Tariff, 33 Am. SCHoLtAR 55r (1964); Packer, Offenses Against the
State, 339 ANNALs 77-89 (1962); Packer, The Model Penal Code and Beyond, 63 COL-M. L. Ray.
594 (1963); Packer, The Courts, The Police, and the Rest of Us, 57 J. CRni. L.C. & P.S. 238 (1966);
Packer, Policing the Police, NEw REPurLmC, Sept. 4, x965, at 17-21; Packer, Two Models of the
Criminal Process, 113 U. PA. L. Rxv. 1 (1964); Packer, Copping Out (Book Review), NEw YoRKc
REV Ew OF Booxs, Oct. 12, 1967, at 17.
6. See Kaplan, The Role of the Law in Drug Control, 1971 DtrE L.J. o65.
1027
STANFORD LAW REVIEW
[Vol. 26: Page 1027
our criminal enforcement mechanisms and cause societally damaging results which outweigh any gains produced by the use of criminal law.
Though the problems created by applying the criminal sanction vary with
the offense involved, one pervasive similarity emerges. Whether or not society regards him as a victim, a willing participant in a nonvictim crime
generally is unlikely to complain to the police. Regardless of how greatly
a heroin addict is exploited by his connection, the very drives that lead him
to be so exploited also prevent his voluntary cooperation with law enforcement. This lack of a complainant forces the police to use other tactics
which not only are less effective than a victim's complaint, but which also
tend to intrude upon constitutional values.
In this brief essay in Professor Packer's memory, it is particularly appropriate to discuss an area which lies near the intersection of these two
significant contributions. The exclusionary rule is probably the point of the
clearest conflict between the demands of due process and crime control
values identified.by Professor Packer. Due process values demand general
laws to protect the citizen from at least some governmental intrusions into
his privacy through searches and seizures.' The exclusionary rule, its proponents claim, is the only way to enforce such laws.' On the other hand,
any rule which makes rationally probative and often vital evidence against
a defendant inadmissible in his criminal prosecution flies in the face of
crime control values.' The relation between the exclusionary rule and nonvictim crime is also clear. As any examination of appellate reports reveals,
the great majority of cases in which the exclusionary rule is considered are
cases involving nonvictim crime. The number is far out of proportion even
to the approximately 50 percent of arrests which involve such crimes. 1 The
due process values protected by the exclusionary rule are related to nonvictim crime in yet another way. It is probable that in any modern nation in
which there is governmental respect for individual privacy many people
will engage in nonvictim crimes.' Indeed, one of the earmarks of a police
7. H. PACKER, supra note i, at 296-366.
8. "[T]he Due Process Model, although it may in the first instance be addressed to the maintenance of reliable fact-finding techniques, comes eventually to incorporate prophylactic and deterrent
rules that result in the release of the factually guilty even in cases in which blotting out the illegality
would still leave an adjudicative fact-finder convinced of the accused person's guilt." Id. at 168.
9. See, e.g., volf v. Colorado, 338 U.S. 25, 41 (1949) (Murphy, J., dissenting).
1o. "In theory the Crime Control Model can tolerate rules that forbid illegal arrests, unreasonable searches, coercive interrogations, and the like. What it cannot tolerate is the vindication of
those rules in the criminal process itself through the exclusion of evidence illegally obtained or
through the reversal of convictions in cases where the criminal process has breached the rules laid
down for its observance." H. PACKER, supra note I, at 167-68.
ii. N. MoRRIs & G. HAWKINS, TE HONEST POLITICIAN'S GuIDE To CRMEs CONTROL 3-4 (1970).
It is interesting to note that both Weeks v. United States, 232 U.S. 383 (1914) (lottery tickets), and
Mapp v. Ohio, 367 U.S. 643 (g6x) (obscene materials), involved prosecutions for nonvictim crimes.
x2. The matter is actually somewhat more complex. A nation which does not respect individual
privacy might still have a nonvictim crime problem if it did not have sufficient police resources to
enforce a code of morality. Conversely, a nation with both a respect for individual privacy and a
May 19741
LIMITS OF EXCLUSIONARY RULE
state is the absence of nonvictim crime--or, put another way, the rigid
morality enforced by the state upon its citizenry.
It is difficult to state the exclusionary rule with great precision. In most
cases, it makes inadmissible in a defendant's criminal prosecution any evidence seized in violation of his constitutional rights." Yet when needed to
impeach the defendant's testimony at trial, evidence unconstitutionally
seized from him is admissible.' 4 And the fact that evidence illegally seized
from one person may sometimes be admissible against another leads us
directly into the morass of deciding who has standing to assert the rule.'
The difficulty in defining the scope of the exclusionary rule, however,
should not mask its importance. The fact remains that in a very large category of cases, evidence in the government's possession which may show
that a defendant has committed a crime cannot be used because it has been
illegally obtained by the police.
It is not my thesis here that the exclusionary rule should be abandoned.
Rather, it is that the exclusionary rule, as Professor Packer said of the criminal sanction itself, is "needed but nonetheless lamentable."' 6 Professor
Packer's view on the shaky justifications for the criminal sanction accounts
for his careful attention to its appropriate limits. Similarly, attention should
be directed to the appropriate limits of the exclusionary rule.
This Article asserts that (i) the exclusionary rule does not have such an
honorable or ancient lineage that it should be maintained without reference
to the validity of its justifications;17 (2) demonstrations of the value or cost
of the exclusionary rule in utilitarian terms are singularly unpersuasive; 8
(3) the political price of the rule is extremely high-so high in fact as to
jeopardize its existence, regardless of its presumed benefits;19 and (4) two
modifications may be made in the rule which would lower its political price
and, with respect to one at least, have promise of considerably increasing its
efficacy in protecting constitutional rights."
I. THE JUSTIFICATION OF THE EXCLUSIONARY RULE
The argument for the exclusionary rule must stand or fall simply on the
basis of its demonstrated utility. Its proponents gain no strength-indeed
shortage of police resources could eliminate the existence of nonvictim crimes simply by decriminalizing those offenses for which the criminal sanction is inappropriate.
13. See Weeks v. United States, 232 U.S. 383 (1914).
14. See, e.g., NValder v. United States, 347 U.S. 62 (1954) (testimony relating to illegally
seized heroin used to impeach defendant's statement that he had never possessed any narcotics).
15. See, e.g., Brown v. United States, 411 U.S. 223 (1973); Alderman v. United States, 394
U.S. 165 (1969); Jones v. United States, 362 U.S. 257 (i96o).
16. H. PACKInt,supra note i, at 6i, quoting Vasserstrom, Why Punish the Guilty?, UNIVERSITy,
Spring 1964, at 14.
17. See text accompanying notes 21-35 infra.
18. See text accompanying notes 36-5o infra.
19. See text accompanying notes 51-75 infra.
20. See text accompanying notes 94-115 infra.
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STANFORD LAW REVIEW
[VOL. 26: Page
IO27
they are weakened-by reference to fundamental constitutional implications, well-established traditions, or universalities of adoption such as are
sometimes relevant to other legal arguments.
Entirely apart from the case that may be made for or against the exclusionary rule, its restriction is hardly a radical step. First, the exclusionary
rule does not "look" like a constitutional doctrine. Courts could make a
direct connection to fourth amendment values by holding that the government is not permitted to benefit from the fruits of an unconstitutional
search and seizure. Yet the exclusionary rule does not fully adhere to this
tenet. The rule is limited by such constructs as standing,21 the attenuation
of taint from illegal searches,22 and the admissibility of illegally seized
evidence for impeachment." Moreover, if courts strictly enforced the notion that the government could not benefit from an illegal search and seizure by its police officers, we would return to persons subjected to an illegal
search the contraband seized from them-presumably giving them a headstart with their heroin, sawed-off shotguns, or stolen property.2 '
The fact that courts have not done so indicates that the exclusionary rule
is merely one arbitrary point on a continuum between deterrence of illegal
police activity and conviction of guilty persons. As a stopping point, it can
be justified solely on the ground that it achieves a better balance between
these twin goals than would other points. If another stopping point does
the job better, it should replace the current exclusionary rule.
This type of "quasi-constitutional" law is not unique to the fourth
amendment area. The Supreme Court recognized in Miranda25 that the
prohibitions it had laid down would stand unless and until an equally good
method of protecting the constitutional values in question was developed.
In other words, the rule is not written into the Constitution. Rather, the
Constitution demands something that works-presumably at a reasonable
social cost. The content of the particular remedial or prophylactic rule is
thus a pragmatic decision rather than a constitutional fiat.
In addition, the rule was not adopted by the United States Supreme
Court until 1914.28 While it is certainly possible that an interpretation first
See cases cited note 15 supra.
Wong Sun v. United States, 371 U.S. 471 (1963).
23. Walder v. United States, 347 U.S. 62 ('954); cf. Harris v. New York, 401 U.S. 222 (1971).
24. For two interesting fact situations rejecting such severe remedies, see Frisbee v. Collins, 342
U.S. 529 (1952) (murder conviction affirmed; court refused to free defendant even if he were illegally kidnapped by Michigan police in Illinois and forcibly taken across border to stand trial), and
Welsh v. United States, 220 F.2d 2oo (D.C. Cir. 1955) (money illegally seized and suppressed in
numbers game prosecution; court retained money subject to determination whether defendant owed
federal taxes for the undeclared income).
25. Miranda v. Arizona, 384 U.S. 436 (1966).
26. See Weeks v. United States, 232 U.S. 383 (1914). Iowa was the only state which had
applied the exclusionary rule prior to Weeks. See State v. Sheridan, 121 Iowa 164, 96 N.W. 730
(1903). For a compilation of states adopting the exclusionary rule as of 1949, see Wolf v. Colorado,
388 U.S. 25, 34 table 1 (1949).
2X.
