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Reprinted for private circulation fromTHE UNIVERSITY OF CHICAGO LAW REVIEW

Vol. 37, No.4 Summer 1970Copyright 1970 by the University of Chicago

l'RINTED IN U soA

Studying the Exclusionary Rule inSearch and Seizure

allin H OakS

The exclusionary rule makes evidence inadmissible in court i lawenforcement officers obtained it by means forbidden by the Constitution, by statute or by court rules. The United States Supreme Court

currently enforces an exclusionary rule in state and federal criminal,proceedings as to four major types of violations: searches and seizuresthat violate the fourth amendment, confessions obtained in violationof the fifth and' sixth amendments, identification testimony obtainedin violation of these amendments, and evidence obtained by methodsso shocking that its use would violate the due process clause. 1 The exclusionary rule is the Supreme Court's sole technique for enforcing

Professor of Law, The University of Chicago; Executive Director-Designate, TheAmerican Bar Foundation.

This study was financed by a three-month grant from the National Institute of LawEnforcement and Criminal Justice of the Law Enforcement Assistance Administrationof the United States Department of Justice. The fact that the National Institute furnished financial support to this study does not necessarily indicate the concurrence ofthe Institute in the statements or conclusions in this article_

Many individuals assisted the author in this study. Colleagues Hans Zeisel and FranklinZimring gave valuable guidance on analysis, methodology and presentation. ColleaguesWalter J. Blum, Gerhard Casper, Kenneth Dam, Aaron Director, Harry Kalven, Jr.,Edmund W. Kitch, Norval Morris, Phil C. Neal, and Richard A. Posner furnishedhelpful ideas, principally during a February, 1970 discussion of this topic in the LawSchool's Workshop on Empirical Research. Third-year students Ralph M. Faust, Jr.,Joseph H. Groberg, and James O. Reyer gave expert research assistance throughout theproject. Henry Ruth and Paul Neje1ski of the Law Enforcement Assistance Administration made valuable suggestions, as did ProfeDsor Albert W. Alsclmler of the University ofTexas Law ScllOol. The an tho r also conferred with and received indispensable informationfrom police officials and prosecutors in Chicago. Cincinnati, Cleveland, Philadelphia.Toronto, and Washington, D.C. For reasons of confidentiality some of these law enforcement personnel must remain anonymous 50 none is identified here by name.

1 Mapp v. Ohio. 367 U.S. 643 (1961) (search and seizure); Miranda v. Arizona. 384 U.S.436 (1966) (confessions); United States v. Wade, 388 U.S. 218 (1967) (lineups); Gilbert v.California, 388 U.S. 263 (1967) (identifications); Rochin v. California, 342 U.S. 165 (1952)( shocking methods). See generally T. Annon, J. CRATSLEY. S. ENGELBERG. D. GROVEP. MANAliAN e B SAYl OL, LAW AND TACTICS IN EXCLUSIONARYHEARINGS 12-23 (1969).

The exclusionary rule is also applied in respect to wiretapping evidence obtained orproposed to be used in violation of federal law. 47 U.S.C. 605 (1964): Lee v. Florida.392 U.S. 378 (1968). Under the Federal Rules of Criminal Procedure, applicable only infederal courts, the exclusionary rule prevents the use of confessions obtained during aperiod of detention in excess of the Rule 5(a) requirement of prompt presentment before

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666 The University of Chicago Law Review [Vol. 37:665

these vital constitutional rights. As such, its importance in relation tothese rights is comparable to the importance of incarceration in theenforcement of the substantive criminal law. At a time when thereare resounding calls to reconsider the content and administration ofpenal sanctions in the substantive criminal law, it is also timely toreexamine the exclusionary sanction applied to related proceduralrights.

This study concerns the effect of the exclusionary rule on the crim-inal justice system, particularly on law enforcement personnel. Thesubject is limited to the area of search and seizure. In addition to beingthe most frequent occasion for application of the exclusionary rule,search and seizure has two qualities that set it apart from other areasand make it appropriate for separate study. Evidence obtained by anillegal search and seizure is just as reliable as evidence obtained bylegal means. This cannot always be said of evidence obtained by im-proper methods of lineup identification or interrogation. And, for rea-sons that will be discussed later,2 the exclusion of evidence obtainedby an improper search and seizure is less likely to influence law en-forcement behavior than is the exclusion of evidence obtained by im-proper means of identification o ~ interrogation.

This article will report the state of existing knowledge and discusspossibilities for further empirical research. It has six parts.

Part I concerns the history and suggested justifications of the exclu-sionary rule. The normative justification-that courts should not par-ticipate in illegal behavior by using the evidence obtained by i t -has not been important in determining the outcome of cases. TheSupreme Court has stated that the "single and distinct" purpose ofthe exclusionary rule is to deter law enforcement officers from theforbidden behavior.

Part II reviews what Supreme Court Justices and prominent scholars

have said about the deterrent effect of the exclusionary rule. Mosthave hailed it as the best available enforcement technique. Some haveeven stated that "experience has taught" that it is effective. But nonehas cited any substantial evidence that the rule effectively detersimproper law enforcement behavior.

a magistrate. Mallory v. United States. 354 U.S. 449 1957). Federal courts must also ex-clude evidence obtained by a violation of the law requiring 1,,1 officer to give notice of hisauthority and purpose before opening a door to make an arrest or execute a warrant in aprivate dwelling. 18 U.S.C. 3109 1964); Miller v. United States. 357 U.S. 301 1958).T AnDon. et 01. supra However. the announcement requirement was practically elim-inated in the District of Columbia Court Reform and Criminal Procedure Act of 1970,84 Stat. 473 1970).

2 See text foilowing note 160 infra

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United States suggested for the first time that evidence obtained inviolation of the fourth amendment should be inadmissible in court.After being ignored for thirty years, that suggestion became law inthe federal courts in 1914 in Weeks v. United States 1S In 1949 thefourth amendment right to immunity from unreasonable search andseizure was recognized as applicable to state as well as to federal actionin Wolf v Colomdo 6 but the Court declined to impose the exclusionary rule as a required method of enforcement. Finally, in Mapp vOhio,7 decided in 1961, the Court imposed the exclusionary rule onthe states, holding that the failure to exclude evidence that stateofficers had obtained by an unreasonable search and seizure violated

the defendant's rights under the due process clause of the fourteenthamendment.

Two types of justifications have been urged for the exclusionaryrule, one normative and one factual. The normative justification isthe evil of government participation in illegal conduct. The factualjustification lies in the assertion that excluding evidence will reduceviolations of the search and seizure rules. This result is supposed tofollow in the short term from deterrence and in the long term fromeducation. The exclusion of evidence obtained by an illegal search orseizure is expected to have the relatively immediate effect of deterringlaw enforcement officials from such improper behavior. In addition,by stressing the seriousness of society's commitment to observing thesearch and seizure rules, the exclusionary rule is expected to invokethe moral and educative force of the law and thus to have the longterm effect of encouraging greater conformity.

The normative reasons concern the impropriety of the lawgiver'sforbidding conduct on the one hand and at the same time p fticipating in the forbidden conduct by acquiring and using the resulting

evidence. s Justices Brandeis and Holmes gave the leading expressionsof this view in arguing for the exclusion of iUegally obtained wiretapevidence in their notable dissents in Olmstead v. Uni ted States. 9 Justice Holmes declared that he could attach no importance to the Govemment's expression of disapproval if it knowingly accepted and paid

4 116 U.S. 616 (1886).S 232 U.S. 383 (1914).6 338 U.S. 25 (1949).7 367 U.S. 643 (1961).S To sanction such proceedings would be to affirm by judicial decision a manifest

neglect if not an open defiance of the prohibitions of the Constitution, intended forthe protection of the people against such unauthorized action." Weeks v. United States,232 U.S. 383, 394 (1914).

9 277 U.S. 438 (1928).

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6691970] Exclusionary Rule in Search and Seizure

. H h ht it better for some criminalsfor the fruits of the illegalIty. e t o ~ ~ an irnoble part."10 Justiceto escape than for t ~g o v e r n ~ e ~ tto p l a ~the ':teed to "preserve theBrandeis also spoke m m o r a l I ~ t 1 C~ e r I ~ s: u t he added the pragmaticjudici al process from contammatlOn,. d houl d be excluded toargument that illegally obtained eVI encefisd ce I'n the administra-. 1 d to promote con enmamtam respect or aw an 1 b ker he de-tion of justice. "1 the Government becomes a aw- rea 1 . itclared, in a much quote d passage i it re;ds : ; : e ~ ~ ~ ~ rh : : d ~ c i a ~ e dinvites anarchy."l1 More recent y, t e ~ p cannot and will not~ : : ' : ~ ; O : : ' y ; ~ i e w ~ ~ s U : ~ : i ~ ~ ;~ : ; : ~ l ~ ~ F ~ t u t ~ O : ; ~ ~ :~ :s ~ ~ ~

zens by permittingu n h i n d e r e d h g o v e r n m e n t ~ t~ ~ g ~ t

not be permittedinvasions."12 In othe r words, t e governme

to profit from its own w : o n ~ .stification that the Supreme Court hasAlthough the n o ~ a t l v eJ ~ f' dicial integrity"13 continues to

referred to as the .Imperative m : ~ ~ u r tdecisions, it is doubtful thatappear in the rhetOrIC of S u p r e ronouncements about notthis argument decides 1 a s ~ s .D ~ S P I s t ~b f e o ~ ~ r ~courts have not yet beenb . t y o law ess mvaSIOn , .emg a par l 'd . dgment of conviction agamst aforbidden from entering h a ~ : f ~ r e J ~ ecourt by illegal means such asdefendant who was broug t b bl ause or arrest upon a warrant

. . t witho ut pro a e c ,kidnappmg, ar res . ffi' t 14 Moreover it is difficult to accept thethat was illegal or msu c I e ~ . f m p r o ~ e r l Yobtained evidence isproposition t ~ ~ . tt ~ ~ e ~ c l u s I ~ ~? w ~ e nno such rule is observed innecessary for JudICIal I ~ t e ~ Iy has Ena-Iand and Canada,15 whoseoth er common law jurisdictIonds suc d 1 I: of judicial decorum andcourts are otherwise regarde as mo e s

fairness. h h d to make decisions on the scopeh h S reme Court as a .W en t e up . has usually stressed and Its reason-

ofthe

exclusionary rule , Its opmIOn10 ld. at 470. . n ave modem voice to this argnment by sug-11 ld. at 4845. Professor FranCIS A. AIle h ~ )rocess of law which sanctions the

gesting that "perhaps it may b ~; r ~ ~ ~ a l tt ~ r o ~ ~ hi'he utilization of the fruits of officialimposition of penalties upon an .m IVI 1 f the rights of privacy, but of the wholelawlessness tends to the d e s t r u c t ~ o n ,n ~ ~ : nJ b ~ Cforce which 'Would seem to be i n h e ~ e : - :system of restraints ? ~th.e e x e r ~ l s eof T t e Wolf Case: Search and Seiwre, Federalism,'n the concept of clVll bberty. Allen, 0I d the Civil Liberties, 45 ILL. L. REV. 1, 20 (195 ).an 12 Terry v. Ohio, 392 U.S. 1, 13 (1968). 1960

13 Elkins v United States, l64 ~ ) i 8 ~ 0 6 ~ :~ ~ ~ i e~ :CoIlins, 342 U.S. 519 (1952); Stallings14 Ker v. Illinois, 119 U.S. 43 '(Albr;cht v. United States, 273 U.S. 1, 8 (1927).

