Constitutionality of Proposed Legislation Limiting the Scope of the Fourth Amendment Exclusionary Rule in Federal Criminal Proceedings

• Court: Department of Justice Office of Legal Counsel
• Decided: December 28, 1979
• Status: Published

Opinion

December 28, 1979

79-90 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION

Constitutional Law—Fourth Amendment Exclusionary Rule—Legislative Proposal

This responds to your request that we consider whether Congress may constitutionally limit the scope o f the Fourth Amendment exclusionary rule in Federal criminal proceedings. Specifically, you have asked us to consider whether Congress may constitutionally enact legislation limiting the application o f the exclusionary rule along the lines o f the bill drafted by Senator Kennedy’s staff, and establishing alternative remedies similar to those provided in the current draft o f the Adm inistration’s amendments to the Federal Torts Claim Act (FTCA). This legislation would permit evidence seized in violation o f the Fourth Amendment to be adm itted in Federal criminal proceedings, if otherwise admissible, if the agent con­ ducting the search or seizure reasonably believed that his conduct was lawful; permit victims o f illegal searches and seizures to sue the United States and receive liquidated damages and special damages upon proof of a constitutional violation; deny the United States a good faith defense in such suits; and establish disciplinary procedures whereby either the ap­ propriate Federal agency or the victim o f an illegal search or seizure could bring charges against the offending Federal agent. It is our conclusion, based on relevant Supreme Court decisions, that, absent other equally effective remedies to deter Federal officers from violating the Fourth Am endm ent, the exclusionary rule is required by the Constitution to protect that A m endm ent’s guarantee against unlawful searches and seizures. Congress may enact alternative remedies, but the ultimate responsibility for evaluating the efficacy o f those alternative remedies lies with the courts. We believe that the proposed statute would be held constitutional, even though it purports to limit the scope o f the ex­ clusionary rule, because it provides an alternative that the courts are likely to find adequate.

489 I. History of the Exclusionary Rule

The exclusionary rule has been shaped more by experience than by logic. Imposed by the Supreme C ourt in Weeks v. United States, 232 U.S. 383 (1914), the exclusionary rule was initially justified on considerations o f fair play and on the judgm ent that notions o f judicial integrity should pre­ vent Federal court involvement in illegal searches and seizures: The tendency o f those who execute the criminal laws o f the coun­ try to obtain conviction by means o f unlawful seizures and en­ forced confessions * * * should find no sanction in the judg­ ment o f the courts which are charged at all times with the support o f the C onstitution and to which people o f all conditions have a right to appeal for the maintenance o f such fundamental rights. [Id. at 392.] Equally im portant, the exclusionary rule was necessary to protect Fourth Am endment rights: If letters and private docum ents can thus be seized and held and used in evidence against a citizen accused o f an offense, the pro­ tection o f the Fourth Am endm ent declaring his right to be secure against such searches and seizures is o f no value, and, so far as those thus placed are concerned, might as well be stricken from the C onstitution.' [Id. at 393.] The C ourt several years later read Weeks quite broadly, holding that a per­ son could not be compelled to produce books and docum ents before a grand jury where the materials had been illegally seized by the Govern­ ment and then returned. Silverthorne Lum ber Co. v. United States, 251 U.S. 385 (1920). Justice Holmes, writing for the C ourt, rejected the arguments that the Governm ent may properly subpoena materials of which it knows only because o f an illegal search: “ The essence o f a provi­ sion forbidding the acquisition o f evidence in a certain way is that

1Weeks relied in large part on Boyd v. United States, 116 U.S. 616 (1886), where the C ourt had held that a district court order requiring production o f invoices in a forfeiture proceeding under the customs laws violated the defendant’s Fourth and Fifth Am endment rights. The Court noted the interrelation o f the protections o f the two Am endments: seizure o f private papers is tantam ount to compelling a person to testify against himself: and the Fifth A m end­ ment prohibition “ throws light o n ” the reasonableness o f the search. Id. at 633. In language that has been much quoted, the C ourt stated: The principles laid down in this opinion affect the very essence o f constitutional liberty and security. They reach farther than the concrete form o f the case then before the court, with its adventitious circumstances; they apply to all invasions on the part o f the government and its employees o f the sanctity o f a m an’s hom e and the privacies o f life. It is not the breaking o f his doors, and the rum maging o f his drawers, that constitutes the essence o f the offense; but it is the invasion o f his indefeasible right o f personal security, personal liberty and private property, where that right has never been forfeited by his conviction o f some public offenses * * * . Breaking into a house and opening boxes and drawers are circumstances o f aggravation; but any forcible and com pulsory extortion o f a m an’s own testim ony or his private papers to be used as evidence to con­ vict him o f crime or to forfeit his goods, is within the condem nation o f that judgm ent. In this regard, the Fourth and Fifth Am endm ents ran almost into each other. [Id. 630.]

490 not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” 2 Acceptance o f the contrary position, Justice Holmes wrote, would reduce the Fourth Amendment to “ a form o f words.” Id. at 392. The exclusionary rule fashioned in Weeks applied only to evidence ille­ gally obtained by Federal officers for use in Federal trials. In 1949, the Court held that the basis o f the Fourth Amendment—“ [t]he security of one’s privacy against arbitrary intrusion by the police” —is implicit in “ the concept o f ordered liberty” and thus enforceable against the States through the Fourteenth Am endm ent’s due process clause. W olf v. Col­ orado, 338 U.S. 25, 27-28 (1949). However, the Court refused to find that due process demanded application o f the exclusionary rule to start criminal proceedings. Although the C ourt acknowledged that the exclu­ sionary rule might be an effective way to deter unreasonable searches, it was not prepared to hold that “ a State’s reliance upon other methods * * * if consistently enforced,” could not equally ensure that State police conduct would com port with due process dictates. Id. at 31. In Mapp v. Ohio, 367 U .S. 643 (1961), the Court reversed W olf and declared the exclusionary rule applicable to all State criminal proceedings. The Court stressed that the rule, as developed in Weeks and Silverthorne, is “ a clear, specific, and constitutionally required—even if judicially im­ plied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to ‘a form o f words.’” Id. at 648. Although “ not basically relevant” to the C ourt’s constitutional holding, it surveyed the years since W olf and found other State remedies for protec­ tion o f the Fourth Amendment inadequate. Id. at 651-53. The C ourt cited with approval language in Elkins v. United States, 364 U.S. 206, 217 (1960), that the exclusionary rule is necessary “ to compel respect for the constitutional guaranty in the only effective available way.” 3