22.
May 1974]
LIMITS OF EXCLUSIONARY RULE
made 125 years after a constitutional provision might nonetheless be an appropriate one," the time lag between the adoption of the fourth amendment
and the first appearance of the exclusionary rule is at least some indication
that it was hardly basic to the constitutional purpose.
Furthermore, the exclusionary rule was not imposed upon the states
until 196i, and then by a divided Supreme Court." Moreover, there was an
extensive period when the exclusionary rule was in effect in some states and
not in others,)" and there is certainly no convincing demonstration that
individual liberties were any better protected in the former than in the
latter. For example, there is not even a hint that civil liberties were better
protected in Illinois, which applied the exclusionary rule,"0 than in Massachusetts, which did not."
It is also worth noting that the United States is the only nation that
applies an automatic exclusionary rule. 2 Perhaps this is an appropriate response to uniquely American conditions. Our nation is more heterogeneous
than most developed countries-ethnically, economically, and culturallya fact which perhaps lessens citizen identification with the minority groups
whose privacy is most often invaded by the police. Furthermore, the United
States does not have a tradition of control of the police by the central government. Such control by the executive, whatever its dangers, places less of
a burden upon the judiciary. It also may be that the United States has the
most moralistic and puritanical system of criminal law," which requires
police efforts at enforcement that place special strains upon their respect
for the privacy of citizens. Finally, Americans may simply be less upset by
police intrusions than are citizens of other countries and thus less willing to
enforce the guarantees of privacy through political means or even as jurors.
The fact remains, however, that there are many other countries which do
not have a mandatory exclusionary rule but which seem to be at least as able
as we to prevent their police from intruding upon the rights of citizens. " In
27. Cf. Brown v. Board of Educ., 347 U.S. 483 (954); Erie R.R. v. Tompkins, 304 U.S.
64 (1938).
28. See Mapp v. Ohio, 367 U.S. 643 (196i); cf. Ker v. California, 374 U.S. 23 (1963).
29. By 1949, 31 states had rejected the exclusionary rule and 16 had adopted it. Wolf v. Colorado, 338 U.S. 25, 38 table I (i949).
392, 143 N.E. 112 (1924), cited in Wolf v. Colorado, 338 U.S.
30. People v. Castree, 311 Ill.
25,36 table F (1949).
31. Commonwealth v. Wilkens, 243 Mass. 356, 138 N.E. ii (x923), cited in Wolf v. Colorado,
338 U.S. 25, 37 table G (1949).
32. By 1949, the io British Commonwealth jurisdictions which had considered the exclusionary
rule had rejected it. Wolf v. Colorado, 338 U.S. 25, 39 table J (i949). For a discussion of attitudes
toward the exclusionary rule in several major countries, see The Exclusionary Rule Under Foreign
Law, 52 J. CRim. L.C. & P.S. 271-92 (i96i). An argument can be made that since 1961 Italy has
adopted a modified form of the exclusionary rule. See Trihbunale of Imperia, 74 Giustizia Penale 363
(1969).
33. See N. MoRsS &G. HAWMNS, supra note ii, at 1-28.
34. See The Exclusionary Rule Under Foreign Law, supra note 32. For a discussion of the
Canadian experience, see Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Cm.
L. REv. 665, 70--o6 (1970), and authorities cited id. at 702.
STANFORD LAW REVIEW
[VOL. 26: Page
102 7
fact, their leading legal representatives express in private, and occasionally
in public, a complete mystification that the United States would adopt a rule
which deprives the prosecution of reliable evidence of guilt." In other
words, the exclusionary rule is hardly a facet of American jurisprudence
which has aroused admiration the world over.
II. THE
UTmiTA iAN ARGUNENT
One might therefore ask with some skepticism what justifies this unique
rule. It is not reassuring to relate that the major argument adopted by the
Supreme Court for the exclusionary rule is that nothing else works." This
reasoning reminds one very much of the old vaudeville skit about the drunk
looking for his keys under a light post. When questioned he admitted that
he had lost the keys some blocks away but argued that it made no sense to
look there because it was far too dark. One may tend to forget that just because nothing else works does not justify adopting an alternative which does
not work either.
Comparing the methods of enforcing the fourth amendment guarantees
is unnecessary, however. There is no point here in discussing the mass of
literature which describes the ineffectiveness of the threat of civil damages
or of criminal prosecution in compelling police obedience to the fourth
amendment." No one has proposed to do away with civil "8 or criminal 9
sanctions, however chimerical they are in practice. It is the exclusionary
rule which is under fire and it is this we must examine.
The fundamental criticism of the exclusionary rule is that, as structured
today, its benefits in protecting the privacy of the citizen are outweighed
by its associated costs in political hostility and reduced crime control. Few
would disagree that as a device to deter police illegality, the exclusionary
rule has fallen far short of its goal. There is evidence that the exclusionary
rule is very often blunted in practice because the police, unrestrained by
lower court judges who find the facts, successfully commit perjury to uphold the legality of their searches."0 Moreover, even in those cases where
the evidence is suppressed, the policeman typically does not find out about
35. See, e.g., remarks of Lord Widgery, Lord Chief Justice of England, American Bar Association Convention, July x6, 1971, reported in N.Y. Times, July 17, 1971, at I, col. 3.
36. See Mapp v. Ohio, 367 U.S. 643 (1961).
37. E.g., Edwards, Criminal Liability for UnreasonableSearches and Seizures, 41 VA. L. REv.
621 (955); Foote, Tort Remedies for Police Violations of Inditidual Rights, 39 MINN. L. REv. 493
(z955); Symposinm-Police Tort Liability, 16 CLEV.-MAR. L. REv. 397-454 (1967).
38. 42 U.S.C. § 1983 (970). For judicial discussion of civil sanctions, see Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (971); Bell v. Hood, 327 U.S. 678 (0946).
39. 18 U.S.C. §§ 241-42 (1970).
40.
See, e.g., P. CHEVIGNY, POLICE POWER 187-88 (1969); J. SscoLNics,
JUSTiCE wITHouT TRIAL:
LAW ENFORCEMENT IN DFMocaRA-c SocIaTY 214-15 (x966); Oaks, supra note 34, at 739-42; Comment, Effect of Mapp v. Ohio on Police Search-and-Seizure Practicesin Narcotics Cases, 4 CoLum. J.L.
&Soc. PROB. 87,95 (1968).
May 1974]
LIMITS OF EXCLUSIONARY RULE
the matter. The crucial assumption of feedback to the police is simply belied
by experience in most, if not all, police departments.
The prevalence of the guilty plea also weakens the threat of excluding
evidence at trial. The pressures and inducements to plead guilty in modern
urban criminal systems are enormous.4 In those jurisdictions which do
not permit appeals from search and seizure decisions following a guilty
plea,' there is simply no review of the operation of the exclusionary rule
in approximately 9o percent of the criminal cases.4" In these cases, the likelihood of eventual suppression of crucial evidence is not enough to make the
risk of going through a trial worthwhile. The possible vindication on appeal after trial becomes merely one factor to be weighed in the bargaining
by prosecutors and defense attorneys; the likelihood of the defendant's remaining in jail pending trial and the possibility of a more severe sentence
upon conviction after trial must also be taken into account.
In addition, complaints have been made that the legal doctrine the rule
enforces is so complicated and abstruse that the police often honestly and
reasonably cannot determine in advance what a majority of the Supreme
Court will later find to have been the doctrine's command." Perhaps most
importantly, it has been argued that the rule is ineffective because the police
are not ordinarily motivated by the search for admissible evidence. Indeed,
the threat to exclude evidence leaves untouched a myriad of police activities
such as peacekeeping, harassment of offenders, and many intelligence activities which do not and are not intended to lead to admissible evidence in
a criminal case. "
Certainly, the empirical studies to date support the view that the impact
of the exclusionary rule on the policeman's on-the-street behavior is minimal!' Nevertheless, the rule does seem to have some effect on police behavior. According to Professor Jerome Skolnick,47 for example, the police
do pay careful attention to the laws concerning search and seizure in
planning large-scale gambling raids which they expected to result in major
41. Kaplan, The Guilty Plea, STANFORD MAGAZINE, Fall-Winter 1973, at 50.
42-. See, e.g., Tollett v. Henderson, 411 U.S. 258 (i973).
43. Annual Report of the Director of the Administrative Office of the United States Courts for
the Fiscal Year Ended June 30, X972, at 394 table D7 (i973). See generally D. NEWMAN, CONvicTioN-THE DETERMINATION oF GUILT OP INNOCENCE WITHOUT TRIAL (I966).
44. See Burger, Who Will Watch the Watchman?, 14 AM. U.L. REv. I, ii (z964); Burns,
Mapp v. Ohio: An All-American Mistake, '9 DEPAuI L. REv. 8o, xoo (1969); LaFave, Search and
Seizure: "The Course of the Trie Law . . .Has Not . . .Run Smooth," 1966 ILL. L.F. 255; Oaks,
supranote 34, at 731-32.
45. See, e.g., Barrett, PersonalRights, Property Rights, and the Fourth Amendment, 196o SUP.
CT. REV. 46, 54-55.
46. See, e.g., LaFave, Improving Police Performance Through the Exclusionary Rule-Part I:
Current Police and Local Court Practices,30 Mo. L. REv. 391 (1965); Oaks, supra note 34; Spiotto,
Search and Seizure: An EmpiricalStudy of the Exclusionary Rule and its Alternatives, 2 J. LEGAL
STUDIES 243 (1973); Comment, Search and Seizure in Illinois: Enforcement of the Constitutional
Right of Privacy, 47 Nw. U.L. REv. 493 (952).
