Amicus Brief — Massachusetts v. Sheppard

1 ado yaragie SR

SHON N SNe i

No. 82-963

In the Supreme Court of the United States

October Term, 1983

COMMONWEALTH OF MASSACHUSETTS, a

; Petitioner, by

Bi ( ae, yi

bi OSBORNE SHEPPARD, a

= Respondent. :

j ’

BY On Warr or Cerriorari To THe SUPREME JUDICIAL "

a. Court or MassacnuserTs wei

oe Be

BRIEF OF AMICI CURIAE, THE STATE OF y

‘3 ARKANSAS AND GULF & GREAT PLAINS

% LEGAL FOUNDATION, IN SUPPORT (ine

Me OF PETITIONER “a

me Wixes C. Rosivson*®

Pe Dan M. Perznson |

ee: Guiry & Gazat Prams Lecal Founparion

oF 101 West 11th Street ep

‘ie City, Missouri 64105 ing

(816) 474-6600 —

TABLE OF CONTENTS

EEE TI CESARE hee oO ON EE be

Interest of Amici Curiae ............... Pie

I IIS sceb sccencteiinthievtstsinibensaitteinonsnenestabnbiians 1

PE, | screenees 3

I. The exclusionary rule is a judicially created

remedy only, and is not constitutionally man-

dated to protect Fourth Amendment rights ... 3

II. The exclusionary rule does not accomplish the

main purposes for which it was implemented,

but instead leads to read dysfunctions in the

criminal justice system .. - 10

III. A good faith exception, or broader cea

tailored to practical needs and the need for

a fair trial, would substantially reduce some of

the most important costs of the exclusionary

RR SAT AN RADE HF FH: 19

TABLE OF AUTHORITIES

Cases

Adams v. New York, 192 U.S. 585 (1904) 2.0.0... 4,5

Arkansas v. Sanders, 442 US. 753 (1979) 2.0.0... 15

Bivens v. Siz Unknown Named Agents of the Federal

Bureau of Narcotics, 403 US. 388 (1971) .................... 8

Boyd v. United States, 116 U.S. 616 (1886) .................... 4

Bumper v. North Carolina, 391 U.S. 543 (1968) ............ 7

Coolidge v. New Hampshire, 403 U.S. 443 0.000... 7

Desist v. United States, 394 U.S. 244 (1969) .....00.0000...... 8

Elkins v. United States, 364 U.S. 206 (1960) ................ 10, 12

Irvine v. California, 347 U.S. 128 (1954) .........0..222... 11

Kaufman v. United States, 394 U.S. 217 (1969) .............. 7

Linkletter v. Walker, 381 U.S. 618 (1965) —............... 8

Mapp v. Ohio, 367 U.S. 643 (1961) ..........-.ccccecessereeeees passim

Michigan v. Tucker, 417 US. 433 (1974) 000. 16

Robbins v. California, 453 U.S. 420 (1981) ............0.0....... 15

Scott v. United States, 435 U.S. 128 (1978) .............-.24... 7

Simmons v. United States, 390 U.S. 377 (1968) ............ 7

Stone v. Powell, 428 US. 465 (1976) ...........0....... 7, 8, 13, 15

United States v. Calandra, 414 U.S. 338 (1974) ............ 7,8

United States v. Ceccolini, 435 U.S. 268 (1978) ............ 8

United States v. Chadwick, 433 U.S. 1 (1977) .............. 15

United States v. Havens, 446 U.S. 620 (1980) .................. 8

United States v. Janis, 428 U.S. 433 (1976) ................ 8,11, 12

United States v. Peltier, 422 U.S. 531 (1975) .................... 10

United States v. Ross, 102 S. Ct. 386 (1981) .0000.. «=15

Weeks v. United States, 232 U.S. 383 (1914) ................ 4, 6,9

Williams v. United States, 401 U.S. 646 (1971) 00... 8

Wolf v. Colorado, 338 U.S. 25 (1949) ..............5, 6, 7, 8, 9, 11

I

Other Authorities

Comment, 23 S. Tex. L. Rev. 693 (1982) ...............ceeese 17

128 Cong. Rec. S2417 (daily ed. March 18, 1982) ........ 9,15

128 Cong. Rec. S11338 (daily ed. Sept. 13, 1982) ........ 9

Gallup Opinion Index Rep., No, 33 (1968) ..............-.-.-0- 16-17

Gallup Opinion Index Rep., No. 45 (1969) ...............s0+ 17

D. Oaks, Studying the Exclusionary Rule in Search

and Seizure, 37 U. Chi. L. Rev. 665 (1970) ................ 11

J. Spiotto, Search and Seizure: An Empirical Study of

the Exclusionary Rule and Its Alternatives, 2 J. Legal

TEE MCIIIIND viccinicscscppdccsciehiciedaslenipaendabetaneennitbapiinieniehy 11

M. Wilkey, Constitutional Alternatives to the Exclu-

sionary Rule, 23 S. Tex. L. J. 531 (1982) ........0.0.0..... 13

M. Wilkey, Enforcing the Fourth Amendment by Al-