II. Deterrence and Judicial Integrity

From the exclusionary rule’s inception two principles that have in­ formed the development o f the doctrine have been recognized: (1) exclu­ sion o f illegally obtained evidence is necessary to protect the guarantees o f the Fourth Amendment, and (2) courts should not sanction illegal ac­ tivities o f Government agents by permitting the fruits o f such activities to be received into evidence. It is now “ commonplace” to refer to those

'T his statement has been characterized by the present C ourt as a “ broad dictum ” that has been “ substantially undermined by later cases.” United States v. Calandra, 414 U .S. 338, 352 n. 8 (1974). "Illegally seized evidence was barred in other situations: Elkins v. United States, 364 U .S. 206 (I960) (prohibiting Federal use o f evidence illegally obtained by State officials); Rea v. United States, 350 U .S. 214 (1956) (Federal officer may be enjoined from providing to State authorities evidence seized pursuant to an invalid search warrant); Lee v. Florida, 393 U.S. 378 (1968) (Federal Com m unications Act provisions prohibit use o f wiretap conversations in State proceeding).

491 sources and goals o f the exclusionary rule as considerations of “ deter­ rence” and “ judicial integrity.” 4 Brown v. Illinois, 422 U.S. 590, 599 (1975). See, e.g., Stone v. Powell, 428 U.S. 465, 484-86 (1976); Terry v. Ohio, 392 U.S. 1, 12-13 (1968); Elkins v. United States, 364 U.S. at 217-23. The relative importance ascribed by the C ourt to deterrence and judicial integrity in the development o f the exclusionary rule has varied. Where the C ourt has expanded the scope o f the doctrine, it has emphasized the judicial integrity rationale. See, e.g., Lee v. Florida, 392 U.S. 378, 385-86 (1968) (evidence seized in violation o f Federal Communications Act not admissible in State trials); M app v. Ohio, 367 U.S. at 659-60; Elkins v. United States, 364 U.S. at 222 (overruling “ silver platter” doctrine). Where the Court has sought to limit the reach o f the exclusionary rule, it has relied largely on the deterrence principle and has found that applica­ tion o f the exclusionary rule to the facts o f the case would not significantly aid in deterring illegal police conduct. See, e.g., Michigan v. DeFillippo, 99 S. Q . 2627, 2633 n. 3 (1979); Stone v. Powell, 428 at 482-95; United States v. Janis, 428 U.S. 433, 457-60 (1976). Over the past decade or so, it has become clear that the deterrence ration­ ale now bears the laboring oar in exclusionary rule analysis. Recent Su­ preme C ourt cases teach that the doctrine o f judicial integrity is not to be

‘T he phrase “ the imperative of judicial integrity” was coined by Justice Stewart in Elkins v. United States, 364 U .S. at 222, which held that evidence seized illegally by State officials could not be adm itted in Federal trials. The “ judicial integrity” rationale is usually traced to the dissenting opinions o f Justices Holmes and Brandeis in Olmstead v. United States, 277 U .S. 438, 469, 471 (1928): I think it is a less evil that some criminal should escape than that Government should play an ignoble part. [Id. at 470 (Holm es, J ., dissenting).] * * * * * * *

Decency, security and liberty alike dem and th at government officials shall be sub­ jected to the same rules o f conduct that are com m ands to the citizen. In a government of laws, existence o f the government will be imperiled if it fails to observe the law scrupulously. O ur Governm ent is the potent, the om nipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contem pt for law; it invites every man to become a law u nto himself; it invites anarchy. T o declare that in the adm inistration o f the criminal law the end justifies the means—to declare that the G overnm ent may commit crimes in order to secure the conviction o f a private criminal—would bring terrible retribution. Against the pernicious doctrine this C ourt should resolutely set its face. [Id. at 485 (Brandeis, J. dissenting).] T he dissenters adopted an unfragm ented view o f the G overnm ent as punisher o f criminals: “ no distinction can be taken between the Governm ent as prosecutor and the Governm ent as judge.” Id. at 470 (Holmes, J ., dissenting). The C ourt in later cases has tended to disag­ gregate “ the G overnm ent.” See generally Shrock & W elsh, “ Up from Calandra: The Exclu­ sionary Rule as a Constitutional R equirem ent,” 59 M inn. L. Rev. 251, 254-60 (1974). W hile there is a tendency to “ constitutionalize” the words o f Justices Holmes and Brandeis, their opinions m ake clear th at the obligation o f Federal courts to exclude illegally seized evidence arises “ apart from the C onstitution.” 277 U .S. at 469 (Holmes, J., dissent­ ing); id. at 479-85 (Brandeis, J., dissenting). It should be noted, however, that the question whether the Federal courts have any power to exclude evidence beyond that arising from the Constitution and Federal statutes, i.e., whether they have a reservoir o f “ supervisory pow er,” is presently before the Supreme C ourt. See, United States v. Payner, N o. 78-1729, Oct. Term 1979.