47. J.SKOLNICK, supranote 40, at 212-29.
STANFORD LAW REVIEW
[VOL. 26: Page 102 7
criminal prosecutions. It is also true that neither the district attorney's
office nor the police department of Los Angeles, for example, paid any attention to the commands of the fourth amendment until the adoption of
the exclusionary rule forced them at least to consider the parameters of an
unconstitutional search and seizure. 8
Calculation of the costs of the exclusionary rule are even more difficult
to make. Undeniably, the exclusionary rule allows some criminals to escape
punishment. Perhaps for many persons, this is a sufficient reason to discard
the rule. A more sophisticated analysis, however, reveals certain problems
with such a view. First, it completely neglects the value of the rule, which
even if negligible must at least be considered. Second, it does not account
for the fact that the cases invoking the exclusionary rule disproportionately
involve nonvictim crimes, where the case for criminal punishment tends
to be weaker." And finally, over a wide range of crimes the efficacy of
punishment is by no means certain. Indeed, Professor Packer pointed out
that a major support for the due process model derives from "a mood of
skepticism about the morality and utility of the criminal sanction taken
either as a whole or in some of its applications. ' ' "° Yet skepticism is not total
disbelief. As long as the criminal sanction retains some utility, its weakening
through the exclusionary rule is a cost to society.
Yet one may dispute this proposition as well. The fact that deterrence
generally increases with the number of persons convicted does not mean
that it does so proportionately. Empirical observations may show that while
deterrence is great where convictions are many and small where convictions are few, the change in deterrence is minimal in many places in between these poles. More precisely, assume that the number of crimes is a
function of the number of convictions. The number of crimes may vary
enormously at extremes, so that a ioo percent chance of conviction might
produce noticeably fewer crimes than a 99 percent chance. And a zero
48. Compare People v. Cahan, 44 Cal. 2d 434, 445, 282 P.ad 905, 9ii ('955), with Parker,
POLICE 117, cited in Paulson, The Exchionary Rule and Misconduct by the Police, 52 J. Came. L. &
P.C. 255 n.3 (1961).
49. There are certainly a few areas, primarily involving nonvictim crime, in which the use of
the criminal law is so grossly inappropriate that even the roughest calculation will reveal costs con-
siderably exceeding benefits. See, e.g., J. KAPLAN, MARIJUANA-THE NEw PRoHIBIIor (197o). Yet
it cannot be said that nonvictim crime must always be relatively trivial or that such laws always fail
to command strong public approval. See text accompanying note io9 infra.
50. H. PACKER, supra note I, at 170. Professor Packer characteristically understated the matter
when he referred to mere skepticism. Others have gone further and have reached the conclusion that
the criminal sanction is unjustifiable both in utilitarian and moral terms. Professor Paul Bator
has phrased this criticism well: "[W]e are told that the criminal law's notion of just condemnation and
punishment is a cruel hypocrisy visited by a smug society on the psychologically and economically
crippled; that its premise of a morally autonomous will with at least some measure of choice whether
to comply with the values expressed in a penal code is unscientific and outmoded .... Bator, Finality
in Criminal Law and FederalHabeas Corpus for State Prisoners, 76 HARv. L. REv. 441, 442 (1963),
cited in H. PACKER, supra note I,at 170.
LIMITS OF EXCLUSIONARY
May 1974]
RULE
1035
conviction rate might result in many more crimes than a one percent rate.
Nonetheless, the amount of deterrence may vary very little along the domain of an intermediate number of convictions. If this is so, then releasing
a few more criminals will have little effect on deterrence.
This argument, however, is based on two hypotheses: that such an intermediate domain exists in which the change in deterrence with increasing
punishment is minimal and that present rates of punishment are on that
domain. Because neither of these assumptions is necessarily true, the conclusion that the exclusionary rule does not reduce deterrence of crime is
highly speculative at best.
Others argue that the exclusionary rule does not significantly affect society's interest in isolating dangerous individuals. They think unimportant
the relatively small number of such individuals freed by the exclusionary
rule, especially compared with the substantial number at large in the population at any one time. Even granting the validity of this claim, one still
reasonably might respond that the release of even one dangerous person
is a cost to society.
Finally, one must acknowledge that the exclusionary rule often allows
a criminal to escape punishment. Though one may scoff at the need for
retribution as irrational, hypocritical, and old-fashioned, it seems to lie deep
within the human psyche. The frustration of a popular need for retribution
is another factor that must be considered in making a utilitarian calculation
of the cost of the exclusionary rule.
III. Tim
PoLIcIAL PicE oF THE ExcLusioNARY RULE
The criminal system, therefore, is a political necessity in any democratic
country even if its costs and benefits cannot be calculated in a convincing
way. In fact, the political requirement of punishment for the sake of felt
justice indicates that something resembling our present criminal system
would survive a convincing demonstration that its utilitarian justifications
are inadequate and that criminals could be handled in nonpunitive ways.
It is precisely this feeling of justice that is outraged when an obviously
guilty person is released through application of the exclusionary rule. Unlike procedural protections such as the rights to counsel and to a fair trial,
which can be defended as preconditions to a reliable factfinding process,
the exclusionary rule lessens the probability of a rational determination of
guilt. The solid majority of Americans rejects the idea that "[t]he criminal
is to go free because the constable has blundered."51 Indeed, this public
dissatisfaction has recently become a major political force. Public opinion
5x. People v. Defore, 242 N.Y. 13, 21, 15o N.E. 585, 587 (1926) (Cardozo, J.).
io36
STANFORD LAW REVIEW
[Vol. 26: Page 1027
polls have shown an extremely high rate of disapproval of the courts for
their role in "coddling criminals,""2 and the prototype of these complaints
is enforcement of the exclusionary rule.
Popular hostility toward the rule arises from much more than the fact
that it interferes with our punishing people we regard as guilty. The disparity in particular cases between the error committed by the police officer
and the windfall given by the rule to the criminal is an affront to popular
ideas of justice. Indeed, this lack of proportionality demonstrates why the
exclusionary rule cannot be justified as a moral imperative preventing the
courts from soiling themselves with tainted evidence. 3 Proportionality is
a major element of our sense of justice. The lack of proportionality between
the crime and the punishment was shocking when Jean Valjean received
what amounted to a life sentence for stealing a loaf of bread, 4 and a similar
sense of injustice arises from the disparity between the police officer's error
and the failure because of it to punish one who has committed a serious
crime. One can, of course, conceive of many trivial police errors in the search
and seizure area that may end in the acquittal of guilty and, more significantly, dangerous persons. For instance, the police practices revealed in
Coolidgev. New Hampshire" are hardly incompatible with a moral society;
yet letting the defendant in that case go free perhaps is.
It is undeniably true, however, that in practice the exclusionary rule
rarely allows dangerous defendants to go free. In serious cases, there are
often other charges not weakened by the exclusionary rule, or sufficient
evidence of the crime charged apart from that unconstitutionally seized.
Moreover, the courts have shown a remarkable ability in the most serious
cases to stretch legal doctrine to hold doubtful searches and seizures legal.
The courts have often avoided applying the exclusionary rule in situations
in which the consequences of so doing would offend their own sense of
proportionality or reach beyond their view of what the public would toler52. GALLUP OPINION INDEx, REP. No. 45, at 12 (1969). Of those sampled, 2% thought that
courts deal too harshly with criminals; 75% thought that courts are not harsh enough.
53. One can admittedly defend the proposition that the exclusionary rule serves the interest
of judicial integrity over and above the interests of the particular defendant and of the deterrent
effect on police violations of constitutional rights. The rule, however, has been so justified by only
three Justices. See United States v. Calandra, 94 S.Ct. 613, 624 (1974) (dissenting opinion). Moreover, in actual operation, the rule would seem to injure judicial integrity far more than it serves
that end. And finally, any moral end that is served in the name of judicial integrity must be
balanced against our sense of injustice not only at letting a serious criminal go free, but at letting
him go free because of what may be a trivial error by the police.
54. V. HUGO, LEs MISgRABLES. Although his case is often cited as an example of draconian
punishment, jean Valjean actually received only a relatively short sentence for the theft. The conditions of his imprisonment then drove him to attempt escapes which resulted in his further punish-
ments.
55. 403 U.S. 443 (971) (conviction for "particularly brutal" murder of 14-year-old girl reversed on fourth amendment grounds; evidence from police seizure and subsequent search of defendant's parked car unconstitutionally obtained, where search warrant defective since not issued by
neutral magistrate, and search not within any recognized exception to warrant requirement).
May 1974]
LIMITS OF EXCLUSIONARY RULE
ate. It is very hard to believe, for example, that the decision in Abel v. United
States" would have been reached by the Court in any case other than one
involving a Russian spy. One cannot know, of course, whether the Court
was more influenced by the lack of proportionality itself or by its fears of
adverse public reactions to the obvious amusement which would pervade
the Kremlin if one of its chief spies were acquitted on the basis of an American constitutional right completely alien to Soviet jurisprudence.
In Wayne v. United States, 7 where a dead body was found illegally, the
relatively liberal Court of Appeals for the District of Columbia refused
to order its suppression, on the theory that it eventually would have been
discovered legally. The problem with this reasoning, of course, is that it
would make the exclusionary rule inapplicable to a high proportion of
presently unconstitutional searches and seizures. The decision should not
be particularly surprising, since courts often stretch and strain in serious
cases to avoid applying the exclusionary rule."
Such decisions may actually lower any adverse impact of the exclusionary
rule on crime control. But since the reasoning behind them is unacknowledged, covert, and usually disingenuous, public dissatisfaction with the rule
is not reduced. The exclusionary rule is still viewed as a statement that
evidence will be suppressed no matter how slight the police error in seizing
it (providing the error is of a constitutional dimension) and no matter how
crucial it is to conviction. It is not surprising that the rule's political price is
quite high.
