Fourth Amendment--Search and Seizure
FOURTH AMENDMENT
SEARCH AND SEIZURE
Enforcing the Fourth Amendment: The Exclusionary Rule
A right to be free from unreasonable searches and seizures is
declared by the Fourth Amendment, but how one is to translate the
guarantee into concrete terms is not specified. Several possible methods
of enforcement have been suggested over time; however, the Supreme Court
has settled, not without dissent, on only one as an effective means to
make real the right.
Alternatives to the Exclusionary Rule.--Theoretically, there are
several alternatives to the exclusionary rule. An illegal search and
seizure may be criminally actionable and officers undertaking one thus
subject to prosecution, but the examples when officers are criminally
prosecuted for overzealous law enforcement are extremely rare.\158\ A
policeman who makes an illegal search and seizure is subject to internal
departmental discipline which may be backed up in the few jurisdictions
which have adopted them by the oversight of and participation of police
review boards, but again the examples of disciplinary actions are
exceedingly rare.\159\ Persons who have been illegally arrested or who
have had their privacy invaded will usually have a tort action available
under state statutory or common law.
\158\Edwards, Criminal Liability for Unreasonable Searches and
Seizures, 41 Va. L. Rev. 621 (1955).
\159\Goldstein, Police Policy Formulation: A Proposal for
Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).
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Moreover, police officers acting under color of state law who
violate a person's Fourth Amendment rights are subject to a suit for
damages and other remedies\160\ under a civil rights statute in federal
courts.\161\ While federal officers and others acting under color of
federal law are not subject jurisdictionally to this statute,
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the Supreme Court has recently held that a right to damages for
violation of Fourth Amendment rights arises by implication out of the
guarantees secured and that this right is enforceable in federal
courts.\162\ While a damage remedy might be made more effectual,\163\ a
number of legal and practical problems stand in the way.\164\ Police
officers have available to them the usual common-law defenses, most
important of which is the claim of good faith.\165\ Federal officers are
entitled to qualified immunity based on an objectively reasonable belief
that a warrantless search later determined to violate the Fourth
Amendment was supported by probable cause or exigent circumstances.\166\
And on the practical side, persons subjected to illegal arrests and
searches and seizures are often disreputable persons toward whom juries
are unsympathetic, or they are indigent and unable to bring suit. The
result, therefore, is that the Court has emphasized exclusion of
unconstitutionally seized evidence in subsequent criminal trials as the
only effective enforcement method.
\160\If there are continuing and recurrent violations, federal
injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d
197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary
injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969),
vacated on jurisdictional grounds, 401 U.S. 987 (1971).
\161\42 U.S.C. Sec. 1983 (1964). See Monroe v. Pape, 365 U.S.
167 (1961). In some circumstances, the officer's liability may be
attributed to the municipality. Monell v. New York City Dep't of Social
Services, 436 U.S. 658 (1978). These claims that officers have used
excessive force in the course of an arrest or investigatory stop are to
be analyzed under the Fourth Amendment, not under substantive due
process. The test is ``whether the officers' actions are `objectively
reasonable' under the facts and circumstances confronting them.'' Graham
v. Connor, 490 U.S. 386, 397 (1989).
\162\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678
(1946).
\163\See, e.g., Chief Justice Burger's dissent in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422-24 (1971), which
suggests suit against the Government in a special tribunal and the
abolition of the exclusionary rule.
\164\Foote, Tort Remedies for Police Violations of Individual
Rights, 39 Minn. L. Rev. 493 (1955).
\165\This is the rule in actions under 42 U.S.C. Sec. 1983,
Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court
of Appeals promulgated the same rule to govern trial of the action.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
456 F.2d 1339 (2d Cir. 1972).
\166\Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting
Justices argued, inter alia, that such a principle is more appropriately
applied as an affirmative defense, thereby allowing resolution of
factual disputes prior to determining objective reasonableness of an
officer's actions. 483 U.S. at 655 (Stevens, J.). See also Malley v.
Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police
officers who applied for a warrant unless ``a reasonably well-trained
officer in [the same] position would have known that his affidavit
failed to establish probable cause and that he should not have applied
for a warrant'').
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Development of the Exclusionary Rule.--Exclusion of evidence as
a remedy for Fourth Amendment violations found its beginning in Boyd v.
United States,\167\ which, as was noted above, involved not a search and
seizure but a compulsory production of business papers which the Court
likened to a search and seizure. Further, the Court analogized the Fifth
Amendment's self-incrimination provision to the Fourth Amendment's
protections to derive a rule which required exclusion of the compelled
evidence because the defendant had been compelled to incriminate himself
by producing it.\168\ The Boyd case was closely limited to its facts and
an
[[Page 1259]]
exclusionary rule based on Fourth Amendment violations was rejected by
the Court a few years later, with the Justices adhering to the common-
law rule that evidence was admissible however acquired.\169\
\167\116 U.S. 616 (1886).