492 treated as determinative; indeed, the cases appear to strip it o f any weight.5 The basis for a critique o f the doctrine is that it proves too much: if judicial integrity is offended by any use o f illegally seized evidence, then the doctrine would effectively establish a right not to be convicted upon il­ legally seized evidence. However, the standing cases, e.g., Rakas v. Il­ linois, 439 U.S. 128 (1978), and impeachment cases, e.g., Walder v. United States, 347 U.S. 62 (1954), make it clear that “ the exclusionary rule has never been interpreted to proscribe the use o f illegally seized evidence in all proceedings against all persons.” United States v. Calandra, 414 U.S. 338, 348 (1974). See, Stone v. Powell, 428 U.S. at 485; United States v. Janis, 428 U.S. at 458 n. 35.6 The saliency o f deterrence became clear in Linkletter v. Walker, 381 U.S. 618 (1965), where the C ourt refused to give retroactive effect to Mapp. See Miles, “ Decline o f the Fourth Amendment: Time to Overrule Mapp v. Ohio?” 27 Cath. L. Rev. 9, 69 (1977). Faced with perhaps thousands o f prisoners convicted between W olf and M app, the Court found refuge in stressing deterrence: M app had as its prime purpose the enforcement o f the Fourth Amendment through the inclusion o f the exclusionary rule within its rights. This, it was found, was the only effective deter­ rent to lawless police action * * * . We cannot say that this pur­ pose would be advanced by making the rule retrospective. This misconduct o f the police prior to M app has already occurred and will not be corrected by releasing the prisoners involved * * * . Finally, the ruptured privacy o f the victims’ homes and effects cannot be restored. Reparation comes too late. [Id. at 636—37.]7

’The com m entators have generally recognized the decline and fall o f “ the imperative o f judicial integrity.” See, e.g., Sanders & Robbins, “ Judicial Integrity, The A ppearance o f Justice, and the Great W rit o f Habeas Corpus: How to Kill Two Thirds (or More) with One Stone,” 15 Am. Crim. L. Rev. 63, 76-78 (1977); Schrock & Welsh, supra, note 4, a t 263-69. They have also noted the inherent difficulties in the concept. See, e.g., M cGowan, “ Rule- Making and the Police,” 70 Mich. L. Rev. 659, 692 (1972); M onaghan, “ The Supreme C ourt, 1974 Term —Forw ard; Constitutional Com m on L aw ,” 89 Harv. L. Rev. 1, 5-6 (1975); O aks, “ Studying the Exclusionary Rule in Search and Seizure,” 37 U. Chi. L. Rev. 665, 668-69 (1970). ‘A broad application o f the judicial integrity principle is also difficult to reconcile with the refusal o f the Supreme C ourt to void convictions in cases in which the defendant has been brought before the court by illegal police m ethods. E.g., Frisbie v. Collins, 342 U .S. 519 (1952); Ker v. Illinois, 119 U .S. 436 (1886). ’Justice Black, who had concurred in Mapp on the ground that the Fourth and Fifth Amendments taken together dem and exclusion o f illegally obtained evidence in state trials, dissented in Linkletter. He wrote: [T]he undoubted implication o f today’s opinion that the rule is not a safeguard for defendants but is a mere punishing rod to be applied to law enforcem ent officers is a rather startling departure from m any past opinions, and even from Mapp itself * * * I have read and reread the Mapp opinion but have been unable to find one word in it to in­ dicate that the exclusionary search and seizure rule should be limited on the basis that it was intended to do nothing in the world except to deter officers o f the law. [381 U.S. at 649.]

493 This logic has been consistently followed in subsequent cases refusing to give retroactive effect to new Fourth Amendment law. See, e.g., Desist v. United States, 394 U .S. 244 (1969) (denying retrospective application o f Katz v. United States, 389 U.S. 347 (1967)). The deterrence rationale has blossomed in several recent cases that have refused to extend the exclusionary rule to various proceedings outside the actual criminal trial or to apply new interpretations o f the Fourth Am end­ ment retrospectively. In United States v. Calandra, supra, the C ourt held that a witness testifying before a grand jury could not refuse to answer questions on the ground that the questions were based on illegally ob­ tained evidence. The C ourt found that the burdens placed on the function­ ing o f the grand jury were not outweighed by the deterrent value o f the ex­ clusionary rule. Justice Powell announced for the Court that the exclu­ sionary rule’s “ prime purpose is to deter future unlawful police conduct.” Id. at 348. The “ imperative o f judicial integrity” was relegated to a foot­ note responding to Justice B rennan’s dissent. It stated simply “ that ‘illegal conduct’ is hardly sanctioned * * * by declining to make an unprece­ dented extension o f the exclusionary rule to grand jury proceedings where the rule’s objectives would not be effectively served and where other im­ portant and historic values would be unduly prejudiced.” Id. at 355 note 11. In United States v. Peltier, 422 U.S. 531 (1975) (denying restrospective application o f Almeida-Sanchez v. United States, 413 U .S. 226 (1973)), the C ourt again stressed the deterrent side o f the exclusionary rule. Although Justice Rehnquist noted the “ imperative o f judicial integrity,” he wrote for the C ourt that judicial integrity was not offended where the police reasonably believed in good faith that the evidence they seized was admissible at trial. Id. at 536-37. Thus, since the policeman could not know th at his actions were illegal until announcem ent of the new rule, judicial integrity did not support retroactivity. In United States v. Janis, supra, the C ourt in an opinion by Justice Blackmun held that the evidence seized by State officials in good faith, but unconstitutionally, need not be excluded in Federal civil tax proceedings. Applying the deterrence balance, it determined that the “ exclusion from federal civil proceedings o f evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood o f deterring the conduct o f the state police so that it outweighs the societal costs imposed by the exclusion.” Id. at 454. Justice Blackmun dealt with judicial integrity in a footnote, which if followed by the C ourt would ef­ fectively render the doctrine inconsequential: The primary meaning o f “ judicial integrity” in the context o f evidentiary rules is that the courts must not commit or encourage violations o f the Constitution. In the Fourth Amendment area, however, the evidence is unquestionably accurate, and the viola­ tion is complete by the time the evidence is presented to the Court * * * . The focus therefore must be on the question

