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Annotation 6 - Fourth Amendment

  Enforcing the Fourth Amendment: The Exclusionary Rule

A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how one is to translate the guarantee into concrete terms is not specified. Several possible methods of enforcement have been suggested over time; however, the Supreme Court has settled, not without dissent, on only one as an effective means to make real the right.

  Alternatives to the Exclusionary Rule .--Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare. 158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of and participation of police review boards, but again the examples of disciplinary actions are exceedingly rare. 159 Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.

Moreover, police officers acting under color of state law who violate a person's Fourth Amendment rights are subject to a suit for damages and other remedies 160 under a civil rights statute in federal courts. 161 While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts. 162 While a damage remedy might be made more effectual, 163 a number of legal and practical problems stand in the way. 164 Police officers have available to them the usual common-law defenses, most important of which is the claim of good faith. 165 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances. 166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

  Development of the Exclusionary Rule .--Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States, 167 which, as was noted above, involved not a search and seizure but a compulsory production of business papers which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment's self-incrimination provision to the Fourth Amendment's protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it. 168 The Boyd case was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common- law rule that evidence was admissible however acquired. 169  

Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States. 170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.'' 171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.'' 172  

Because the Fourth Amendment did not restrict the actions of state officers, 173 there was no question about the application of an exclusionary rule in state courts 174 as a mandate of federal consitutional policy. 175 But in Wolf v. Colorado, 176 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment. 177 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, since there were other means to observe and enforce the right. ''Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective.'' 178  

It developed, however, that the Court had not vested in the States total discretion in regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California, 179 evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for the Court, should have been excluded because the police methods were too objectionable. ''This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.'' 180 The Rochin standard was limited in Irvine v. California, 181 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Jackson's plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule. 182 Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy. 183  

Then, in Mapp v. Ohio, 184 the Court held that the exclusionary rule should and did apply to the States. It was ''logically and constitutionally necessary,'' wrote Justice Clark for the majority, ''that the exclusion doctrine--an essential part of the right to privacy--be also insisted upon as an essential ingredient of the right'' to be secure from unreasonable searches and seizures. ''To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.'' 185 Further, the Court then held that since illegally- seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal. 186  

  The Foundations of the Exclusionary Rule .--Important to determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court's supervisory power over the lower federal courts. It will be recalled that in Boyd 187 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. Weeks v. United States, 188 though the Fifth Amendment was mentioned, seemed to be clearly based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the self-incrimination clause of the Fifth Amendment. 189 Then in Mapp v. Ohio, 190 the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the ''most important constitutional privilege'' of the right to be free from unreasonable searches and seizures, finding that the rule was ''an essential part of the right of privacy'' protected by the Amendment.

''This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required-- even if judicially implied--deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a 'form of words.''' 191 It was a necessary step in the application of the rule to the States to find that the rule was of constitutional origin rather than a result of an exercise of the Court's supervisory power over the lower federal courts, inasmuch as the latter could not constitutionally be extended to the state courts. 192 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court's supervisory powers in Wolf v. Colorado 193 in declining to extend the rule to the States. That the rule is of constitutional origin Mapp establishes, but this does not necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally-seized evidence is itself unconstitutional. 194 These were often combined with a rationale emphasizing ''judicial integrity'' as a reason to reject the proffer of such evidence. 195 Yet the Court permitted such evidence to be introduced into trial courts, when the defendant lacked ''standing'' to object to the search and seizure which produced the evidence 196 or when the search took place before the announcement of the decision extending the exclusionary rule to the States. 197 At these times, the Court turned to the ''basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.'' 198 ''Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.'' 199  

  Narrowing Application of the Exclusionary Rule .--For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality. 200 By the early 1980s a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation, 201 and numerous opinions had rejected all doctrinal bases save that of deterrence. 202 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application. 203 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well ''generat[e] disrespect for the law and administration of justice,'' 204 as well as free guilty defendants. 205 No longer does the Court declare that ''[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.'' 206  

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule's application. Defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction against themselves of evidence illegally obtained from co-conspirators or codefendants, 207 and even a defendant whose rights have been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony. 208 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because of the costs overweighing the minimal deterrent effect. 209 Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence. 210 If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible. 211 A grand jury witness was not permitted to refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure, 212 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant by state authorities. 213  

The most severe curtailment of the rule came in 1984 with adoption of a ''good faith'' exception. In United States v. Leon, 214 the Court created an exception for evidence obtained as a result of officers' objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White's opinion for the Court 215 could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the ''substantial social costs exacted by the [rule].'' 216 ''The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,'' and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates. 217 Moreover, the Court thought that the rule should not be applied ''to deter objectively reasonable law enforcement activity,'' and that ''[p]enalizing the officer for the magistrate's error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.'' 218 The Court also suggested some circumstances in which courts would be unable to find that officers' reliance on a warrant was objectively reasonable: if the officers have been ''dishonest or reckless in preparing their affidavit,'' if it should have been obvious that the magistrate had ''wholly abandoned'' his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court applied the Leon standard in Massachusetts v. Sheppard, 219 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant.

The Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment. 220 Justice Blackmun's opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants. 221  

It is unclear from the Court's analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures. 222 It is also unclear what a good-faith exception would mean in the context of a warrantless search, since the objective reasonableness of an officer's action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation. 223 The Court's increasing willingness to uphold warrantless searches as not ''unreasonable'' under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule. 224  

  Operation of the Rule: Standing .--The Court for a long period followed a rule of ''standing'' by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases ''require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.'' 225 The Court recently has departed from the concept of ''standing'' to telescope the inquiry into one inquiry rather than two. Finding that ''standing'' served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated. ''We can think of no decided cases of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of 'standing,' will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.'' 226 One must therefore show that ''the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.'' 227  

The Katz reasonable expectation of privacy rationale has now displaced property-ownership concepts which previously might have supported either standing to suppress or the establishment of an interest that has been invaded. Thus, it is no longer sufficient to allege possession or ownership of seized goods to establish the interest, if a justifiable expectation of privacy of the defendant was not violated in the seizure. 228 Also, it is no longer sufficient that one merely be lawfully on the premises in order to be able to object to an illegal search; rather, one must show some legitimate interest in the premises that the search invaded. 229 The same illegal search might, therefore, invade the rights of one person and not of another. 230 Again, the effect of the application of the privacy rationale has been to narrow considerably the number of people who can complain of an unconstitutional search.


[Footnote 158] Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 Va. L. Rev. 621 (1955).

[Footnote 159] Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).

[Footnote 160] If there are continuing and recurrent violations, federal injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971).

[Footnote 161] 42 U.S.C. Sec. 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some circumstances, the officer's liability may be attributed to the municipality. Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). These claims that officers have used excessive force in the course of an arrest or investigatory stop are to be analyzed under the Fourth Amendment, not under substantive due process. The test is ''whether the officers' actions are 'objectively reasonable' under the facts and circumstances confronting them.'' Graham v. Connor, 490 U.S. 386, 397 (1989).

[Footnote 162] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946).

[Footnote 163] See, e.g., Chief Justice Burger's dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411 , 422-24 (1971), which suggests suit against the Government in a special tribunal and the abolition of the exclusionary rule.

[Footnote 164] Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).

[Footnote 165] This is the rule in actions under 42 U.S.C. Sec. 1983, Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court of Appeals promulgated the same rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).

[Footnote 166] Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting Justices argued, inter alia, that such a principle is more appropriately applied as an affirmative defense, thereby allowing resolution of factual disputes prior to determining objective reasonableness of an officer's actions. 483 U.S. at 655 (Stevens, J.). See also Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who applied for a warrant unless ''a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant'').

[Footnote 167]   116 U.S. 616 (1886).

[Footnote 168] ''We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.'' Id. at 633. It was this utilization of the Fifth Amendment's clearly required exclusionary rule, rather than one implied from the Fourth, on which Justice Black relied and absent a Fifth Amendment self-incrimination violation he did not apply such a rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). The theory of a ''convergence'' of the two Amendments has now been disavowed by the Court. Supra, pp.1225-26.

[Footnote 169] Adams v. New York, 192 U.S. 585 (1904). Since the case arose from a state court and concerned a search by state officers, it could have been decided simply by holding that the Fourth Amendment was inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914).

[Footnote 170]   232 U.S. 383 (1914).

[Footnote 171] Id. at 392.

[Footnote 172] Id. at 393.

[Footnote 173] Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). See supra, p.957.

[Footnote 174] The history of the exclusionary rule in the state courts was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 29 , 33-38 (1949). The matter was canvassed again in Elkins v. United States, 364 U.S. 206, 224 -32 (1960).