\168\``We have already noticed the intimate relation between the
two Amendments. They throw great light on each other. For the
`unreasonable searches and seizures' condemned in the Fourth Amendment
are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in the
Fifth Amendment; and compelling a man in a criminal case to be a witness
against himself, which is condemned in the Fifth Amendment, throws light
on the question as to what is an `unreasonable search and seizure'
within the meaning of the Fourth Amendment. And we have been unable to
perceive that the seizure of a man's private books and papers to be used
in evidence against him is substantially different from compelling him
to be a witness against himself. We think it is within the clear intent
and meaning of those terms.'' Id. at 633. It was this utilization of the
Fifth Amendment's clearly required exclusionary rule, rather than one
implied from the Fourth, on which Justice Black relied and absent a
Fifth Amendment self-incrimination violation he did not apply such a
rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion);
Coolidge v. New Hampshire, 403 U.S. 443, 493, 496-500 (1971) (dissenting
opinion). The theory of a ``convergence'' of the two Amendments has now
been disavowed by the Court. Supra, pp.1225-26.
\169\Adams v. New York, 192 U.S. 585 (1904). Since the case
arose from a state court and concerned a search by state officers, it
could have been decided simply by holding that the Fourth Amendment was
inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71
(1914).
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Nevertheless, ten years later the common-law view was itself
rejected and an exclusionary rule propounded in Weeks v. United
States.\170\ Weeks had been convicted on the basis of evidence seized
from his home in the course of two warrantless searches; some of the
evidence consisted of private papers like those sought to be compelled
in the Boyd case. Unanimously, the Court held that the evidence should
have been excluded by the trial court. The Fourth Amendment, Justice Day
said, placed on the courts as well as on law enforcement officers
restraints on the exercise of power compatible with its guarantees.
``The tendency of those who execute the criminal laws of the country to
obtain convictions by means of unlawful searches and enforced
confessions . . . should find no sanction in the judgment of the courts
which are charged at all times with the support of the Constitution and
to which people of all conditions have a right to appeal for the
maintenance of such fundamental rights.''\171\ The ruling is ambiguously
based but seems to have had as its foundation an assumption that
admission of illegally-seized evidence would itself violate the
Amendment. ``If letters and private documents can thus be seized and
held and used in evidence against a citizen accused of an offense, the
protection of the Fourth Amendment declaring his right to be secured
against such searches and seizures is of no value, and, so far as those
thus placed are concerned, might as well be stricken from the Constitu
[[Page 1260]]
tion. The efforts of the courts and their officials to bring the guilty
to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law
of the land.''\172\
\170\232 U.S. 383 (1914).
\171\Id. at 392.
\172\Id. at 393.
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Because the Fourth Amendment did not restrict the actions of
state officers,\173\ there was no question about the application of an
exclusionary rule in state courts\174\ as a mandate of federal
consitutional policy.\175\ But in Wolf v. Colorado,\176\ a unanimous
Court held that freedom from unreasonable searches and seizures was such
a fundamental right as to be protected against state violations by the
due process clause of the Fourteenth Amendment.\177\ However, the Court
held that the right thus guaranteed did not require that the
exclusionary rule be applied in the state courts, since there were other
means to observe and enforce the right. ``Granting that in practice the
exclusion of evidence may be an effective way of deterring unreasonable
searches, it is not for this Court to condemn as falling below the
minimal standards assured
[[Page 1261]]
by the Due Process Clause a State's reliance upon other methods which,
if consistently enforced, would be equally effective.''\178\
\173\Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855);
National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). See supra,
p.957.
\174\The history of the exclusionary rule in the state courts
was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25,
29, 33-38 (1949). The matter was canvassed again in Elkins v. United
States, 364 U.S. 206, 224-32 (1960).
\175\During the period in which the Constitution did not impose
any restrictions on state searches and seizures, the Court permitted the
introduction in evidence in federal courts of items seized by state
officers which had they been seized by federal officers would have been
inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long
as no federal officer participated in the search, Byars v. United
States, 273 U.S. 28 (1927), or the search was not made on behalf of
federal law enforcement purposes. Gambino v. United States, 275 U.S. 310
(1927). This rule became known as the ``silver platter doctrine'' after
the phrase coined by Justice Frankfurter in Lustig v. United States, 338
U.S. 74, 78-79 (1949): ``The crux of that doctrine is that a search is a
search by a federal official if he had a hand in it; it is not a search
by a federal official if evidence secured by state authorities is turned
over to the federal authorities on a silver platter.'' In Elkins v.