494 whether the admission o f the evidence encourages violations o f Fourth Amendment rights. A s the Court has noted in recent cases, this inquiry is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose. [Id. at 458 note 35. (Emphasis added.)] Finally, in Stone v. Powell, supra, the C ourt held that Federal courts should not entertain State prisoner habeas petitions alleging Fourth Amendment violations unless the petitioner had not been afforded an op­ portunity for full and fair litigation of the claim in State court. The C ourt, through Justice Powell, determined that the deterrent value o f the exclu­ sionary rule was minimal in the habeas context. As to judicial integrity, the Court noted: “ [w]hile courts, o f course, must be ever concerned with preserving the integrity o f the judicial process, this concern has limited force as a justification for the exclusion o f highly probative evidence.” Id. at 485. The import o f these cases is clear. The Court believes that the “ prime purpose o f the [exclusionary] rule, if not the sole one, ‘is to deter future unlawful police conduct.’ United States v. Calandra, 414 U.S. 338, 347 (1974).” United States v. Janis, 428 U.S. at 446. The rise o f deterrence as the sole criterion for application o f the exclusionary rule has two conse­ quences im portant here.8 First, with the attention o f the courts focused on deterring illegal police activity, the exclusionary rule need no longer be considered part and parcel o f the Fourth Amendment and the due process clause o f the Fourteenth Amendment. M app had characterized the exclusionary rule as a “ clear, specific, and constitutionally required—even if judicially implied—deter­ rent safeguard,” 367 U.S. at 643, which is “ an essential ingredient o f the Fourth A m endm ent.” Id. at 651. And Justice Black concurred in M app

•The reliance upon deterrence appears to cut only one way: toward limiting applications of the exclusionary rule. To the extent that the exclusionary rule is divorced from the particular defendant, he or she becomes a private attorney general seeking to protect the rights o f all against illegal police actions. Thus, under a strict deterrence analysis, the traditional standing doctrine should be discarded. However, the C ourt has very recently m ade clear that it will still only permit a defendant whose own Fourth A m endm ent rights have been violated to benefit from the exclusionary rule. Rakes v. Illinois, 439 U.S. 128 (1978). This holding is defended on the ground that “ Fourth Am endment rights are personal rights” and thus a per­ son against whom the evidence illegally seized from another is adm itted “ has not had any of his Fourth A m endm ent rights infringed.” Id. at 133-34. This analysis seems in conflict with the C ourt’s statem ent in Calandra that the exclusionary rule is “ a judicially created remedy designed to safeguard Fourth Am endment rights generally through its deterrent effect, rather than a personal constitutional right o f the party aggrieved.” 414 U.S. at 348. This apparent conflict is resolved, however, when one focuses on language in Calandra that states that the Fourth Am endment does not require “ adoption o f every proposal that might deter police m isconduct,” 414 U .S. at 350-51, particularly where the deterrent benefits o f expanding standing are outweighed by the costs o f further encroachm ent upon law enforcem ent. See generally Burkoff, “ The C ourt that Devoured the Fourth Am endment: The Trium ph o f an Inconsistent Exclusionary D octrine,” 58 Ore. L. Rev. 151 (1979).

495 on the ground that from the Fourth and Fifth Amendments a “ constitu­ tional basis emerges which not only justified but actually requires the ex­ clusionary rule.” Id. at 622.’ The balancing analysis adopted by the Court in recent years, based on the costs and benefits o f added deterrence, changes the constitutional grounding o f the doctrine; as recast, the exclusionary rule need be invoked to protect Fourth Am endm ent rights only when it is deemed efficacious. See, Stone v. Powell, supra; United States v. Calandra, 414 U.S. at 348 (“ In sum, the [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Am endm ent rights generally through its deterrent effect, rather than a personal constitutional right o f the party aggrieved.” ) The emphasis on the functional analysis openly invites alternative remedies that may equally well deter violations o f Fourth Amendment rights. Presumably, once such remedies are in place, the exclusionary rule may simply be abolished. See, Bivens v. Six Unknown Nam ed Agents o f the Federal Bureau o f Narcotics, 403 U.S. 388, 414 (1971) (Burger, C .J., dissenting). All that is demanded by the Constitution, in the words o f P ro­ fessor Kaplan, is “ something that works * * * . The content o f the par­ ticular remedial or prophylactic rule is thus a pragmatic decision rather than a constitutional fiat.” Kaplan, “ The Limits o f the Exclusionary Rule,” 26 Stan. L. Rev. 1027, 1030 (1974). See also, California v. Min- jares, 100 S. Ct. 9, 14-15 (1979) (Rehnquist, J., dissenting from denial o f stay). The second consequence o f a focus on deterrence is limitation o f the ex­ clusionary rule to situations in which the law enforcement officer has acted unreasonably o r in bad faith. If the exclusionary rule is nothing more than a deterrent to illegal police conduct, it makes little sense to apply it in situations where it can have no deterrent force, particularly given the high societal costs generated by the rule’s frustration o f law en­ forcement. See, Stone v. Powell, 428 U.S. at 489-95. Thus, in numerous recent cases several Justices have suggested that the exclusionary rule not be applied to situations in which the police have acted in good faith, such as where agents have relied upon a warrant or a statute later held to be un­ constitutional. See, United States v. Scott, 436 U.S. 128, 135-36 (1978) (Justice Rehnquist, in dicta, writing for the Court: “ In view o f the deter­ rent purposes o f the exclusionary rule consideration o f official motives may play some part in determining whether application o f the exclu­ sionary rule is appropriate after a statutory or constitutional violation has

