United States. Congress. House. Committee on the J.

Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

. (page 31 of 51)
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be immune from damages liability if they reasonably believe that
their actions were lawful. Those principles are critically relevant in
this context.

The issue whether a police officer is entitled to qualified immu-
nity with unconstitutional search or seizure is not materially dif-
ferent from the question of whether the exclusionary rule requires
the suppression of evidence for the same conduct.


In fact, the Supreme Court has already drawn an express par-
allel between the two situations. The Supreme Court has held that
law enforcement officers can receive qualified immunity for con-
ducting an unlawful warrantless search, and the Supreme Court
has also ruled that the same standard of objective reasonableness
governing the qualified immunity analysis also defines the good-
faith inquiry.

Those decisions go a long way towards the correct answer to this
problem. If the police officer should not have to pay in damages for
his mistake about the lawfulness of a search or seizure, then soci-
ety also should not have to pay in the suppression of evidence from
the same conduct.

Considered from either perspective, if the officers involved acted
reasonably, neither they nor society should be penalized for a mis-
take that occurred. That conclusion makes sense.

As the Supreme Court has explained, courts ought to be less will-
ing to apply the exclusionary rule than to hold an officer personally
liable in damages. After all, even if the exclusionary rule serves a
necessary but painful purpose, it obviously does so at a consider-
able cost to society as a whole, because it excludes probative evi-
dence and oftentimes can free a clearly guilty suspect.

By contrast, a damages remedy for an unlawful search or seizure
imposes a cost directly on the responsible officer without the side
effect of hampering a criminal prosecution. Also, a damages remedy
benefits the victim of his conduct most deserving of a remedy, the
person who in fact has done no wrong and has been arrested for
no reason or a bad reason.

In other words, damages directly compensate the victim of police
misconduct imposes their costs on the blameworthy party, the of-
fending officer, whereas suppression is presumed benefits indirectly
while imposing costs on the blameless, society.

For that reason, if it is inappropriate to make an officer pay
damages for his actions, and under the qualified immunity doctrine
it often is, it also is unreasonable to make society pay through sup-
pression, and the good faith or reasonable mistake exception at-
tempts to achieve that result.

For those reasons, the exception as contained in title VI should
be applied to warrant authorized and warrantless searches and sei-

In sum, title VI of H.R. 3 makes a valuable contribution to the
criminal process. I urge the subcommittee to recommend its adop-
tion and I hope that Congress enacts title VI into law.

Mr. Chairman, thank you.

Mr. McCOLLUM. Thank you very much, Mr. Larkin.

[The prepared statement of Mr. Larkin, follows:]


The "exclusionary rule" is a rule of evidence that requires the exclusion from evidence in the
prosecution's case-in-chief of evidence directly or derivatively obtained by law enforcement officers
in violation of the Fourth Amendment The Supreme Court of the United States originally adopted
the exclusionary rule for federal criminal prosecutions in li^eeks v. United Slates, 232 US 383
(1914), and later applied it to the states mMapp v. Ohio, 367 US 643 (1961) The exclusionary rule
has been controversial throughout its history, principally because of the widely-shared belief that it
is unreasonable to reward a guilty criminal by suppressing probative evidence of his guilt because of
an error made by law enforcement officers in conducting a search or effecting his arrest In Justice
(then Judge) Benjamin Cardozo's famous epigram, since the exclusionary rule oftentimes requires
suppression of clearly probative evidence of a suspect's guilt, operation of the rule can mean that
■■(t]he cnmmal is to go free because the constable has blundered, ' People v. iJefore, 1 50 N.E 585,
587 (N V ). cert denied, 270 U S 657 (1926)

In 1984, after canvassing the history of and justifications for the exclusionary' rule, the
Supreme Coun adopted an exception to the rule that has come to be known as the "good faith" or

' I was one of the counsel who represented the United States in two cases noted below that
involved the reasonable mistake exception to the exclusionary rule, Illinois v Krull, 480 US 340
(1987), and United Stales \ Merchant, 480 US 615 (1987) I also currently am counsel of record
for the Washington Legal Foundation and other amici in another such case, Arizona v. Evans, No
93-1660, cert granted (argued Dec 7, 1994), which is pending before the Supreme Court at this
time The views stated in this memorandum are my own and do not necessarily represent the views
of the United States Department of Justice, the Washington Legal Foundation, or any of the other
amici that 1 represented in Arizona v. Evans