United States, 364 U.S. 206 (1960), the doctrine was discarded by a
five-to-four majority which held that inasmuch as Wolf v. Colorado, 338
U.S. 25 (1949), had made state searches and seizures subject to federal
constitutional restrictions through the Fourteenth Amendment's due
process clause, the ``silver platter doctrine'' was no longer
constitutionally viable. During this same period, since state courts
were free to admit any evidence no matter how obtained, evidence
illegally seized by federal officers could be used in state courts,
Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court
ruled out such a course if the evidence had first been offered in a
federal trial and had been suppressed. Rea v. United States, 350 U.S.
214 (1956).
\176\338 U.S. 25 (1949).
\177\``The security of one's privacy against arbitrary intrusion
by the police--which is at the core of the Fourth Amendment--is basic to
a free society. It is therefore implicit in `the concept of ordered
liberty' and as such enforceable against the States through the Due
Process Clause.'' Id. at 27-28.
\178\Id. at 31. Justices Douglas, Murphy, and Rutledge dissented
with regard to the issue of the exclusionary rule and Justice Black
concurred.
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It developed, however, that the Court had not vested in the
States total discretion in regard to the admissibility of evidence, as
the Court proceeded to evaluate under the due process clause the methods
by which the evidence had been obtained. Thus, in Rochin v.
California,\179\ evidence of narcotics possession had been obtained by
forcible administration of an emetic to defendant at a hospital after
officers had been unsuccessful in preventing him from swallowing certain
capsules. The evidence, said Justice Frankfurter for the Court, should
have been excluded because the police methods were too objectionable.
``This is conduct that shocks the conscience. Illegally breaking into
the privacy of the petitioner, the struggle to open his mouth and remove
what was there, the forcible extraction of his stomach's contents . . .
is bound to offend even hardened sensibilities. They are methods too
close to the rack and screw.''\180\ The Rochin standard was limited in
Irvine v. California,\181\ in which defendant was convicted of
bookmaking activities on the basis of evidence secured by police who
repeatedly broke into his house and concealed electronic gear to
broadcast every conversation in the house. Justice Jackson's plurality
opinion asserted that Rochin had been occasioned by the element of
brutality, and that while the police conduct in Irvine was blatantly
illegal the admissibility of the evidence was governed by Wolf, which
should be consistently applied for purposes of guidance to state courts.
The Justice also entertained considerable doubts about the efficacy of
the exclusionary rule.\182\ Rochin emerged as the standard, however, in
a later case in which the Court sustained the admissibility of the
results of a blood test administered while defendant was unconscious in
a hospital following a traffic accident, the Court observing the routine
nature of the test and the minimal intrusion into bodily privacy.\183\
\179\342 U.S. 165 (1952). The police had initially entered
defendant's house without a warrant. Justices Black and Douglas
concurred in the result on self-incrimination grounds.
\180\Id. at 172.
\181\347 U.S. 128 (1954).
\182\Id. at 134-38. Justice Clark, concurring, announced his
intention to vote to apply the exclusionary rule to the States when the
votes were available. Id. at 138. Justices Black and Douglas dissented
on self-incrimination grounds, id. at 139, and Justice Douglas continued
to urge the application of the exclusionary rule to the States. Id. at
149. Justices Frankfurter and Burton dissented on due process grounds,
arguing the relevance of Rochin. Id. at 142.
\183\Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice
Warren and Justices Black and Douglas dissented. Though a due process
case, the results of the case have been reaffirmed directly in a Fourth
Amendment case. Schmerber v. California, 384 U.S. 757 (1966).
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[[Page 1262]]
Then, in Mapp v. Ohio,\184\ the Court held that the exclusionary
rule should and did apply to the States. It was ``logically and
constitutionally necessary,'' wrote Justice Clark for the majority,
``that the exclusion doctrine--an essential part of the right to
privacy--be also insisted upon as an essential ingredient of the right''
to be secure from unreasonable searches and seizures. ``To hold
otherwise is to grant the right but in reality to withhold its privilege
and enjoyment.''\185\ Further, the Court then held that since illegally-
seized evidence was to be excluded from both federal and state courts,
the standards by which the question of legality was to be determined
should be the same, regardless of whether the court in which the
evidence was offered was state or federal.\186\
\184\367 U.S. 643 (1961).
\185\Id. at 655-56. Justice Black concurred, doubting that the
Fourth Amendment itself compelled adoption of an exclusionary rule but
relying on the Fifth Amendment for authority. Id. at 661. Justice
Stewart would not have reached the issue but would have reversed on
other grounds, id. at 672, while Justices Harlan, Frankfurter, and
Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice
Harlan advocated the overruling of Mapp down to the conclusion of his
service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490
(1971) (concurring opinion).
\186\Ker v. California, 374 U.S. 23 (1963).
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The Foundations of the Exclusionary Rule.--Important to
determination of such questions as the application of the exclusionary
rule to the States and the ability of Congress to abolish or to limit it
is the fixing of the constitutional source and the basis of the rule.