Probably the major reason for the high political price of the exclusionary
rule is that, by definition, it operates only after incriminating evidence has
already been obtained. As a result, it flaunts before us the costs we must
pay for fourth amendment guarantees. Of course, the command of the
fourth amendment itself contemplates less than complete efficiency in criminal law enforcement. The problem is that the exclusionary rule rubs our
noses in it. In contrast, a sanction which actually prevents police violations
of the fourth amendment would permit many criminals to remain free
who would be caught either in a society which had no fourth amendment
rights or in a society, such as ours, where the rights are observed so imperfectly. Where guarantees of individual rights are actually obeyed by the
56. 362 U.S. 217 (ig6o). The Supreme Court, in a 5-4 decision, affirmed the conviction of
Rudolph Abel for conspiracy to commit espionage. The Court held a warrantless search of Abel's hotel
room by the FBI valid because Abel had abandoned the property. The only problem with the use of
the abandonment doctrine in this case is that Abel "abandoned" the hotel room only after being
arrested by federal authorities armed only with an administrative warrant for deportation. In his dissent Justice Brennan noted: "This is a notorious case, with a notorious defendant. Yet we must take
care to enforce the Constitution without regard to the nature of the crime or the nature of the
criminal." Id. at 248.
57. 3x8 F.2d 205 (D.C. Cir. x963).
58. I personally have never known of a case where a dead body was ultimately ordered suppressed.
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police, criminals are not discovered and thus no shocking cases come to
public consciousness. When we apply the exclusionary rule, however, we
know precisely what we would have found had constitutional rights been
violated (because, of course, in these cases they were violated), and we
are forced to witness the full, concrete price we pay for these guarantees.
It is true that many criticisms of the exclusionary rule mask fundamental objections to the rights it protects." One does not have to oppose fourth
amendment values, however, in order to object to the exclusion of evidence.
There are many cases where police have both the cause and the opportunity
to get search warrants but fail to do so. Sometimes a warrant is obtained but
subsequently held to be defective. And often the police fail to knock appropriately before making an otherwise legal search. In these situations, it
is probable that the criminal would have been caught even if the police had
followed fourth amendment requirements." It is in such cases that application of the exclusionary rule is most clearly a windfall to the criminal.
The political price of the exclusionary rule, it should be made clear, is
not limited to the silent majority. The police also believe the rule is illegitimate and, as a result, it lacks the moral sanction which is so important to
effective deterrence. It is true that the police often do not hold the requirements of the fourth amendment itself in great esteem-in part because of
their very complexity; in part because they are seen to be made by judges
who have little conception of reality on the streets; in part because they
are so easy to evade; and in part because they so often are the result of
split decisions among judges all of whom, the police feel, should know
the law equally well 1 There are many other reasons rooted in the police
force's organizational structure and the policeman's conception of his role
which lead him to regard the constitutional restraints upon him as illegitimate.9 There are, however, degrees of illegitimacy, and the exclusionary
rule is regarded as even less legitimate than the restraints it is intended to
enforce. The result is that a substantial percentage of policemen take the
view that two wrongs make a right and that perjury is a permissible method
of avoiding the sanction.63 In addition, many trial judges, who are generally
59. E.g., Inbau, Public Safety v. Individual Civil Liberties: The Prosecutor'sStand, 53 1. Capm.
L.C. & P.S. 85 (x962); Statement of Chief of Police of Los Angeles, L.A. Times, Apr. 28, 1955,
cited in Barrett, Exclusion of Evidence Obtainedby Illegal Searches-A Comment on People v. Cahan,
43 C.LIF. L. Rav. 565, 567 (1955).
6o. Compare Sibron v. New York, 392 U.S. 40 (1968) (frisk without reasonable suspicion;
heroin found in defendant's pockets), and Davis v. Mississippi, 394 U.S. 72X (1969) (detention
without probable cause; incriminating fingerprints taken), with Coolidge v. New Hampshire, 403
U.S. 443, 449-55 (197) (search warrant issued by prosecutor; neutral magistrate available), and
Spinelli v. United States, 393 U.S. 410 (1969) (affidavit underlying search warrant invalid because
unreliable; facts showing informant's reliability presumably could have been stated).
61. See J.SKOLNICK, supra note 40, at 2X2-29.
62. See W. LAFAvE, ARREST: THE DEcIsION TO TAKE A SUsPer Iro CUSTODY 210-I (1965);
J. SKoNICK, supra note 40, at 219-29.
63. See generally J. WAmBAuG5H, THE BLUE KNIrr 178-220 (972), and sources cited note 40
supra.
May 1974]
LIMITS OF EXCLUSIONARY RULE
1039
less removed than the Supreme Court from popular opinion and the political process, share police attitudes. At best they are ambivalent, and in
many cases they are eager to believe the police where doing so will prevent
the imposition of the exclusionary rule.6"
As a result, the United States Supreme Court is under constant pressure
to shape its substantive rules in order to minimize the number of opportunities for sabotage by the lower federal and state judiciaries through their
control of factfinding. The effect of this pressure has been most dramatic
in the fifth amendment area. There the Supreme Court repeatedly was
presented with findings of voluntary confessions in situations where the
records made coercion quite likely. Powerless to overturn such findings of
fact, the Supreme Court stretched the definition of coercion to include the
lower courts' factual determinations. As a result, the Supreme Court found
coercion in progressively less aggravating situations." Gradually this procedure became almost as disingenuous as the lower courts' decisions.
In the fourth amendment area the best example of this process does not
come from the Supreme Court, but from the Court of Appeals for the District of Columbia, one of the relatively few intermediate appellate courts
which vigorously enforces the exclusionary rule. In a number of cases, police
had justified otherwise illegal searches on the basis of a consent which was
hotly denied by the defendant. The court of appeals accepted the lower
courts' factual determination that the policeman had told the truth, but
ordered exclusion of the evidence by applying a definition of consent
which was at best artificial. In Judd. v. United States,"6 for example, the
court distinguished true consent from "the false bravado of the small time
criminal."
In both the fifth and the fourth amendment contexts, the pressure on
appellate courts to prevent lower court sabotage has disturbed the nature
64. See Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45
N.Y.U.L. R:Ev. 785, 792 (970).
65. Compare Brown v. Mississippi, 297 U.S. 278 (936) (confession made following hanging
from a rope and repeated whipping held involuntary), with Haynes v. Washington, 373 U.S. 503
(1963) (confession made following 16-hour incommunicado detention held involuntary), and Greenwald v. Wisconsin, 39o U.S. 519 (1968) (confession made x2 hours after arrest, during which
time defendant was questioned periodically, held involuntary). For a more complete development of
this thesis, see Amsterdam, supra note 64, at 803-1o.
66. 19o F.2d 649, 651 (D.C. Cir. x951). The defendant was arrested on suspicion of grand
larceny, and police questioned him in jail. They asserted that he had volunteered his consent to their
searching his apartment for evidence of the crime. Despite the defendant's denial of the police version
of the conversation, the judge believed the police, held consent had been given, and refused to exclude
the incriminating evidence found. The police testified that "he said he had nothing to conceal or hide
out there, and it was perfectly all right for us to go out there." Id. at 650.
In reversing the trial court, the court of appeals took note of the remarks of the trial judge:
"The two police officers impressed the Court as gentlemen of probity. The defendant is unworthy
of belief, because of his past conflicts with the law.
"He certainly is not entitled to ask the Court to accept his word as against officers of the law."
Id. at 652 n.8. The court refused to overturn the findings of fact, but did not interpret them as consent.
See also Higgins v. United States, 2o9 F.2d 819 (D.C. Cir. 1954).
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of the rules applied. The result, however, has been rules which are less defensible on rational grounds and thus less acceptable to both police and the
public.
Probably the most important political price inherent in the administration of the exclusionary rule, however, is simply that the Supreme Court
is only temporarily isolated from public opinion. Whether it is true in the
words of Finley Peter Dunne that "the Supreme Court follows the election
returns,"67 it is clear that the Presidents who appoint Supreme Court Justices follow the election returns.68 Before his appointment, our present Chief
Justice had publicly called for the restriction and eventual abolition of the
exclusionary rule." It is fairly clear that this position, together with his related attitudes on crime control, was a major factor in his attractiveness to
the President."0 His and other appointments were defended as an effort to
give a kind of balance to the Court on crime control versus due process
issues7 So far as the exclusionary rule was concerned, however, it did not
appear to be balance that the President was seeking, but rather the victory of
crime control values. For the time being, the exclusionary rule has escaped
destruction at the hands of the appointment process, but only the greatest
accidents of fate have allowed its survival. Had fate decreed that two additional vacancies appear on the Supreme Court before Watergate and its related imbroglios, the exclusionary rule already could have met a swift and
untimely end. For the present it probably is protected not only by a majority
of the present Supreme Court,;2 but also by a considerable weakening of the
President's power to work his will through the appointment process.
Actually, the results of Watergate have been quite complex. It has caused
those in power, who had won their mandate in great part on a law and
order ticket, to reexamine the premises of their own views. As of the 1972
elections, it would have been inconceivable for then Vice President Agnew
to denounce publicly what he felt to be government excesses in overreaching
an accused. Interestingly, the two major examples of overreaching he cited,
the promise of immunity to prosecution witnesses and the fact that a pro67. F. DUNNE, MR. DOOLEY ON THE CHOICE OF LAW 52 (compiled by E. Bender i963).
68. See L. KOHLMEIER, JR., GOD SAVE THis HONORABLE COURT: THE SUPREME CoURT Cuss
(1972); Kahn, On the Appointment of Justices to the Supreme Court (Book Review), 26 STAN.