ternatives to the Exclusionary Rule (National Legal

Center for the Public Interest, 1982) [reprinted at

PL, SEE CUI Tain: ninscscnscuntiedeashinegipthbahansilbepabsabas 13

INTEREST OF AMICI CURIAE

Amicus the State of Arkansas, as a sovereign state, has

a strong interest in the outcome of this case. In maintain-

ing a rational and effective system of criminal justice, the

state has a strong concern for protecting its citizens from

criminal activity, as well as in seeing that the constitutional

right of its citizens to be free of unreasonable searches and

seizures is safeguarded.

Amicus Gulf & Great Plains Legal Foundation is a

not-for-profit public interest legal foundation established

in 1976. Its goals include the maintenance of a rational

system of criminal justice, the preservation of the free en-

terprise system, and the protection of individual and con-

stitutional rights. The Foundation has appeared as amicus

curiae in a number of cases before this Court, including

several cases relating to criminal and constitutional law.

No. 82-963

In the Supreme Court of the United States

October Term, 1983

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

vs.

OSBORNE SHEPPARD,

Respondent.

On Writ oF CERTIORARI TO THE SUPREME JUDICIAL

Court oF MASSACHUSETTS

BRIEF OF AMICI CURIAE, THE STATE OF

ARKANSAS AND GULF & GREAT PLAINS

LEGAL FOUNDATION, IN SUPPORT

OF PETITIONER

SUMMARY OF ARGUMENT

The Court has granted certiorari in three cases—

Massachusetts v. Sheppard, Colorado v. Quintero, and U. S.

v. Leon—which all present the potential of creating a

“good faith” exception to the exclusionary rule. Con-

stitutional jurisprudence prior to Mapp v. Ohio, 36%U.S. /

643 (1961), expressly negatived any aSSumption that the

exclusionary rule was mandated by the Fourth Amendment

as applied to the states by the Fourteenth Amendment. }

The holding in Mapp that the exclusionary rule was con- )

stitutionally required by the Fourth Amendment was

2

agreed to only by four justices, and subsequent decisions

of this Court have undermined any basis for the position

that the exclusionary remedy is constitutionally required.

The Court has refused to apply it in situations where it

would have been applied had it been of constitutional di-

mension, and has refused to apply it retroactively, both of

which are inconsistent with the notion that it is con-

stitutionally mandated. Several justices have expressly

stated that the exclusionary remedy is not of constitutional

dimension, and this view is concurred in by the current

President and a number of members of Congress.

Empirical research regarding the deterrent effect on

the police of the exclusionary rule is inconclusive at best.

However, the serious costs imposed by the exclusionary

rule are virtually indisputable. Most serious among these

are the freeing of dangerous criminals, the lack of pro-

portionality between the violation and the remedy, and

the consequent disrespect for the administration of justice

which is engendered by the exclusionary rule.

Given the extreme complexity of Fourth Amendment

search and seizure law, it is unrealistic to expect police

officers to be able to apply it flawlessly under the difficult

conditions in which they must work. Furthermore, the

deterrence rationale for the exclusionary rule loses much

of its force when good faith on the part of police officers

is present. An exception to allow illegally seized evidence

to be admitted would significantly improve the truth-

seeking function of criminal trials, and diminish the degree

to which the guilty go free. A more fle t, in which

factors such as the seriousness of the h Amendment

violation, the seriousness of the crime, and the centrality

of the evidence in question could be considered, would

provide a much-needed balance between the enforcement

of the Fourth Amendment and the protection of society.

ARGUMENT

I. THE EXCLUSIONARY RULE IS A JUDICIALLY

CREATED REMEDY ONLY, AND IS NOT CON.