For some time, it was not clear whether the exclusionary rule was
derived from the Fourth Amendment, from some union of the Fourth and
Fifth Amendments, or from the Court's supervisory power over the lower
federal courts. It will be recalled that in Boyd\187\ the Court fused
the search and seizure clause with the provision of the Fifth Amendment
protecting against compelled self-incrimination. Weeks v. United
States,\188\ though the Fifth Amendment was mentioned, seemed to be
clearly based on the Fourth Amendment. Nevertheless, in opinions
following Weeks the Court clearly identified the basis for the
exclusionary rule as the self-incrimination clause of the Fifth
Amendment.\189\ Then in
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Mapp v. Ohio,\190\ the Court tied the rule strictly to the Fourth
Amendment, finding exclusion of evidence seized in violation of the
Amendment to be the ``most important constitutional privilege'' of the
right to be free from unreasonable searches and seizures, finding that
the rule was ``an essential part of the right of privacy'' protected by
the Amendment.
\187\Boyd v. United States, 116 U.S. 616 (1886).
\188\232 U.S. 383 (1914). Defendant's room had been searched and
papers seized by officers acting without a warrant. ``If letters and
private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the Fourth
Amendment declaring his right to be secure against such searches and
seizures is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution.'' Id. at 393.
\189\E.g., Gouled v. United States, 255 U.S. 298, 306, 307
(1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v.
United States, 269 U.S. 20, 33-34 (1925); McGuire v. United States, 273
U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462
(1928), Chief Justice Taft ascribed the rule both to the Fourth and the
Fifth Amendments, while in dissent Justices Holmes and Brandeis took the
view that the Fifth Amendment was violated by the admission of evidence
seized in violation of the Fourth. Id. at 469, 478-79. Justice Black was
the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661
(1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443,
493, 496-500 (1971) (dissenting opinion). See, however, Justice Clark's
plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which
he brought up the self-incrimination clause as a supplementary source of
the rule, a position which he had discarded in Mapp.
\190\367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28
(1949), also ascribed the rule to the Fourth Amendment exclusively.
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``This Court has ever since [Weeks was decided in 1914] required
of federal law officers a strict adherence to that command which this
Court has held to be a clear, specific, and constitutionally required--
even if judicially implied--deterrent safeguard without insistence upon
which the Fourth Amendment would have been reduced to a `form of
words.'''\191\ It was a necessary step in the application of the rule to
the States to find that the rule was of constitutional origin rather
than a result of an exercise of the Court's supervisory power over the
lower federal courts, inasmuch as the latter could not constitutionally
be extended to the state courts.\192\ In fact, Justice Frankfurter
seemed to find the exclusionary rule to be based on the Court's
supervisory powers in Wolf v. Colorado\193\ in declining to extend the
rule to the States. That the
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rule is of constitutional origin Mapp establishes, but this does not
necessarily establish that it is immune to statutory revision.
\191\Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied).
\192\An example of an exclusionary rule not based on
constitutional grounds may be found in McNabb v. United States, 318 U.S.
332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which
the Court enforced a requirement that arrestees be promptly presented to
a magistrate by holding that incriminating admissions obtained during
the period beyond a reasonable time for presentation would be
inadmissible. The rule was not extended to the States, cf. Culombe v.
Connecticut, 367 U.S. 568, 598-602 (1961), but the Court's resort to the
self-incrimination clause in reviewing confessions made such application
irrelevant in most cases in any event. For an example of a transmutation
of a supervisory rule into a constitutional rule, see McCarthy v. United
States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).
\193\Weeks ``was not derived from the explicit requirements of
the Fourth Amendment; . . . The decision was a matter of judicial
implication.'' 338 U.S. 25, 28 (1949). Justice Black was more explicit.
``I agree with what appears to be a plain implication of the Court's
opinion that the federal exclusionary rule is not a command of the
Fourth Amendment but is a judicially created rule of evidence which
Congress might negate.'' Id. at 39-40. He continued to adhere to the
supervisory power basis in strictly search-and-seizure cases, Berger v.
New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-
incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661
(1961) (concurring). And see id. at 678 (Justice Harlan dissenting);
Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for
the Court).
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Suggestions appear in a number of cases, including Weeks, to the
effect that admission of illegally-seized evidence is itself
unconstitutional.\194\ These were often combined with a rationale
emphasizing ``judicial integrity'' as a reason to reject the proffer of
such evidence.\195\ Yet the Court permitted such evidence to be
introduced into trial courts, when the defendant lacked ``standing'' to
object to the search and seizure which produced the evidence\196\ or
when the search took place before the announcement of the decision
extending the exclusionary rule to the States.\197\ At these times, the
Court turned to the ``basic postulate of the exclusionary rule itself.