L. Rav. 689 (i974).
69. See Burger, supra note 44. The Chief justice has reiterated these views in Supreme Court
opinions. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 411-24 (971)
(dissenting
opinion).
70. N.Y. Times, May 22, 1969, at i, col. 8; id., May 23, 1969, at x,col. i.
7x. Id., May 23, 1969, at x, col. i.
72. Justices Douglas, Brennan, and Marshall have indicated their satisfaction with the exclusionary rule. For a recent expression of their view, see United States v. Calandra, 94 S. Ct. 613, 624 (1974)
(Brennan, J., dissenting). Justices White and Stewart have been reluctant to overturn or restrict past
decisions, even those with which they originally disagreed. See, e.g., Kirby v. Illinois, 4o6 U.S. 682,
705 (1972) (White, J., dissenting).
May 1974]
LIMITS OF EXCLUSIONARY RULE
1041
spective defendant has no right to cross-examine witnesses before a grand
jury,'" are both practices as old as the Republic. Presumably they were
known to the Vice President since his bar examination days and were entirely unobjectionable until he himself became a prospective criminal defendant.' Similarly, the President's dedication to the rights of privacy
would have seemed equally incomprehensible at the time of his enormous
mandate, and it is fairly clear that he, too, has had second thoughts about
the rights of the criminal defendant.
We should not forget, however, that the events of the past year have been
more than unusual in our constitutional history. If the exclusionary rule is
temporarily safe, the political unpopularity of the rule remains; it is likely
that with another one or two swings of the pendulum, it will be in great
jeopardy again.
IV.
PROPOSED
MODIFICATIONS
OF THE EXCLUSIONARY RULE
The present exclusionary rule, therefore, has many obvious and serious
defects. Increasing attention is being given to its future. The remainder of
this Article will be devoted to exploring the modifications that might profitably be made in the rule.
A. The Amsterdam Suggestions
In his recent Holmes Lectures, my colleague, Anthony Amsterdam, has
suggested a number of major changes in our whole way of looking at the
fourth amendment. He has suggested, for instance, that the basis of fourth
amendment interpretation be changed from an atomistic view, which asks
whether the particular rights of the individual defendant have been violated, to a regulatory view, which asks whether the police practice in question, taken as a whole, is unreasonably intrusive. As a result, he would
expand the exclusionary rule to cover those cases where the particular individual taking advantage of that rule had not himself suffered an unconstitutional search or seizure. 6
Secondly, Professor Amsterdam would use the exclusionary rule as a
prophylactic measure to confine a legitimate police practice to its theoretical
justification. He would, therefore, apply the rule not only to punish police
who had behaved improperly, but also to make sure that there is no incentive for them to do so." Thus, if police observed a sawed-off shotgun on
73. N.Y. Times, Oct. x6, 1973, at 34, col. x.
74. Compare statements made by Mr. Agnew during the 1968 campaign. Id., Sept. 16, 1968, at
x6, col. i.
75. 1974 State of the Union Address, reprinted in id., Jan. 31, 1974, at 20, col. I.
76. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REv. 349, 367-72 (1974).
77. Id. at 433-38.
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the floor of an automobile during a legitimate vehicle stop for a license
check, the evidence would be suppressed. The reason for this would not
be to punish the police for behaving improperly, but rather to assure that
their decisions to institute license checks would not be tainted by any impermissible motive.1 8 Similarly, Professor Amsterdam would restrict the admissible evidence produced by a stop-and-frisk to that related to the only theoretical ground for the police practice-a search for weapons. For example,
if the "hard object which felt like a weapon" turned out to be a container of
heroin, it would be suppressed not because it was found illegally, but because otherwise the police would have an incentive to frisk when they were
not in fact concerned about weapons."9
Professor Amsterdam's suggestions are administrable and thoughtful
answers to the problem of insuring privacy and preventing evasion of fourth
amendment commands. In both cases, however, they seem politically impossible to implement. The trend is in quite the opposite direction. It is likely
that no matter how well articulated and argued such propositions might be,
they simply could not secure the consensus which would be required not
only for adoption by the Supreme Court but also for lasting public acceptance. It is difficult enough to apply the current formulation of the exclusionary rule to let an apprehended criminal escape justice where the police
have done something wrong and where the defendant's rights have been
violated. Where neither is the case, the political costs of the exclusionary
rule simply price it out of the market. Indeed, the society enlightened
enough to apply such rules might not need an exclusionary rule at all.
Professor Amsterdam's most significant suggestion, however, raises a
more complicated issue. He urges that the fourth amendment be held to
require the police to develop departmental rules governing the activities
of its officers in the search and seizure area. 0 Starting with Professor Kenneth Culp Davis, a number of commentators have underlined the importance of written police rules in the governance of police conduct.8 Certainly,
such rules are enormously important in restraining the police. There is
no doubt that the adoption of detailed departmental rules of police conduct
78. Id. at 438.
79. Id. at 436-38.
8o. Id. at 4s6-3s.
81. See, e.g., K. DAvis, DIscREIoNARY JusrIE-A PRELIMINARY INQUIRY (971); McGowan,
Rule-Making and the Police, 70 MiCH. L. Rav. 659 (1972); Wright, Beyond Discretionary Justice
(Book Review), 8i YAaE L.J. 575 (x972).
82. Professor Amsterdam lists many advantages of a requirement of rules promulgated by the
police. These include the following: (I) it provides a pervasive safeguard against arbitrary searches
and seizures without creating new exceptions to the fourth amendment, (a) it generates none of the
problems of unclarity and unintelligibility which plague a graduated fourth amendment, (3) it
would restrict the proliferation of police practices which arise in part out of a desire to avoid courtmade rules, and (4) it would permit courts to extend the coverage of the fourth amendment to police
activities which require controls other than warrants and probable cause requirements. Amsterdam,
rupranote 76, at 418-22.
May 1974]
LIMITS OF EXCLUSIONARY RULE
in the search and seizure area would considerably help control police misbehavior and protect fourth amendment values. Since Professor Amsterdam
is the first person to have suggested that the fourth amendment commands
the promulgation of such rules, it is hard to predict whether his suggestion
will soon be adopted. In our jurisprudence, where many extremely important decisions are already made by judges far from the political arena, the
very fact that a sweeping principle is completely new may be enough to
doom it, at least for awhile."3 On the other hand, it certainly is not beyond
the realm of possibility that federal legislation could be passed imposing
such a requirement upon the police. Whether or not the drawing of rules
in this area is required by the fourth amendment, the suggestion is certainly
related closely enough to the enforcement of constitutionally protected
values to make the requirement of police rules an appropriate subject for
congressional legislation under section five of the L4 th amendment."'
How then would the requirement of police regulations affect the exclusionary rule? Professor Amsterdam comprehends that a search and seizure
made in violation of the commands of the police regulations would itself
lead to the exclusion of evidence." Since presumably conduct which is
presently illegal would not be legalized even under appropriate regulations,
evidence would be excluded in an additional category of cases. Such a solution, however, might only aggravate the problem. Even though police regulations, drafted and publicized, would almost inevitably produce some
improvement in police behavior in the search and seizure area, litigation
over their meaning and applicability could produce an even more complicated morass than at present. Regulations, at least in their early years, would
often be extremely vague and subject to differing interpretations. In addition, the regulations inevitably would fail to cover certain unanticipated
situations or else simply contain errors. Anyone who has attempted to start
almost from scratch to draft disciplinary regulations for a university or to
bring law to any area in which it has not developed over the years knows
how difficult and fraught with error the job is.8" These caveats do not argue
against drafting police regulations; they merely emphasize that expanding
the exclusionary rule to cover conduct violative of the regulations would
only increase an already excessive strain upon the rule.
83. The recent rejection of a constitutional attack on school financing is just one example of
this phenomenon. See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
84. Cf. Oregon v. Mitchell, 400 U.S. 112 (1970); Katzenbach v. Morgan, 384 U.S. 641 (x966).
In these two cases, the remedies referred to rights explicitly granted by the x4 th amendment. Whether
§ 5 extends to rights which are incorporated in the 14 th amendment is still unsettled. Since the
exclusionary rule is designed as a remedy against police abuses, however, it seems particularly suited
to the purposes of § 5. Of course, it is by no means certain that such a legislative intrusion into police
governance ispolitically feasible today.
85. Amsterdam, supra note 76, at 416-3i.
86. Cf. Linde, Campus Law: Berkeley Viewed from Eugene, 54 CALIF. L. REv. 40 (x966).
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B. The InadvertenceTest
What then can be done to ease the burden on the exclusionary rule while
still attempting to protect fourth amendment values? One superficially
tempting modification would be to hold the rule inapplicable where the
constitutional violation by the police officer was inadvertent." The exclusionary rule, we are usually told, is intended to deter violation of constitutional rights by police.88 Presumably, a policeman will be deterred either
because the rule simply informs him that there is no point in conducting
an illegal search and seizure or because the department will turn its anger
on him for allowing a criminal to go free. 8 If these are the reasons for the
exclusionary rule, it makes little sense to apply it to cases in which the policeman did not know his violation was illegal." Moreover, if one regards the
exclusionary rule as a moral imperative, it certainly seems less of one where
the policeman's offense is inadvertent and hence less culpable.
There are, however, basic problems with such a modification of the rule.
It would put a premium on the ignorance of the police officer and, more
significantly, on the department which trains him. A police department
dedicated to crime control values would presumably have every incentive
to leave its policemen as uneducated as possible about the law of search and
seizure so that a large percentage of their constitutional violations properly
could be labeled as inadvertent. Nor would it suffice further to modify the
rule and require that the police error be reasonable as well as inadvertent.