V Splain 253 U.S. 339, 343 (1920), I Rule under Foreign Law-Canada, 52 J.. . The Exc uslonal'Y L15 See genlsrally MartlO, IIi The Exclusionary Rule Under Foreign aw -

L C e p.s. 271 (1961); WI ams,RIM

l d' 5'2 J CRIM L.C. e P.S. 272 (1961).Eng an .


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670 The University of Chicago Law Review (Vol. 37:665

jng seems to have been dictated by the factual considerations of det er.~ e n ~ er ~ t h e rt h a ~the normative arguments of judicial integrity. Thus,m Elkms v. Umted States, B where the Court decided that evidenceobtained in an illegal search by state officers must be excluded in af ~ d e r a lcriminal trial, the Court gave this explanation of the exc1u.s l O ~ a r yrule: "Its purpose is to deter-to compel respect for the constit u t l ~ n a lg ~ a r a n t y~ n the o ~ l yeffectively available way-by removingthe Incentlve to dIsregard I t . 1 7 The discursive prevailing opinion inMapp v. Ohio 18 quoted the Elkins statement and otherwise characterized the eXclusionary rule as a "deterrent safeguard," but the decisiondoes not clearly identify the primary basis for the rule because JusticeB 1 ~ c k ' sre iance on a self-incrimination theory split the majority ontIus questIOn. II These doubts were resolved in Linkletter v. Walker 20where the C ~ u ~ td e c i d e ~ ,that Mapp should not be given r e t r o s p e c t i ~ eeffect. ExplaInIng that the purpose [of the lvlapp decision] was todeter the lawless action of the police," the Court reasoned that thispurpose (twill not at this late date be served by the wholesale releaseof the guilty victims."21

Deterrence was also the crucial factor in the Court's decisions on~ ? e t h e rthe new rules on interrogation warnings and lineup formal.Illes should have retrospective application. 22 Thus, in its most recentretroactivity decision, che Court held that the new requirements wereb i ~ d i n gonly o ~ lineups. that occurred after the Wade decision. 23 Byfixmg the effectrve date n terms of the police conduct rather than interms of the time at which the trial court took its action in the matter~ h eC?urt has i m p 1 i e ~ l yrejected the theory of "judicial integrity" andIdentIfied the exclUSIOnary rule's primary purpose as that of con.

16 364 U.S. ll t 222.17 Id. at 217.18 367 U.S. at 6-18, 656, 676 (196l).I I I Allen, supra note 3, at 25. A federal circuit court of appeals recently applied the

A ~ P Pprecedent and : e j e c t e ~the judicial integrity rationale in a case in which Philllpme ?fficers had ob;:amed eVIdence by means that violated P h i l l i ~ - ' i n elaw and that wouldhave violated fou:th amendment rights if obtained by United States officers. l'telying onthe ,fact that Umted States officers were not involved, the court upheld denial of themotion to suppress by a federal district court. Slonehill v. United States 4 0 ~F 2d 738(9th Cir. 1968), cert. denied, 395 U,S. 960 1969). ' :J

20 3 ~ 1U.S. 618 196 5). See Comment, Standing to Object to an Unreasonable Searchand S ~ I U r e ,34 U. CHI. L. REv, 342, 352 1967), which discusses the various bases for theexclu,:lOnary rule and concludes that Lit/kletter "accepted a general deterrence rationale

21 381 U.S. at 637.

22 J o h n s o ~v. N e ~ v .Jersey,. 384 U.S. 719 1966); Stovall v. Denno, 388 U.S. 293The underlymg declSlons, MIranda and Wade, are cited in note I supra.

28 Stovall v. Denno, 388 U.s. 293 1967),1967).

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trolling police behavior. 24 Finally, in an opinion concerning the retroactivity of its decision applying the self-incrimination privilege to thestates, the Supreme Court stated that deterrence was the "single anddistinct" purpose of the exclusionary rule. 25

From the foregoing discussion it is apparent that the principal current argument for the exclusionary rule is a factual one: exclusion ofevidence obtain ed y illegal means will. deter law enforcement officialsfrom the illegal behavior.2B It is a logical enough theory, impregnable

24 Two authorities have urged that the renewed emphasis this gives to the factorof police reliance means that the retroactivity of all the Court's p r o s p e c t i v ~rUlings inthe criminal procedure area will now be measured from the date of the pollce conduct.Schaefer The Fourteenth Amendment and Sanctity Of the Person, 64 Nw. U.L. REv. I,11 1969); Kitch, The Supreme Court s Code of Criminal Procedure: 19681969 Edition,1969 SUP. Cr. REV. 155, 184.

The rationale for the exclusionary rule is less clear in. 'Fahy v. Connecticut, 375 U.S.85 1963), where the Court held that a state could treat the d m ~ s s ~ ~ nof i l ~ e g a \ l yobtained evidence as harmless error where there was no reasonable pOSSlbllity that It hadcontributed to the defendant's conviction. This result is at odds wit.h the logical requirements of either the "judicial integrity" 01' "deterrence" justifications for the. rule.It is perhaps best understood as indicative of judicial ambivalence about tl:e e ~ c l u s ~ o n a rrule itself. For similar opinions invoking the harmless error rule and exhlbltmg Similaruncertainty about the rationale of the exclusionary rule in this context, see People v.Parkham, 60 Cal. 2d 378, 384 P.2d IDOl, 33 Cal. Rptr. 497 1963) (Traynar, J.); casescited in Annot., 30 A.L.R.3d 128 1968).

211 Tehan v. United States ex rei. Shott, 382 U.S. 406, 413 1966). See also Kaufman v.United Slates, 394 U.S. 217 1969). "[T]he raison d etre of the exclusionary rule is thedeterrence of lawless law enforcement Traynor. Mapp v. Ohio at Large ill theFifty States, 1962 DUKE L.J. 319, 334.

In times past the exclusionary rule has been described as giving a defendant a personalright not to be convicted by means of illegally obtained evidence. Wolf v. Colorado,338 U.S. 25, 47-48 1949) (Rutledge, J., dissenting); Boyd v. United States, 116 U.s. 616,633 1886); Allen, supra note 3, at 35. It has also been said to be based on a "personalincrimination theory" whereby it was a violation of the fifth amendment to convict aperson on the basis of evidence seized in violation of the fourth amendment. Comment,mpr" note 20, at 347-50. And the rule has been explained in terms of requiringexclusion of the evidence as a kind of compensatory adjustment for the illegal invasionof the defendant's rights. Comment, Judicial Control of ll/ega/ Search and Seizure, 58YALE L.J. 144, 153-4 1948). All of these alternative explanations have now been discredited. Kaufman v. United States, 394 U.S. 217, 229 1969) (exclusionary rule "deemednecessary to protect the rights of all citizens, not merely the citizen on trial"); Hill.The Bill of Rights and the ,upervisory Power, 69 COLUM. L. REV. 181, 183 n.14 1969);Comment, supra note 20, at 352-3. Judge Friendly has stated that the defendant isallowed to exclude evidence not primarily to vindicate his right of privacy, since thebenefit received is wholly disproportionate to the wrong suffered," but to p r o m o ~ e.thesecurity of citizens generally. Friendly, The Bill Of Rights as a Cocle of CnmmalProcedure, 53 CALIF. L. REV. 929, 951 1965). Justice Traynor has declared that theobjective of the exclusionary rule is certainly not to compensate the defendant for thepast wrong done to him . . ." Traynor, supra, at 335.

26 "[T]he ultimate test of the exclusionary rules is whether they deter police o . f f i ~ a l sfrom engaging in the objectionable practices." Allen, Due Process and State CTimmalProcedures: Another Look 48 Nw. U.L. REv. 1. 34 1953).


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in the library."27 But a factually based rule that is probably the mostimportant constitutional device for supervising criminal proceedingsin state courts 28 should have a more secure foundation than a theorythat has never been tested. Yet today, more than fifty years after theexclusionary rule was adopted for the federal courts and almost adecade after it was imposed upon the state courts, there is still noconvincing evidence to verify the factual premise of deterrenceupon which the rule is based or to determine the limits of its e f f e c ~tiveness.

oEminent judges, respected for their devotion to c i v i l l i b e r ~

ties, have voiced disapproval of the rule. SO Recent events in the UnitedStates Supreme Court suggest the possibility of modification. Plainly,it is time that the factual premises of the exclUSionary rule were s u ~

jected to scrutiny.

II. EVALUATIONS OF THE DETERRENT EFFECT OF THEEXCLUSIONARY RULE ND OTHER ALTERNATIVES

In adopting the exclusionary rule for federal courts the WeeksCourt indulged two assumptions: (1) that exclusion of evidence woulddiscourage illegal behavior, and 2) that there was no feasible l t e r n ~tive for controlling such behavior. s1 Subsequent Supreme Court o p i n ~ions have vacillated between conceding ignorance of these essentialfacts and simply asserting them. None has tendered anything remotelyapproaching evidence.