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.''\198\ ``Mapp had as its prime purpose the enforcement of the Fourth
Amendment through the inclusion of the exclusionary rule within its
rights. This, it was found, was the only effective deterrent to lawless
police action. Indeed, all of the cases since Wolf requiring the
exclusion of illegal evidence have been based on the necessity for an
effective deterrent to illegal police action.''\199\
\194\``The tendency of those who execute the criminal laws of
the country to obtain convictions by means of unlawful searches and
enforced confessions . . . should find no sanction in the judgment of
the courts which are charged at all times with the support of the
Constitution . . . .'' Weeks v. United States, 232 U.S. 383, 392 (1914).
In Mapp v. Ohio, 367 U.S. 643, 655, 657 (1961), Justice Clark maintained
that ``the Fourth Amendment include[s] the exclusion of the evidence
seized in violation of its provisions'' and that it, and the Fifth
Amendment with regard to confessions ``assures . . . that no man is to
be convicted on unconstitutional evidence.'' In Terry v. Ohio, 392 U.S.
1, 12, 13 (1968), Chief Justice Warren wrote: ``Courts which sit under
our Constitution cannot and will not be made party to lawless invasions
of the constitutional rights of citizens by permitting unhindered
governmental use of the fruits of such invasions. . . . A ruling
admitting evidence in a criminal trial . . . has the necessary effect of
legitimizing the conduct which produced the evidence.''
\195\Elkins v. United States, 364 U.S. 206, 222-23 (1960); Mapp
v. Ohio, 367 U.S. 643, 660 (1961). See McNabb v. United States, 318 U.S.
332, 339-40 (1943).
\196\Infra, pp.1269-70.
\197\Linkletter v. Walker, 381 U.S. 618 (1965).
\198\Elkins v. United States, 364 U.S. 206, 217 (1960).
\199\Linkletter v. Walker, 381 U.S. 618, 636-37 (1965). The
Court advanced other reasons for its decision as well. Id. at 636-40.
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Narrowing Application of the Exclusionary Rule.--For as long as
we have had the exclusionary rule, critics have attacked it, challenged
its premises, disputed its morality.\200\ By the early
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1980s a majority of Justices had stated a desire either to abolish the
rule or to sharply curtail its operation,\201\ and numerous opinions had
rejected all doctrinal bases save that of deterrence.\202\ At the same
time, these opinions voiced strong doubts about the efficacy of the rule
as a deterrent, and advanced public interest values in effective law
enforcement and public safety as reasons to discard the rule altogether
or curtail its application.\203\ Thus, the Court emphasized the high
costs of enforcing the rule to exclude reliable and trustworthy
evidence, even when violations have been technical or in good faith, and
suggested that such use of the rule may well ``generat[e] disrespect for
the law and administration of justice,''\204\ as well as free guilty
defendants.\205\ No longer does the Court declare that ``[t]he essence
of a provision forbidding the acquisition of evidence in a certain way
is that not merely evidence so acquired shall not be used before the
Court but that it shall not be used at all.''\206\
\200\Among the early critics were Judge Cardozo, People v.
Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go
free ``because the constable has blundered''); and Dean Wigmore. 8 J.
Wigmore, A Treatise on the Anglo-American System of Evidence 2183-84 (3d
ed. 1940). For extensive discussion of criticism and support, with
citation to the literature, see 1 Wayne R. LaFave, Search and Seizure--A
Treatise on the Fourth Amendment Sec. 1.2 (2d ed. 1987).
\201\E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief
Justice Burger: rule ought to be discarded now, rather than wait for a
replacement as he argued earlier); id. at 536 (Justice White: modify
rule to admit evidence seized illegally, but in good faith); Schneckloth
v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v.
Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v.
California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v.
Minjares, 443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice
Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice
Blackmun joining Justice Black's dissent that ``the Fourth Amendment
supports no exclusionary rule'').
\202\E.g., United States v. Janis, 428 U.S. 433, 446 (1976)
(deterrence is the ``prime purpose'' of the rule, ``if not the sole
one.''); United States v. Calandra, 414 U.S. 338, 347-48 (1974); United
States v. Peltier, 422 U.S. 531, 536-39 (1975); Stone v. Powell, 428
U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137-38
(1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus,
admission of the fruits of an unlawful search or seizure ``work[s] no
new Fourth Amendment wrong,'' the wrong being ``fully accomplished by
the unlawful search or seizure itself,'' United States v. Calandara,
supra, 354, and the exclusionary rule does not ``cure the invasion of
the defendant's rights which he has already suffered.'' Stone v. Powell,
supra, 540 (Justice White dissenting). ``Judicial integrity'' is not
infringed by the mere admission of evidence seized wrongfully. ``[T]he
courts must not commit or encourage violations of the Constitution,''
and the integrity issue is answered by whether exclusion would deter
violations by others. United States v. Janis, supra, at 458 n.35; United
States v. Calandra, supra, at 347, 354; United States v. Peltier, supra,
at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).