'See, United States v. Peltier, 422 U .S. at 550-62 (Brennan, J., dissenting); United States v. Calandra, 414 U.S. at 356 (Brennan, J., dissenting): [Curtailment o f police misconduct] if a consideration at all, was at best only a hoped-for effect o f the exclusionary rule, not its ultim ate objective. Indeed, there is no evidence that the possible deterrent effect o f the rule was given any attention by the judges chiefly responsible for its form ulation. Their concern as guardians o f the Bill o f Rights was to fashion an enforcem ent tool to give content and meaning to the Fourth A m endm ent’s guarantees.

496 been established.” ); Stone v. Powell, 428 U.S. at 501-02 (Burger, C .J., concurring); id. at 538-42 (White, J., dissenting) (exclusionary rule should not apply where evidence was seized “ by an officer acting in the good- faith belief that his conduct com ported with existing law and having reasonable grounds for this b e lie f’); Brown v. Illinois, 422 U.S. at 611-12 (concurring opinion by Powell, J., joined by Rehnquist, J.); Michigan v. Tucker, 417 U.S. 433, 447 (1974) (Rehnquist, J., for five members o f the Court) (“ Where the official action was pursued in complete good faith * * * the deterrence rationale loses much o f its force.” ). C f , United States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude evidence where the Internal Revenue Service violated departm ental procedure in good faith and without violating constitutional rights o f defendant); Michigan v. DeFillippo, 99 S. Ct. at 2633, note 2 (purpose o f deterrence not served by excluding evidence seized during lawful arrest under statute later held unconstitutional).10

m . Congressional Pow er to Devise Alternatives

Although the exclusionary rule has been limited by the C ourt in this decade, it has remained a constitutional doctrine. Mapp was reaffirmed in Stone v. Powell, 428 U.S. at 481 (see, id. at 509-15 (Brennan, J., dissent­ ing)); and M app is decidedly a constitutional decision. Indeed, for the ex­ clusionary rule to apply to the States it must be a constitutional doctrine, for “ no one * * * would suggest that [the] C ourt possesses any general supervisory power over the state courts.” M app v. Ohio, 367 U.S. at 678 (Harlan, J., dissenting). See, M urphy v. Florida, 421 U.S. 794, 797-98 (1975); id. at 803-04 (Burger, C .J., concurring) (by implication); Cox, “ The Role o f Congress in Constitutional Determ inations,” 40 U. Cinn. L. Rev. 199, 251 (1971)."

10See also, Com m ent, “ Judicially Required Rulemaking as Fourth Am endment Policy: An Applied Analysis o f the Supervisory Power o f Federal C o u rts," 72 Nw. U .L . Rev. 595, 598-99 (1977); Note, Reason and the Fourth A m endm ent—The Burger C ourt and the Exclu­ sionary Rule,” 46 Ford. L. Rev. 139, 168-69 (1977); cf. Israel, “ Criminal Procedure, The Burger C ourt, and the Legacy o f the W arren C o u rt,” 75 Mich. L. Rev. 1319, 1409-15 (1977); Schrock & Welsh, “ Reconsidering the Constitutional Com m on Law ,” 91 Harv. L. Rev. 1117, 1160-61 (1978). Even if the “ imperative o f judicial integrity” were still deemed to carry weight in exclu­ sionary rule analysis, the C ourt has stated that “ if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended” by admission o f the evidence at trial. United States v. Peltier, 422 U .S. at 537, quoted in Stone v. Powell, 428 U .S. at 485 n. 23. See also, Stone v. Powell, 428 U.S. at 540 (W hite, J., dissenting). "P rofessor M onaghan has argued that the exclusionary rule, even though applied to the States, is something less than constitutional, and may be displaced by congressional remedies. See M onaghan, supra (note 5). His views, which are not easily reconciled with the words o f Mapp and Stone, are thoughtfully and thoroughly criticized in Shrock & Welsh, “ Reconsidering the Constitutional Com m on Law ,” supra (note 10). However, there are some indications in recent Supreme C ourt cases that lend support for the argum ent that the Miranda exclusionary rule is less than constitutional. See, New Jersey v. Portash, 440 (C ontinued)

497 Yet the fact that the exclusionary rule has constitutional roots does not mean it is constitutionally m andated. The Chief Justice’s dissent in Bivens first suggested that congressional provision o f an alternative remedy that would deter official misconduct as well as the exclusionary rule would per­ mit the C ourt to abolish the rule. 403 U.S. at 411-24. As discussed above, this conclusion flows logically from reliance on the deterrence rationale.12 If the defendant has no personal right' to exclusion o f illegally seized evidence, then any remedy that adequately protects Fourth Amendment guarantees should meet the constitutional requirement that the Fourth Amendment not be rendered a “ form o f words.” 13 This conclusion is sup­ ported by each o f the scholars consulted by the Senate Judiciary Committee. In other similar situations the C ourt has openly invited Congress to enact legislation that could supplement or supplant judicially created pro­ phylactic rules. In declaring the Miranda rules to protect the Fifth Am end­ ment rights o f subjects o f police interrogation, the Court wrote: It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise o f their creative rule-making capacities. Therefore we cannot say that the C onstitution necessarily re­ quires adherence to any particular solution for the inherent com­ pulsions o f the interrogation process as it is presently conducted. O ur decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform , nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways o f protecting the rights o f the individual while prom oting efficient enforce­ ment o f our criminal laws. However, unless we are shown other