(more accurately) "reasonable nustake" exception In United States v Leon, 468 US 897 (1984),
and its companion case, Massachusetts v. Sheppard, 468 US 981 (1984), the Supreme Court held
that the exclusionary rule should not be applied when law enforcement officers act in objectively
reasonable reliance on a search warrant Three years later, the Court reaffirmed and extended that
principle in Illinois v Krull, 480 US 340 (1987), ruling that the exclusionary rule also should not
be applied when law enforcement officers reasonably rely on a statute authorizing them to conduct
a search *

Title VI of the Taking Back Our Streets Act of 1995, H.R 3, proposes to modify the
exclusionary rule to incorporate the so-called reasonable mistake exception into the United States
Code I was asked to address the provisions of Title VI, and 1 offer the following statement in that
regard First, Congress clearly has the power to adopt Title VI Second, Congress should enact Title
VI, because the provisions of Title VI would serve as an important step forward in the progressive
development of a rational cnmmal justice system

The Supreme Court has had the opportunity to address the reasonable mistake exception in
only a fev\ other instances The Supreme Court granted certiorari in Colorado v. Quintero, a
companion case to Leon and Shcp/xird, in order to decide whether (and, if so, how) the reasonable
mistake exception should apply in the case of a warrantless search or seizure, but the Court later
dismissed (Juiniero as moot, since Quintero died before the case could be decided Later, the Court
granted certiorari m United States v Merchant, to decide whether the reasonable mistake exception
to the exclusionary rule adopted in Leon applies to an officer's reliance on a consent-to-search clause
in a judgment of probation, but the Court ultimately declined to answer that question and dismissed
the case as improvidently granted 480 US 615(1987) More recently, the Supreme Court granted
certiorari m Arizona \. E\wis, No 93-1660, to decide whether the Fourth Amendment exclusionary
rule requires the suppression of evidence obtained by law enforcement officers acting in reliance upon
a facially-valid radio report that a warrant exists for a suspect's arrest That case was argued on
December 7, 1994, and is still pending before the Court


I. Congress Has The Power To Modiry The Exclusionary Rule

At the outset, it is important to recognize that Congress clearly has the power to adopt Title

VI of the Taking Back Our Streets Act of 1995 The reason is that the exclusionary rule is neither

a part of nor required by the Fourth Amendment, instead, it is a judicially-created rule of evidence.

Because Congress has the authority to devise rules of evidence for use in federal criminal

prosecutions. Congress enjoys the power to revise or abolish the exclusionary rule for cases tried in

the federal courts Moreover, the only legitimate justification for the exclusionary rule is its presumed

deterrent effect on misconduct by law enforcement officers If Congress believes (for example) that

the exclusionary rule does not (or is not likely to) deter police misconduct, or that the costs of such

deterrence as may be produced by the exclusionary rule are not justified by the presumed benefits of

the nale, it is perfectly legitimate — indeed, eminently desirable — for Congress to remedy the harms

done by the exclusionary rule to the cnminal justice system

A. The Fourth Amendment Does Not Require Suppression Of Unlawfully Obtained

]. The text and background of the Fourth Amendment

Constitutional analysis, like statutory interpretation, should begin with the text of the relevant
law . and "the plain language of the enacted text is the best indicator of intent " Nixon v United
Slates. 113S Ct 732,737(1993) The text of the Fourth Amendment provides as follows; "The
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized " The text of that provision does not require the suppression of



evidence, however it is obtained That conclusion also stands out when the Fourth Amendment is
compared with the Self-incrimination Clause of the Fiflh Amendment ' The latter states that "[njo
person * ♦ * shall be compelled in any criminal case to be a witness against himself" thereby
indicating that the government cannot obtain from and use against a person certain types of evidence
The contrast between the phrasing of the Fourth and Fifth Amendments is instructive in this regard
The text of the two provisions indicates that the latter contains a limited rule of exclusion (v;r , self-
incriminating statements cannot compelled from a person acting as a witness), and the former contains
none at all Accordingly, the text of the Fourth Amendment certainly does not require the
exclusionary rule, let alone a broad form of such a rule