\203\United States v. Janis, 428 U.S. 433, 448-54 (1976),
contains a lengthy review of the literature on the deterrent effect of
the rule and doubts about that effect. See also Stone v. Powell, 428
U.S. 465, 492 n.32 (1976).
\204\Stone v. Powell, 428 U.S. at 490, 491.
\205\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
416 (1971) (Chief Justice Burger dissenting).
\206\Silverthorne Lumber Co. v. United States 251 U.S. 385, 392
(1920).
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Although the exclusionary rule has not been completely
repudiated, its utilization has been substantially curbed. Initial
decisions chipped away at the rule's application. Defendants who
themselves
[[Page 1266]]
were not subjected to illegal searches and seizures may not object to
the introduction against themselves of evidence illegally obtained from
co-conspirators or codefendants,\207\ and even a defendant whose rights
have been infringed may find the evidence coming in, not as proof of
guilt, but to impeach his testimony.\208\ Defendants who have been
convicted after trials in which they were given a full and fair
opportunity to raise claims of Fourth Amendment violations may not
subsequently raise those claims on federal habeas corpus because of the
costs overweighing the minimal deterrent effect.\209\ Evidence obtained
through a wrongful search and seizure may sometimes be used in the
criminal trial, if the prosecution can show a sufficient attenuation of
the link between police misconduct and obtaining of the evidence.\210\
If an arrest or a search which was valid at the time it was effectuated
becomes bad through the subsequent invalidation of the statute under
which the arrest or search was made, evidence obtained thereby is
nonetheless admissible.\211\ A grand jury witness was not permitted to
[[Page 1267]]
refuse to answer questions on the ground that they were based on
evidence obtained from an unlawful search and seizure,\212\ and federal
tax authorities were permitted to use in a civil proceeding evidence
found to have been unconstitutionally seized from defendant by state
authorities.\213\
\207\E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States
v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98
(1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held
it impermissible for a federal court to exercise its supervisory power
to police the administration of justice in the federal system to
suppress otherwise admissible evidence on the ground that federal agents
had flagrantly violated the Fourth Amendment rights of third parties in
order to obtain evidence to use against others when the agents knew that
the defendant would be unable to challenge their conduct under the
Fourth Amendment.
\208\United States v. Havens, 446 U.S. 620 (1980); Walder v.
United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269
U.S. 20 (1925) (now vitiated by Havens). The impeachment exception
applies only to the defendant's own testimony, and may not be extended
to use illegally obtained evidence to impeach the testimony of other
defense witnesses. James v. Illinois, 493 U.S. 307 (1990).
\209\Stone v. Powell, 428 U.S. 465 (1976).
\210\Wong Sun v. United States, 371 U.S. 471, 487-88 (1963);
Alderman v. United States, 394 U.S. 165, 180-85 (1969); Brown v.
Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982).
United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the
testimony of a witness discovered through an illegal search. Because a
witness was freely willing to testify and therefore more likely to come
forward, the application of the exclusionary rule was not to be tested
by the standard applied to exclusion of inanimate objects. Deterrence
would be little served and relevant and material evidence would be lost
to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court
refused to exclude a station-house confession made by a suspect whose
arrest at his home had violated the Fourth Amendment because, even
though probable cause had existed, no warrant had been obtained. And in
Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant
to warrant obtained after an illegal entry was admitted because there
had been an independent basis for issuance of a warrant. This rule
applies as well to evidence observed in plain view during the initial
illegal search. Murray v. United States, 487 U.S. 533 (1988). See also
United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of
tainted evidence, there was sufficient untainted evidence in affidavit
to justify finding of probable cause and issuance of search warrant).
\211\Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute
creating substantive criminal offense). Statutes that authorize
unconstitutional searches and seizures but which have not yet been
voided at the time of the search or seizure may not create this effect,
however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois,
444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large
degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a
distinction between substantive and procedural statutes and holding the
exclusionary rule inapplicable in the case of a police officer's
objectively reasonable reliance on a statute later held to violate the
Fourth Amendment.
\212\United States v. Calandra, 414 U.S. 338 (1974).
\213\United States v. Janis, 428 U.S. 433 (1976). Similarly, the
rule is inapplicable in civil proceedings for deportation of aliens. INS
v. Lopez-Mendoza, 468 U.S. 1032 (1984).