21 Waite, Evidence-Police Regulation by Rules of Evidence, 42 MICH. L. REv. 679,685 (1944).

28 Writing a year after the case was decided, a Pennsylvania prosecutor stated thatMapp v. Ohio is the most significant event in criminal law since the adoption of thefourteenth amendment. Specter, Mapp v. Ohio: Pandora's Problems for the Prosecutor,111 U. PA. L. REv. 4 (1962).

20 LaFave Remington, Controlling the Police: The Judge's Role jn Making andReviewing Law Enforcement Decisions, 63 MICH. L. REv. 987, 1003 (1965); Allen, supranote 3, at 32-40.

so Friendly, supra note 25, at 951-4: Schaefer, supra note 24, at 14. Recent academiccriticism is sparse but growing. N. MORRIS G. HAWKINS, THE HONEST POLITICIAN'S GUI PoTo CRIME CONTROL 101 (1969): F. INBAU, J. THOMPSON C. SOWLE, C A S I . ~AND COMMENTSON CRIMINAL JUffiCE: CRIMINAL LAw ADMINISTRATION 184 (3d ed. 1968); BUrns, Mapp v.Ohio: n AllAmerican Mistake, 19 DE PAUL L. REv. 80 (1969); Waite, supra note 27.The rnbau, Thompson Sowle book was a particularly valuable Source in the prepara-tion of this paper.

81 If letters and private documents can thus be seized and held and used in evidenceagainst a citizen accused of an offense, the protection of the Four th Amendment declaringhis right to be secure against such searches and seizures is of no value, and, so far asthose thus placed are concerned. might as weU be stricken from the Constitution.Weeks v. United States, 232 U.S. 383, 393 (1914).


A. Alternatives to the Exclusiona'TY Rule

This section will briefly review various methods that have beensuggested for controlling illegal behavior by law enforcement pe:sonnel. Although an inquiry :nto the effectiveness of each method ISbeyond the scope of this article, it is important to have s o ~ egeneralimpressions on the question. The inappropriateness of an Importantfederal constitutional right to freedom from unreasonable search andseizure without a clearly available federal remedy was surely a persuasive factor i ~ the Supreme Court's eventual decision to impose theexclusionary rule. 82 It is at least equally important today that there

. h r ssbe an effective mechanism for redress of grievances agamst t e po Ice.Thus far no method of enforcing constitutional guarantees and

controls o v ~ rillegal searches and seizures has demonstrated its effectiveness in practice. 34 Although the la.w enforc.ement c o ~ d u c ti n v o l ~ e din an improper search and seizure often constItutes a CrIme, the cnminal law is not an effective instrument of control,85 Perhaps .this isbecause in most cases involving police officers prosecutors WIll. notprosecute and juries will not convict. n improper search and seIzureis likewise a common law tort, btit tort liability enforced by theaggrieved plaintiff is not thought to be an effective contr.o b e c a ~ s cjuries will be unwilling to find significant damages agamst polleeofficers, especially in favor of a plaintiff who was an a c c u s e ~or convicted criminal. sa In addition, a judgment may not be c o l e c t l ~ l efromthe officer because of his inability to payor from the employmg. o v ~ernment unit because of sovereign immunity or other legal barner. 8T

82 Allen, supra note 3, at 220.88 REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 1623 (1968).

W T "AVE ARREST' THE DECISION TO T AXE A SUsPEcr INTO CUSOODY4 ee genera y ~ .I 7 1965)' THE PRESIDENT'S COMMISSION ON LAw ENFORCEMENT AND ADMINISTRATION OF

; 1 . 2 ( T A S ~FORCE REpORT: THE POLICE 193.207 (1967) [hereinafter cited as TASK FORCE

=:. THE POLICE]; author.ities cited in Kamisar, Wolf L u ~ t i g ,Ten Years Later:We al State Evidence in State and Federal Courts, 4 i MINN. L. REv. 1.OB3, 1150 n.238 (1959).8 ~Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA. L. REV.62 o ~ 5 5 ~ .Tort Remedies for Police Violations of Individual Rights, 39 MINN. L. REV.493 1 ~ ~ 5 ~ :See generally Symposium o ~Police Tort Liability, 16 CLEV.-MAR. L. REv.397454 (1967). b 'l ' r ' ca l b

S7 Several authorities have proposed legislation to Impose lia 1 lty on po lti audivisions whose officers committed an offense. 3 K.C. DAVIS, ADMINISTRATIVE LAw T R E ~ S E

25.17. 26.08 (1958): Mathes Jones, Toward a Scope of Official Duty Im,? unltyor Police Officers in Damage Actions, 53 GEO. L.J. 889 (1965); Banett , ExclUSion oj

~ V i d e n c eObtained y Illegal Searches-A, C o m m e n ~on People v. C a ~ a n ,43 CALn-. ~REv. 565. 579 (1955). A few states provide indemnity for officers held h a b ~for ?all1agef 'es inflicted while they are engaged in the performance of their duties. ILL.or Injun s h th t .therRl :v. STAT. ch. 24, 145 e 14'6 (1969). Thus far there IS no owmg a el


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The federal statutory cause of action under the Civil Rights Act,section 1983, is another possibility that has not been demonstrated tobe an effective deterrent of illegal behavior.3s Jury reluctance and theinsufficient measure of damages are probably the outstandinO' dill-

. 0culues. There are some omens of change in these areas,89 but aneffective tort remedy is still unrealized.

All law enforcement agencies have some internal administrativereview and discipline for officers who violate laws or department regulations, but interested outsiders generally distrust the objectivity ofsuch procedures. Internal review is not looked upon as an effectivemechanism for insuring adherence to the constitutional and statutory

rights of those suspected of crime. An outside review body with dis-ciplinary powers, such as a civilian review board or an ombudsman,seems to be a better prospect in theory. Unfortunately, there is virtually no United States experience with an ombudsman in this role,and the civilian review boards that have operated in the past few yearshave been recommending bodies, with little or no power of decisionand enforcernent: 1o Consequently, there is insufficient experience todetermine whether either of these alternatives could effectively control police behavior. Another recent suggestion would have courtsenforce individual rights by citing offending law enforcement officersfor contempt of court;H but thus far there has been virtually no ex-perience with this remedy.

B. The Deterrent Effect of the Exclusionary Rule

In Irvine: v. California,42 Justice Jackson achieved a degree of candorstill unequalled by declaring:

What actual experience teaches we really do not know. Ourcases evidence the fact that the federal rule of exclusion andour reversal of conviction for its violation are not sanctionswhich put an end to illegal search and seizure by federalofficers There is no reliable evidence known to us thatinhabitants of those states which exclude the evidence suffer

enlarged liability or indemnity has realized the expectation that government agenciesexposed to this prospect of lillhility would take steps to minimize their risk by effectivelyreducing police misbehavior.

as The leading case in sellTch and seizure is Monroe v Pape, 365 U.S. 167 (1961).80 See text accompanying note 148 infra.40 TASK FORCE REPORT: Tn POLICE at 2004.41 Comment, Federal InjU7lctive Reliel From Illegal Search, 1967 WASH. U.L.Q. 104;

Comment, The Federal llljane ioll as a Remedy for Unconstitutional Police Conduct, 78Y LE L.J. 1


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676 The University of Chicago Law Review [Vol, 37:665

]us,tice Roger Trayno r was equally enthusiastic in People v. Cahan 50W ~ I C ~adopted the eXclusionary rule for California. His influentialO p l ~ I nasserts that adoptio n of the exc1usion?ry rule will discourag: ,Illegal searches and seizures, and that it will also amuse publko ~ m ~ o nas a deterrent to . . . law enforcement officers who' allowcnmmals to escape by pursuing them in lawless ways."Gl, I n f o ~ e dobservers other than the United States Supreme Courtn.ave u n ~ f o r m lagreed that presently available alternatives for deterrmg pohce mIsconduct are ineffective. 52 But these authorities haveg e ~ e r a : l ybeen more guarded than the Supreme Court in their charact e r ~ z a t l O nof the eXclusionary rule's potential for deterrence. In a 1950artIcle FranCIS A. Allen wrote:

O n ~seeking to. discover the actual consequences of the ex~ l u s l o n a r yrule m protecting individual rights of privacy andIts e.ffects upon the process of law enforcement cannot fail tobe . l m p r e s s e ~by the paucity of empirical evidence uponwInch anythmg more than highly tentative conclusions maybe based Data. to supply adequat e answers to even elementary questions IS largely non-existent.58

Despite the lack of data, Professor Allen offered the opinion that the: u l ~.had substanti al regulativ e effect, because it subjected themdl:'Idual officer to the pressure of those charged with making an

f f i ~ l n trecord of criminal convictions to avoid conduct which impenIs s u c c e s s ~ u l~ r ? s e c u t i o n . "He also urged that the regulativeeffect of publIc opmlOn . . . is more lIkely to become a reality wherethe consequence of an official invasion of privacy may be to deprivethe state of power to secure the conviction of a serious offender. 54Edward L. ~ a r r e t t ,Jr . was cautious in his declaration that [t]hefactual q ~ e s t I O nre?ardmg the effectiveness of the rule cannot be

answered m any satIsfactory fashion withou t detailed field studies fthe actual operations of law enforcement officials and the effect 0them of the exclusionary rule."611 upon

Writing while a judge of the court of appeals, Chief Justice Warren~ . Burger took a negative view of the deterrent capacity of the excluSIOnary rule, though he was equally obscure about the factual b .f h l aSlSor IS conc USlOn:

GO 44 Cal. 2d 434, 282 P.2d 905 (1955).III [d at 448-9, 282 P.2d at 913-4.5 See authorities cited notes 3441 supra.GS Allen, supra note 11, at 16.17.64 ld at 20.55 Barrett, supra note 37, at 584.