(Continued) U.S. 450 (1979) (use o f immunized grand jury testim ony for impeachment is unconstitu­ tional; distinguishing cases permitting im peachm ent use o f evidence obtained in violation o f Miranda on ground that in those cases no coercion was present); North Carolina v. Butler, 60 L. Ed. 2d 286, 294 (1979) (Blackmun, J., concurring) (suggesting that standard for waiver of lawyer after Miranda warnings is different than standard applied for waiver o f “ fundam en­ tal constitutional rights” as established by Johnson v. Zerbst, 304 U .S. 458 (1938)). 1’C hief Justice Burger also believes th at the existence o f an effective alternative would satisfy the dem ands o f judicial integrity: “ N or is it easy to understand how a court can be thought to endorse a violation o f the F ourth A m endm ent by allowing illegally seized evidence to be introduced against a defendant if an effective remedy is provided against the govern­ m ent.” 403 U .S. at 414. ’’Justice Brennan continues to argue that the exclusionary rule is “ part and parcel” o f the F ourth A m endm ent. This argum ent, m ade in dissent, does not appear to reflect the views of the C ourt as presently constituted. See, e.g.. United States v. Calandra, 414 U.S. at 355-67 (Brennan, J., dissenting); see also, W olf v. Colorado, 338 U.S. at 48 (Rutledge, J., dissent­ ing) (“ 1 * * * reject any intim ation that Congress could validly enact legislation permitting the introduction in federal courts o f evidence seized in violation o f the Fourth A m endm ent” ). For an extensive argum ent that the exclusionary rule is constitutionally m an­ dated, see Schrock & W elsh, “ Up from C alandra,” supra (note 4).

498 procedures which are at least as effective in apprising accused persons o f their right o f silence and in assuring a continuous op­ portunity to exercise it, the following safeguards must be • observed * * * . '4 [384 U.S. 436, 467 (1966). See, id. at 444, 478-79.] Similarly, in the “ line-up” cases, United States v. Wade, 388 U.S. 218, 239 (1967) and Gilbert v. California, 388 U.S. 263, 273 (1967), the C ourt noted that its prophylactic procedures were necessary in the absence o f State or Federal rules that eliminated the risks o f abuse attending line-up identifications. In sum, given the emphasis on the exclusionary rule as a tool o f deter­ rence and analogies to related areas where the Supreme Court has laid down protective rules while inviting prophylactic legislation, we believe the Supreme C ourt would hold that enactment by Congress on an alterna­ tive remedy that is as effective as the exclusionary rule in deterring viola­ tions o f the Fourth Amendment would obviate the constitutional necessity for the exclusionary rule. This conclusion raises two additional questions: what alternative remedies are equally effective, and who is the judge o f the effectiveness o f the alternative. Answering the second question first, we believe that it is the Supreme Court that must ultimately decide whether an alternative remedy ade­ quately protects the Fourth Amendment from becoming a “ form o f words.” See, Bivens v. Six Unknown Nam ed Agents, 403 U.S. at 423 note 7 (Burger, C .J., dissenting) (by implication); Dellinger, “ O f Rights and Remedies: The C onstitution as a Sw ord,” 85 Harv. L. Rev. 1532, 1548, 1552-53 (1972); Note “ Excluding the Exclusionary Rule: Congressional Assault on M app v. O hio,” 61 Geo. L. Rev. 1453, 1471 (1973). This is no more than recognition o f the C ourt’s traditional duty to measure congres­ sional legislation against the Constitution. Marbury v. Madison, 1 Cr. 137 (1803). If the Constitution demands some remedy for effectuation o f the Fourth Amendment, then it is the province of the Court to decide whether proffered alternatives meet constitutional requirements. The C ourt may find congressional factfinding persuasive, and it is likely to accord deference

“ Congress accepted the C o u rt’s invitation, but in a m anner intended to limit the reach o f Miranda rather than provide adequate alternative safeguards. 18 U .S.C . § 3501, Title 11 o f the 1968 Om nibus Safe Streets and Crime C ontrol A ct. Although courts have avoided ruling on the issue, see, e.g.. United States v. Crook, 502 F.(2d) 1378 (3d Cir. 1974), cert, denied, 419 U.S. 1123 (1975); Ailsworth v. United States, 448 F.(2d) 439 (9th Cir. 1971), the provi- ■sion is o f doubtful constitutionality. See W right & Miller, Federal, Practice and Criminal Procedure, § 76, at 120-22 (1969); G andara, “ Admissibility o f Confessions in Federal P ro ­ secutions; Implem entation o f Section 3501 by Law Enforcem ent Officials and the C o u rts,” 63 Geo. L .J. 305 (1974). Imaginative defenses for § 3501 have been constructed. It has been asserted that Miranda was based on factual assum ptions about the coerciveness o f custodial interrogations—assum ptions that Congress has the power to reverse through its factfinding procedures. Alternatively, it has been argued that Congress has power under § 5 o f the F our­ teenth Am endm ent, as interpreted by Katzenbach v. Morgan, 384 U.S. 641 (1966), to revise constitutional decisions o f the C ourt. See S. Rept. 1097, 90th C ong., 2d sess. (1968). See generally Burt, “ M iranda and Title II: A M organatic M arriage,” (1969) S. Ct. Rev. 81.