---------------------------------------------------------------------------
The most severe curtailment of the rule came in 1984 with
adoption of a ``good faith'' exception. In United States v. Leon,\214\
the Court created an exception for evidence obtained as a result of
officers' objective, good-faith reliance on a warrant, later found to be
defective, issued by a detached and neutral magistrate. Justice White's
opinion for the Court\215\ could find little benefit in applying the
exclusionary rule where there has been good-faith reliance on an invalid
warrant. Thus, there was nothing to offset the ``substantial social
costs exacted by the [rule].''\216\ ``The exclusionary rule is designed
to deter police misconduct rather than to punish the errors of judges
and magistrates,'' and in any event the Court considered it unlikely
that the rule could have much deterrent effect on the actions of truly
neutral magistrates.\217\ Moreover, the Court thought that the rule
should not be applied ``to deter objectively reasonable law enforcement
activity,'' and that ``[p]enalizing the officer for the magistrate's
error . . . cannot logically contribute to the deterrence of Fourth
Amendment violations.''\218\ The Court also suggested some circumstances
in which courts would be unable to find that officers' reliance on a
warrant was objectively reasonable: if the officers have been
``dishonest or reckless in preparing their affidavit,'' if it should
have been obvious that the magistrate had ``wholly abandoned'' his
neutral role, or if the warrant was obviously deficient on its face
(e.g., lacking in particularity). The Court
[[Page 1268]]
applied the Leon standard in Massachusetts v. Sheppard,\219\ holding
that an officer possessed an objectively reasonable belief that he had a
valid warrant after he had pointed out to the magistrate that he had not
used the standard form, and the magistrate had indicated that the
necessary changes had been incorporated in the issued warrant.
\214\468 U.S. 897 (1984). The same objectively reasonable
``good-faith'' rule now applies in determining whether officers
obtaining warrants are entitled to qualified immunity from suit. Malley
v. Briggs, 475 U.S. 335 (1986).
\215\The opinion was joined by Chief Justice Burger, and by
Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun
also added a separate concurring opinion. Dissents were filed by Justice
Brennan, joined by Justice Marshall, and by Justice Stevens.
\216\468 U.S. at 907.
\217\468 U.S. at 916-17.
\218\468 U.S. at 919, 921.
\219\468 U.S. 981 (1984).
---------------------------------------------------------------------------
The Court then extended Leon to hold that the exclusionary rule
is inapplicable to evidence obtained by an officer acting in objectively
reasonable reliance on a statute later held violative of the Fourth
Amendment.\220\ Justice Blackmun's opinion for the Court reasoned that
application of the exclusionary rule in such circumstances would have no
more deterrent effect on officers than it would when officers reasonably
rely on an invalid warrant, and no more deterrent effect on legislators
who enact invalid statutes than on magistrates who issue invalid
warrants.\221\
\220\Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-
to-establish qualifications apply: there can be no objectively
reasonable reliance ``if, in passing the statute, the legislature wholly
abandoned its responsibility to enact constitutional laws,'' or if ``a
reasonable officer should have known that the statute was
unconstitutional.'' 480 U.S. at 355.
\221\Dissenting Justice O'Connor disagreed with this second
conclusion, suggesting that the grace period ``during which the police
may freely perform unreasonable searches . . . creates a positive
incentive [for legislatures] to promulgate unconstitutional laws,'' and
that the Court's ruling ``destroys all incentive on the part of
individual criminal defendants to litigate the violation of their Fourth
Amendment rights'' and thereby obtain a ruling on the validity of the
statute. 480 U.S. at 366, 369.
---------------------------------------------------------------------------
It is unclear from the Court's analysis in Leon and its progeny
whether a majority of the Justices would also support a good-faith
exception for evidence seized without a warrant, although there is some
language broad enough to apply to warrantless seizures.\222\ It is also
unclear what a good-faith exception would mean in the context of a
warrantless search, since the objective reasonableness of an officer's
action in proceeding without a warrant is already taken into account in
determining whether there has been a Fourth Amendment violation.\223\
The Court's increasing willingness to uphold warrantless searches as not
``unreasonable'' under the Fourth
[[Page 1269]]
Amendment, however, may reduce the frequency with which the good-faith
issue arises in the context of the exclusionary rule.\224\
\222\The whole thrust of analysis in Leon dealt with
reasonableness of reliance on a warrant. The Court several times,
however, used language broad enough to apply to warrantless searches as
well. See, e.g., 468 U.S. at 909 (quoting Justice White's concurrence in
Illinois v. Gates): ``the balancing approach that has evolved . . .
`forcefully suggest[s] that the exclusionary rule be more generally
modified to permit the introduction of evidence obtained in the
reasonable good-faith belief that a search or seizure was in accord with
the Fourth Amendment'''; and id. at at 919: ``[the rule] cannot be
expected, and should not be applied, to deter objectively reasonable law
enforcement activity.''
\223\See Yale Kamisar, Gates, ``Probable Cause,'' ``Good
Faith,'' and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a
good-faith exception on top of the ``already diluted'' standard for
validity of a warrant ``would amount to double dilution'').