While such a standard would motivate a police department to insure that
its officers made only reasonable mistakes, it is hard to determine what
constitutes a reasonable mistake of law. Moreover, the exclusionary rule is
already held inapplicable where a policeman makes a reasonable factual
mistake. 1
87. I use inadvertent to refer to those actions which the police do not know are illegal at the
time they commit them. This terminology should not be confused with the type of inadvertence
defined by Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 469-73 (1971): the police
had been sufficiently unaware of the existence of items seized in a plain view search that their failure
either to get a warrant for them or to describe them in a warrant already obtained did not amount to
avoidance of fourth amendment requirements. Obviously, this situation is entirely different from one
in which the police were unaware of the illegality of their action.
88. See, e.g., Elkins v. United States, 364 U.S. 206, 217 (ig6o): "The rule is calculated to
prevent, not to repair. Its purpose is to deter-to compel respect for the constitutional guaranty
in the only effectively available way-by removing the incentive to disregard it."
89. See, e.g., Elkins v. United States, 364 U.S. 206, 217 (I96O); Wolf v. Colorado, 338 U.S.
25, 47 (1949) (Murphy, J., dissenting).
9o. Courts generally do not focus upon the policeman's inadvertence. Yet this consideration
may be viewed as a sub silentio basis for the Supreme Court's opinion in Stovall v. Denno, 388 U.S.
293 (1967). The usual rule in nonretroactivity cases makes the relevant date that of the trial itself,
irrespective of when the police practice in question occurred. See, e.g., Johnson v. New Jersey, 384
U.S. 719 (x966). By holding in Stovall that the rules announced applied only to those lineups conducted after the date of decision, the Court implied that police knowledge of the illegality of the
lineup is an important factor. See Schaefer, The Fourteenth Amendment and Sanctity of the Person,
64 Nw. U.L. Rav. 1, 15-17 (i969).
gi. E.g., United States v. Robinson, 94 S. Ct. 467 (i973) (hard object seized during a traffic
May 1974]
LIMITS OF EXCLUSIONARY RULE
1045
There is a more serious problem with exempting searches made through
inadvertent errors of law from the exclusionary rule. To do so would add
one more factfinding operation, and an especially difficult one to administer, to those already required of a lower judiciary which, to be frank, has
hardly been very trustworthy in this area. It is difficult enough to administer
the current exclusionary rule, since police perjury can, and often does, prevent accurate findings of fact." So long as lower court trial judges remain
opposed on principle to the sanction they are supposed to be enforcing, the
addition of another especially subjective factual determination will constitute almost an open invitation to nullification at the trial court level. In
order to suppress evidence, the trial judge would have to find a deliberate
constitutional violation, and evidence of the officer's state of mind would
be generally difficult to come by apart from the officer's self-serving and
generally uncontradicted testimony. And since the necessary finding requires proof that a policeman actually has engaged in a criminal act, the
defendant's burden of proof would be increased, as a psychological or perhaps even as a legal matter."
C. Two PracticalModifications
There are two ways, however, in which reduction in coverage will improve the exclusionary rule. The first is aimed primarily at reducing the
political and enforcement costs of the exclusionary rule. The second is
much more complicated and is directed toward increasing the benefits of
the rule in reducing the number of fourth amendment violations in our
society. These two modifications are independent, so that a disagreement
with one does not require rejection of the other.
For those who are wedded to the present rule, and even more for those
who would expand it, any restriction would be a retreat in the face of the
enemy, a cutting back when it is most necessary to hold firm.94 A cutting
back of the exclusionary rule, however, can also be regarded as a pruning,
a method of making it more acceptable and hence more lasting; it is indeed a method of giving more, not less, protection to fourth amendment
values.
arrest and subsequent search for weapons held admissible, although actually a cigarette package containing heroin); see text accompanying note 79 supra.
92. See sources cited note 40 supra.
93. It is always easier to convince jurors that a person's illegal action was inadvertent than it is
to convince them it was purposeful. See R. KETON, TRiAL TAcaics AN MEaos 291-92 (2d ed.
1973). This is particularly true when the actor is a police officer. The defendant's burden might be
increased even as a matter of law. For example, the burden of proof to justify a warrantless search is
on the prosecution. If the defendant must show that the police have engaged in a criminal act in conducting the search, then the burden of proof would shift to the defendant. See CAL. Evro. CODE § 520
(West x966).
94. See text accompanying note 117 infra.
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The "seriouscases" exception.
The first proposed modification of the exclusionary rule is a simple one.
It would provide that the rule not apply in the most serious cases-treason,
espionage, murder, armed robbery, and kidnaping by organized groups.
Even in such cases, some police violations would still invoke the exclusionary rule. The Rochin v. California'sstandard would still survive, so that
evidence would be suppressed if the violation of civil liberties were shocking enough. The modified exclusionary rule, then, would at least preclude
exclusion of evidence where the police misconduct was far less serious than
this. It may be, however, that a set of "core" rules, more specific than the
Rochin test, could be developed, violations of which would lead to invocation of the exclusionary rule. Yet under either variation, the mere fact of
a fourth amendment violation would not require the exclusion of evidence
in the relatively small class of the the most serious cases.
One can, of course, argue against such a rule as unnecessary since the
courts are following it anyway," albeit covertly. Insofar as this is true, it is
a good reason for adopting the rule straightforwardly. For by purporting
to apply the exclusionary rule in all classes of cases without actually doing
so, the courts are paying the full political price without any real gain. Unfortunately, a major disadvantage of an empty threat is that sooner or later
its objects realize its hollowness. Finally, the lack of integrity inherent
in a false threat seriously weakens respect for the judicial process. On the
other hand, if the courts are in fact presently applying the exclusionary
rule to the most serious crimes, the political costs of the rule, the possibility
of releasing serious and dangerous offenders into the community, and
the disproportion between the magnitude of the policeman's constitutional
violation and the crime in which the evidence is to be suppressed are suffident reasons to modify the rule now.
The suggestion that the exclusionary rule not apply to the most serious
crimes is quite different from that made some 25 years ago by Justice Jackson in Brinegarv. United States." In his Brinegardissent, Justice Jackson
proposed that the content of police practices under the fourth amendment
should depend in part upon the crime under investigation. To use his example, an undiscriminating roadblock might be justified in searching for a
child-kidnaper, but never justified "to salvage a few bottles of bourbon." 8
Certainly, the purpose of the police is one factor in determining the reasoni.
95. 342 U.S. 165, 172 (1952) (police's illegally breaking into bedroom of defendant, struggling
to open his mouth to remove pills swallowed, and forcibly extracting his stomach's contents is "conduct that shocks the conscience").
96. But tee, e.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971).
97. 338 U.S. 16o, i8o (1949) (dissenting opinion).
98. Id. at 183.
May 1974]
LIMITS OF EXCLUSIONARY RULE
ableness of their actions, and reasonableness implies a proportionality between means and ends. Yet the Supreme Court has never adopted Justice
Jackson's view, presumably because such a rule would raise grave problems
of administrability. Often the court would simply have to take the policeman's word as to what crime he was investigating. Administrative difficulties in the stop-and-frisk area illustrate this point. Regardless of what
they find, policemen almost always claim to be looking for weapons.99
The suggestion that the courts refuse to apply the exclusionary rule in the
most serious cases does not raise the same problem. All any court need do
to apply the variation suggested is to look at the crime charged.
There is admittedly one serious problem with this proposed modification of the exclusionary rule. Police departments, freed from the constraints
of the rule in the most serious cases, might actively encourage violation of
the fourth amendment. If so, the "core values" could be held to be violated
and the exclusionary rule applied. The invocation of the exclusionary rule
in such cases, however, may not be necessary. In investigations of the most
serious offenses, unlike the ordinary instances of police invasion of the citizen's fourth amendment rights in less serious cases, remedies other than the
exclusionary rule may be effective. The political consequences to the police
department, the threat of damage suits by large numbers of people against
top-level police officers,"' and the possibility of injunctive relief 10' might
well be at least as good a check upon this kind of wholesale police misconduct as is the present exclusionary rule.
It must frankly be admitted that the deterrent effect of such restraints
is a matter of conjecture. The effect of eliminating the exclusionary rule
in the most serious cases might possibly be to give the police somewhat more
liberty to violate the fourth amendment. Though such an effect, if it existed,
would be a serious disadvantage, it might still be preferable to the enormous
lack of proportionality and other costs evident in the present shape of the
exclusionary rule.
In addition, there are clear advantages in not applying the exclusionary
rule to the most serious crimes. Freed of the concern that the fourth amendment doctrine they announce would later result in the release of people
guilty of the most serious crimes, judges would be able to interpret more
fully and honestly the commands of the fourth amendment in all the remaining cases. Such a result would not be surprising. Increases in the range
of the exclusionary rule sanction tend to cause the contraction of the substantive rights protected. After Mapp v. Ohio,' for example, the Court
99. See, e.g., United States v. Robinson, 94 S. Ct. 467 (1973).
ioo. See 4 2U.S.C. § x983 (1970).
zoi. See, e.g., Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966).
102.
3
67U.S. 643 (196i).
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[Vol. 26: Page 1027
seemed reluctant to expand the scope of the fourth amendment." 3 In fact,
Mapp's expansion of the exclusionary rule to include state as well as federal
enforcement officials arguably has produced a decrease in the kind of police
behavior held illegal.""
The application of a more stringent exclusionary rule to prosecutions
for certain crimes is different from the sliding scale model which Professor
Amsterdam discusses and then properly rejects. 0 5 Under that model, degrees of increasing governmental intrusion into an individual's privacy
must be supported by ever greater showings of cause. Professor Amsterdam
rightly dismisses this approach as unadministrable, at least in today's world
where we can hardly count upon full cooperation from the lower courts."'
Focusing, however, on the crime in which the exclusionary rule operates
is certainly no less and probably more administrable than our present exclusionary rule.