II

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III,


Some of the most recent cases in the Supreme Court reveal,almost plaintively, an unspoken hope tha t if judges say oftenand firmly that deterrence is the purpose, police will finallytake notice and be deterred. As I see it, a fair conclusion isthat the record does not support a claim that police conducthas been substantially affected by the suppression of theprosecutiorl's evidence

I suggest that the notion that suppression of evidence in agiven case effectively deters the future action of the particular policeman or of policemen generally was never morethan wishful thinking on the part of the courts. 56

677

Monrad Paulsen tenders the cautious appraisal that the exclusionaryrule is the best we have,"G7 and that it is the most effective remedywe possess to deter police lawlessness."58 Nevertheless, he asserts that

there are reasons to believe that the exclusionary rule has an important practical infiuence,"5 1 and that the rule creates a genuineincentive for police departments to educate their members in theconstitutional rights of suspected persons. 60

Yale Kamisar, another enthusiast for the exclusionary rule, treatsthe question of the factual basis for the rule in this manner:

The fact tha t there is little agreement and litt le evidence th atthe exclusionary rule does deter p o l i c ~lawlessness is muchless significant, I think, than the fact that there is muchagreement and much evidence that all other existing alternatives do not. 61

Professor Kamisar is obviously too careful a thinker to be suggestingthat the absence of deterrent effect by any of the existing alternativesestablishes the deterrent value of the exclusionary rule. That there isno alternative cure for cancer does not prove the effectiveness of

trea tmen t by the expressed juice of the woolly-headed thistle:'6256 Burger, Who Will Watch The Watchman? 14 AM. U.L. REv. 1, 11-12 (1964).57 Paulsen, Safeguards in the Law of Search and Seizure 52 Nw. U.L. REv. 65, 74 (1957).liS Paulsen. The ExclUSionary Rule and Misconduct by the Police. 52 J. CRIM. L.t.:. 8:

P.S. 255, 257 (1961).SO ld at 260.ilO Paulsen, supra note 57, at 74.61 Kamisar, supra note 34, at 1150.62 Recommended in Prudence Smith's Modern American Cookery o 1831 according to

J. FURNAS. T H E AMERICANS 338 (1969).f the exclusionary rule does have a measurable deterrent effect. then the lack. of

feasible alternatives helps to justify the use of the rule even though it has undesirableside effects. But if no positive case can be made for the deterrent effect of the rule,then the lack of feasible alternatives adds noth,'ug to the case. [I]n the final analysis,the justification for the imposition of the rule on the reluctant litates must reat on the


8/48


Kamisar is merely saying what the Supreme Court and a considerablenumber of scholars have said over and over again,03 that in theabsence of any better alternative, we are willing to take the deterrenteffect of the eXclusionary rule solely on the basis of assumption.

In sum, the rhetoric concerning thl' factual basis for the exclusionarJr rule amounts to no more tha n fig-leaf phrases used to covernaked ignorance. o4

III. AITEMPTS TO MEASURE THE EFFECT OF THE EXCLUSIONARYRULE

This section examines both previously published and newly compiled evidence on the effect of the exclusionary rule pertaining tosearch and seizure on the criminal justice system, particularly on lawenforcement personnel. Three research methods are represented inthis data. The befMe-after method c(,mpares the conduct of law enforcement officer" or the operation of the criminal justice systembefore and after adoption of the exclusionary rule. The multiple-areamethod compares the conduct of law enforcement officers or theoperation of the criminal justice system in a jurisdiction that has theexclusionary rule with a jurisdiction that does not. These first twomethods compare the effect of the rule at different times or in different jurisdictions. The third method, field observation, tries todetermine the effect of the rule in a single area during. a single periodof time, such as by drawing inferences from the proportion of motions to suppress that are: granted in a particular crime. The information has been obtained .trom a variety of sources including questionnaires, criminal justice system statistics and observation. The data isgrouped uccording to those sources.

A. Questionnaire Results

The first recorded attempt to test empirically the factual assumptions underlying the excluSionary rule was Justice Murphy's question-

affirmative case that can be made for the rule, not on the inefficacy of the tort suit,police discipline, or whatever else may be suggested as a substitute. Allen, supra note3, at 33 n.172.

68 Justice Traynor is a notable example: We have been compelled to reach thatconclusion [adopting the eXclusionary rule] because other remedies have completely failedto secure compliance with t he constitutional provisions on the part of police officersPeople v. Cahan, 44 Cal. 2d 434, 445, 282 P.2d 905, 911 (1955); police methods of obtainingevidence were not being deterred in any other way. . [f]here Was no recoursebut to the exclusipnary rule. Traynor, supra note 25, at 822, 324.

64 To borrow a phrase Will Durant applied to the incautious verbiage of philosophy.W. DURAN(, T H E STORY OF PHILOSOPHY 101 (1926).

1970] Exclusionary Rule tn Search and Seizure 679

naire, described in his dissent in Wolf v. Colorado 6IS Randomly sele.cting 38 large cities, he sent wri tten inquiries about ~ h eextent o ~ polIcetraining in the rules of search and seizure. He receIved 26 repl.les, buthis opinion characterized only 11 of these. Table 1 summarIzes theresults.

TABLE 1POLlCF TRAINING IN SEARCH AND SEIZURE

RULES IN CITIES IN 1949

Extent ofPolice Training

NegligibleExtensive

Total

In Cities in Stateswith without

the Exclusionary Rule

15

6

4

Justice Murphy concluded: The contrast b e ~ , ~ e e nstates w i ~ hthefederal rule and those without it is thus a posltlve d e m o n s t r t ~ o nofits efficacy."GG While Justice Murphy is to be praised for ~ t t ~ m p t m gtoinvestiaate what his fellow judges have generally been wIllmg to takeon ass;mption, it is regrettable that he failed to disclose the ~ a t u r eofall the replies, and that he so obviously overstated the conclusiOn to bedrawn from his data. Even i one ignored the smalln:ss. of ~ h e s a ~ ~ l eand conceded that this survey showed more police trammg J u n s d l c ~tions with the exclusionary rule, police training is only ~ h efirst s:ep.The ultimate inquiry S .whether the ~ r ~ i n i ~ g.affects polIce behaViOr.

A wider range of opinion about pollee trammg and other e f f e c t ~ofthe exclusionary rul e was elicited by Stuart ~ N ~ ~ e l s1963 qu.estlOnnaire concerning the Mapp decision. These mqumes were maIled ~ o250 persons, five in each state. The r e c i p i e n ~ s ,r ~ d o m l ychosen. mtheir individual categories, consisted of a -pollce chlef, ~ ~ r o s ~ c u t l ~

t a J'udge a defense attorney an d an American CIVIl LlbertIesat arney, , 113 . . t 5 1 Unio n official. Questionna ires were ret urne d by reclpJ.en s . /0re resenting 47 states and consisting of roughly eq ual proportiOns oft ~five categories. Nagel's hypothesis was that between.l960 and 1963the 24 states that had been forced to adopt the exclUSiOnary rule (bythe 1961 Mapp decision) w o u l ~have undergone more changes ofvarious kinds relevant to the rUle than the 23 states that had beenapplying an exclusionary rul e before Mapp. The Table 2 summary ofthe questionnaire returns, which of course merely represents an

65 338 u.s. 25, 44-46 (1949).88 Id. at 46.


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680 The Universty of Chicago aw Review [Vol. 37:665

accumulation of the opinions of the persons questioned, supportsNagel's hypothesis. 67

TABLE 2OPINIONS ON EFFECT OF EXCLUSIONAAY RULE ON

POLIem BEHAViOR, 1960 r 1963

Answers Given by Respondents in States which:

Already had the Were forced to AdoptExdusionar y Rule the Exclusionary Rule

Type ot Change from in 1961 in 1961

1960 to 1963 Decrease Increase Decrease Increase

% %. %. %.Police Adherence to

Legality in Searches 9 57 4 75Police Educational Efforts

Concerning Legality inSearches 0 77 0 87

Police Effectiveness inSearches 9 26 43 17

100% Per cent of decrease plUS per cent of increase plus per cent of those stateswhich reported no change. E.g., the changes in police adherence to legality in searchesin states that already had the exclusionary rule were 9% decrease, 57% increase and 84%no change.

This data shows a comparatively larger increase in adherence to legalstandards and in educational efforts in those states that had just beencompelled to adopt the exclusionary rule. But it also shows a comparatively larger decrease in the effectiveness of the police in thesestates.

In other opinion evidence, individual law enforcement personnel

67 Nagel, Testing the Effects of Excluding Illegally Seized Evidence, 1965 WIS. L REv.

283, 283-6. Other subjects covered in the questionnaire or treated in the article, such asthe frequency of raising search and seizure subjects (as measured by the number ofheadnotes in the West Digest , possible effects as measured by Gtate crime statistics, andquestions about the declarant's attitude toward the exclusionary rule, are omitted herebecause the data they yield are no t considered significant.

A somewhat similar questionnaire returned by 90 police chiefs sheriffs, trial judges,prosecutors and defense counsel in North Carolina showed that about three-quarters feltthat the exclusion of evidence was an effective way to reduce the number of illegalsearches. Katz, Supreme Court and the State: n Inquiry into Mapp v. 011io in NorthCarolina, 45 N.C.L. REV 119 (1966).

A questionnaire answered by 30 police chiefs and sheriffs in Colorado shows that only20% of them felt that the decision making illegally obtained evidence inadmIssible would

substantially affect their depaltmen ts' search and seizure practice. The ol'ner returnsstated that it would affect their practices only slightly (4'1%) or not at all (33%).Weinstein, Local Responsibility for Improvement of Search and Seizure P;ractices 34ROCKY MT. L. REv. 150, 176 (1962). It was unclear whether the latter answers reflected ahigh degree of l c ~ a l i t rpreceding Mapp or a low degree of conformity after.

i1i1

1t

I1

1970] Exclusionary Rule in Search and Seizure 681

and outside observers have expressed the view that imposition of theexclusionary rule has resulted in increased police awareness andobservance of search and seizure rules. 68

B. Motions to SuppressCourt statistics show the astonishing extent to which the exclusio?,

of evidence-as measured by the incidence of motions to suppreSS-ISconcentrated in a few crimes. Table 3 includes all motions to suppress, not just those involving s e a r c ~ e s~ n dseizures, ~ u tknowledgeable observers in Chicago and the DIstrIct of ColumbIa confirm thatsearch and seizure issues account for an overwhelming proportion ofthese motions.