The background history to the adoption of the Fourth Amendment also does not demonstrate
that the Framers adopted it for the purpose of imposing an exclusionary rule on the federal
government ' The common law in 1 789 did not require the suppression of unlawfully obtained
evidence, and English law still does not have an exclusionary rule The Framers' principal concern
was to prevent abuses m the issuance of warrants, not to exclude probative evidence, even if it was
obtamed unlawfully Accordmgly, the history of the Fourth Amendment, like its text, does not
require suppression of evidence even if it is obtained in violation of the Fourth Amendment

See Frcyiag v. Commissioner, HIS Ct 263 1, 2644 ( 1991 ) ("the Constitution's terms are
illuminated by their cognate provisions")

* For a discussion of the history behmd the Fourth Amendment, see, e.g. , Boyd v. United Stales,
1 16 US 616, 624-30 (1886), Weeks, 232 US at 3i9-9l, Marcus v. Search Warrants, 367 US 717,
724-29 (1961). and Stanford v. Texas, 379 US 476, 481-85 (1965)


2. The Supreme Court's decisions

The case law in this regard also makes clear that the Fourth Amendment itself does not
require suppression of unlawfully seized evidence. In fact, that proposition is now well settled A
plurality of the Supreme Court in Mapp v Ohio suggested that the Constitution requires the exclu-
sionary rule, but since then the Supreme Court repeatedly has made clear that the Fourth Amendment
imposes no such requirement As the Court once put it, the Fourth Amendment "has never been
interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all
persons " Stone v Powell, 428 US 465, 486 (1976) The Supreme Court has made clear on
numerous occasions that the exclusionary rule, in Professor Anthony Amsterdam's words, "is a
needed, but grudgingly taken, medicament, no more should be swallowed than is needed to combat
the disease " Search. Seizure, and Section 2255: A Comment. 1 12 U Pa L Rev 378, 389 (1964),
see. e.g.. Stone v Powell. 428 US 465 (1976), United States v Calandra. 414 US 338 (1974)
The Supreme Court made that point expressly in United Stales v Leon The Court explained that
"|!]he Fourth Amendment contams no provision expressly precluding the use of evidence obtained
in violation of its commands, and an examination of its origin and purposes makes clear that the use
fruits of a past unlawful search or seizure 'workfs] no new Fourth Amendment wrong '" 468 US
at 906 (quoting Calandra. 414 U S at 354) Instead, the exclusionary rule is "a judicially created
remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather
than a personal constitutional right of the party aggrieved " Id (quoting Calandra. 414 US at 348)

The Supreme Court also has imposed various limitations on application of the exclusionary
mle in much the same way t"hat state courts develop and refine principles of tort law For example,
the Court has held that the rule should not be applied in civil proceedings INS v. Lopez-Mendoza,



468 US 1032 (1984) (deportation proceedings), United States v. Jams, 428 US 433 (1976) (civil
tax proceedings) Even in criminal cases, however, the Court has limited use of the exclusionary rule
in different ways The rule is inapplicable to grand jury proceedings United States v Calandra, 414
US 338 (1974) By implication, the rule also would not apply to other stages of cnminal
prosecutions anterior to the guilt phase, such as a preliminary hearing, a bail hearing, or an extradition
hearing At trial, the rule bars the prosecution from offering unlawfully-obtained evidence during its
case-in-chief, but does not prohibit the prosecution from using such evidence to impeach a testifying
defendant E.g., United States v. Havens, 446 US 620 (1980) Only persons whose own Fourth
Amendment rights have been violated can seek the exclusion of evidence, even defendants in criminal
cases cannot raise suppression claims on behalf of other parties E.g., United States v. Padilla, 1 13
S Ct 1936 (1993) And pnsoners cannot reiitigate suppression claims in collateral proceedings as
long as they had a full and fair opportunity to assert such a claim at trial and on direct appeal Stone
\ I'lMvll. 428 U S 465 (1976) Accordingly, it is clear from the holdings in a senes of decisions by
the Supreme Court that the exclusionary rule is not dictated by the Fourth Amendment

