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Operation of the exclusionary rule : oversight hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-seventh Congress, second session, on operation of the exclusionary rule, June 2, 16, and December 2, 1982 online

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Online LibraryUnited States. Congress. House. Committee on the JOperation of the exclusionary rule : oversight hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-seventh Congress, second session, on operation of the exclusionary rule, June 2, 16, and December 2, 1982 → online text (page 1 of 41)
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JUNE 2, 16, AND DECEMBER 2, 1982

Serial No. 133

Printed for the use of the Committee on the Judiciary

19-355 O WASHINGTON : 1983











JUNE 2, 16, AND DECEMBER 2, 1982

Serial No. 133

Printed for the use of the Committee on the Judiciary

19-355 WASHINGTON : 1983



PETER W. RODINO, Jr., New Jersey, Chairman ii



DON EDWARDS, California HAMILTON FISH, Jr., New York





SAM D. HALL, Jr., Texas HAROLD S. SAWYER, Michigan _

MIKE SYNAR, Oklahoma DAN LUNGREN, California C


BILLY LEE EVANS, Georgia Wisconsin



BARNEY FRANK, Massachusetts

GEO. W. CROCKETT, Jr., Michigan

Alan A. Parker, General Counsel

Garner J. Cline, Staff Director

Franklin G. Polk, Associate Counsel

Subcommittee on Criminal Justice

JOHN CONYERS, Jr., Michigan, Chairman

DON EDWARDS, California BILL McCOLLUM, Florida


GEO. W. CROCKETT, Jr., Michigan Wisconsin

E. CLAY SHAW, Jr., Florida

Thomas W. Hutchison, Counsel

Michael E. Ward, Assistant Counsel

Gail E. Bowman, Assistant Counsel

Barbara Kammerman, Assistant Counsel

Raymond V. Smietanka, Associate Counsel

Anne I. West, Clerk

Cheryl Reynolds, Clerk

Bennie B. Barnes, Clerk





June 2, 1982 1

June 16, 1982 91

December 2, 1982 139


American Bar Association 51

Cleary, John, Federal defender, southern district of California, on behalf of
the Federal Defenders:

Testimony 114

Prepared statement 124

Eisenberg, Howard, executive director. National Legal Aid and Defender As-
sociation, Washington, D.C.:

Testimony 107

Prepared statement 112

Ellis, Alan, Philadelphia Bar Association:

Testimony 268

Prepared statement 276

Federal Defenders 114

Greenhalgh, William W., chairperson, legislative committee, criminal justice
section, American Bar Association:

Testimony 51

Prepared statement 58

Hoyer, Hon. Steny H., a Representative in Congress from the State of Mary-
land: Testimony 95

Jensen, D. Lowell, Assistant Attorney General, Criminal Division, U.S. De-
partment of Justice:

Testimony 2

Prepared statement 21

Johnson, Sue Marie, deputy director. Police Executive Research Forum:

Testimony 255

Prepared statement 258

National Association of Attorneys General 43

National Legal Aid and Defender Association 107

Philadelphia Bar Association 268

Police Executive Research Forum 255

Roberts, Dennis, II, attorney general. State of Rhode Island, on behalf of

National Association of Attorneys General: Testimony 43

Robinson, Laurie, director, criminal justice section, American Bar Associ-
ation: Testimony 51

Sachs, Hon. Stephen H., attorney general of the State of Maryland:

Testimony 91

Prepared statement 100

U.S. Department of Justice 2

Wasserstrom, Silas, professor, Georgetown University Law Center:

Testimony 139

Prepared statement 155




House of Representatives,
Subcommittee on Criminal Justice
OF the Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10 a.m., in room
2237 of the Rayburn House Office Building, Hon. John Conyers, Jr.
(chairman of the subcommittee), presiding.

Present: Representatives Conyers and Crockett.

Also present: Michael Ward, assistant counsel; and Raymond V.
Smietanka, associate counsel.

