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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 32 of 51)
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 32 of 51)
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occasions Those costs have been fiilly discussed in the Supreme Court's decisions and in the legal
literature, and they can be summarized as follows

Iir.si. the exclusionary rule directly benefits only the guilty, the innocent are not compensated
Second, the rule imposes a disproportionate sanction on society, in violation of our sense that justice
requires that a remedy not be excessive to a wrong The costs of the rule indiscriminately fall on
every type of prosecution, regardless of its importance, and every type of error, regardless of the
nature and extent of the officer's mistake or the other tools that are available to prevent misconduct
in the future or to remedy""it when it does occur Third, the exclusionary rule can have a chilling
effect on legitimate police conduct near the indistinct line separating lawful from unlawful searches.


Fourth, by allowing clearly guilty offenders to escape conviction without making an equally obvious
and immediate contribution to an equally important societal goal, the exclusionary rule undermines
public respect for the legal system Fifth, the suppression hearings and appellate litigation made
necessary by the rule impose a significant drain on limited judicial resources that could be better spent
ensuring that the guilty are convicted and the innocent acquitted Sixth, the exclusionary rule has the
side effect of causing the actors in the criminal justice system to engage in various kinds of
undesirable conduct The rule intensifies plea bargaining by prosecutors who, fearing suppression
of important evidence, may be willing to negotiate over the charge or sentence, rather than risk
dismissal The rule obligates defense counsel to move for suppression in every case, regardless of
the merit of the defendant's claim, if for no other reason than to avoid the charge of providing
ineffective assistance of counsel The rule sabotages internal disciplinary efforts by law enforcement
authorities, because findings made in such proceedings will haunt any related criminal prosecution
In fact, the rule may actually encourage cenain forms of police misconduct, such as perjury, as
officers stretch the truth in order the bnng their conduct within the bounds of the law And, quite
ironically, the exclusionary rule ultimately threatens the very Fourth Amendment values that it was
designed to safeguard, because it places increasing pressure on judges to sanction dubious searches
and seizures due to their reluctance to watch a grinning hoodlum walk away, claiming that he has
beaten the system on a technicality

2 For all those reasons. Congress could decide that the exclusionary rule has outlived its
usefulness Congress could substitute a comprehensive tort and administrative remedy in place of the
exclusionary rule, or Congress could simply abolish the exclusionary rule without substituting any
remedy in Its place Title VI of HR 3, of course, does not go nearly that far Nonetheless, even if


the presumed benefits of the exclusionary rule are presumed to outweigh its costs in some instances,
those benefits do not outweigh the costs in cases that would be governed by a reasonable mistake
exception The reasonable mistake exception contained in Title VI would be a valuable addition to
federal criminal law, for several reasons

a Applying the exclusionary rule to conduct that an objectively reasonable police officer
would find lawfiil unjustifiably punishes society The Supreme Court recognized that point in Leon
As the Court there explained, "where the officer's conduct is objectively reasonable, excluding the
evidence will not further the ends of the exclusionary rule in any appreciable way, for it is painfully
apparent that the officer is acting as a reasonable officer would and should act in similar
circumstances Excluding the evidence can in no way affect his future conduct unless it is to make
him less willing to do his duty " 468 US at 919-20 (citation and internal punctuation omitted)

Common sense also supports that proposition Society expects law enforcement officers
vigorously to pursue cnminal investigations and also to respect the Fourth Amendment Both goals
are imponant Although society has an interest in deterring impropriety by law enforcement officers,
society also has at least an equally strong interest in encouraging good police work Deterring the
latter is costly and should therefore be avoided The reasonable mistake exception returns the balance
to Its proper position by eliminating the fn'crdeterrence that follows from an unyielding application
of the exclusionary rule Al^er all, the cases in which a reasonable mistake exception would apply are
ones in which it is an indistinct line separating lawrful from unlawfiil conduct, and in which different
courts could disagree over the correct analysis of the issue Since the exclusionary rule does not exist
to deter the courts and since the police should not be deterred fi"om engaging in objectively reasonable
conduct, applying the exclusionary rule in the category of cases covered by a reasonable mistake



exception severely punishes society without materially contributing to the deterrent purpose of the
exclusionary r*jle What the suppression of evidence in those circumstances will do (ironically, but
predictably) is induce in the police and the pubhc exactly the type of disrespect for the law that
generates hostility to Fourth Amendment values - the precise opposite of the rule's hoped-for effect
No one profits from that result Accordingly, since the only legitimate justification for the
exclusionary rule is its presumed deterrent effect on police misconduct, when the suppression of
evidence cannot measurably contribute toward that goal, the rule should not be applied