Table 3 shows that over 50 per cent of the motions to suppress inChicago and the District were filed in cases involving narcotics. andweapons even thoug h these crimes accounted for a comparatlvely

, ld f . 69small proportion of the total n umbe r of persons he or prosecutIOn.(The nationwide figures show. that only 2 per c e n t ~ fthe total numberof persons held for prosecutlOn were charged whh weapons or ?,arcoties offenses.) In Chicago an additional 26 per cent of the motIonsto suppress were filed in gambling cases, which account. for only 1 percent of the national total of persons held for prosecutlOn. It may beargued that the low incidence of ~ o t i o n sto s.uppress in. o ~ ecrimecategories signifies that the exc1uslOna:y rule IS e x t r ~ o r d l ~ a n l yeffective in those categories. A more lIkely explanatIon IS that the

8 Kamisar, supra note 34, at 114558; Paulsen, supra note 58, at 263. Though it .hasbeen said that such individual observations fulfill the fondest hopes and e x p e c t ~ t 1 oof proponents of the exclusionary rule, Kamisar, supra note 34, at 1158,. hey are Insuf.ficient to constitute persuasive empirical evidence of the deterrent c a p ~ C l t y ~ fthe r,ule.

69 For a discussion of important differences in the time and man:ler m h l ~motionsto suppress are litigated in Chicago and the District, see text follOWing note 76 ~ f r a .

The District's felony motions to suppress are also concentrated, though the mIXture ofoffenses is different. The 142 motions to suppress disposed of in felony cases in 1965 were

grouped as follows:Distribution of Motions toSuppress in Felony Cases

Robbery, burglary and otherproperty offenses

NarcoticsViolence against personGamblingWeaponsWhite-collar crimesAll other

TOTAL

computed from data in Table 7 infra.

%

42181510

645

100(142)


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682 The University of Chicago Law Review

TABLE 3D S'1l.InUTION OF MOTIONS TO SUPPRESS AMONC VARIOUS

CIUMES IN CmC GO ~ N DDISTIUCT OF COLUMBIA. 1969.70

Offense

NarcoticsWeaponsGamblingDisorderly ConductTheft, Burglary,

Receiving and OtherProperty Offenses

,AssaultTwo or More of

Above CrimesAll Other Crimes

Total

Proportion of Total Motionsto Suppres::.

Chicago

%24282611

4

100(649 motions

in 12 court days)

District ofColumbia

%3526

1:

19I

15b

100(69 motions

in 2 months) Signifies less than .5%.a No other category exceeded 2%.

[Vol. 37:665

Proportion ofTotal Persons

Held lorProsecution

(United States)

11I

10

156

66

100(2.3 million

persons)

b Consists of motions in cases involving two or more; ~ : ~ O t i c s4%; property and weapons. 3%; property and a:: : : : t , ; ~ ~ ~ e : ~: : : ~ ~ ~ t : t i ~ : ~

Source: Chicago data for misdemeanors and nrelimin h " from examination of court records in all 14 b;';nches o ~ r r hea:mgs: n ~ e l o m e s .compiledipal Department of the Circuit Court of Cook Count he F ~ r s t D I ~ t r ~ c tof the Municsample days in 1969: Jan. 15. Feb. 14, March 13. Apr. Il Mearmg cnmmal cases for 1215. Sept. 1 ~ Oct. 15. Nov. 13. and Dec. 15. District of C O I U ~ b ~ ~ JJ : t ~ e/ ~ J ~ ~15, Aug.only. complied from examination of court records in mot' 0 mls emeanorsSessions for every motion day in March and April 1970 ~ o n s~ o u r tof C o u r ~of Generalthose

dmfrtion.s disposed of by grant or denial d u r i ~ gth; p : : ~ o ~ ~~ ~ ~ ~ e : t ~ : t e l ~ C d I U a d te only

pute om l'.lliJERAL BUREAU 0 I a com" NVESTIGATION. UNIF ORM CruME REpORTS 109 (1967).

freque?cy of motions. to suppress is a function of the relative im or-tance, m the prosecutIOn of a particular type of crl'me o f d Ph. b . d b Vl ence t atIS 0 tame y means that can reasonably be challenged as improper. 7070 N .arcotlcs, weapons. and gambling are all crimes where 0 -generally obtained from the person 01, premises of th nedPle.ce ~ fphYSical evidence. TI e accuse - l S vItal to theLlon. l IS. IS not true of offenses such as auto theft or assault 1 h' h I p : o s e ~the number of reported crimes but rarely involve a motion v IC a so rank lugh Inoffenses are mixed. Some, like receiving stolen pro pert t? SUppress. The propertya theft charge based on possession arc likely to in I y, p O s ~ c s s l O nof burglary tools and,\Ild seizure. whereas others are n o ~ .Of Course a m : ~vc (ucsllons of the legality of searchidentification or the use of a stalement taken fro :

nt:e ~ p p r e s smay a ~ s oc h ~ l l c n g ean

motions to suppress may figure in criminal char es th tensed, ~ n dIn thIS ~ a n n e rsearch and seizure. g at seldom Involve questions of

1970] Exclusionary ule in Search and Seizure 683

If so, then the law enforcement conduct that is supposed to be deterredby the exclusionary rule will probably be concentrated in the enforcement of those few crimes where motions to suppress are mostnumerous. Whether or not one accepts that hypothesis, the unequaldistribution of motions to suppress among various crime categoriesshould at least make one wary of attempts to use overall crime statistics as an index of the effect of the exclusionary rule.

Within the various crimes where motions to suppress are concentrated, there are wide variations in the proportion of cal;es wherethere is a motion to suppress and in the proportio n of motions granted.These variations are direct evidence of the effect of the exclusionary

rule on the criminal justice system, and they may also provide indirect evidence on the extent of its deterrent effect on the police.

The most extensive empirical inquiry preceding the decision inMapp v. Ohio was a student study71 of motions to suppress during1950 in the branch of the Chicago Municipal Court that handled allgambling and narcotics violations and some weapons charges. Table 4contains the data from this student study. Table 5 contains the equivalent data for 1969, when the same cases were divided between twobranches of the Circuit Court. In each table the figures representmotion,s during preliminary hearings of felonies and trials of mis-demeanors. These are not before-after comparisons, since Illinoisadopted the exclusionary rule long before 1950, and it was in effectduring the entire period covered by these tables.

Table 4 shows that 77 per cent of the defendants in gambling casesin 1950 moved to suppress, and th at 99 per cent of these motions weregranted. In no case was a conviction secured after the suppression ofevidence. Consequently, the motion to suppress was the dispositiveevent for 76 per cent of the defendants charged with gambling of-

fenses in Chicago in 1950. The student authors concluded that theirstudy had shown that as to gambling cases:

[T]he rule has failed to deter any substantial number ofillegal searches. . . These figures . . may indicate tha tthe exclusionary rule is most effective in discouraging illegalsearches in cases involving ~ e r i o u soffenses, where convictionis important. Conversely, where the police believe that apolicy of harassment is an effective means of law enforcement, the exclusiona'l y rule will not deter their use ofunlawful methods. 72

71 Comment, Search and Seiwre in Illinois: Enforcement Of the Constitutional Rig t 1Privacy 47 Nw. U.L. REv. 493. 498 (1952).

72 Id. at 4978. This conclusion is reinforced by data from another jurisdiction. where

1- -------------------------------------------------


11/48

684

Offense

Gamblingl}oIlcy (numbers)Keeper of

Guming HouscCity Gambling

Churges

The University of Chicago Law Review

TAnLE .iMOTIONS TO SUllllJ SS IN GAMIILING, WItAt'ONS ANI)

NAIlCOTICSCA5F.QIN llllANClIl 27 01 TIlEMUNIQIl'AL Coull r OF CIIIQAGO,1950

Defcndantswith Motion Motions

No. of to SUPl?ress GrantedDefendalltB (u) (b)

(461)% %

81 100(2,18l1) 78 98

(791) 88 99

(2,46l1) 715 99

All Gambling Offcnses (5,8-18) 77 99Narcotics (288) 19 100Carrying Concculed

Wenpons ( nll) 28 91All Offenses Above 6,aM 70 98

[Vol. 37:665

Defcnduntswith Motion

Gmnted(a) x (b)

%8111

87

74

7619

25

69

Covers s u ~ r g e sas inmate of a gambling house; violations ltlways occUlTed inconjunction With othcr gambling offenscs,

The 1.969 figures for gambling offenses are lower than those for1950, but are still high by comparison with other crimes. There weremotions to suppress in 52 p( r cent of the g ambling cases and 86 percent were granted. Since the charges were immediately dismissed inevery case where a motion to suppress was granted, the motion tosuppress was the dispositive event in 45 per cent of the gamblingcases in Chicago in 1969. Although somewhat lower than in 1950,that total is still sufficiently high to cast serious doubt upon theeffectiveness of the exclusionary rule to deter illegal searches and

seizuresin

the enforcement of gambling laws in Chicago.This does not prove that the eXclusionary rule has no deterrenteffect in gambling cases. The rule may have some effect in those caseswhere motions are denied, an d it may also affect enforcement activitiesthat do not result in prosecutions. But the figures at least show thatthe exclusionary rule has not been effective in persuading the Chicago~ l C 1 ewcre 80 raids on alleged gambling opcrations during a six-month period, rcsultlng

j80 arrests, but not mOl'e than 25 of these persons were prosccuted. Goldstein PoliceDiscretion not to Invoke the Criminal Process: Low-Visibility Decisions in the dmin-istration of Justice, 69 YALE L.J. 543, 584 n.89 (1960). During the same period criminalp r o s ~ c u t i o n swere initiatcd against only 75 of 3,000 women arrested for p r o s t l t ~ t i o nFora discussion of why the eXclusionary rule is unlikely to be a significant deterrentupon police conduct in gambling and prostitution, lee W. LAFAVE, supra note lI4, at cbs.22,24.