Mr. Conyers. Good morning, the subcommittee will come to

Today we commence oversight hearings on the operation of the
exclusionary rule as an enforcement mechanism for the fourth
amendment protection against unreasonable searches and seizures.
The exclusionary rule, which prohibits the use against a criminal
defendant of evidence that was obtained in violation of the defend-
ant's rights, was fashioned by the Supreme Court in 1914 in Weeks
V. United States. In 1961, in Mapp v. Ohio, the Supreme Court held
that the requirements of the exclusionary rule were applicable to
the States by virtue of the 14th amendment.

In the years since the Mapp case, the exclusionary rule has been
the subject of considerable criticism. It is alleged that the rule
allows large numbers of criminal defendants to go free, despite evi-
dence of guilt, and that it is an ineffective deterrent to police mis-
conduct. The Attorney General's task force on violent crime has
recommended modification of the exclusionary rule, and numerous
bills have been introduced toward that end. Our purpose in these
hearings is to explore the operation of the exclusionary rule, as
well as its purposes, and to determine whether these criticisms are

During the course of these hearings, we hope to find the answers
to a number of questions. First we must assess the costs to society
of the rule. Is the existence of the exclusionary rule a serious im-
pediment to law enforcement? How frequently are cases not
brought because of police misconduct? How often do suppression
motions lead to the dismissal of cases against guilty defendants?
What is the nature of the cases in which the exclusionary rule be-
comes an issue?

Second, we must examine the benefits derived from the exclu-
sionary rule. Is it a deterrent to police misconduct? Has it promot-


ed greater concern by the police for the constitutional rights of citi-
zens? Are there other purposes served by the rule?

Third, we must examine alternative methods of enforcing fourth
amendment rights. How effective would they be? What would be
the impact upon the courts, and upon criminal trials in particular,
of alternative enforcement mechanisms?

Finally, we must examine the question of whether the exclusion-
ary rule is a proper subject for legislation, or whether it is rather a
constitutionally mandated rule, to be changed only by the courts or
constitutional amendment.

I hope that these hearings may help us to remove the debate re-
garding the exclusionary rule from the arena of rhetoric, and give
us the information necessary for a careful and reasoned delibera-
tion of the issue.

We are pleased to welcome today Assistant Attorney General
Lowell Jensen, now head of the Criminal Division of the Depart-
ment of Justice, and formerly a district attorney. He has prepared
a thoughtful statement, which will be entered into the record. We
welcome you to the committee.

Good morning, sir.


Mr. Jensen. Good morning, Mr. Chairman. I appreciate this op-
portunity, Mr. Chairman, to appear and testify on the rule that
you have alluded to, because I agree with you that it is a rule that
is now a subject matter of a good deal of scrutiny.

I appreciate the fact that you have already said that we will put
the testimony into the record. I am going to try to be brief because
I know there are other witnesses here this morning. Perhaps we
can discuss it more later.

What I have tried to do is, in effect, go over and shorten my tes-
timony and leave out all of the citations that have been provided to
the committee and counsel. As you have already stated, the rule
comes about because of judicially promulgated decisions that go
back to 1914, the Weeks case that was alluded to by you, Mr. Chair-
man, in your opening remarks.

As you also pointed out, it was not until 1961 that the rule was
applied to the State courts. Up until that time it had been a rule
for Federal courts. Before the decision in Mapp v. Ohio there had
been a previous decision, in 1949, in Wolf v. Colorado where the
Supreme Court had taken up exactly the same issue of whether it
would be applied to the State court and decided that it would not.

The Mapp v. Ohio decision, then, in 1961, certainly reversed that.
I think it is interesting to note that as of the time that Mapp v.
Ohio was decided, the question of whether or not to adopt the rule
had been before various State supreme courts, and in the decades
following the Weeks decision, there had been 16 States that had
adopted the rule and 31 States had refused to accept it. So that
rule was made applicable to those States that had refused to accept
it by Mapp v. Ohio.

What I would like to go into is not only the background of that
rule, but I would like to discuss some of the cases which will illus-

trate the contemporary application of the rule and to discuss with
the committee the proposed legislative changes that came about be-
cause of the consideration of the rule by the Attorney General's
task force.

Before I do that, in terms of this debate, I think I would like to
address some of what perhaps could be called misplaced argu-
ments. In my opinion, there are some issues that are discussed in
arguments that upon proper analysis are nonissues.