499 to the expressed judgm ent o f Congress that the legislative alternatives are ef­ ficacious. But it remains up to the Court to render final judgment on what the Constitution demands. See, Miranda v. Arizona, 384 U.S. at 490. Evaluating the likely effectiveness o f alternatives to the exclusionary rule—such as police training and regulations, tort actions, criminal prose­ cutions, or contem pt proceedings—is a difficult task. An initial problem is that it is unclear what yardstick o f effectiveness should be used because the empirical evidence on the deterrent effect o f the exclusionary rule is con­ flicting at best. Compare, United States v. Jan is, 428 U.S. at 448-53, with, Elkins v. United States, 364 U.S. at 218; compare, Oaks, supra (note 5), with Critique, “ On the Limitations o f Empirical Evaluations o f the Exclu­ sionary R ule,” 69 Nw. U .L. Rev. 740 (1974). The court has recently tend­ ed to express doubt about the rule’s efficacy beyond its application at a criminal trial, and this view has been shared by many com m entators. See, e.g., United States v. Janis, 428 U.S. at 448-53 and accompanying foot­ notes; Oaks, supra; Wilkey, 62 Judicature 215, 222-23 (1978). However, the C ourt’s growing disillusionment with the efficacy o f the exclusionary rule is in tension with the earlier cases that held that the ex­ clusionary rule was the only effective means o f guaranteeing that the Fourth A m endm ent would not become a form o f words. Indeed, M app’s reversal o f W olf’s holding (which had left State protection o f the Fourth Amendment to other than exclusionary remedies) stated that applying the Fourth Am endment without the exclusionary rule “ is to grant the right but in reality to withhold its privilege and enjoyment * * *. [T]he pur­ pose o f the exclusionary rule ‘[is] to deter—to compel respect for the con­ stitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’ Elkins v. United States, [364 U.S.] at 217.” Mapp v. Ohio, 367 U.S. at 656.15 These statem ents could be viewed as hyperbole or makeweights for Justices who believed that the exclusionary rule was constitutionally m an­ dated in any event. However, similar language has appeared in a recent case. In Franks v. Delaware, 438 U.S. 154 (1978), the C ourt held that a defendant could attack the veracity o f affidavits supporting a search war­ rant, and that a court could exclude evidence obtained pursuant to the warrant if it determined that police officers had made deliberate misstatements in the affidavits and that the affidavits were necessary to a finding o f probable cause. In describing the general considerations sup­ porting a rule o f exclusion, Justice Blackmun, writing for seven Justices, stated: [T]he alternative sanctions o f a perjury prosecution, ad­ ministrative discipline, contem pt, or a civil suit are not likely to fill the gap. M app v. Ohio implicitly rejected the adequacy o f

"See also, Terry v. Ohio, 392 U .S. 1, 12 (1968) (“ experience has taught that [the exclu­ sionary rule] is the only effective deterrent to police m isconduct” ); Lee v. Florida, 392 U.S. 378, 386-87 (1968) (“ nothing short o f m andatory exclusion o f the illegal evidence will com ­ pel respect for the federal law” ); Linkletter v. Walker, 381 U.S. at 634; W olf v. Colorado, 338 U.S. 25, 41 (1949) (M urphy, J., dissenting) (“ [TJhere is but one alternative to the rule of exclusion. T hat is no sanction at all” ).

500 these alternatives. Mr. Justice Douglas noted this in his concur­ rence in Mapp, 367 U .S., at 670, where he quoted from W olf v. Colorado, 338 U.S. 25, 42 (1949): “ ‘Self-scrutiny is a lofty idea, but its exaltation reaches new heights if we expect a District A t­ torney to prosecute himself or his associates for well-meaning violations o f the search and seizure clause during a raid the District Attorney or his associates have ordered.’ ” [Id. at 169.] It is not easy to know what to make o f these words. We believe that, at the very least, the C ourt may demand congressional factfinding concerning the efficacy o f alternatives. We doubt that an adequate showing will be easy.16 Alternatives that existed prior to Mapp—e.g., a § 1983 action against State officers, a criminal prosecution, or prosecution under the civil rights laws, see, Irvine v. California, 347 U.S. 128, 137-38 (1954) (suggestion o f W arren, C .J., and Jackson, J.)—should clearly be rejected as inadequate. C f , W olf v. Colorado, 338 U.S. at 41-47 (1949) (Murphy, J., dissenting); People v. Cahan, 44 Cal. 2d 434, 445-48 (1955). The ef­ ficacy o f any remedies enacted since M app are essentially untested because the exclusionary rule was in place at the same time. .Yet abandonm ent o f the exclusionary rule in order to test new alternatives, such as those in the proposed amendments to the FTCA, is to risk rendering the Fourth Amendment a dead letter if the remedies fail. In short, the C ourt will be faced with little hard data on either side o f the equation; it will have to measure the unknown deterrent value o f the exclusionary rule against the untested deterrent value o f the alternative. This conclusion, however, does not necessarily mean that the Supreme Court would find a tort-disciplinary scheme an inadequate alternative. The problems associated with the exclusionary rule—such as permitting guilty defendants to go free, fostering police perjury, and not com pen­ sating victims o f illegal searches who do not go to trial—measured against the better “ fit” o f the tort-discipline alternative may tip the C ourt toward accepting the alternative as at least as effective as the exclusionary rule, and therefore constitutional. This decision would be aided by the C ourt’s traditional deferrence to legislative factfinding. See, Oregon v. Mitchell, 400 U.S. 112, 240, 246-49 (1970) (opinion o f Brennan, W hite, and M ar­ shall, J.J.); Burt, supra (note 14), at 112-14; Cox, supra, at 228-29; c f , Regents o f the Univ. o f California v. Bakke, 438 U.S. 265, 302 note 41 (1978) (opinion o f Powell, J.).

'‘Two recent studies, taken together, lend further support for the position that alternative remedies may be no more effective in deterring violations o f the Fourth A m endm ent than the exclusionary rule. Compare Project, “ Suing the Police in Federal C o u rt,” 88 Yale L .J. 781 (1979) (§ 1983 actions not effective deterrents o f police misconduct) with Report by the Comptroller General o f the United States, Impact o f the Exclusionary Rule on Federal Criminal Prosecutions (C .A .O . April 19, 1979) (Federal prosecutors decline few prosecutions on the basis o f Fourth A m endm ent problems; open to interpretation that compliance with Am endment’s dictates is substantial given present reliance upon exclusionary rule).