\224\See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990)
(upholding search premised on officer's reasonable but mistaken belief
that a third party had common authority over premises and could consent
to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no
requirement of knowing and intelligent waiver in consenting to
warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding
warrantless search of entire interior of passenger car, including closed
containers, as incident to arrest of driver); United States v. Ross, 456
U.S. 798 (1982) (upholding warrrantless search of movable container
found in a locked car trunk).
---------------------------------------------------------------------------
Operation of the Rule: Standing.--The Court for a long period
followed a rule of ``standing'' by which it determined whether a party
was the appropriate person to move to suppress allegedly illegal
evidence. Akin to Article III justiciability principles, which emphasize
that one may ordinarily contest only those government actions that harm
him, the standing principle in Fourth Amendment cases ``require[d] of
one who seeks to challenge the legality of a search as the basis for
suppressing relevant evidence that he allege, and if the allegation be
disputed that he establish, that he himself was the victim of an
invasion of privacy.''\225\ The Court recently has departed from the
concept of ``standing'' to telescope the inquiry into one inquiry rather
than two. Finding that ``standing'' served no useful analytical purpose,
the Court has held that the issue of exclusion is to be determined
solely upon a resolution of the substantive question whether the
claimant's Fourth Amendment rights have been violated. ``We can think of
no decided cases of this Court that would have come out differently had
we concluded . . . that the type of standing requirement . . .
reaffirmed today is more properly subsumed under substantive Fourth
Amendment doctrine. Rigorous application of the principle that the
rights secured by this Amendment are personal, in place of a notion of
`standing,' will produce no additional situations in which evidence must
be excluded. The inquiry under either approach is the same.''\226\ One
must therefore show that ``the disputed search and seizure has infringed
an interest of the defendant which the Fourth Amendment was designed to
protect.''\227\
\225\Jones v. United States, 362 U.S. 257, 261 (1960). That is,
the movant must show that he was ``a victim of search or seizure, one
against whom the search was directed, as distinguished from one who
claims prejudice only through the use of evidence gathered as a
consequence of search or seizure directed at someone else.'' Id. See
Alderman v. United States, 394 U.S. 165, 174 (1969).
\226\Rakas v. Illinois, 439 U.S. 128, 139 (1978).
\227\Id. at 140.
---------------------------------------------------------------------------
The Katz reasonable expectation of privacy rationale has now
displaced property-ownership concepts which previously might have
supported either standing to suppress or the establishment of an
interest that has been invaded. Thus, it is no longer sufficient
[[Page 1270]]
to allege possession or ownership of seized goods to establish the
interest, if a justifiable expectation of privacy of the defendant was
not violated in the seizure.\228\ Also, it is no longer sufficient that
one merely be lawfully on the premises in order to be able to object to
an illegal search; rather, one must show some legitimate interest in the
premises that the search invaded.\229\ The same illegal search might,
therefore, invade the rights of one person and not of another.\230\
Again, the effect of the application of the privacy rationale has been
to narrow considerably the number of people who can complain of an
unconstitutional search.
\228\Previously, when ownership or possession was the issue,
such as a charge of possessing contraband, the Court accorded
``automatic standing'' to one on the basis, first, that to require him
to assert ownership or possession at the suppression hearing would be to
cause him to incriminate himself with testimony that could later be used
against him, and, second, that the government could not simultaneously
assert that defendant was in possession of the items and deny that it
had invaded his interests. Jones v. United States, 362 U.S. 257, 261-265
(1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in
Simmons v. United States, 390 U.S. 377 (1968), the Court held
inadmissible at the subsequent trial admissions made in suppression
hearings. When it then held that possession alone was insufficient to
give a defendant the interest to move to suppress, because he must show
that the search itself invaded his interest, the second consideration
was mooted as well, and thus the ``automatic standing'' rule was
overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks
found in illegal search of apartment of the mother in defendant, in
which he had no interest; defendant could not move to suppress on the
basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980)
(drugs belonging to defendant discovered in illegal search of friend's
purse, in which he had no privacy interest; admission of ownership
insufficient to enable him to move to suppress).
\229\Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in
automobile had no privacy interest in interior of the car; could not
object to illegal search). Jones v. United States, 362 U.S. 257 (1960),
had established rule that anyone legitimately on the premises could
object; the rationale was discarded but the result in Jones was
maintained because he was there with permission, he had his own key, his
luggage was there, he had the right to exclude and therefore a
legitimate expectation of privacy. Similarly maintained were the results
in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by
defendant's aunts to which he had a key and permission to store things);
Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with
several others; though he had no reasonable expectation of absolute
privacy, he could reasonably expect to be intruded on only by other
occupants and not by police).
\230\E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing
imminent police search, defendant deposited drugs in companion's purse
where they were discovered in course of illegal search; defendant had no
legitimate expectation of privacy in her purse, so that his Fourth
Amendment rights were not violated, although hers were).
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