There are, moreover, several possible doctrinal rules one might adopt
concomitant with a decision not to apply the exclusionary rule in the most
serious cases. One could, for example, apply the rule more vigorously in all
the remaining cases. As a result, the constructs of standing and attenuation
of taint, which now operate almost randomly to narrow the exclusionary
rule, might be eliminated. Alternatively, one could divide the remaining
crimes into two categories: victim crimes, for which the present exclusionary rule would be retained; and nonvictim crimes, to which the application of the exclusionary rule would be more vigorous. As Professor Packer
has pointed out, in the nonvictim crime area police activity usually represents a considerably more significant intrusion into the privacy of the citIO3. See, e.g., United States v. Calandra, 94 S. Ct. 613 (1974) (witness may not refuse to
answer questions of grand jury on ground that questions are based on evidence illegally seized); Terry
v. Ohio, 392 U.S. i (1968) (warrant and probable cause requirements do not fully apply to stopand-frisk); Camara v. Municipal Ct., 387 U.S. 523 (1967) (specific probable cause requirement does
not apply to administrative inspections for housing code violations).
104. See, e.g., United States v. Robinson, 94 S. Ct. 467 (x973). See generally Ker v. California,
374 U.S. 23, 44 (1963) (Harlan, J., concurring).
io5. Amsterdam, supranote 76, at 376-77, 390-95.
io6. See text accompanying note 40 supra. Even more unadministrable and hence similarly to
be rejected is the solution suggested by the American Law Institute Model Code of Pre-Arraignment
Procedure.It suggests that the exclusionary rule not be invoked unless the violation is "substantial,"
and goes on to provide: "In determining whether a violation is substantial the court shall consider
all the circumstances, including:
(a) importance of the particular interest violated;
(b) the extent of deviation from lawful conduct;
(c) the extent to which the violation was willful;
(d) the extent to which privacy was invaded;
(e) the extent to which exclusion will tend to prevent violations of this Code;
(f) whether, but for the violation, the things seized would have been discovered; and
(g) the extent to which the violation prejudiced the moving party's ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in
evidence against him." AmEscAs LAw INsrrruT, A MODEL CoDE OF PaE-ARRAIONmENT PaocanuRa
§ SS 290.2 (2) (Off. Draft No. 1, 1972). It is hard to conceive of a less administrable standard than
this.
May 1974]
LIMITS OF EXCLUSIONARY RULE
1049
izen.Y7 Moreover, the most common nonvictim offenses are relatively minor, and in these cases the use of the criminal sanction itself commands a far
lesser degree of public acceptance 0 ° As a result, in such cases the political
harm done by a more vigorous invocation of the exclusionary rule would
be much less. There are, however, two major problems with dividing crimes
into nonvictim and victim categories. First, some nonvictim crimes, such as
pornography, may cause great public indignation. Second, although everyone can distinguish the seriousness of the most dangerous crimes from the
rest of criminal activity, it may be very difficult for courts rationally to differentiate between at least some nonvictim crimes and fairly serious offenses
with victims. One generally might tend to regard nonvictim crime as less
serious, but certain victimless crimes such as sale of heroin may be quite
dangerous. It might be tempting to increase the severity of the exclusionary
rule in only the less serious of the nonvictim crimes, such as gambling, prostitution, and marijuana offenses. However, determining the seriousness of a
nonvictim crime often depends upon pharmacological effects which raise
serious issues of legislative fact for the courts in framing constitutional or
"quasi-constitutional" law. For instance, one who regards marijuana as the
"killer weed," a producer of insane homicidal rages in those who are addicted to it, would take a different attitude toward crimes involving the
drug than would one who considers it a tranquilizer of comparatively
modest danger.0 9
Removing the application of the exclusionary rule from the most serious
crimes does not necessarily imply any of these additional modifications.
Some of these might unduly complicate this already complex area. Moreover, we would have to know more about public and police attitudes before
we could confidently predict the political effect of a more rigorous use of
the exclusionary rule in the nonvictim crime area. However these issues are
resolved, the fact remains that the case for eliminating serious crimes from
the coverage of the rule is a strong one.
107. H. PAcKER, supra note i, at 284.
xoS. The Michigan constitution, however, exempts from the scope of the exclusionary rule
any drug or narcotic: "The provisions of this section shall not be construed to bar from evidence in
any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon,
seized by a peace officer outside the curtilage of any dwelling house in this state." MieH. Cozs-r. art.
I, § H (emphasis added).
1o9. Of course, to some extent courts do draw distinctions among nonvictim crimes today,
though not on the doctrinal level. It is hard to read the mass of appellate search and seizure decisions
without getting a distinct feeling that a police action which the courts would uphold where the search
produced heroin would not always be held valid when only marijuana was found. Compare United
States v. Page, 302 F.2d 8. (9th Cir. 1962), ,withHiggins v. United States, 2o9 F.2d 8ig (D.C.
Cir. 1954). Indeed, this practice is much clearer in the trial courts, where every defense lawyer
knows that his chances on a motion to suppress will depend to a great extent on whether his client
has been apprehended with marijuana or with heroin. The fact that judges today can distinguish
between marijuana and heroin does not mean that they could do so 5 years ago. And it does not mean
that they can distinguish between LSD and either marijuana or heroin today.
I050
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[Vol. 26: Page 102 7
2. The exclusionaryrule andpolicedepartmentbehavior.
The second and more significant modification I would suggest in the
exclusionary rule is related to the controversy over police department behavior. There is no doubt that a major defect in the exclusionary rule is its
neglect of the basic sociological principle that organizations mediate individual action. The exclusionary rule, which appears to be focused upon the
misbehavior of the individual policeman, does not take into account the
fact that the policeman approaches his job with departmental expectations,
with his own departmental training, either official or unofficial, and with
the fear of departmental discipline for improper conduct. These departmental rewards and sanctions are far more important to him than the threat
of exclusion of any evidence he might illegally seize. Before the introduction of the exclusionary rule, one might have predicted that a police department angered by the exclusion of evidence in a particular case would move
against the offending officer, or at least take seriously training him to make
certain that the illegality did not occur again. Apparently, this a priori
assumption has been falsified by experience under the rule. Instead of disciplining their employees, police departments generally have adopted the
attitude that the courts cannot be satisfied, that the rules are hopelessly complicated and subject to change, and that the suppression of evidence is the
courts' problem and not the departments'.11
The focus of the exclusionary rule, therefore, should be changed so that
its application is directed against the police department itself, as well as
against the misbehavior of the individual police officer. The police hierarchies, more than the courts, have the initial responsibility for protecting
fourth amendment values. The exclusionary rule is a step of last resort, an
attempt by the courts to enforce the fourth amendment when the police
departments have proven unwilling to do the job. One might be tempted
to say "unwilling or unable," but this is a temptation to be resisted. The
sanction of the exclusionary rule works so indirectly against the individual
patrolman that it cannot be defended as a primary influence upon his conduct. Rather, it is best seen as a device to make police departments compel
obedience from their men. Insofar as the police hierarchies are unable to
compel their men to respect the fourth amendment, even an exclusionary
rule which motivates them to try is a failure. To that extent, it is simply
not worth whatever price we pay for it.
The second proposed modification, therefore, is to hold the exclusionary
rule inapplicable to cases where the police department in question has taken
seriously its responsibility to adhere to the fourth amendment. Specifically,
departmental compliance would require a set of published regulations
ixo.
See J. SKoLNICK, supra note 40,
at 212-29.
May 19741
LIMITS OF EXCLUSIONARY RULE
giving guidance to police officers as to proper behavior in situations such
as the one under litigation,"11 a training program calculated to make violations of fourth amendment rights isolated occurrences, and, perhaps most
importantly, a history of taking disciplinary action where such violations
are brought to its attention." 2
Such a modification of the rule would require a somewhat more elaborate procedure at the suppression hearing. First, the judge would make a
finding whether the defendant's fourth amendment rights had been violated."' If the judge decided that no violation had occurred, the evidence
would be admitted, subject only to appeal. On the other hand, if the judge
found a search and seizure unconstitutional, he would not automatically
exclude the evidence obtained. Rather, he would announce his decision and
give the prosecutor an opportunity to make the next move. At this point
the prosecutor would be permitted, and would have every incentive, to ask
the judge for a further hearing on the police department's regulations,
training programs, and disciplinary history. Presumably, the hearing on
such a motion need not be very lengthy, for generally the records of the
police department would settle all the factual issues.
The burden of proof would be placed on the prosecution to show that
the police complied with its standards. This allocation does not force the
defendant to discover police records. It also makes the task of appellate review easier. A trial judge cannot hold a police department in compliance
simply because he does not believe a defendant. Rather, he must check to see
whether the department's evidence proves its case. Indeed, the major difficulty in such hearings would not be factfinding but rather drawing
ui. For instance, the police department regulations might require approval of a sergeant or
higher official before any electronic eavesdropping equipment was used. Cf. is U.S.C. § 2516(1)
(970). The higher officials presumably would be instructed in greater detail as to precisely when
such equipment might be used without a warrant. Similarly, police might be instructed in some detail as to when they might open the trunk of a car whose driver is under arrest.
Other regulations might cover stop and frisk, search incident to arrest, the determination of the
reliability of informants where such information is necessary to justify searches and seizures, and
many other issues.
112. There are, of course, different rules one could adopt to put pressure on the police department
rather than upon the individual policeman. For instance, if the department had not exercised sufficient leadership and control in its training, regulations, and disciplinary policy to protect fourth amendment values, all of its searches and seizures, even those which had been perfectly legal, could be
subject to the exclusionary rule. Needless to say, this medicine is too strong. In fact, I suggest the converse: none of the searches of a department should be subject to the exclusionary rule if the department is up to standard.