STITUTIONALLY MANDATED TO PROTECT

FOURTH AMENDMENT RIGHTS.

Each of the three cases in which the Court has granted

certiorari—Massachusetts v. Sheppard, Colorado v. Quin-

tero, and U. S. v. Leon—presents in different form a simi-

lar issue: must evidence obtained contrary to the Fourth

Amendment’s protections against unreasonable searches

and seizures automatically be excluded, or might an ex-

ception be made where the police officer acted reasonably

and in good faith? Critical to the resolution of this issue

is an examination of the constitutional and theoretical

underpinnings of Mapp v. Ohio, 367 US. 643 (1961), the

case which first imposed the exclusionary rule on the

several states. Mapp purported to find a constitutional

basis for the application of the exclusionary rule to the

states. If the exclusionary rule is rooted in the Con-

stitution, a considerably different question is presented

than if the rule is merely one of practical expediency,

which may be changed according to the lessons of ex-

perience. This brief will demonstrate that, in the light

of constitutional jurisprudence before and after the Mapp

decision, the attempt in Mapp to ground the exclusionary

rule in the Fourth Amendment stands out as an anomaly.

Logic and this Court’s other decisions show that the ex-

clusionary rule is only one means which may be used

to ensure that the Fourth Amendment’s guarantees will

be respected, and is not itself constitutionally mandated.

As such, it may be modified by the Court to bring it in

harmony with the dictates of experience and the ends of

4

Before analyzing Mapp and subsequent decisions, a

brief review of the prior history of the exclusionary rule

may be helpful.

For the first century of our nation’s existence, neither

this Court nor the other federal courts held that the sup-

pression of improperly obtained evidence in criminal trials

was either necessary or proper to implement the Fourth

Amendment protections against unreasonable searches and

seizures. The first intimation that such evidence might

be suppressed under the Fourth Amendment came in Boyd

v. United States, 116 U.S. 616 (1886). Boyd held that, in

a federal proceeding, certain individuals could not be com-

pelled by order of the court to produce private papers which

would be incriminating to them. Though the Court dis-

cussed the Fourth Amendment at some length, the case

appeared to be decided principally upon Fifth Amend-

ment grounds, since no actual search or seizure had taken

place. Nevertheless the case is significant as providing

the first suggestion, halfway through the history of this

country, that pertinent evidence might be withheld on

Fourth Amendment grounds in a proceeding related to en-

forcement of criminal statutes.

It is significant that, eighteen years iater, the Su-

preme Court in reviewing a criminal prosecution expressly

reaffirmed the existing common law rule that a trial court

has no justification under the Fourth Amendment for in-

quiring into the means by which evidence was obtaingd.

Adams v. New York, 192 U.S. 585 (1904). Adams ex-

pressly distinguished Boyd as a Fifth Amendment case,

and the authorities cited in Adams show that this refusal

to suppress valid evidence was the uniform and prevailing

rule

Weeks v. United States, 232 U.S. 383 (1914), is widely

regarded as the case which first applied the exclusionary

5

rule to federal agencies. In that case, the defendant’s per-

sonal effects and papers had been seized by government

agents without a warrant, and not pursuant to an arrest.

The defendant filed a petition to have such property re-

turned to him prior to the trial. The Supreme Court held

that the refusal by the trial court to return all of such

effects and papers violated the Fourth Amendment. The

Supreme Court recognized the rule in Adams that the trial

court should not inquire into the origin of evidence at trial,

but held that the defendant had the right prior to trial

to have his property returned to him. The practical effect,

therefore, was to prevent the use of such evidence at trial.

The Fourth Amendment's guarantee against unreason-

able searches and seizures was extended to the states

through the Fourteenth Amendment only as recently as

1949. In the case which created that extension, Wolf v.

Colorado, 338 U.S. 25 (1949), the Court nevertheless ex-

pressly refused to impose & requirement on the states that

the Fourth Amendment be implemented through the rem-

edy of the exclusionary rule. The Court enumerated the

common law and statutory protections then provided by the

states to punish and deter Fourth Amendment violations,

and to compensate victims of such violations, and con-

cluded:

Indeed, the exclusion of evidence is a remedy which

directly serves only to protect those upon whose person

or premises something incriminating has been found.