It would be wrong to argue that a reasonable mistake exception will lead to abusive police
practices, since the exception requires suppression in cases of egregious police misconduct The
exception does not shelter a law enforcement officer who purposefully violates the Fourth
Amendment Experience under Leon indicates that to be the case What is more, the exception is
not likely to encourage ignorance of the law In deciding whether an officer had an objectively
reasonable belief that his conduct is lawful, the courts can require, for instance, that an officer know
the Founh Amendment rules adopted by the Supreme Court The reasonable mistake exception
therefore encourages police departments to keep their officers abreast of major developments in the

b The reasonable mistake exception should include warrant-authorized and warrantless
searches The Supreme Court adopted the reasonable mistake in Leon and applied that exception
there and m Massachuseits v Sheppard to warrant-authorized searches The Court later extended
that exception to searches authorized by a statute in the case oHllmois v. Krull Accordingly, the
case law does not limit the exception to instances in which a magistrate has issued a warrant In
addition, the rationale underlying the reasonable mistake exception also extends beyond the case of


a warrant-authorized search The critical factor is not whether a magistrate has issued a search
warrant, but is whether a law enforcement oflBcer has an objectively reasonable belief that his conduct
is lawful If he does, the potential for deterrence, as well as its social value, is drastically reduced.
The justification for suppressing evidence when an officer has acted reasonably, even if mistakenly,
largely vanishes That is true whether or not the officer has a search or an arrest warrant

Indeed, extension of the reasonable mistake exception to warrantless searches and seizures
is a sensible development in the law governing remedies for Fourth Amendment violations A person
whose home is unlawfully searched can sue the officers involved for damages under Bivens v. Six
Unhiown Named Agents, 403 US 388 (1971) Under the qualified immunity doctrine set forth in
cases such as Harlovt- v. Fitzgerald, 457 US 800 (1982), and Anderson v. Creighton, 483 US 635
(1987), those officers will be immune from damages liability if they reasonably believed that their
actions were lawfiil Those principles are critically relevant to this context, because the issue whether
a police officer is entitled to qualified immunity for an unconstitutional search or seizure is not
materially different from the question whether the exclusionary rule requires the suppression of
evidence for the same conduct Indeed, the Supreme Court has drawn an express parallel between
the two situations In Mitchell v. Forsyth, 472 US 51 1 (1985), and Anderson v Creighton, 483
U S at 644. the Supreme Court held that law enforcement officers can receive qualified immunity for
conduaing an unlawful warrantless search And inMalleyv Briggs, 475 US 335, 344-45 (1986),
the Supreme Court ruled that "the same standard of objeaive reasonableness" governing the qualified
immunity analysis under Harlow v Fitzgerald defines the good faith inquiry under Leon Those
decisions go a long way toward the correct answer to this problem If a police officer should not
have to pay in damages for his mistake about the lawfulness of a search or seizure, then society


should not have to pay in the suppression of evidence for the same mistake Considered from either
perspective, the officers acted reasonably, and neither they nor society should be penalized for any
mistake that occurred

That conclusion makes sense As the Supreme Court explained in Malley, courts ought to
be less willing to apply the exclusionary rule for unlawful police conduct than to hold an officer
personally liable in damages for an unconstitutional search or seizure On the one hand, the Court
wrote, "[w]hile we believe that the exclusionary rule serves a necessary purpose, it obviously does
so at a considerable cost to society as a whole, because it excludes evidence probative of guilt " 475
US at 344 On the other hand, "a damages remedy for an arrest following an objectively
unreasonable request for a warrant imposes a cost directly on the officer responsible for the
unreasonable request, without the side effect of hampering a criminal prosecution " Id Also, a
damages remedy "benefit[s] the victim of police misconduct one would think 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 " Id In other words, damages directly compensate the victim of police misconduct and
impose their cost on the blameworthy parly (the offending officer), whereas suppression achieves its
(presumed) benefit indirectly while imposing a cost on the blameless (society) For that reason, if it
IS inappropnate under Harlcn* to make an officer pay damages, it is unreasonable under Leon to make
society pay through suppression The reasonable mistake exception therefore should be applied
equally to objectively reasonable warrant-authorized and warrantless searches and seizures

To be sure, the presence of a search warrant is valuable It indicates that a neutral and
detached magistrate also has concluded, for example, that probable cause exists, and it provides
directions to the officers when, for example, they conduct a search But if a police officer has an


objectively reasonable belief that his conduct is lawful, he will act on that belief — and society
encourages him to do so - even though there is the possibility that a Court, acting with the time for
reflection and the benefit of hindsight, later concludes that the officer acted unlawfully Under those
circumstances, the exclusionary rule will not deter an officer from acting, unless we wish to see the
rule deter lawful conduct as well as unlawful conduct The reason is that in the grey areas of the law,
those areas in which reasonable people can differ over the question whether a particular search or
seizure is lawful, application of the exclusionary rule is as likely to deter lawful as unlawful conduct.
Yet, society does not want to deter lawful police conduct, since doing so prevents the apprehension
and conviction of cnminals Accordingly, there is no there is no reason to treat differently warrant-
authorized and warrantless searches and seizures In either case, the principles underlying Leon
strongly militate against suppression of evidence '