One of these nonissues relates to the impact of the rule on the
crime rate. Supporters of the rule claim that advocates for modifi-
cation of the present rule argue incorrectly that reforming the rule
will reduce the crime rate. The fact, however, is that advocates for
reform do not claim that any such change is a panacea for crime
rate reduction. Any thoughtful consideration of contemporary
crime must recognize, unfortunately, that there are no panaceas.
On the other hand, advocates for reform do point out that the rule
operates to free known murderers, robbers, drug traffickers and
other violent and nonviolent offenders and that a rule of evidence
which has such a result without a reasonable purpose to support it
is intolerable.

Another nonissue relates to the impact of the rule on criminal
cases. Supporters of the rule cite a 1979 General Accounting Office
report which found that evidence was actually suppressed in only
1.3 percent of a sample of Federal criminal cases and argue that
modification or abolition of the exclusionary rule is, therefore, not
a significant criminal justice issue.

Aside from the inevitable analytic flaws in the GAO reports — for
example, it did not consider cases not ever presented to U.S. attor-
neys because the law enforcement agency involved felt they pre-
sented fourth amendment problems — any commonsense perspective
on the criminal justice world must take note that the exclusionary
rule is a necessary consideration of every police arrest and of every
seizure of physical evidence, that the rule is the overwhelming
component of drug case litigation, and that the appellate court
overload which faces every judicial system in this country is due in
no small measure to appeals of exclusionary rule issues. The argu-
ment that, somehow, the exclusionary rule has an insignificant
impact on the criminal justice process is totally disingenuous.

Discussion of the true issues pertaining to the exclusionary rule
must begin with an examination of the purpose behind the rule.
When the exclusionary rule was first articulated in Weeks, the
court justified its holding on two grounds: deterrence of unlawful
police conduct and maintenance of judicial integrity. In Elkins v.
United States, 364 U.S. 206 (1960), the court stated the deterrence
ground as follows: Its purpose is to deter — to compel respect for the
constitutional guarantee in the only effectively available way — by
removing the incentive to disregard it.

The judicial integrity rationale was based on the notion that
courts should be prevented from being "accomplices in the willful
disobedience of a constitution they are sworn to uphold." Early ex-
clusionary rule cases mentioned both rationales. However, over
time, as the rule has been explicated, the asserted rationale of judi-
cial integrity essentially has been abandoned.

The emergence of deterrence as the reason for the rule is aptly
illustrated by the Court's opinions in fourth amendment retroactiv-
ity cases. In Linkletter v. Walker, 381 U.S. 618 (1965), the Court,
considering the issue for the first time, refused to apply Mapp v.
Ohio retroactively. The Linkletter Court observed that the basis for
Mapp's application of the exclusionary rule to the States was its
finding that the rule "was the only effective deterrent to lawless
police action."

Applying that premise to the Linkletter case, the Court noted
that it "cannot say that this purpose would be advanced by making
the rule retrospective. The misconduct of the police prior to Mapp
has already occurred and will not be corrected by releasing the
prisoners involved." Id. at 637. Likewise, in Desist v. United States,
394 U.S. 244 (1969), the Court observed that "the exclusionary rule
'has no bearing on guilt' or the fairness of the trial." Id. According-
ly, it "declined to extend the court-made exclusionary rule to cases
in which its deterrence purpose would not be served." Id.

More recently, in United States v. Peltier, 422 U.S. 531 (1975), the
Court held that the policy underlying the exclusionary rule did not
require the suppression of evidence seized in searches which were
clearly unlawful under standards established before the trial of
Peltier in the case of Almeida-Sanchez, 413 U.S. 266 (1973), but
were lawful at the time they were actually carried out, which was
before Almeida-Sanchez was decided. The Court observed that al-
though Supreme Court decisions applying the exclusionary rule to
unconstitutionally seized evidence have referred to "the imperative
of judicial integrity," the Court has relied principally upon the de-
terrent purpose served by the exclusionary rule. The Court further
noted that the lesson to be learned from the retroactivity cases is
that "the 'imperative of judicial integrity' is * * * not offended if
law enforcement officials reasonably believed in good faith that
their conduct was in accordance with the law even if decisions sub-
sequent to the search or seizure have held that conduct of the type
engaged in by the law enforcement officials is not permitted by the
Constitution." Id. at 537-38. Focusing specifically on the deterrence
purpose, the Court concluded that "evidence obtained from a
search should be suppressed only if it can be said that the law en-
forcement officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the fourth
amendment." Id. at 542.