We cannot, therefore, regard it as a departure from

basic standards to remand such persons, together with

those who emerge scatheless from a search, to the rem-

edies of private action and such protection as the in-

ternal discipline of the police, under the eyes of an

alert public opinion, may afford. Id. at 31. a

Ws

; " a

ke

The Court held that the exclusionary remedy estab-

lished in Weeks was a “matter of judicial implication” and

was “not derived from the explicit requirements of the

Fourth Amendment.” Id. at 28. Noting that men “with a

complete devotion to the right of privacy” might differ

regarding the need for the exclusionary rule, and that

most of the English-speaking world does not regard that

remedy as vital to such protection, the Court decided that

it must “hesitate to treat this remedy as an essential in-

gredient of the right.” Id. at 28-29.

To the extent that Wolf refused to impose such a re-

quirement on the states, it was overruled by Mapp v. Ohio,

367 U.S. 643 (1961). Though the effect of Mapp was clearly

to impose a requirement on the states that they employ the

exclusionary rule, it is noteworthy that in Mapp only four

Justices found that the exclusionary remedy itself was com-

pelled by the Fourth Amendment. Justice Stewart con-

curred in the result without reaching “the merits of the

constitutional issue which the Court today decides.” Id. at

672. Justices Harlan, Frankfurter and Whittaker filed a

strong dissent. Justice Black, concurring in result, stated

that he was:

not persuaded that the Fourth Amendment standing

alone, would be enough to bar the introduction into

evidence against an accused of papers and effects

seized from him in violation of its commands. For

the Fourth Amendment does not itself contain any pro-

vision expressly precluding the use of such evidence,

and I am extremely doubtful that such a provision

could properly be inferred from nothing more than the

basic command against unreasonable searches and

seizures. Id, at 661-662.

Justice Black based his concurrence on a joint interpreta-

tion of the Fourth and Fifth Amendments. Id. at 662. It is

7

significant that Justice Black had concurred in the Wolf

decision, that his unique interpretation in Mapp failed to

garner support in later decisions of the Court, and that in

later decisions he made it clear that his concurrence in

Mapp was based upon the Fifth Amendment, not the

Fourth. As he stated in dissent in Coolidge v. New Hamp-

shire, 403 U.S. 443, 496-97:

The Fourth Amendment prohibits unreasonable

searches and seizures. The Amendment says nothing

about consequences. It certainly nowhere provides

for the exclusion of evidence as the remedy for vio-

lation. * * * The truth is that the source of the ex-

clusionary rule simply cannot be found in the Fourth

Amendment. That Amendment did not when adopted,

and does not now, contain any constitutional rule bar-

ring the admission of illegally seized evidence.

See also, e.g., Kaufman v. United States, 394 U.S. 217, 237

(1969) (Black, J., dissenting); Bumper v. North Carolina,

391 U.S. 543, 560 (1968) (Black, J., dissenting); Simmons

v. United States, 390 U.S. 377, 397 (1968) (Black, J., con-

curring and dissenting).

On several occasions since Mapp, the Court has drawn

a distinction between the finding of a Fourth Amendment

violation, and the appropriate remedy for that violation.

Speaking for the Court, Justice Rehnquist recognized a

distinction urged by the Government between “[w]hat

is necessary to establish a . . . constitutional violation and

what is necessary to support a suppression remedy once a

violation has been established.” Scott v. United States,

435 U.S. 128, 135 (1978). The Court has indicated that

the exclusionary rule is only a “judicially created remedy”

rather than a “personal constitutional right.” Stone v.

Powell, 428 U.S. 465, 482 (1976); United States v. Calandra,

414 U.S. 338, 348 (1974). If the exclusionary rule were

part and parcel of the Fourth Amendment, and created a

personal constitutional right in every person who was the

victim of an illegal search or seizure, then the fruits of

the search or seizure should not be able to be used against

him in any type of proceeding. But the Court has almost

uniformly refused to extend the exclusionary rule to sit-

uations other than criminal trials. See, e.g., Stone v. Pow-

ell, 428 U.S. 465, 482 (1976) (habeas corpus proceedings) ;

United States v. Janis, 428 U.S. 433, 454 (1976) (civil suit

by government); United States v. Calandra, 414 U.S. 338,

348 (1974) (grand jury proceedings).