Another possible rule is Professor Amsterdam's suggestion that police be required by the fourth
amendment to draw up regulations-adherence to which would be enforced by the exclusionary
rule. See Amsterdam, supra note 76, at 436-38. The modification proposed in the text, however, has
several advantages over Professor Amsterdam's approach. First, it deals not only with regulations, but
with training and disciplinary policy. Second, since it leads to less rather than more exclusion of
evidence, it allows fewer criminals to go free, and comes at a lower political cost. Finally, since it
makes use of the carrot rather than the stick, it is likely to be more effective.
Z13. The two proposals for modification of the exclusionary rule are independent. Of course,
if the first suggestion also is adopted, this issue will not arise in prosecutions for the most serious
crimes.
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26: Page 1027
standards defining sufficient departmental behavior. Yet one of the major
advantages of this suggested procedure is its flexibility. At first, relatively
modest beginnings might be accepted. After all, at present police departments need not do anything to protect fourth amendment rights. And, in
fact, they generally have not done so. Gradually, judges could require
greater showings: more particular regulations; discipline not only where
a suppression hearing had determined that a citizen's rights had been violated, but also where successful civil rights actions had been brought against
the offending policeman; and finally, perhaps, the establishment of some
fair method of processing citizen complaints which had not been the subject of any litigation. One significant aspect of such a progression would be
that for the first time the exclusionary rule could be used to protect the
rights of the law-abiding citizen rather than those of the criminal.
If such a rule were to be adopted today, probably no police department
could meet even modest standards. As a result, judges would continue applying the current exclusionary rule. Gradually, at least some departments,
perhaps under pressure from district attorneys, newspapers, and the public,
would begin to investigate and discipline offending police officers. Very
soon prosecutors and defense attorneys would begin to keep files of results
of suppression hearings involving various police departments, and both
parties would have strong incentives to investigate whether the departments had altered their practices in an attempt to make unnecessary the
sanctions of the exclusionary rule. In cases involving those departments
which developed more effective systems of self-regulation, prosecutors
would begin making, and courts begin granting, motions to exempt particular illegal searches and seizures from the exclusionary rule. Some police
departments would be held to have measured up to the appropriate standards and hence have their occasional illegal searches not subject to the
exclusionary rule, while others would still be subject to it. The difference
could hardly fail to be noticed, and would act as a spur to the laggards.
When some departments have reached an accommodation with the courts,
it will be hard for others to claim that the courts' demands are unreasonable.
And the complaint that the courts are turning loose criminals becomes
much less impressive when it is obvious that a well-run department can
prevent this result.
There are, to be sure, several types of inequality inherent in the operation
of such a rule. We will treat differently two defendants whose rights were
violated in an identical manner by policemen of departments which have
made different efforts to protect fourth amendment values. It would seem,
however, that this differential treatment should be a matter of concern only
if we regard the exclusionary rule solely as a benefit to the criminal. The fact
that some criminals are luckier than others does not shock us into releasing
May 1974]
LIMITS OF EXCLUSIONARY RULE
those unlucky enough to be caught. Similarily, we should not be offended
merely because those criminals convicted were unlucky enough to be caught
by police departments which have taken serious steps to conform to the
fourth amendment.
Neither should we be concerned about the inequality between different
police departments. Insofar as the departments are judged by the same
standards, the inequality is exactly what we wish. Indeed, any concept of a
reward implies an inequality between those who do and those who do not
receive it. Where two police departments are judged by different standards,
more serious problems arise. Here we must rely on the appellate process to
produce equality. This kind of temporary inequality while standards are
formulated and refined is a common occurrence. There is no reason that
temporary differential treatment of police departments which have worked
with equal effectiveness to limit fourth amendment violations should create
any more concern than the lower courts' differential treatment of states in
reapportionment decisions or differential treatment of Southern school
boards in desegregation decisions.
A related problem may prove more troublesome. In urban multijudge
districts, different rulings might be made concerning the same police department in different exclusionary hearings. It is possible that such differences would be appropriate, since the department, especially in its
regulations, might be doing well enough in one type of situation and not
in another. For example, the regulations governing on-the-street behavior
might be sufficient but not those concerning electronic eavesdropping. The
problem might remain within any one area, because different judges might
apply different standards to the same remedial efforts. To assure uniformity
there should be coordination among the trial judges-a matter which is
presently being pressed in other contexts such as sentencing.1 '
Linking the operation of the exclusionary rule to police department
behavior might make the lower judiciary allies in, rather than obstructors
of, efforts to deter police illegality. The behavior of the lower federal courts
in the South provides an encouraging analogy. Southern district court
judges, at first almost solidly opposed to the enforcement of the Supreme
Court's desegregation decisions, gradually began to exert pressure on those
school boards which they felt were unreasonably resisting the most modest
orders possible 15 In the case of Southern desegregation litigation, the lower
courts' orders were comparatively easy to frame and enforce upon recalcitrant school boards. It is much easier, moreover, for the courts to require
and monitor school attendance boundary lines, busing, and other means of
114. See M. FRANIKEL,
CRIMINAL SENTENCES (1973).
115. See J. PELTASON, FIFTY-Elowr LONELY MEN-SOUTHERN FEDERAL JUDGES AND SCHOOL
DESEGREGATION (1961).
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[VOL. 26: Page 1027
desegregation than it is to control the on-the-street behavior of police officers.
Nonetheless, once lower court judges begin to cooperate in the process, one
major obstacle to enforcing fourth amendment rights will be eliminated.
Moreover, if lower court judges exert sufficient pressure, the departments,
which can better monitor police behavior, are more likely to do so. Admittedly, it is possible that this analogy would not hold and that many judges
would attempt to evade the exclusionary rule through their factfinding
power. If so, then the proposed modification would not make things any
worse. The only additional factfinding questions are those concerning the
internal procedures of the police department. They would be decided primarily on the department's records and would be easy to review through
the appellate process.
It should be noted that this proposed modification of the exclusionary
rule retains several advantages of the present rule. Most importantly, the
place of litigation over the facts of the search and seizure remains a pretrial
motion in a criminal case. Here, the decision is made by a judge who, for
all his biases, is likely to decide the issue more fairly than a jury. Moreover,
the litigation is not over damages, where lack of sympathy for the accused
makes it uneconomical for an attorney to take the case. The desire of the
criminal defense lawyer to win acquittal for his client continues to provide
the incentive for him to litigate the facts of the police behavior.
Nor will the incentive be lost once a police department has been held
to be in sufficient compliance. Even if the chances of success are not great,
a competent criminal defense lawyer could still attempt to show that, since
the time of the last finding, the police department has ceased to pay sufficient attention to reducing the number of unconstitutional searches and
seizures made by its officers. Moreover, at least for the foreseeable future, the
requirements upon police departments gradually would be growing more
stringent. In each trial, therefore, the defense attorney would be spurred by
the possibility that his case might become the vehicle for a further tightening of the standards.
Of course, it is possible that this proposal simply will not work. It is
possible that the prosecutors and police hierarchies would stick together
and that they would continue to blame the courts for the effects of the
operation of any form of the exclusionary rule. Our knowledge of institutional behavior does not permit us to be at all confident on the issue.
After all, many expected that the current exclusionary rule would provide
sufficient motivation for police hierarchies to control fourth amendment
violations by their men. That has not been the case to what anyone regards
as a sufficient extent. There is reason, therefore, to try a somewhat different
approach. Anyone who has brought up children knows that often their
behavior will be better where the standards set for them are realistic rather
May 1974]
LIMITS OF EXCLUSIONARY RULE
than unattainable. Perhaps police hierarchies may behave similarly if they
are told they can avoid suppression of evidence by reasonable preventive
and remedial actions on their part. Moreover, if we replace, in psychologists'
terms, negative with positive reinforcement, reduce the political costs, and
impose more direct responsibility on the departments themselves, the exclusionary rule might work better. It is certainly worth thinking about.
V.
CONCLUSION
Objections may be made to the modifications of the exclusionary rule
suggested here. The first is that they do not look like constitutional doctrine, but rather like a kind of social engineering which is not the function
of the courts in constitutional interpretation. Once we recognize, however,
that the exclusionary rule is intended to protect values established in the
Constitution, rather than being "in" the Constitution itself, this argument
loses force. It is hard to argue that either of these modifications looks less
like constitutional law than does the Miranda decision." 6
A related argument proceeds from the view that even though, on close
analysis, the proposed modifications in the exclusionary rule are appropriate
quasi-constitutional interpretations, they look much more complicated and
less easily deducible from the Constitution than does the present formulation of the rule. As a result, their adoption might engender even more
public dissatisfaction with the courts for usurping a legislative function.
While this concern is legitimate, it must be balanced against the present
hostility toward the exclusionary rule. If the exclusionary rule were modified to exclude more evidence, one would have to worry far more about
the change. Like many proposals, its acceptability depends upon whether it
is seen as a step in the right direction. Any dissatisfaction, therefore, would
probably be outweighed by increased public acceptance of the modified
rules.
The final argument against the modification of the exclusionary rule
has been alluded to earlier." 7 The exclusionary rule has an important symbolic significance. It is a statement that we are serious about lowering the
number of fourth amendment violations in our society. Any reduction of
the scope of the exclusionary rule could be interpreted as a retreat from this
ideal. The fact is, however, that although the exclusionary rule is a statement of our commitment to fourth amendment values, it is not a great deal
more than that. It is much better to attempt to design something that may
work. One should, of course, be careful about tampering with statements
of ideals. But if on balance those ideals can better be served by more complex action than by simple statement, we should prefer reality to illusion.
116.
See text accompanying note 25 supra.
117. See text accompanying note 94 supra.