In Michigan v. DeFillippo, 443 U.S. 31 (1979), the Court held that
the rule should not be applied to exclude evidence when it has
been seized during an arrest for violation of a statute valid at the
time of the arrest but which is subsequently declared invalid. The
Court stated:

"The purpose of the exclusionary rule is to deter unlawful police
action. No conceivable purpose of deterrence would be served by
suppressing evidence which, at the time it was found on the person
of the respondent, was the product of a lawful arrest and a lawful
search. To deter police from enforcing a presumptively valid stat-
ute was never remotely in the contemplation of even the most zeal-
ous advocate of the exclusionary rule." Id. at 38 n. 3.

The declaration in the retroactivity cases of the deterrence ra-
tionale for the exclusionary rule is also apparent in the Court's ap-

proach to determining whether the rule should be applied in a va-
riety of other circumstances.

In United States v. Calandra, 414 U.S. 338 (1974), the Court held
that a witness before a grand jury could not refuse to answer ques-
tions based on evidence obtained in violation of the fourth amend-
ment. In that case, the Court stated that the purpose of the exclu-
sionary rule is not to redress the injury to the privacy of the search
victim. Instead, the rule's prime purpose is to deter future unlaw-
ful police conduct and thereby effectuate the guarantee of the
fourth amendment against unreasonable searches and seizures.

In United States v. Janis, 428 U.S. 433 (1976), the Court refused
to exclude from a Federal civil proceeding evidence seized unconsti-
tutionally but in good faith by State law enforcement officers. The
Court concluded that "exclusion from Federal civil proceedings of
evidence unlawfully seized by a State criminal enforcement officer
has not been shown to have a sufficient likelihood of deterring the
conduct of the State police so that it outweighs the societal costs
imposed by the exclusion." Id. at 454. Because the evidence in both
Calandra and Janis had been obtained unlawfully, application of
the judicial integrity rationale would have required suppression of
the evidence. However, as noted above, the Court considered the
deterrent purpose of the exclusionary rule as its primary rationale
and concluded that the evidence should not be suppressed.

The deterrence rationale was also used as the basis of exclusion-
ary rule analysis when the Court held that unlawfully seized evi-
dence is admissible to impeach the defendant's testimony at his
criminal trial, United States v. Havens, 446 U.S. 620 (1980) and that
no person other than the defendant has standing to ask for the in-
vocation of the exclusionary rule. See Rakas v. Illinois, 439 U.S.
128 (1978). In sum, the judicial integrity rationale has essentially
been abandoned by the Court as a factor in its exclusionary rule

Problems with the rule. As the above cases demonstrate, the
Court has clearly established that the true purpose behind the ex-
clusionary rule is the deterrence of police misconduct. The heart of
the problem with the exclusionary rule lies in its application: The
courts have gradually expanded its application to situations in
which the rule cannot possibly serve as a deterrent. This expansion
has distorted the preeminent purpose of the rule with the result
that the truth-finding process is impeded, and society is done a
grave and unnecessary injustice.

The clearest example of misapplication of the exclusionary rule
arises when courts suppress evidence seized by police in executing
a duly authorized search warrant. In that type of case a second or
third judge, in disagreement with the judge who issued the war-
rant, invalidates the search despite the absence of any police mis-
conduct. Consider in this regard United States v. Karathanos, 531
F. 2d 26 (2d Cir. 1976). In that case, INS agents obtained a warrant
to search certain business premises. The warrant was issued based
on an affidavit that the magistrate found sufficient to establish
probable cause that the defendant was involved in the criminal
harboring of illegal aliens. The district court judge, however, disa-
greed with the finding of the magistrate who issued the warrant
and held that probable cause had not been stated. The evidence

that had been obtained by the search was suppressed, even though
the appellate court acknowledged that there was no suggestion
that the agents had acted improperly either by procuring the war-
rant in bad faith or by making a material misrepresentation in the
warrant application.