[Footnote 175] During the period in which the Constitution did not impose any restrictions on state searches and seizures, the Court permitted the introduction in evidence in federal courts of items seized by state officers which had they been seized by federal officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long as no federal officer participated in the search, Byars v. United States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became known as the ''silver platter doctrine'' after the phrase coined by Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 78 -79 (1949): ''The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.'' In Elkins v. United States, 364 U.S. 206 (1960), the doctrine was discarded by a five-to-four majority which held that inasmuch as Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and seizures subject to federal constitutional restrictions through the Fourteenth Amendment's due process clause, the ''silver platter doctrine'' was no longer constitutionally viable. During this same period, since state courts were free to admit any evidence no matter how obtained, evidence illegally seized by federal officers could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court ruled out such a course if the evidence had first been offered in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214 (1956).

[Footnote 176]   338 U.S. 25 (1949).

[Footnote 177] ''The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.'' Id. at 27-28.

[Footnote 178] Id. at 31. Justices Douglas, Murphy, and Rutledge dissented with regard to the issue of the exclusionary rule and Justice Black concurred.

[Footnote 179]   342 U.S. 165 (1952). The police had initially entered defendant's house without a warrant. Justices Black and Douglas concurred in the result on self-incrimination grounds.

[Footnote 180] Id. at 172.

[Footnote 181]   347 U.S. 128 (1954).

[Footnote 182] Id. at 134-38. Justice Clark, concurring, announced his intention to vote to apply the exclusionary rule to the States when the votes were available. Id. at 138. Justices Black and Douglas dissented on self-incrimination grounds, id. at 139, and Justice Douglas continued to urge the application of the exclusionary rule to the States. Id. at 149. Justices Frankfurter and Burton dissented on due process grounds, arguing the relevance of Rochin. Id. at 142.

[Footnote 183] Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice Warren and Justices Black and Douglas dissented. Though a due process case, the results of the case have been reaffirmed directly in a Fourth Amendment case. Schmerber v. California, 384 U.S. 757 (1966).

[Footnote 184]   367 U.S. 643 (1961).

[Footnote 185] Id. at 655-56. Justice Black concurred, doubting that the Fourth Amendment itself compelled adoption of an exclusionary rule but relying on the Fifth Amendment for authority. Id. at 661. Justice Stewart would not have reached the issue but would have reversed on other grounds, id. at 672, while Justices Harlan, Frankfurter, and Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice Harlan advocated the overruling of Mapp down to the conclusion of his service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (concurring opinion).

[Footnote 186] Ker v. California, 374 U.S. 23 (1963).

[Footnote 187] Boyd v. United States, 116 U.S. 616 (1886).

[Footnote 188]   232 U.S. 383 (1914). Defendant's room had been searched and papers seized by officers acting without a warrant. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.'' Id. at 393.

[Footnote 189] E.g., Gouled v. United States, 255 U.S. 298, 306 , 307 (1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v. United States, 269 U.S. 20, 33 -34 (1925); McGuire v. United States, 273 U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462 (1928), Chief Justice Taft ascribed the rule both to the Fourth and the Fifth Amendments, while in dissent Justices Holmes and Brandeis took the view that the Fifth Amendment was violated by the admission of evidence seized in violation of the Fourth. Id. at 469, 478-79. Justice Black was the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). See, however, Justice Clark's plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which he brought up the self-incrimination clause as a supplementary source of the rule, a position which he had discarded in Mapp.

[Footnote 190]   367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively.

[Footnote 191] Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied).

[Footnote 192] An example of an exclusionary rule not based on constitutional grounds may be found in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which the Court enforced a requirement that arrestees be promptly presented to a magistrate by holding that incriminating admissions obtained during the period beyond a reasonable time for presentation would be inadmissible. The rule was not extended to the States, cf. Culombe v. Connecticut, 367 U.S. 568, 598 -602 (1961), but the Court's resort to the self-incrimination clause in reviewing confessions made such application irrelevant in most cases in any event. For an example of a transmutation of a supervisory rule into a constitutional rule, see McCarthy v. United States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).

[Footnote 193] Weeks ''was not derived from the explicit requirements of the Fourth Amendment; . . . The decision was a matter of judicial implication.'' 338 U.S. 25, 28 (1949). Justice Black was more explicit. ''I agree with what appears to be a plain implication of the Court's opinion that the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.'' Id. at 39-40. He continued to adhere to the supervisory power basis in strictly search-and-seizure cases, Berger v. New York, 388 U.S. 41, 76 (1967) (dissenting), except where self- incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring). And see id. at 678 (Justice Harlan dissenting); Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court).

