EXCLUSIONARY RULE

When the police obtain evidence by violating the bill of rights, the victim of their misconduct may lack any effective legal remedy. Yet some enforcement mechanism is necessary if several important constitutional guarantees are to be a reality and not merely expressions of hope. The Supreme Court responded to this concern by developing a series of rules that have come to be known in the aggregate as the exclusionary rule. In typical application, the rule is that evidence obtained in violation of a person's constitutional rights cannot be used against that person in his or her trial for a criminal offense. The rule is most frequently applied to exclude evidence produced by searches or seizures made in violation of the fourth amendment. However, a coerced confession obtained in violation of the defendant's Fifth Amendment right against self-incrimination, or a statement taken from the defendant in violation of his Sixth Amendment's guarantee of the right to counsel, would also be inadmissible at his trial.

The term "exclusionary rule" is of modern origin, but even at common law a coerced confession was excluded or inadmissible as evidence, because its involuntariness cast serious doubt on its reliability. No one today seriously argues that this long-standing rule of evidence should be abandoned. Other aspects of the exclusionary rule, however, have been the source of major controversy among members of the judiciary, professional commentators, law enforcement officials, and the public.

The controversy did not become intense until the era of the warren court. But as far back as weeks v. united states (1914) the Supreme Court had unanimously held that evidence seized in violation of the Fourth Amendment was inadmissible in a federal criminal prosecution. However, even after the Court had held in wolf v. colorado (1949) that the Fourth Amendment's guarantee against unreasonable searches and seizures was applicable to the states, the Court had continued until 1961 to resist the argument that the exclusionary rule should also be extended to state prosecutions. In that year, in mapp v. ohio, the Warren Court held that the Fourteenth Amendment did, indeed, impose on the states the exclusionary rule derived from the Fourth Amendment. Subsequent decisions broadened the Sixth Amendment guarantee of the right to counsel to govern the procedures for police interrogation and for the use of lineups; each of these developments was accompanied by an extension of the exclusionary rule to state-court proceedings. Since the " fruit of the poisonous tree " doctrine requires the exclusion not only of evidence immediately obtained by these various forms of constitutional violation but also of other evidence derived from the initial violations, the exclusionary rule in its modern form results in the suppression of many items of evidence of unquestioned reliability and the acquittal of many persons who are guilty.

The primary purpose of the exclusionary rule, as the Supreme Court said in Elkins v. United States (1960), "is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it." Yet this deterrent function is only part of the exclusionary rule's justification. A court that allows the government to profit from unconstitutional police action sullies the judicial process itself, by becoming an accomplice in an unlawful course of conduct. When the Court first applied the rule in Mapp to state-court prosecutions, it said:

There are those who say, as did Justice (then Judge) [ benjamin n. ] cardozo, that under our constitutional exclusionary doctrine "the criminal is to go free because the constable has blundered." … In some cases this will undoubtedly be the result. But, …"there is another consideration—the imperative of judicial integrity." … The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice louis d. brandeis, dissenting, said: … "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.… If the government becomes a lawbreaker, it breeds contempt for law."

The evidence seized in an illegal search—a knife, a packet of heroin, counterfeit plates—is as trustworthy and material as if the search had been lawful. The rule's critics argue that to protect the privacy of the search victim by letting a guilty person escape responsibility for his crime is illogical. It would make more sense, they say, to use the evidence (as do the courts in Great Britain, for example) and provide civil or criminal remedies against the errant police officers. If the rule's purpose is to deter police lawlessness, the critics argue, the rule misses the point: prosecutors, not police officers, feel the immediate effects of the rule. If the rule is designed to maintain respect for the courts, they ask how the public can be expected to respect a system that frees criminals by suppressing trustworthy evidence of their guilt.