United States v. Shorter, 600 F. 2d 585 (6th Cir. 1979), is another
example of the exclusionary rule being applied where an author-
ized search warrant is invalidated by a second judge or court. In
that case, local police and agents of the Federal Bureau of Investi-
gation arrested a suspected Ohio bank robber at his home. After
the arrest, the FBI agent telephoned a Federal magistrate and
stated his grounds for a search warrant which was then issued by
the magistrate as permitted by law. The subsequent search pro-
duced incriminating evidence, including bait bills and a firearm.
The trial judge ruled the search lawful, but the conviction was re-
versed on appeal. The appellate court decided that although the of-
ficer had in fact been placed under an oath by the magistrate
which incorporated all the testimony already provided in the
course of reciting the grounds for the warrant, the failure of the
magistrate to require the oath at the beginning of the telephone
conversation violated the law because the applicable Federal rule
requires that the oath be obtained immediately.

These cases involve disagreements between judges about judicial
conduct — there is no police misconduct involved. The police were
carrying out their duties as society expects them to do: The officers
provided their information fully and honestly to the court and pro-
ceeded to carry out the orders of the court once the warrants were
issued. Suppression of evidence in instances such as these does not
serve the purpose of the exclusionary rule, the deterrence of police
misconduct. In fact, it only serves to damage both a community's
perception of justice and the morale of law enforcement officers
who have followed the rules only to have the evidence suppressed
on the premise that they have violated the Constitution. Proper
police conduct is thereupon falsely labeled as illegal.

The deterrent purpose of the exclusionary rule also is not served
when courts apply the rule to situations where the appellate court
cases are not at all clear, where the law is thoroughly confused or
even in situations where the cases are in flat contradiction. Police
often are confronted with the questions of whether to conduct a
warrantless search in the field when the circumstances they are
facing are not covered by existing case law.

Last term, the U.S. Supreme Court decided two cases that aptly
illustrate this point. New York v. Belton, 101 S. Ct. 2860 (1981), and
Robbins v. California, 101 S. Ct. 2842 (1981). The cases are remark-
ably similar factually. In both cases, police officers lawfully stopped
a car, smelled burnt marihuana, discovered marihuana in the pas-
senger compartment of the car, and lawfully arrested the occu-
pants. Thereafter, in Robbins, the officer found two packages
wrapped in green opaque paper in the recessed rear compartment
of the car, opened them without a warrant, and found 30 pounds of
marihuana. In Belton, the officer found a jacket in the passenger
compartment, unzipped the pocket without a warrant, and found a
quantity of cocaine.

Both cases required an analysis of the automobile exception cases
which pertain to the validity of warrantless searches of cars and
their contents, see, for example, Carroll v. United States, 267 U.S.
132 (1925); the doctrine of "search incident to arrest" as defined by
Chimel v. California, 395 U.S. 752 (1969); and the watershed case of
United States v. Chadwick, 433 U.S. 1 (1977), in which the Court
held that police must obtain a warrant to open a closed container
in an automobile where the possessor of the container has exhibit-
ed a reasonable expectation of privacy in that particular container.

When the Supreme Court decided Belton and Robbins, three jus-
tices opined that both searches were legal; three justices opined
that they were both illegal; and three justices controlled the ulti-
mate decision that Robbins was illegal and Belton legal. To add to
the confusion, the Robbins search now said to be illegal had been
found to be legal by the California courts and the Belton search
now said to be legal had been found to be illegal by the New York

When Robbins was finally decided, 14 judges had reviewed the
search: 7 found it valid; 7, invalid. Now that Robbins and Belton
have been decided, do we know the law which governs police con-
duct in similar searches? Justice Brennan offers this comment in
his Belton dissent: "The Court does not give the police any 'bright
line' answers to these questions. More important, because the
Court's new rule abandons the justifications underlying Chimel, it
offers no guidance to the police officer seeking to work out these
answers for himself."

Online LibraryUnited States. Congress. House. Committee on the JOperation of the exclusionary rule : oversight hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-seventh Congress, second session, on operation of the exclusionary rule, June 2, 16, and December 2, 1982 → online text (page 1 of 41)