[Footnote 194] ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution . . . .'' Weeks v. United States, 232 U.S. 383, 392 (1914). In Mapp v. Ohio, 367 U.S. 643, 655 , 657 (1961), Justice Clark maintained that ''the Fourth Amendment include[s] the exclusion of the evidence seized in violation of its provisions'' and that it, and the Fifth Amendment with regard to confessions ''assures . . . that no man is to be convicted on unconstitutional evidence.'' In Terry v. Ohio, 392 U.S. 1, 12 , 13 (1968), Chief Justice Warren wrote: ''Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . . A ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the conduct which produced the evidence.''

[Footnote 195] Elkins v. United States, 364 U.S. 206, 222 -23 (1960); Mapp v. Ohio, 367 U.S. 643, 660 (1961). See McNabb v. United States, 318 U.S. 332, 339 -40 (1943).

[Footnote 196] Infra, pp.1269-70.

[Footnote 197] Linkletter v. Walker, 381 U.S. 618 (1965).

[Footnote 198] Elkins v. United States, 364 U.S. 206, 217 (1960).

[Footnote 199] Linkletter v. Walker, 381 U.S. 618, 636 -37 (1965). The Court advanced other reasons for its decision as well. Id. at 636-40.

[Footnote 200] Among the early critics were Judge Cardozo, People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go free ''because the constable has blundered''); and Dean Wigmore. 8 J. Wigmore, A Treatise on the Anglo-American System of Evidence 2183-84 (3d ed. 1940). For extensive discussion of criticism and support, with citation to the literature, see 1 Wayne R. LaFave, Search and Seizure--A Treatise on the Fourth Amendment Sec. 1.2 (2d ed. 1987).

[Footnote 201] E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief Justice Burger: rule ought to be discarded now, rather than wait for a replacement as he argued earlier); id. at 536 (Justice White: modify rule to admit evidence seized illegally, but in good faith); Schneckloth v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v. Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v. Minjares, 443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black's dissent that ''the Fourth Amendment supports no exclusionary rule'').

[Footnote 202] E.g., United States v. Janis, 428 U.S. 433, 446 (1976) (deterrence is the ''prime purpose'' of the rule, ''if not the sole one.''); United States v. Calandra, 414 U.S. 338, 347 -48 (1974); United States v. Peltier, 422 U.S. 531, 536 -39 (1975); Stone v. Powell, 428 U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137-38 (1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, admission of the fruits of an unlawful search or seizure ''work[s] no new Fourth Amendment wrong,'' the wrong being ''fully accomplished by the unlawful search or seizure itself,'' United States v. Calandara, supra, 354, and the exclusionary rule does not ''cure the invasion of the defendant's rights which he has already suffered.'' Stone v. Powell, supra, 540 (Justice White dissenting). ''Judicial integrity'' is not infringed by the mere admission of evidence seized wrongfully. ''[T]he courts must not commit or encourage violations of the Constitution,'' and the integrity issue is answered by whether exclusion would deter violations by others. United States v. Janis, supra, at 458 n.35; United States v. Calandra, supra, at 347, 354; United States v. Peltier, supra, at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).

[Footnote 203] United States v. Janis, 428 U.S. 433, 448 -54 (1976), contains a lengthy review of the literature on the deterrent effect of the rule and doubts about that effect. See also Stone v. Powell, 428 U.S. 465, 492 n.32 (1976).

[Footnote 204] Stone v. Powell, 428 U.S. at 490 , 491.

[Footnote 205] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Chief Justice Burger dissenting).

[Footnote 206] Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

[Footnote 207] E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held it impermissible for a federal court to exercise its supervisory power to police the administration of justice in the federal system to suppress otherwise admissible evidence on the ground that federal agents had flagrantly violated the Fourth Amendment rights of third parties in order to obtain evidence to use against others when the agents knew that the defendant would be unable to challenge their conduct under the Fourth Amendment.

[Footnote 208] United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by Havens). The impeachment exception applies only to the defendant's own testimony, and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990).

[Footnote 209] Stone v. Powell, 428 U.S. 465 (1976).

[Footnote 210] Wong Sun v. United States, 371 U.S. 471, 487 -88 (1963); Alderman v. United States, 394 U.S. 165, 180 -85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the testimony of a witness discovered through an illegal search. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession made by a suspect whose arrest at his home had violated the Fourth Amendment because, even though probable cause had existed, no warrant had been obtained. And in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of a warrant. This rule applies as well to evidence observed in plain view during the initial illegal search. Murray v. United States, 487 U.S. 533 (1988). See also United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant).