t

II

i1970] ExclusionM Y Rule in Search and Seizure

TAnLE fiM O T I O N ~TO SUl l Rl1SSIN GAMDI.INO,W j \ P O N ~ANn

NAIlCOTIC.q CASItSIN DIlANClIltS 27 AND 57 0V TIII\ CmCUIT COUIlTIN CI..CAGO l 01l 12 SAMI Ll1 DAYS IN1900

685

DefendantsDefendants with Motion

with Motion Motions to SupprcssNo. of to Suppress Granteei Grantcd

Offcnse Defendants (n) (b) (a) x (b)

% % %Gambling (80) 80 74 j9Keeper of Gaming House (38) 53 85 45City Gambling Chnrges (188) 30 97 lI8

J\ GnmhHng Oftens 9\ 52 80 45W ~Narcotics (457) 84 07 83Carrying Concealed Wcapons (188) 36 08 24

All OlIe1lfies Above (957) 40 87 85

Same source and sample days as Iistc(1 in Table 3. The 040 total motions shown InTable 8 for lh/) whole Circuit Court Is composed of th/) 8B6 motions shown above (40%of 9fi7), 141 other motions to suppress In nranchcs 27 and 57 (Inc:luding 65 In gunrcgistrntion and city gun cases, fi2 In disorderly conduct, 6 in assault nnd 4: in theft),find 122 mOllons In all othcr branches of the Circuit COllrt. The subjcct IPalter brcakdown appears in Table 8.

police to observe the search and seizure rules in anywhere near ashigh a proportion of cases as they are able. f the Chicago police wereserious about observing the search and seizure law in gambling casesthey should be able to observe the rules with enough consistency thatno more than a small (raction of charges would be dismissed after thegranting of a motion to su ppress.

The same may be said of narcotics and weapons cases, though thesefigures are somewhat lower than those for gambling. In 1950 the

number of narcotics defendants who were dismissed after a motion tos u p p r e s ~was a comparatively low 19 per cent. In 1969 there wereabout 50 times as many narcotics cases (457 for 12 sample days in 1969compared with 288 for a whole year in 1950), and the number disposed of by motions to suppress had climbed to 33 per cent. 78 The1950 and 1969 figures for defendants charged with carrying a concealed weapon are practically identical, 25 and 24 per cent, respectively. The narcotics and weapons figures of 33 and 24 per cent ofdefendants being released because of illegally obtained evidence seem

78 Similarly, a 1964 sample of 70 Chicago narcotics cases showcd motions to suppressin 29 cases, with 22 of these granted, for a total disposition by motion to suppress of31 per cent. D. OAKS e W. LEHMAN, A CRIMINAL JUSTICE SYSTEMAlID i l l INDIGENT:A STUDY011 CmCA\'lO AND COOK COUNTY 8S-89 (1968).


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8 he U1Ji'tHnwit)' of Chicago Lmu Rerdew (Vol. 37;665

c o n $ i d e l ' a ~ l yhigher than would be necessaryif the Chicflgopolice werereally sertous about observing the seaxch and seizure rules.

C l ~ l ' f e n td ~ t ao ~ aU.motions to suppress in the District of Columbiap r ~ ' V l d e san lIlummatmg contrast. Tables 6 nnd 7 show the figures fornllsdemeanol's and felonies.

TAllU>; 0lHoTIOll/$ TO S U I ' I ' I U s ~IN ]\[ISl)F,ME NOil CA.NV,S,

DISTlum' OF COI.UMIIIA. CPUI\T 01 (lRNP,IIA . S I S S I O N ~ ,

MM\qU II: Arl\II., 1070

lTense

GamblingNarcot csW e l l } l O I 1 ~

l'\'Opelty Of(emesA s , ~ n l l i t

CombInation of Ahove

'rotal ll

o(J

3Io4

SO H't:t:; Same liS TullIo 8. Includes nil l\lOtlonn to suppress gl'nnted or dcnJe;1 dudn.pel'lod, bllt excludes motions continued O ~wlthul'I1wn. No dntn nvnllab\eOJ) 1) L lof defendants dl \\'ged with each crime o ~all the clIsjloshlon of de(emh t ~ e~ l I l l lerthe mo( on ,us gl'llIltccI. III S 01 W 10m

'fATILE 7l\XOlIONS TO SUN'R\ SS HI Flll,ON\ CASllS,

DI \TIUCT COUIIT \'01\ TIl t DIS'I'R1C'r Pl COI.UMnI i 1 lO )

No, ofOffense Charges

Cambling 8.: Lottel'y (1I l)Nurcotlcs (IOD)Weapons (141)Robbery. TIm'glary S: Thctt (1.188)Homicide. Rnpe 8.: t\$s \ult (MS)Ft:aud. Forgery. Counterfeiting

8.:Emuezzlemcnt (100)Othcr Crimes (S3)

All Offenses Above (2,808)

SignInes less than .5%,

Chlll'ges withl rotlon 0Suppress

(n)

%12236Ii4

3B

6(l42)

MotionsGnll1ted

(h).

%14162B

27

00-3

(\ I)

Chou'ges wIthMotionCrante"( )x (b)

%24

1

(tD)

Source: Numbcr of chnrges from tnbles prepared hy staff of th" }'Ire"I'de t' C Ision on Crl ' I ,.... " ... . , It S OI1t1n sme t i l tIe ..,lstrlct of Cohl1llbtn, p. 1; figul'es on motions to s 'President's Commission on Cl'ime in the District of Columbln 1'llpll\)11 I uPtPless Cromr' t t 23 2 . , n . S ICC computerp In 0\1 S, pp. t. All ~ a t aIS In possession of Sylvia Bacon,E.-.:ecutive Assistnt U i dStutes Attorney for the District of Columbia. n n Ie

jli

1970] Exclusionm." Jl.1Jle ill Se(ltch O1ul Sei;J; H'C687

The figures on motions to suppress in Chicago nnd the District ofColumbia are in sharp contrast at every level, A few examples willsuffice. The per cent of gambling cnses in which there is a motion tosuppress i$ 81 pel' cent for Chicngobut 12 pel' cent (or the compnl'llblcfelony in the District. In the felony of carrying concealed wc:apons,there is a motion to stlppl'ess in 30 pel' cent of the cases in Chicagobut 6 pel' cent in the Di ltrict. The per cent of motions granted inl1nrcotks offenses is 97 pel' cent in Chicago but 25 pel' cent for misdemean.ors and 16 per cent for felonies in the District. The number ofdefendants who have a motion to l ~ l p p r e s ~granted in weapons andnarcotics cases is 24 and 33 per cent in Chicago but 1 and 4: per c e n ~for felonies in the District, On this last example the contrast is evenlarger thiln the figures indicate, since all of the Chicago defendantswere disrnissedwhen their lnotion wns granted , whereas only abouthaH of the District (elony cases were dismis&edin this manner. 7 1

An evenmore significant contrnst between Chicagoand the Distric.:tof Columbia is in the 11l1n1bero motions to suppress. Wben the totalsin Tables 5 throtlgh 7 m'e con.verted to monthly figures, Chicago hasabout 1/1'10 motions to suppress p e ~ 'month and the DIstrict hasabout 47, When these fig'lll'CS flrc adjusted for dilTcrencesin the numberof reported unests, Chicago has about two and one.half times mOl,'tmotions to suppress in felonies and misdemeanors than the District ofColumbia,711

Suc.:hcontrasts are clearly attributable to important differences inthe criminal j,tlsticesystems ofthe two cities. These include differences7 ; T j ' ; ' ; ; ~ ) ; l n l l e l ';)f d ' ~ p o ~ l t l o \of the l ) felony, c a ~ e 8in which Ii motion to su PP;;WlIS ~ \ ' a n t c : d(see Table 7) was liS C o l 1 o w s ~

No. ofMotions DispORltiClnof Case

Olfense Cranted Dismissal OLllel' Unknown

ClIIllbllnl,l 8.: L o ~ l c l ' Y 2l

Nnl'COUC83

Weapolls 2 2Robbe)'y, BUl'glary : ThefL ) 2 2 1

Homldde, Rupe : Assault 6 1 a 2- - -J9 9 j jTotalsSQurce; DaUI \Irnishcd by Jcan C. T:lylor of the Institute for Dc(cnse Analyses in

I_ctter of May 5, l l70,711 The Chicago total i 650 motions In felonies and misdemeanors for 12 sample days,

which is equivalcnt to 1140 (or a month with 21 working days. The Dlstrlct's lotalb 3li per l1(Hllh (or misdemeanors (Tablc 0) and nn average of 12 per 1\10nth for felonies(Tnblc 7). for a total of 47 ])


13/48


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690 The University of Chicago Law Review

EliSON,

IIiI,.tWEAPOfjS R R ~ S T SAND ONVI TIONS

BY CINCINNATI POLICE, 1956 TO 19615 0 0 . - - -

400

[Vol. 37:665

Weapons offenses include carrying and possession. In this and the next two Figuresarrests equal total persons charged by police plus persons released by police withoutformal charges. Convictions are persons found or pleaded guilty. whether arrested in thatyear or the previous one.

Source: Cindnnati Police, Annual Report of the Division of Police. 1956 through 1967.Table 24. The assistance of University of Chicago Law School student. Katherine B.SolIer. in the assembling of data for Figures 1 Ulrough 5 is gratefully acknowledged.

interpretive purposes, Figures 4 and 5 show the number of gamblingraids and the per cent of stolen property that was recovered in eachyear.

The implications of Figures I through 5 may be stated briefly. Sofar as concerns narcotics and weapons offenses in Cincinnati, theMapp decision does not seem to have had any effect whatever on thenumbe r of arrests or upon the number or per cent of convictions. Somechanges are evident over the 12-year period covered by the figures, bu tthey bear no apparent relationship to the Mapp decision.

The number of gambling arrests and convictions is down sharply

1II\SO 5

FIII''''C%

NARCOTICS ARRESTS AND CONVICTIONSIIY CINCINNATI POLICE, 1556 TO 1961

110 _ _ _ _ _ _ _ _ _ =:---_--DA uflr,. C D ' J ~ U O

100O

80

70eo

00

~ O

3020

10

o

Source: Same as Figure t.