The reasonable mistake exception embodied in Title VI of H.R 3 also fits comfortably into
the overall development of federal constitutional law Over the course of the past decade, the
Supreme Coun on several occasions has made clear that the Constitution does not require that a
remedv be imposed for every constitutional wrong The birth of the reasonable mistake exception
to the e\clusionar\' rule is one of the three most salient fields in which the Court has applied that
principle The other two are the growth of the qualified immunity doctrine, e.g., Harlow v.
/■ii:ycraU. and the restnction on the use of federal habeas corpus actions for the purpose of making
ncv\ lau . c- ^' . Tcagtic v Ijine. 489 U S 288 ( 1 989) In each instance, the Court has sought to avoid
punishing reasonable conduct without sacrificing the clarity in the development of legal rules that
would result from endorsing a general "reasonableness" standard Under the Harlow qualified
immunity doctrine, a public ofTicia! cannot be held liable in damages for unconstitutional actions
unless an objectively reasonable person would have known that the official's specific actions were
unlawful Under the Teapie doctrine applied in habeas corpus proceedings, a federal court cannot
gram relief to an inmate who challenges his conviction or sentence unless the clear dictates of the
Constitution proved that the trial coun erred The common denominator to each area of the law is
that the law will not puniSh a reasonable decision by the relevant actor the public official in the
immunit\ context, and the tnal court in the habeas context The reasonable mistake doctnne adopted
in Leon and contained in Title VI of H R 3 shares a close family resemblance with those other



c A general reasonable mistake exception, one that applies to searches and seizures of all
types, will not hinder the development of search and seizure law Over the course of the past few
decades, the Supreme Court has concluded that the public and the police both benefit from the
development, when possible, of bright-line rules demarking lawful from unlawful police practices.
Clearly-defined rules are valuable, the Supreme Court has determined, because they supply everyone
with notice of the pemiissible boundaries of law enforcement conduct Kg., New York v. Belton, 453
US 454, 458 (1981), quoting Wayne R LaFave, "Case-By-Case Adjudication" Versus
"Standardized Procedures": JJie Rohmson Dilemma, 1974 Sup Ct Rev. 127, 142 The reasonable
mistake exception accommodates the interest in developing substantive rules that guide investigative
practices and the interest in avoiding overdeterrence of the police The exception still enables the
couns to determine whether the police have acted lawfully and, when possible, to devise clear rules
for the police to follow, without requiring the courts to penalize society if a law enforcement officer
makes a reasonable, yet mistaken judgment That balance is an eminently rational one

B. The Reasonable Mistake Exception Should Be Incorporated Into The U.S. Code

I The next question is whether Congress should adopt by statute the reasonable mistake
exception in Title VI. or should leave the further development of the law in this area to the traditional,
case-b>-case approach followed by the courts Adopting the exception by statute, in my view, has
several advantages over the common law approach

/■irsi. Title \1 of H R 3 applies the reasonable mistake exception to all searches and seizures,
whether or not authonzed by a warrant or a statute Title VI therefore extends the benefits of the
reasonable mistake exception to warrantless searches and seizures Some lower courts, such as the
Fifth Circuit, have applied the reasonable mistake exception to warrantless police activity, but others,


such as the Ninth Circuit, have rejected that approach Title VI ensures that the benefits of the
reasonable mistake exception apply nationwide

Second, the legislative process can operate more quickly than the common law process It
takes several years for any one particular case to work its way through the federal system from
pretrial suppression proceedings to an ultimate decision by the Supreme Court The Supreme Court
also is very selective in the cases that it decide to hear, so it may take even longer before the Court
decides to hear argument on an issue, such as whether the reasonable mistake exception should apply
across-the-board, to warrant-authorized and warrantless searches alike By contrast. Title VI can be
adopted before the current Supreme Court term has ended Society can receive the benefits of the
reasonable mistake exception far more quickly through this legislation than through continuation of
the case-by-case method of adjudication

Third, lower federal court decisions have limited precedential effect Decisions by any one
federal circuit establish the law only for that region Decisions by a distnct court do not bind any
court, even the one the issued the decision A statute can reach more broadly than can judicial
decisions, so enacting Title VI would ensure that the reasonable mistake exception would be applied
in all federal courts once the law goes into effect