Even in a criminal trial, the remedy of exclusion is not

absolute. United States v. Havens, 446 U.S. 620 (1980)

(impeachment of statements made by defendant on cross-

examination); United States v. Ceccolini, 435 U.S. 268

(1978) (voluntary testimony by live witnesses). In sev-

eral major cases, the Court has also declined to give retro-

active effect to the exclusionary rule when decisions of the

Court have extended the reach of Fourth Amendment pro-

tections. Williams v. United States, 401 U.S. 646 (1971);

Desist v. United States, 394 U.S. 244 (1969); Linkletter v.

Walker, 381 U.S. 618 (1965). None of the holdings of these

cases is consistent with the theory that the exclusionary

rule is of constitutional dimension.

If the exclusionary rule were of constitutional dimen-

sion, it would certainly be beyond the power of Congress

to change it. However, as long ago as 1971, the Chief

Justice called upon Congress to pass a statute providing,

inter alia, “that no evidence, otherwise admissible, shall be

excluded from any criminal proceeding because of vio-

lation of the Fourth Amendment.” Bivens v. Six Un-

known Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388, 423 (1971) (Burger, C.J., dissenting). In

Wolf, 338 U.S. at 33, Mr. Justice Frankfurter expressly

recognized that a “different question’ would be presented

if Congress were to pass a statute purporting to negate the

Weeks doctrine as it respects federal agencies, or if Con-

gress attempted to make the exclusionary rule binding upon

the states by statute. In the same case, Mr. Justice Black,

concurring, stated that he felt it to be the “plain impli-

cation” of the Court’s opinion that the exclusionary rule is

“not a command of the Fourth Amendment but is a ju-

dicially created rule of evidence which Congress might

negate.” Id. at 39-40.

The President and at Jeast certain members of Con-

gress are of the same view. On March 18, 1982, Senators

Thurmond and DeConcini introduced on behalf of the

Administration a bill to provide a good faith exception to

the exclusionary rule. 128 Cong. Rec. S2417 (daily ed.

March 18, 1982). On September 13, 1982, the Criminal

Justice Reform Act of 1982 was introduced in the Senate

on behalf of the Administration. Among other things, it

also contained a statutory good faith exception. 128 Cong.

Rec. S11338 (daily ed. Sept. 13, 1982). The message by

President Reagan accompanying that bill noted that al-

though “the argument for retaining the exclusionary rule

in any form is, at best, tenuous” the bill would at least

eliminate application of the rule “in those cases in which

it most clearly has no deterrent effect.” Id. Though this

Court is, of course, the final arbiter of whether the exclu-

sionary rule is constitutionally based, the rule announced

in Mapp that it is constitutionally required appears to have

received as little credence in the executive and legislative

branches as it has implicitly received in the later decisions

of the Court.

In summary, the exclusionary rule is a rather late de-

velopment in Fourth Amendment jurisprudence, and the

leading case, Mapp v. Ohio, contained no clear or persuasive

willl

+

10

constitutional mandate for the remedy of exclusion. Sub-

sequent court opinions h»ve emphasized that the exclu-

sionary rule does not create a personal constitutional right,

but is instead merely a judicially created remedy. The

Court has, for the most part, declined to extend that rem-

edy into areas other than the direct admission of evi-

dence in criminal prosecutions. The reasonable inference

is that the exclusionary rule, having been created by the

Court as a prudential remedy, can also be changed by

this Court if the remedy is seen not to have achieved its

main purpose, or is seen to have created other undesirable

effects. We therefore turn to a discussion of the purposes

underlying the rule, and the severe, negative consequences

which it has created.

Il. THE EXCLUSIONARY RULE DOES NOT AC.

COMPLISH THE MAIN PURPOSES FOR

WHICH IT WAS IMPLEMENTED, BUT IN.-

STEAD LEADS TO MAJOR DYSFUNCTIONS IN

THE CRIMINAL JUSTICE SYSTEM.

It is now well recognized that the overriding purpose

of the exclusionary rule, if not its sole purpose, is the

deterrence of illegal searches and seizures by police. In

Mapp v. Ohio, 367 U.S. 643 (1961), Justice Clark stated

that the purpose of the exclusionary rule “is to deter—to

compel respect for the constitutional guaranty in the only

effectively available way—by removing the incentive to

disregard it.” Id, at 656 (quoting Elkins v. United States,

364 U.S. 206, 217 (1960) ). References have also been made

to a supposed purpose of preserving “judicial integrity”—

that is, preventing the judicial process from becoming

sullied by the use of unconstitutionally obtained evidence.