[Footnote 211] Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive criminal offense). Statutes that authorize unconstitutional searches and seizures but which have not yet been voided at the time of the search or seizure may not create this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive and procedural statutes and holding the exclusionary rule inapplicable in the case of a police officer's objectively reasonable reliance on a statute later held to violate the Fourth Amendment. Similarly, the exclusionary rule does not require suppression of evidence that was seized incident to an arrest that was the result of a clerical error by a court clerk. Arizona v. Evans, 115 S. Ct. 1185 (1995).

[Footnote 212] United States v. Calandra, 414 U.S. 338 (1974).

[Footnote 213] United States v. Janis, 428 U.S. 433 (1976). Similarly, the rule is inapplicable in civil proceedings for deportation of aliens. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

[Footnote 214]   468 U.S. 897 (1984). The same objectively reasonable ''good-faith'' rule now applies in determining whether officers obtaining warrants are entitled to qualified immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986).

[Footnote 215] The opinion was joined by Chief Justice Burger, and by Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun also added a separate concurring opinion. Dissents were filed by Justice Brennan, joined by Justice Marshall, and by Justice Stevens.

[Footnote 216]   468 U.S. at 907 .

[Footnote 217]   468 U.S. at 916 -17.

[Footnote 218]   468 U.S. at 919 , 921.

[Footnote 219]   468 U.S. 981 (1984).

[Footnote 220] Illinois v. Krull, 480 U.S. 340 (1987). The same difficult- to-establish qualifications apply: there can be no objectively reasonable reliance ''if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws,'' or if ''a reasonable officer should have known that the statute was unconstitutional.'' 480 U.S. at 355 .

[Footnote 221] Dissenting Justice O'Connor disagreed with this second conclusion, suggesting that the grace period ''during which the police may freely perform unreasonable searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws,'' and that the Court's ruling ''destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights'' and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366 , 369.

[Footnote 222] The whole thrust of analysis in Leon dealt with reasonableness of reliance on a warrant. The Court several times, however, used language broad enough to apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice White's concurrence in Illinois v. Gates): ''the balancing approach that has evolved . . . 'forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment'''; and id. at at 919: ''[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.''

[Footnote 223] See Yale Kamisar, Gates, ''Probable Cause,'' ''Good Faith,'' and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a good-faith exception on top of the ''already diluted'' standard for validity of a warrant ''would amount to double dilution'').

[Footnote 224] See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer's reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding warrantless search of entire interior of passenger car, including closed containers, as incident to arrest of driver); United States v. Ross, 456 U.S. 798 (1982) (upholding warrrantless search of movable container found in a locked car trunk).

[Footnote 225] Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must show that he was ''a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.'' Id. See Alderman v. United States, 394 U.S. 165, 174 (1969).

[Footnote 226] Rakas v. Illinois, 439 U.S. 128, 139 (1978).

[Footnote 227] Id. at 140.

[Footnote 228] Previously, when ownership or possession was the issue, such as a charge of possessing contraband, the Court accorded ''automatic standing'' to one on the basis, first, that to require him to assert ownership or possession at the suppression hearing would be to cause him to incriminate himself with testimony that could later be used against him, and, second, that the government could not simultaneously assert that defendant was in possession of the items and deny that it had invaded his interests. Jones v. United States, 362 U.S. 257, 261 -265 (1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in Simmons v. United States, 390 U.S. 377 (1968), the Court held inadmissible at the subsequent trial admissions made in suppression hearings. When it then held that possession alone was insufficient to give a defendant the interest to move to suppress, because he must show that the search itself invaded his interest, the second consideration was mooted as well, and thus the ''automatic standing'' rule was overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks found in illegal search of apartment of the mother in defendant, in which he had no interest; defendant could not move to suppress on the basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980) (drugs belonging to defendant discovered in illegal search of friend's purse, in which he had no privacy interest; admission of ownership insufficient to enable him to move to suppress).

[Footnote 229] Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in automobile had no privacy interest in interior of the car; could not object to illegal search). United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not aloneestablish such interests). Jones v. United States, 362 U.S. 257 (1960), had established rule that anyone legitimately on the premises could object; the rationale was discarded but the result in Jones was maintained because he was there with permission, he had his own key, his luggage was there, he had the right to exclude and therefore a legitimate expectation of privacy. Similarly maintained were the results in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by defendant's aunts to which he had a key and permission to store things); Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with several others; though he had no reasonable expectation of absolute privacy, he could reasonably expect to be intruded on only by other occupants and not by police).

[Footnote 230] E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing imminent police search, defendant deposited drugs in companion's purse where they were discovered in course of illegal search; defendant had no legitimate expectation of privacy in her purse, so that his Fourth Amendment rights were not violated, although hers were).

Annotations p. 6