Mapp y.Obler

1970] Exclusionary ule in Search and Seizure

PE'UOHS

,.1,,,,. ,GAMBLING ARRESTS AND CONVICTIONSBY CINCINNATI POLICE, 1956 TO 1961

1000 r-------..:-:--::-:::-::------;O:::;-:-A'- .-::,,-I.9 .COl'ltfc:fioftt100

fOO

100

o

Source: Same as Figure 1

691

from 1960, the year before Mapp, to 1961 and. subsequent years. T ~ u s ,the average number of gambling convictions in the fi:e years, b:;wreMapp was 771, compared with 308, or less than hal , I the SIX yearsafter Mapp. That difference undoubtedly reflects slgmficant changesin police behavior, which may have i ~ c 1 u d e dclose,r adherence toconstitutional standards of search and seIzure. But Figure 4 suggeststhat the major factor was a consistent annual reduction in the numberof "raids" that result ed in gambling arrests. Thus there was anaverage of 242 raids per year in the five years ? e f o r ~MaPf ~ n donly73 in the six years after. That difference m l g h ~.Itself mdl?ate animportant conformity induced by the fv app decIs:on, but FIgure 4shows that the decreasing number of ralds began m 1959, two yearsbefore the Mapp decision, and decreased consistently from year to yearthrough 1962, with no apparent relationship to the 1961 Mappdecision.

Flv ,.GAMBLING RAIDS BY VICE CONTROL BUREAU

OF CINCINNATI POLICE, 1956 TO 1961

~ ~ ~ r - - - - - - - - - - - - - - - - - - - - - - - -______

300

M a p p ~hlo

- r -II1I

Consists of total raids on handbooks, policy, and lottery places, and dice and cardgames. Counts only raids where one or more arrests was made.

Source: Cincinnati Police, Annual Report of the Division o( Police, 1956 through 1967,Table 180.


15/48

692

PRCENT

The University of hicago Law Review

tfg ,. sPERCENT OF STOLEN PROPERTY RECOVERED

IN CINCINNATI AND TORO/ITO 1956 TO 1967

[Vol. 37:665

8 r = _ _ .

C J . ~ l n n 4CJ 10(01 110

6

ao

Ex.cludes motor vehicles.

Mopp v Ohio- - , . -1II111II

I

Source C i n d n n a ~Poiice, Annual Report of the Division of Police, 1956 through 1967,Table 96; Metropolttan T ~ r o n t oPolice Department Statisticai Report, 1958 through 1967(comparable figures unavailable for 1956.57), furnished by Inspector Aubrey V. Potter,Letter of May 20, 1970.

. Figure 5, which shows the per cent of stolen property recovered, ismcluded because police officers in various areas have advised theauthor that they frequently find it necessary to violate search andseizure . rules in order to fulfill their paramount responsibility of:ecovermg stolen p r o p e r ~ yf this is true, and if the exclusionary rulemduces greater conformity to those rules, then adoption of the exclusionary rule should result in a decrease in the per cent of stolenproperty that is recovered. Figure 5 shows that no such decrease

F Ig llr 6

SEIZURES OF KNIVESY CINCINNATI POliCE 1960 TO /962

UN SIX MONTh PE.RIODS2 ~

22 .ForE: ldencl

2 CJCQlllhco'fd

.0

16

12

1

8

8

~ o

2

0

196 19612

1962

S o ~ r c : :Property Book, Cincinnati Police Depal'tmen.t. Data compiled by Universityf Cmonnati Law School studer. s Paul Nemann and CharJes Johnson, Whose assistance

15 gratefully acknowledged.


occurred, at least not immediately. The fluctuations in recovery ofstolen property by the Cincinnati police seem unrelated to the adoption of the exclusionary rule. S1 For comparative purposes the figurealso shows the per cent of recovery by the police in Toronto, Canada,where there is no exclusionary rule. Du ring th six years 1962 through1967, when Cincinnati had an exclusionary rule and To ronto did not,the percentages of stolen property recovered were approximately thesame, with Toronto being higher in three years and Cincinnati beinghigher in three years. It may be significant that the Cincinnati percentage shows a consistent gradual decrease each year from 1963through 1967, at the same time that Toronto's percentage consistentlyincreased. This may reflect a long range effect of the Mapp decision,with decreased recoveries of stolen property as police officers begin toaccept and conform to the search and seizure requirements. Thisevidence by itself is inconclusive, but it does provide some offsetagainst Figures 1 through 3, which tend to indicate that the exclusionary rule had no effect on the number of arrests and convictions forweapons and narcotics offenses, and that important changes ingambling statistics were probably attributable to something otherthan the adoption of the exclusionary rule.

~ Seizures of Property

A more promising indirect measure of the extent of police conformity to search and seizure law is the amount of contraband or illegallypossessed property seized by the police. f law enforcement officialsconform more closely to the rules of search and seizure, then this maychange the amount of property seized. Police departments generallykeep records of such property. The property book kept by the Cincinnati police lists all property that has been seized and, fortunatelyfor this study, even classifies it in two categories, property seized foruse as evidence, and property confiscated without any intention to useit as evidence. 82 Figures 6 through 11 summarize the amount of varioustypes of prope: ty seized as evidence and confiscatfed by the Cincinnatipolice during each of the three six-month periods just before and justafter the Mapp decision.

81 For example, the high per cent in 1958 was apparently attributable to the theft andrecovery of an extraordinarily large quantity of currency. The currency figures for 1958were 1,008,000 stolen and 872,000 recovered, compared wit h an average of 141,000 and18,000 for the other four years in the period 195660.

82 Police officials advise that the property seized for use as evidence may be returnedby permission of the officer or by order of the court. Property that is confiscated can bereturned only by order of the Chief of Police. The custodian of the property had neverheard of a civil action for return of confiscated property.


16/48

694 The University of CMcago Law Review [Vol. .37:665

SEIZURES OF HANDGUNSBY CINCINNATI POLICE 1960 TO la60

Isr 2. 1ST 1ST960 1961 1982Source: Same as Figure 6.

The before-after comparisons of property seized by Cincinnatipolice shown in Figures 6 throu gh yield the following inferencesconcerning the effect of the exclusionary rule. The seizures of weaponsrifles and shotguns, handguns, and knives) either for evidence in court

or by way of outright confiscation were essentially unchanged duringthe period from 1960 through 1962. The same was true of narcoticsseized for use as evidence. There was no apparent change in enforcement results in either area following the Mapp decision.

Figures 10 and 11 show that there were marked decreases in thequantity of gambling apparatus seized after the Mapp decision. Thus,the average number of seizures of policy and bookmaking articlesdropped from 43 to 25 in the three six-month periods before and afterMapp a reduction of 42 per cent. Similarly, the average number ofseizures of cards and dice for use as evidence was down from 81 to 48,

FlOllt

SEIZURES OF RIFLES AND SHOTGUNSBY CINCINNATI POLICe: 1960 TO 1962

ti sm-WOHT'H PtRIOOS)r

F,, tvldu.c.OCol l fhc . d

IUO 1981

Source: Same as Figure 6.

/Y

1970] Exclusionary ule in Search and Seizure

Source: S:lme as Figure 6.

lqllu P

SEIZURES OF NARCOTICSBY CINCINNATI POLICE 1960 TO 1962

( I n SOC-UONTH PRltlO )80 ..--::;--------7Q

6050

~ O

30

20

10

o STQ ~ ~

(Fa, ' .(lUne' antra COlIlIlCallo , nllJllvlbl_l

695

a reduction of 41 per cent. The average number of confiscations ofcards and dice was down from 127 to 23 a reduction of 82 per cent,but in this instance the reduction seems to follow a trend that com-menced before the Mapp decision. . .

The sharp reductions in gambling seizure.s m ~ t s tbe consIderedlight of the figures on gambling raids, ~ e to ~ tIII F.lgure ~ The n u m b ~ rof raids showed consistent decreases III tlllS penod, WIth 1961 down25 per cent from 1960, and 1962 down an additional 31 per cent from1961. f the 1961 raids are divided equally between 1960 and 1962to obtain an eighteen-month figure for comparative p ~ r p o s e sthen theaverage number of raids in the three six-month p e n o ~ s~ f t e rM ~ P Pwas just 36 per cent lower than the a v e r a g ~for the SImIlar pen?dsbefore. This reduction is comparable to and IS a probable e x p l n t ~ o nof the 41 and 42 per cent reduction .in the q u a n t ~ t y~ f g m b h ~ garticles seized for use as evidence. f the number of raIds does explamthe decrease in seizures, then the change probably is not attributable

FlO ,. Jo

SEIZURES OF POLICY ANO BOOKMAKING PROPERTYBY CINCINNATI POLICE, 1960 TO 1962

(IN Sf)c UOK rH PERIODS

6 0 r ~ ~ ~ ~ ~

50

l iT ~ D I T zo1960 1961

ct ., h l l l l n ul' l c. 'hullou II . I I .H. , . ,



17/48

696 The University of Chicago aw Review [Vol. 37:665f l U , II

.SEIZURES OF CARDS AND DICE

BY CINCINNATI POLICE, 1960 TO 1 l6,8 0 [ - _ N _ S l X _ . " _ O . . . ; ~ T . : : . H. . : : P t ~ R : O : . : .

_

170

IGO

ISO

~ O

~ O

1:0

110100

eo8 ~ ~ I O C t r

70

~ O

so~ o

~ O

20

10~


1960

" ' .pp v Ohio- - - . -II

1961

YtR OE

to the adoption of t?C e ~ c l u s i o n a r yrule, since Figure 4 shows thatthe annual decreases In raIds began well before the l\ app decision.