Finally, on three occasions - United States v Leon, 468 US 897 (1984), Massachusetts v.
.S/iiyVwJ. 468 U S 981 ( 1984), and /////lo/.vv A'n///, 480 U S 340 (1987) - the Supreme Court
expressly held that the exclusionary rule should not be applied even to the prosecution's use of
evidence dunng its case-in-chief when law enforcement officers reasonably rely on a search warrant
(U-on and SfK-pparJ) or statute (Kndf) authorizing a search The benefits from suppressing evidence
in those arcumstances, the Court concluded, are "marginal or nonexistent," so the exclusionary rule
should not be invoked Leon, 468 US at 922 Given the inherent trustworthiness of physical
evidence and the societal costs of suppression, application of the exclusionary rule has been carefully



"restricted to those areas where its remedial objectives are thought most efficaciously served,"

Calandra, 414 US at 348, which would not be possible if the Fourth Amendment dictated

suppression of evidence

B. The Sole Justification For The Exclusionary Rule Is Its Presumed Deterrent
Effect On Police Misconduct

The Supreme Court initially justified the exclusionary rule as a remedy for the violation of the

defendant's right of privacy protected by the Fourth Amendment Since then, however, the Court has

repeatedly and squarely rejected that rational, explaining succinctly in Elkms v United States, 364

US 206, 217 (1960), that "[t]he rule is calculated to prevent, not to repair 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 " Over time, the Supreme Court realized that exclusionary rule is not a

sensible remedy for an unlawful invasion of privacy It utterly fails to remedy the insult suffered by

the innocent viaim of an unlawful search or seizure, since that person is not prosecuted for any crime

What is more, it supplies a benefit "wholly disproportionate to the wrong suffered" by the guilty,

because even a minor error by the police can lead the suppression of evidence and inability to

prosecute a clearly guilty offender Henry Friendly, The Bill of Rights as a Code of Criminal

/'nKcdiirc. 53 Calif L Rev 929, 951 (1965). see also, e.g.. Stone. 428 U S at 486. Jams. 428 US

at 446. Calandra. 414 U S at 347, Linklelier v Walker. 381 US 618, 637 (1965), see also, e.g.,

Lopez-Meiidoza. 468 U S at 1046 ("[t]he exclusionary rule provides no remedy for completed


Realizing that the exclusionary rule cannot be justified as a remedy for an invasion of privacy,

the Supreme Court devised other rationales for the rule For example, the Court surmised xnMapp


V. Ohio that the Constitution required suppression of evidence for Fourth Amendment violations
Yet, the Supreme Court has rejected that proposition, too As explained above, neither the text nor
the history of the Fourth Amendment dictates suppression of evidence, and, as the Supreme Court
has oflen ruled, the purposes of the exclusionary rule do not always forbid the government from using
unlawfully obtained evidence E.g., Janis, Havens, Leon

A third rational advanced in support of the exclusionary rule is that suppression is necessary
in order to protect the integrity of the judicial process by barring the introduction of tainted evidence
Elkins, 364 US at lll-li. That rationale, too, has not withstood the test of time In numerous
cases the Court has limited the standing of defendants to assert Fourth Amendment claims and has
permined unlawfully seized evidence to be used for purposes, such as impeachment of the defendant,
that would be impermissible if the exclusionary rule protected the integrity of the judicial process
Eg . I'aJilla. Havens "Judicial integrity clearly does not mean that the courts must never admit
evidence obtained in violation of the Fourth Amendment " Jams, 428 U S at 458 n 35 As the Court
noted in UmieJ Stales v. Peltier, All US 531, 537-38 (1975), judicial integrity is not offended if
\^y*^ enforcement officials reasonably believed "that their conduct was in accordance with law even
if decisions subsequent 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 "