See discussion in United States v. Peltier, 422 U.S. 531,

536-39 (1975). However, most decisions have made it clear

that the practical rationale for the exclusionary rule is

11

deterrence, and that the rule must survive or fall on that

basis. See, e.g., United States v. Janis, 428 U.S. 433, 446-54

(1976).

Though a number of empirical studies have been per-

formed to determine whether the exclusionary rule does

in fact deter illegal conduct, the results have been incon-

- clusive. One of the more comprehensive empirical studies

examined statistics and other facts relating to Motions to

Suppress in the city of Chicago over a twenty-year pe-

riod. J. Spiotto, Search and Seizure: An Empirical Study

of the Exclusionary Rule and Its Alternatives, 2 J. Legal

Stud. 243 (1973). The study covered the years 1950-1970,

a period almost evenly divided between the pre-Mapp and

post-Mapp years. The author questioned whether the

exclusionary rule in fact had any deterrent effect on police

officers, noting that “[t]he individual police officer who

is involved in a Motion to Suppress often leaves the

courtroom confused rather than clarified as to what his

proper conduct should be.” Id. at 276. Perhaps the most

thoroughgoing of such studies is D, Oaks, Studying the

Exclusionary Rule in Search and Seizure, 37 U. Chi. L.

Rev. 665 (1970). This study reviewed most of the em-

pirical data which had previously been published on this

subject, together with certain new data. The author con-

cluded that the data provided “little support for the

proposition that the exclusionary rule discourages illegal

searches and seizures....” Id. at 667. The article closes

with a call for the abolition of the exclusionary rule. Id.

at 754.

In this respect, little has changed in the thirty-five

years since Wolf was decided. In 1954, Mr. Justice Jackson

stated: “What actual experience teaches we really do not

know.” Irvine v. California, 347 U.S. 128, 135 (1954). One

year prior to the Mapp decision, Mr. Justice Stewart ad-

12

mitted that “empirical statistics are not available” to show

that the exclusionary rule deters unlawful searches and

seizures. Elkins v. United States, 364 U.S. 206, 218 (1960).

After reviewing the literature, Mr. Justice Blackmun,

writing for the Court, more recently expressed serious

doubts about the empirical underpinnings of the rule.

United States v. Janis, 428 US. 433, 446-54 (1976).

On the other hand, it has become increasingly clear

that the exclusionary rule has a number of severe adverse

consequences. One leading commentator on the exclu-

sionary rule, Judge Malcolm R. Wilkey of the Court of

Appeals for the District of Columbia, has identified no

fewer than twelve separate costs of the exclusionary rule.

Judge Willey’s list is as follows:

1. “The criminal is to go free because the constable

has blundered.”

2. Only the undeniably guilty benefit from the ex-

clusionary rule, while innocent victims of illegal searches

have neither protection nor remedy.

3. The exclusionary rule in any form vitiates all

internal disciplinary efforts by law enforcement agencies.

4. The disposition of exclusionary rule issues consti-

tutes an unnecessary and intolerable burden on the court

system.

5. The exclusionary rule forces the Judiciary to per-

form the Executive’s job of disciplining its employees.

6. The misplaced burden on the Judiciary deprives

innocent defendants of due process.

7. The exclusionary rule encourages perjury by the

police.

8. The exclusionary remedy makes hypocrites out of

judges.

13

9. The high cost of applying the exclusionary rule

causes the courts to expand the scope of search and seizure

for all citizens.

10. The exclusionary rule is applied with no sense

of proportion to the crime of the accused.

11. The exclusionary remedy is applied with no sense

of proportion to the misconduct of the officer.

12. All of the above costs result inevitably in greatly

diminished respect for the judicial process, lawyers and

laymen alike.

See M. Wilkey, Enforcing the Fourth Amendment by Alter-

natives to the Exclusionary Rule (National Legal Center

for the Public Interest, 1982) [reprinted at 95 F.R.D. 211

(1982)]; M. Wilkey, Constitutional Alternatives to the

Exclusionary Rule, 23 S. Tex. L. J. 531 (1982).