/oiirih. adopting Title VI would ensure that the reasonable mistake exception remains a part
of federal law regardless of how the federal courts in the future weigh the costs and benefits of
suppression Title VI therefore would give this exception a greater degree of permanence than it now

Fifih, adopting Title VI may encourage states to follow suit and enact similar legislation for
use in state criminal prosecutions The reason is that the enactment of Title VI would signify that all


three branches of the federal government endorse the reasonable mistake exception first set forth in

2 The principal disadvantage to incorporating the reasonable mistake exception into the US
Code is that legislation may discourage the courts from eliminating the exclusionary rule altogether
Many observers have concluded that the costs of the exclusionary rule outweigh its benefits however
the rule is limited, and they believe that the rule ought to be abandoned The Supreme Court itself
may reach that conclusion someday Legislation incorporating a reasonable mistake exception could
prevent or discourage the Supreme Court from doing so, on the ground that the legislation establishes
a floor belov/ which the courts may not go or that, since Congress has decided to legislate in this area,
the courts should leave the matter for the political branches

Congress could avoid that problem, however, by making clear that the statute does not require
even a modified exclusionary rule in any or all cases In fact, that is how 1 read subsection (c) of
proposed ISL'SC §3510 Page 61 of H R 3 That provision should ensure that Title VI is not
read to foreclose the courts from adopting further limitations on the exclusionary rule, or from
abolishing the rule entirely

3 In that regard, I have a few suggestions that the Committee may wish to consider that
would strengthen Title V'l

lirst. the Committee may wish to expand slightly the scope of the reasonable mistake
exception in subsection (a) of proposed 18USC §3510 to include evidence obtained in violation
of subconstitutional laws, eg, federal or state statutes, ordinances, or regulations There are
instances in which federal statutes regulate law enforcement activity For example, federal statutes
may limjt the actions of for example, customs officials in ways that are not imposed on other federal


officers, such as the members of the Coast Guard Similarly, state law enforcement officers are
subject to a variety of state laws not required by the Fourth Amendment If the reasonable mistake
exception is a sensible one insofar as the Fourth Amendment is concerned, then the same rationale
applies to all federal and state laws

Subseaion (b) is designed to ensure that a violation of such subconstitutional laws does not
lead to suppression unless Congress or the Supreme Court has dictated that result The text of
subsection (b), however, does not go quite as far as is necessary fully to achieve that goal At
present, subsection (b) provides that suppression should not follow from a violation of
subconstitutional law unless Congress or the Supreme Court, acting in its rulemaking, not its
adjudicative, capacity, has dictated that result Subseaion (b) therefore rules out suppression by
implication, that is, it prevents courts from implying a suppression remedy into a statute Yet,
subsection (b) could be read not to incorporate the reasonable mistake exception that is spelled out
in subsection (a), because of the different phrasing of the two provisions Put another way, this
provision will forbid courts from applying an exclusionary remedy not required by statute, but it does
not apply the reasonable mistake exception when a statute does expressly require suppression To
achieve the goals of Title VI and to make subseaion (a) consistent with subsection (b), you may wish
to msen the phrase "or any federal or state statute, ordinance, administrative rule or regulation, or
rule of procedure" on lines 15 and 17 of page 60 of the bill By so doing, you will ensure that the
reasonable mistake exception applies to any type of illegality, not just to searches and seizures that
violate the Fourth Amendment

Second, as mentioned above, subseaion (b) is designed to ensure the evidence is not
suppressed unless Congress or the Supreme Court, acting in its rulemaking, not its adjudicative.


capacity, has dictated tiiat result when the police violate a statute, for example, in the course of
investigative activity Subsection (b) uses the term "authorized" at line 1 of page 61, but the term
"required" may make the point more clearly There is a difference between authorizing a remedy to
be used and requiring it to be imposed, the former gives the decisionmaker discretion that is absent
in the case of the latter Substituting "required" in place of "authorized" will strengthen the bill in this
regard, and also will make subsection (b) correspond to subsection (c), which uses the term "require
or authorize "

Third, subsection (c) makes clear that the courts remain free to abandon the exclusionary rule
altogether, that Title VI establishes a ceiling and not a floor in this regard In keeping with that spirit,
you may wish to add a rule of liberal construction to the bill The Racketeer Influenced and Corrupt
Organizations Act, 1 8 US C § 1961 e/5eg, has such a provision It states that "The provisions
of this title shall be liberally construed to effectuate its remedial purposes " 18 US C § 1961 note
Adding the same sentence to Title VI of H R 3 will help ensure that, when applying the reasonable
mistake exception in individual cases, judges, some of whom will be hostile to the exception, give a
charitable interpretation to its reach

loiirih. at a future date the Committee may wish to consider a broader revision to proposed
18 U S C

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 32 of 51)