Once again, the Supreme Court's decision in Leon is illuminating The propriety of applying
the exclusionary rule in a panicular situation, the Court recognized in Leon, turns on the "weighing
the costs and benefits" of withholding from the truth-seeking process reliable evidence 468 US at
907, see iJ at 908-13 (cataloging instances in which the Court has found suppression unjustified
since the possible benefits of suppression did not outweigh its costs) And "the question whether the



use of illegaUy obtained evidence injudicial proceedings represents judicial participation in a Fourth
Amendment violation and oflFends the integrity of the courts 'is essentially the same as the inquiry into
whether exclusion would serve a deterrent purpose '" Id at 921 n.22 (quoting Jams, 428 US at 459
n 35) For those reasons, this Coun concluded in Leon that, because "the marginal or nonexistent
benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subse-
quently invalidated search wanant cannot justify the substantial cost of exclusion," the exclusionary
rule should not be applied if a law enforcement officer reasonably relies on a search warrant issued
by a magistrate Id at 922

In sum, over the past three decades the Supreme Court has made clear that the only viable
contemporary justification for the exclusionary rule is its presumed deterrent effect on police
misconduct That conclusion is important since the question whether the deterrent effect of the
exclusionary rule outweigh its costs is one that Congress is better suited to decide than are the courts
The Supreme Court made a closely analogous point in Gregg v. Georgia, 428 US 153 (1976)
There, the Court determined that the question whether capital punishment deters homicides is better
resolved by the political branches, than by the judiciary As the lead opinion for the Court explained,
■'lt)he value of capital punishment as a deterrent of crime is a complex factual issue the resolution of
which properly rests with the legislatures, which can evaluate the results of statistical studies in terms
of their own local conditions and with a flexibility of approach that is not available to the courts "
Id at 186 Here, too. Congress is in a better position than the federal courts to evaluate the "social
utility (of the exclusionary rule] as a sanction," id at 187 (joint opinion), and to make whatever
adjustments in the exclusionary rule are necessary in light of that assessment



11. Congress Should Modify the Exclusionary Rule By Enacting Title VI of H.R. 3

A. The Reasonable Mistake Exception Is a Valuable Advance In the Criminal

1 In deciding whether the reasonable mistake exception adopted in Leon should be
incorporated into the United States Code, it is important to keep two points in mind One is that the
exclusionary rule frustrates the critical purpose of the criminal process by excluding from
consideration highly relevant and trustworthy evidence "[T]he central purpose of a criminal trial is
to decide the factual question of the defendant's guilt or innocence " Delcmare v. VaitArsdall, 475
US 673, 681 (1986) To achieve that goal, the rules of evidence generally provide that all relevant
evidence is admissible The exclusionary rule creates a major exception to that rule Suppression
hinders the truth-finding process in every case, in some cases the exclusionary rule will entirely defeat
that process, because an otherwise guilty defendant will escape scot free once the proof of his guilt
IS suppressed Since the exclusionary rule operates in precisely the opposite fashion of what we
ordinarily demand of a rule of evidence, the burden of proving the need for that rule should rest on
Its proponents, not on those who seek to ensure that the verdict in a criminal trial rests on
consideration of all relevant evidence

The second point is that the exclusionary rule may not (or at least not effectively) deter Fourth
Amendment violations, for several reasons The brunt of the rule falls not on the officers involved,
but on the prosecution, which generally cannot discipline police officers for their misconduct Even
if some deterrent effea generally is felt by the police, no penalty is imposed by the Court on the errant
officer, which is necessary for deterrence to have bite Moreover, the rule does not affect police
activity that is not undertaken for the purpose of obtaining evidence Activities undertaken by the



police for other purposes is untouched by the exclusionary rule In addition, the rule only applies to
evidence to be used at trial in the prosecution's case-in-chief There are other, permissible uses of
unlawfully obtained evidence, and the practice of plea bargaining allows Fourth Amendment claims
to be traded away by the defense for charging or sentencing concessions, thereby minimizing the
potential for educating the police about the Fourth Amendment The rule therefore affects only a
small proportion of police activity Also, police ofBcers generally are rewarded for "clearing" cases —
VIZ , making "collars" or arrests — rather than for convictions Indeed, officers whose illegal actions
clear outstanding cases may receive the implicit or explicit approval of their superiors, even though
the officers' illegal searches or seizures result in lost convictions In any event, trial judges oftentimes
do not explain to the police why evidence is excluded, which prevents officers from rectifying their

A powerful case therefore can be made that the exclusionary rule should be eliminated
altogether Opponents of the exclusionary rule have catalogued the costs of the rule on numerous

Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 31 of 51)