The Court itself has identified five major costs of the

exclusionary rule in Stone v, Powell, 428 U.S. 465, 489-91

(1976). The Court considered the following live costs to

be “well known”:

1. “(T]he focus of the trial, and the attention of the

participants therein, are diverted from the ultimate ques-

tion of guilt or innocence that should be the central con-

cern in a criminal proceeding.”

2. “({T)he physical evidence sought to be excluded

is typically reliable and often the most probative informa-

tion bearing on the guilt or innocence of the defendant.”

3. Application of the rule “deflects the truth finding

process and often frees the guilty.”

4. “The disparity in particular cases between the

error committed by the police officer and the windfall

afforded a guilty defendant by application of the rule is

14

contrary to the idea of proportionality that is essential to

the concept of justice.”

5. Because of these costs, the rule may have the

“effect of generating disrespect for the law and adminis-

tration of justice.”

All of these costs identified by the Court and Judge

Wilkey are significant. However, perhaps three costs are

the most significant:

1, By suppressing reliable and oftentimes essential

evidence, the rule allows guilty and dangerous criminals

to go free;

2. By suppressing evidence regardless of the serious-

ness of the violation of Fourth Amendment rights, or the

seriousness of the crime, the rule is contrary to the idea

of proportionality that is essential to the concept of justice;

and

3. By freeing dangerous criminals without regard to

guilt, and diverting the inquiry at trial to technicalities,

the rule generates disrespect for the law and the adminis-

tration of justice.

The effect of a good faith exception or similar excep-

tion upon these costs will be discussed in Part III.

Ill, A GOOD FAITH EXCEPTION, OR BROADER

EXCEPTION TAILORED TO PRACTICAL

NEEDS AND THE NEED FOR A FAIR TRIAL,

WOULD SUBSTANTIALLY REDUCE SOME OF

THE MOST IMPORTANT COSTS OF THE EX-

CLUSIONARY RULE.

Of all of the many costs of the exclusionary rule,

perhaps the single most serious is the societal cost of per-

mitting unquestionably guilty criminals to go free on the

.

15

basis of abstruse technicalities. The literal impossibility

of expecting police officers to interpret perfectly the arcane

rules of search and seizure was vividly described in the

message from the Assistant Attorney General which accom-

panied S. 2231, the bill to establish a good faith exception.

That message mentioned the decision in Robbins v. Cali-

fornia, 453 U.S. 420 (1981), and went on to state:

In Robbins, the Court excluded evidence of a substan-

tial quantity of marihuana found in a car trunk in a

decision based largely on two previous cases, United

States v, Chadwick, 433 U.S. 1 (1977), and Arkansas

v, Sanders, 442 U.S. 753 (1979), neither of which had

been decided at the time of the search in Robbins

in 1975. The Robbins decision overruled previous deci-

sions of the trial and appellate courts in California

that the search was valid. When finally decided, 14

judges had reviewed the search; seven found it valid;

seven invalid. To add to the confusion, less than three

months after it decided Robbins, the Supreme Court

granted certiorari in United States v. Ross, 102 S. Ct.

386 (1981) and asked both sides to address the ques-

tion of whether Robbins should be reconsidered. It

is unrealistic to think that the exclusionary rule can

motivate even the most conscientious law enforcement

officer to apply flawlessly the teaching of a body of

law that the courts are still developing and debating,

especially when the examination to test his knowledge

is suddenly presented in a potential life or death situa-

tion. 128 Cong. Rec. S2417 (daily ed. March 18, 1982).

Given the inevitable complexity of Fourth Amend-

ment search and seizure law, police officers must be given

some degree of latitude in applying it. Justice White has

forcefully argued for a “good faith” exception in his dissent

in Stone v. Powell, 428 U.S. 465, 536 (1976). The Court

16

has also recognized that deterrence fails as a rationale when

good faith is present:

The deterrent purpose of the exclusionary rule nec-

essarily assumes that the police have engaged in will-

ful, or at the very least negligent, conduct which has

deprived the defendant of some right. By refusing

to admit evidence gained as a result of such conduct,

the courts hope to instill in those particular investi-

gating officers, or in their future counterparts, a

greater degree of care toward the rights of an accused.