501 IV. Conclusions

We have been asked to consider whether, assuming enactment o f remedies similar to the proposed amendm ent to the FTCA, Congress may constitutionally limit or eliminate the exclusionary rule in Federal criminal proceedings. We believe that Congress may not, without more, “ repeal” the exclusionary rule. The rule, in the absence o f alternative remedies, is constitutionally m andated. However, Congress may provide the occasion for judicial repeal o f the exclusionary rule by enacting alternative remedies. The C ourt, in its traditional exercise o f judicial review, could then analyze whether the legislative alternatives adequately protect Fourth Amendment guarantees. Although two decades ago the C ourt might have deemed the exclusionary rule itself part and parcel o f the Fourth Amend­ ment and therefore not subject to legislative abolition, we believe that the C ourt’s redefinition o f the rule in terms o f deterrence would constitu­ tionally permit the rule’s demise in the face o f efficacious alternatives. We have identified some o f the difficulties implicit in evaluating the deterrent potential o f alternative remedies. Applying these general conclusions to the draft Senate Judiciary Com­ mittee bill, we believe that it would be sustained as constitutional. The C ourt is likely to determine that the alternative remedy provided by the FTCA adequately protects Fourth Amendment rights, and therefore would sustain the abolition o f the exclusionary rule. This conclusion is strengthened by the fact that the draft bill eliminates the exclusionary rule only for good faith violations o f the Fourth Amendment. This is a limita­ tion that the C ourt may well be willing to impose on its own even in the absence o f alternative remedies.17 O ur conclusion concerning the C ourt’s likely reaction to the proposed legislation is descriptive, not normative. Although Congress and the Court may be willing to substitute amendm ents to the FTCA for the exclusionary rule, we are not convinced that the Departm ent should support the con­ stitutional minimum. We believe that there are good reasons to question the adequacy o f the proposed amendments to the FTCA. The substitution o f the United States as the defendant will mean that any monetary recovery will be paid from the U.S. Treasury, and not by the Federal law enforcement officer in­ volved. It has been asserted that ultimate taxpayer liability will generate public demands for law-abiding police, see, e.g., Wilkey, 62 Judicature 215, 231 (1978); whatever force this has on the State level, we believe that it is tenuous at best when applied to the Federal fisc. This conclusion has empirical support. See Project, “ Suing the Police in Federal C ourt,” 88 Yale L .J. 781 (1979). Thus the only deterrent for the law enforcement

l7It should be noted that enactm ent o f the proposed legislation will have the anom alous result o f abolishing the exclusionary rule in the Federal courts but not the State courts. O f course, passage o f the proposal may well spur the C ourt to reevaluate Mapp v. Ohio, supra, as recently urged by Justice Rehnquist. California v. Minjares, 100 S. Ct. 9 (1979) (Rehn­ quist, J ., dissenting from a denial o f a stay).

502 officer on the street is the disciplinary proceeding that may be convened. The proposal is silent as to the standards o f responsibility that are to be applied in such a proceeding. Presumably, the police officer would be able to assert a good-faith defense since it would be unfair to subject him to ad­ ministrative sanctions if he was carrying out his duties in a m anner that a reasonable officer would believe was lawful. C f , W ood v. Strickland, 420 U.S. 308 (1975); United States v. Norton, 581 F. (2d) 390, 393 and note 2 (4th Cir.) (citing cases), cert, denied, 439 U.S. 1003 (1978); Bivens v. Six Unknown Named Agents, 456 F. (2d) 1339, 1348 (2d Cir. 1972) (on re­ mand). Yet the likelihood o f a person (particularly a convicted defendant) overcoming a good-faith defense is notoriously low. See, Bivens v. Six Unknown Named Agents, 403 U.S. at 421 (Burger, C .J., dissenting). In short, the deterrent effect o f the proposals on the police may be little or no more direct or effective than the exclusionary rule. Indeed, some have sug­ gested that the likely effect o f the proposed am endments is that the Government would be able to “ buy” convictions by paying liquidated damages for Fourth Amendment violations. See Dellinger, supra, 85 Harv. L. Rev. at 1563. Such a remedy may well provide adequate compen­ sation to a person who has been the subject o f an illegal search or seizure; but it may do little to stop the Fourth Amendment from becoming a “ form o f words.” While we are deeply concerned about the ability o f the tort remedy to deter violations o f the Fourth Amendment, we also recognize that the amendments to the FTCA are im portant in that they extend remedies to persons who presently receive no relief after their Fourth Amendment rights are violated. Thus, we would suggest enactment o f the FTCA amendments and continued adherence to the exclusionary rule. If, after an appropriate period o f time, it becomes empirically apparent that the tort- discipline remedy provides adequate deterrence, then we believe that it would be time to reconsider the exclusionary rule. It may be sensible to amend the draft legislation to include a direction to the Department o f Justice that it m onitor over several years the effectiveness o f the FTCA remedy and report to Congress. This proposal will supply an orderly proc­ ess for abolition o f the exclusionary rule, if abolition is empirically sup­ portable. O f course, such a strategy could be frustrated if the Court on its own declared that existence o f the new remedies obviated the need for the exclusionary rule. Congress could forestall the rule’s untimely demise by making clear th at its legislation was experimental and not to be deemed an alternative to the exclusionary rule. The legislation might expressly pro­ vide, for example, that Congress will consider the evidence and the wisdom o f abolition o f the exclusionary rule at some specific future date.

La r r y A . H a m m o n d Acting Assistant A ttorney General Office o f Legal Counsel