How many criminals do go free when the constable blunders? Inadequate studies provide no clear-cut answer, except that opponents of the exclusionary rule grossly exaggerate the number of felons it sets loose, and they tend to dramatize the worst cases. In California, whose supreme court has created the most stringent exclusionary rule in the nation, a study by the National Institute of Justice showed that. 78 percent of all accused felons are not prosecuted because of search and seizure problems, and of those released, nearly three-fourths were involved in drug-related cases. The effect of the exclusionary rule is slight in cases involving violent crimes. When the charge is murder, rape, assault, or robbery, prosecutors decide not to proceed in one out of every 2,500 cases. Studies of felony court records in other states reach similar conclusions. Only 0.4 percent of all cases that federal prosecutors decide not to prosecute are rejected because of search problems. At the trial level, motions to suppress illegally seized evidence are rarely granted in cases of violent crime. If the exclusionary rule were abolished, the conviction rate in all felony cases would increase by less than half of one percent. Translated into absolute figures, however, thousands of accused felons are released nationally as a result of the exclusionary rule, most of them in drug and weapons possession cases. Street crime does not flourish, though, because of the exclusionary rule, even though it does protect criminals, as do all constitutional rights. They also protect society and help keep us free.

The rule's effectiveness in deterring illegal searches is hotly debated. The critics point out that some ninety percent of criminal prosecutions do not go to trial but are disposed of by pleas of "guilty." (The figure varies from state to state, and according to the nature of the crime.) Without a trial, there is no evidence for the rule to exclude. In the huge number of cases in which the police make arrests but the persons arrested are not prosecuted, the exclusionary rule has, of course, no immediate application. The rule's proponents reply that the decision whether to prosecute or accept a defendant's "guilty" pleas on a lesser offense may itself be influenced by the prosecutor's estimate of the potential operation of the exclusionary rule if the case should go to trial. (In jurisdictions where separate procedures are established to rule on motions to suppress evidence, the rule normally will have operated in advance of the trial.)

Undeniably, however, the exclusionary rule has no application at all to the cases that cry out most for a remedy: cases of police misconduct against innocent persons, who are never even brought to the prosecutors' attention, and cases of illegal searches and seizures made for purposes other than collecting evidence to support prosecutions. In terry v. ohio (1968) Chief Justice earl warren admitted: "Regardless how effective the rule may be where obtaining conviction is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal." The police may deliberately engage in illegal searches and seizures for a number of reasons: to control crimes such as gambling or prostitution; to confiscate weapons or contraband or stolen property; or to maintain high visibility either to deter crime or to satisfy a public clamoring for aggressive police action. In none of these cases will the exclusionary rule inhibit police violations of the Bill of Rights.

The rule does not in fact significantly impede the police, despite contentions from the rule's opponents that it handcuffs the police. A 1984 report prepared for the National Center for State Courts concluded that a properly administered search warrant process can protect constitutional rights without hampering effective law enforcement. Nevertheless, police try when possible to conduct search and seizure under some exception to the warrant requirement. The overwhelming number of searches and seizures are warrantless. In 1980, for example, only about 1,000 warrants were issued in Los Angeles in about 300,000 cases. Police usually try to make consent searches or searches under what they claim to be exigent circumstances, or they conduct a search to confiscate contraband or harass criminals, without attempting a prosecution. In the few cases in which they seek warrants, they get them almost as if magistrates rubber-stamp their applications, and almost all warrants survive in court despite motions to suppress. Motions to suppress are made in about five percent of all cases but are successful in only less than one percent of all cases. Still more important is the fact that only slightly over half of one percent of all cases result in acquittals because of the exclusion of evidence.

Even when the rule does operate to exclude evidence in a criminal trial, it has no direct, personal effect on the police officer whose misconduct caused the rule to be invoked. The rule does not require discipline to be imposed by the officer's superiors, nor does either civil or criminal responsibility follow as a matter of course. Police officers are prosecuted only extremely rarely for their official misdeeds. Suits for damages by victims are inhibited not only by the defense of "good faith" and probable cause but also by the realization that most officers are neither wealthy nor insured against liability for their official acts. Unsurprisingly, most victims conclude that a lawsuit is not worth its trouble and expense. In the typical case of an illegal search, neither the judge who excludes the fruits of the search from evidence nor the prosecutor whose case is thereby undermined will explain to the officer the error of his ways. The intended educational effect of judicial decisions is also diminished by the time-lag between the police action and its final evaluation by the courts. Even if an officer should hear that a court has excluded the evidence he found in an illegal search some months ago, he will probably have forgotten the details of the event. Incentives and sanctions that might influence the officer's future behavior are not within the exclusionary rule's contemplation. On the other hand, advocates of the rule emphasize that it is meant to have an institutional or systemic effect on law enforcement agencies generally, not necessarily on particular officers.