Where the official action was pursued in complete good

faith, however, the deterrence rationale loses much

of its force. Michigan v, Tucker, 417 U.S. 433, 447

(1974). [emphasis added]

An exception to the exclusionary rule which would

allow evidence obtained in violation of the Fourth Amend-

ment to be used at trial, when the officer’s actions were

performed reasonably and in good faith, would significantly

improve the truth-seeking process in those areas where

the law is unclear, or is subsequently changed. By doing

so, it would substantially mitigate the serious cost of al-

lowing criminals to go free, and thereby minimize the

disrespect for the criminal process which this tangle of

The societal costs of the exclusionary rule are not of

course limited to the actual victimization and increased

crime caused by the freeing of criminals. Disrespect for

the courts results when the public perceives that there is

only an attenuated relationship between guilt and con-

viction. Survey data bear this out. In April of 1965, when

the effects of the Supreme Court’s constitutional reforms

of criminal procedure were just beginning to be felt, only

48% of the American public believed that the courts did

not deal harshly enough with criminals. Gallup Opinion

17

Index Rep., No. 33 (1968). By February of 1968 that figure

had risen to 63%, and by March of 1969 had increased to

75%. Gallup Opinion Index Rep., No. 33 (1968); Gallup

Opinion Index Rep., No. 45 (1969). According to figures

cited by Attorney General William French Smith, the

percentage of the public which felt that the courts do not

deal harshly enough with criminals had reached 90% by

1981. Comment, 23 S. Tex. L. Rev. 693, 700, n. 57 (1982).

Though the exclusionary rule is certainly not entirely

responsible for this perception of undue judicial leniency,

it cannot have failed to have contributed to it.

At present, the determination of a Fourth Amendment

violation on a Motion to Suppress is automatically tied

to the exclusionary remedy. If a violation is found, the

evidence is suppressed. Creating a good faith exception

would divorce the issues of (1) finding a violation, and

(2) deciding whether the evidence should be admitted.

Since a two-step process will therefore be necessary, amici

would suggest that any exception created by this Court

might well address more than the reasonableness and good

faith of the officer’s conduct. Specifically, a more flexible

exception would allow the trial court to consider other

factors which will bring some proportionality to decision-

making in this area. For example, assuming a Fourth

Amendment violation has been found, the trial court should

be able to consider factors such as the following in de-

ciding whether the evidence should be suppressed:

1. Despite the existence of a Fourth Amendment

violation, was the action of the officer nevertheless taken

reasonably and in good faith?

2. How central is the evidence in question to de-

termining guilt or innocence?

3. How serious was the invasion of the defendant’s

Fourth Amendment rights?

18

4. How serious was the crime, and, if the charge were

to be proven, how dangerous is the alleged offender likely

to be to society?

There are many types of evidentiary determinations

in which the trial court must weigh the probativeness and

value of the evidence against extrinsic policy concerns.

Amici suggest that if the exclusionary rule is to be re-

tained, it would be much more salutary to create a similar

rule in cases of alleged Fourth Amendment violations,

so that the critical interests of protecting gociety can be

weighed against the deterrence which the exclusionary

rule seeks to advance.

It is perhaps not necessary for this Court to determine

the exact content of such a test which could be applied

by state courts. If the exclusionary rule is not constitu-

tionally mandated, this Court is certainly empowered to

formulate a remedy for the federal courts under its general

supervisory powers. But, if the rule is not of constitu-

tional dimension, it is difficult to ascertain what would

authorize this Court to develop a detailed rule for state

courts. The Court is obviously empowered to ensure that

the states enforce the strictures of the Fourth Amendment,

as applied to the states through the Fourteenth. Never-

theless, there is certainly a great deal of room for ex-

perimentation and differences in judgment as to the con-

tours of the remedy or remedies to be implemented. Thus,

if the exclusionary rule is to be retained as applied to

the states, amici would urge the Court to do no more

than establish general guidelines for the states to observe

in establishing a good faith exception, or in establishing

a more flexible exception which would diminish the pres-

ent costs of the exclusionary rule.

19

CONCLUSION

For the reasons stated above, the decision of the lower

court should be reversed, and the case remanded for fur-

ther proceedings.

Respectfully submitted,

Wiikes C. Rosinson*

Dan M. PETERSON

Gutr & Great PLarmys LecaAL FounpATION

1000 Brookfield Building

101 West 11th Street

Kansas City, Missouri 64105

(816) 474-6600

*Counsel of Record for Amicus Curiae

Gulf & Great Plains Legal Founda-

tion

HONORABLE JOHN STEVEN CLARK

Attorney General of Arkansas

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

j