The officer is apt to respond not to judicial decisions (which he may regard as unrealistic if they impede his work) but to departmental policies and the approval of his colleagues and superiors. One whose main job is the apprehension of criminals and the deterrence of crime will have a low tolerance for what he sees as procedural niceties. He may even shade the truth in making out a report on a search or when testifying in court. It is not unheard of for the police to arrange to make a valid arrest at a place where they can conduct a warrantless search incident to the arrest, and thus evade the requirement of a search warrant based on probable cause to believe that evidence of crime is in that place. To the extent that the courts have used the exclusionary rule to educate the police, then, the main things learned seem to have been the techniques for evading the rule.

Summarizing the criticisms of the exclusionary rule, Dallin H. Oaks has said:

The harshest criticism of the rule is that it is ineffective. It is the sole means of enforcing the essential guarantees of freedom from unreasonable arrests and searches and seizures by law enforcement officers, and it is a failure in that vital task.

The use of the exclusionary rule imposes excessive costs on the criminal justice system. It provides no recompense for the innocent and it frees the guilty. It creates the occasion and incentive for large-scale lying by law enforcement officers. It diverts the focus on the criminal prosecution from the guilt or innocence of the defendant to a trial of the police. Only a system with limitless patience with irrationality could tolerate the fact that where there has been one wrong, the defendant's, he will be punished, but where there have been two wrongs, the defendant's and the officer's, both will go free. This would not be an excessive cost for an effective remedy against police misconduct, but it is a prohibitive price to pay for an illusory one.

Despite the severity of criticisms, the exclusionary rule's chief critics have not proposed its total abolition. However, the Supreme Court has limited the rule's application in significant ways. Thus, for the most part, only the victim of an illegal search has standing to claim the benefits of the exclusionary rule; if A's house is searched in violation of the Fourth Amendment, and evidence is found incriminating B, the evidence can be used in B's trial. (State courts are free to extend the exclusionary rule to such cases; some state courts have done so, concluding that the point of the rule is not to protect people against being convicted but to deter the police.) Similarly, in united states v. calandra (1974) the Court held that illegally obtained evidence is admissible in grand jury proceedings, and it ruled in harris v. new york (1971) that it can be used for the purpose of impeaching the testimony of the accused at his trial. Some uses of illegally obtained evidence have been tolerated as harmless error. More important, the good faith exception to the exclusionary rule allows the use of evidence obtained with a search warrant if the police reasonably believed the warrant to be valid, even though it later proves to be illegal. The rule has also been held inapplicable to collateral proceedings for postconviction relief such as habeas corpus. The Court's opinions in these cases have repeated the familiar criticisms of the exclusionary rule; their logic would seem to suggest abandonment of the rule altogether.

Yet the exclusionary rule remains, largely because no one has yet suggested an effective alternative means for enforcing the Bill of Rights against police misconduct. A federal statute dating from Reconstruction authorizes the award of damages against state or local officials (including police officers) who violate individuals' constitutional rights. In 1971, the Supreme Court found that the Fourth Amendment itself implicitly authorized similar damages awards against federal officers who violated the Amendment. The future effectiveness of such remedies will depend in part on the Supreme Court itself, as it spells out the victim's burden of proof in these cases and the measure of damages. Partly, however, the civil-damages alternative depends for its effectiveness on legislation to provide for real compensation to victims when the police officers are judgment-proof, and for real punishment of officers for constitutional violations when the payment of damages is unrealistic.

Meanwhile, the Supreme Court has only the exclusionary rule, which everyone agrees is an imperfect deterrent to police misbehavior. The rule survives, then, for want of better alternatives. But it also stands as a symbol that government itself is not above the law.

Leonard W. Levy
(1986)

(see also: Electronic Eavesdropping; New York v. Quarles; Police Interrogation and Confessions; Warrantless Searches; Wiretapping.)

Bibliography

La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment, 3 vols. St. Paul: West Publishing Co.

Oaks, Dallin H. 1970 Studying the Exclusionary Rule. University of Chicago Law Review 37:665–757.

Schroeder, William 1981 Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule. Georgetown Law Review 68:1361–1426.

Stewart, Potter 1983 The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases. Columbia Law Review 83:1365–1404.