The 36 per cent decrease in the number of raids in this period maynot a:count for the: 82 per cent reduction in the quantity of cardsand dIce c o n ~ s c a t e dA n o ~ l e rcause must be sought, and the adoptiono.f the. e..XcluslOnary nlle IS a distinct possibility. Decreased confiscat l o n ~IS one of the first effects to be expected if law enforcemento f f i c l l ~conform more closely to the rules of search and seizure in thegamblmg area. The difficulty with this explanation is the fact app _eut ITom a.n ex.amination. of Figure II, that the decreased ~ u m bof confiscatIOns IS largely, If not exclusively, expressive of a trend thatb e ~ nbefore ~ h eMapp decision. Firm conclusions on this point must

a.walt comparIson of the nUL.ber of seizures over a longer period oftIme.

E. Police Reports on the Reasons for Arrests

The ~ s tsignificant empirical study of the effects of the exclusionaryr ~ I epublIshed after the Mapp case was the work of law students. I taLo u s ~ da be?re-a ter comparison. To determine the effect of Mappon p o h ~ e tp r a c t ~ c e s l ~New York City, Columbia Law School studentsanalyzelL ~ h eeVIdentlary grounds for arrest and subsequent d'

f .d

ISposltIono mlS emean?r. narcotICS cases in New York City before and afterthe Mapp declslOn. The evidentiary grounds were determined fromthe facts of arrest reported by the arresting officer and recorded on

II


documents in the case files in the criminal courts. The studentsobtained this information for all misdemeanor narcotics cases reportedin six months from September through March, 1960-61 (just beforeMajJjJ) and the same six-month period 1961-62 (just after Mapp).Because they concluded that the type of police assignment might influence the response to Mapp they classified the arrest data separatelyfor Narcotics Bureau, Uniform Division, and Plainclothes Detail. Thenumber of arrests by each group is shown in Table 8.S8

TABLE 8MISDl(MEANOn NAncol'lcs AmlESTs IlY

NI::w YORll Cl1'Y POLICE, 196062

Sixmonth pcriodJob Assignmcnt Before Mapt) After MaPt) Di[ercnce

Narcotics Bureau 1468 726 -51%Uniform Division IIlG llBO + 4%Plainclothcs Detail 507 625 +23%

Tolal 2291 1681 -27%

The student authors felt that the sharp reduction in the number ofNarcotics Bu reau arrests after the Mapp case supported the proposition"that more than 50 per cent of the Bureau's pre-Mapp arrests were theresult of searches and seizures in violation of the fourth amendment,and that its post-Ma/Jp arrests were legal."8'1 As to pre-Ma/Jp arrests,these figures give some evidence of illegality, but the evidence is inconclusive. As to the legality of post-Mapp arrests, the figures give nosuppo rt whatever to the conclusion. .

Of greater interest are the summaries in Table 9 of the officers'accounts of how the evidence for the arrest was discovered.1l5

The student authors suggest that the 32 percentage point decreasein Narcotics Bureau "hidden on person" allegations after Mapp showsthat the pre-Map ) figure contained a large proportion of unconstitutional searches and seizures. This conclusion is said to be supportedby the similar decreases in the proportion of hidden on person allegations by uniform and plainclothes officers (22 and 20 percentagepoints). The corresponding increase in allegations by uniform and

83 Commcnt, Effect of Mapp v. Ohio on Police Searchand-Seizure Practices in Narcotics Cases 4 COLUM. J.L. e SOCIAl. PROIl. 87, 92 (1968). The trcnds in the table wereconfirmcd by samples of 100 cases in Fcbruary, 1964 and February, 1966.

8 1 Id The authors suggested that the Bureau's arrest rate declined sh:ifply (while theuniform and plainclothes ratcs remained relatively constant) because the Bureau is asmall, close-knit organization subject to rapid re-education and command influence.

S Id. at 94.


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698 The Ulliv(:rsity of CMcago Law Review

TAULE 9NEW YORK CITY POLlC '; OFFICERS' ALLEGATIONS

REGARDINO DISCOVERY OF EVIDENCE IN1\JISDEMEANOR NARCOTICS OFFI\NSES, 1960.112

How Evidence Fonnd:

I N(lrcotics llureau:(a) Hidden on Person(b) Dropped 01' Thrown to

Ground

c) Visible ill Hand or Arm(d) Hidden on Pl'emises

(e) E:-:posed on Premises1) Other b

Total

II. Uniform:(a) Hidden on l}cl'sol1(b) Dropped or Tllrown to

Ground(c) Visible in Hand or Arm(d) Hi


19/48

700The University of Chicago Law Review

F. Obse?'vations of Police Behavior[Vol. 37:665

Detailed observation of l' b h .insights into the effect of tt o lcel ~ "VlOr has also yielded valuablenotable book, Justice W i t h o ~ t ; ~ ' r ~ : ~ ~ ~ a ~ ' Yrule. Jerome. H. Skolnick'sinformation obtained by th' h '. IS the most frUItful source ofmonths in 1962 and 1963 Skisl t ~ c km q ~ e .Over a period of fifteen

. " , 0 nlC carned out many w k fSlve partic ipant observation" f . ee s 0 mten-unidentified cit o. ~ h eoperatlOns of the police of anthe patrol d i V i s o ~ ~~ ' ~ ~ e ~ k ; ~ ~ sm C l t ~ d e dt'":o weeks 'with police ofsquad, four weeks with th Irect 0 servatlOn of the vice controlrobbery and homicid d \burglary s ~ u a d ,and two weeks with thethe exclusionary rule ~ n: ~ ~~ ~ l ~ ~ ~ n ~ ~ ~ ~ .o b ~ e r v a t i o n b Sof the e ~ e c toffollows: IS CIty may e summarized as

mcreased use of this police tactic could ex 1 . o u ~ 1tOh

Use the eVidence. t is said that an31 J. SKOLNfCl{, JUSTICE WITHOUT TRIAL ~ l ; ~ ~- le c anges shown in TallIe 9.92 ld at 215. os ld at 228.

1970] Exclus ollary Rule in Search and Seizure

(6) "Since in the policeman's hierarchy of values, arrestand subsequent conviction are more important the 'bigger'the 'pinch,' compliance with the exclusionary rule seems contingent upon this factor."04

701

Although it too lacks quantitative data, Wayne LaFave's 1956-57American Bar Foundation field study of arrest practices in Kansas,Michigan and Wisconsin also contains relevant impressions on theexclusionary rule.ll ) Like Skolnick, he observed the polke tendencyto rely on departmental rather than legal norms of behavior:

Even when the law is explicit, the legal norms governingpolice behavior are seldom communicated to the officer on

the beat Consequently, the average police officer is lessinfluenced by his knOWledge of the legal standards than byhis observations of how more experienced officers react insuch situations. no

LaFave observes that "[i]t is apparent that the exclusionary rule isnot a deterrent to improper police practices in situations where thepolice have no desire to prosecute and convict the person who isarrested. 07 He also states that there were some communities wherethe police could hardly have been affected by court decisions on theproper procedures for arrest and search because they were totallyunaware of them. OB But LaFave concludes that "[t]he exclusionary rulehas contributed to an increased awareness by police of constitutionalrequirements," in part by giving courts and legislatures the occasionand incentive to articulate them.03

G. Canadian Comparison

The final source of empirical information about the effect of theexclusionary rule is principally a suggestion for research rather than

a collection of available data. It would be instructive to compare thedegree of police adherence to search and seizure rules in comparablejurisdictions with and without the exclusionary rule. Now that theMapp case requires all states to apply the exclusionary rule, it is necessary to go outside this country for current comparisons. An obviouschoice is Canada, which has no mle excluding illegally obtained evi-

4 Id.9 ; W. LAFAVE, supr note 84.IlO Id. at 210.1. This passage appears in the context of n discussion about the degree

of force to une in making an arrest.07 ld at 488.118 Id. at 505.11 Id. at 5045.


20/48

702The U i'sity of Chz'cago Law Review

[Vol. 37:665dence,lOO Toronto 'Would be a suitable city for comparison.l(}l A studycould attempt to determine whether Toronto police adhere to theirlocal search and seizure rules as completely as police officers in a comparable United States city, and, if so, what factors are responsible forthat adherence,

Even without conducting such an empirical study, it is instructiveto ask how the Canadians manage to discourage illegal behavior bylaw enforcement officials without resort to the exclusionary rule tha-tis apparently considered so essential on this side of the border. A superficial comparison suggests several fp


21/48


of their force in the performance or purported performance of theird t 106 Th .u les. e prommence of the tort remedy is such that one Canadians c h o l ~ r h a ~o b s e r v e ~ .that "the task of controlling police p r a ~ : t i c e se s p e c l a ~ l yI ~ t ~ emakmg of an arrest, historically has been performedby the InstItutIOn of tort law, with relatively little help from the restof the legal system. 107

The standard for police behavior and the manner in which this~ s s u e~ brought before Canadian CQurts in tort and other proceedingsIS of mterest. Canada has no written law comparable to the fourthamendment prohibition against unreasonable searches and seizures.The ?anadian Parliament enacted a bill of rights in 1960,108 but itc ? ~ t a m sn? p r o v i s ~ o no ~ this subj:ct. The law protecting a Canadian

cItIzen. a g a m s ~p o l ~ c emIsconduct IS the common law, which providesremedIes for InVaSIOnS of personal and property rights unless the of-fend:r is able to. furnish some justification for his action. A persona g ~ n e v e dby an Illegal search and seizure that located incriminatingeVIdence cannot have the evidence excluded or obtain other relief inthe criminal prosecution, so he has the burden of going fOTI'lard toseek relief in another proceeding.

T ~ v otypes ~ f ~ r o c e e d i n ~ s ,both initiated by the aggrieved party,provIde the prmcipal occaSIOns for Canadian courts to issue rulingson the propriety of police behavior. The first is a motion for an orderin lieu of a writ Of. certiorari to quash a search warrant. This remedychallenges the suffiCIency of a warrant or of the "information" on whicht h ~warrant was issued. the motion is granted the judge will, interalta order the return of the articles seized under the warrant, thuspreventing their use as evidence. loo However, i he still needs themas evidence the peace officer can immediately repeat the procedure,correctly, and seize the articles a second time. The scope of the motionto quash is further limited by the fact that it is only available to chal-

lon ONT. REV. STAT. c. 99, 23: c. 118, 43a (1960).107 Wcilcr, supra note 100, at 419. Weilcr criticizes the tort remedy and advocates

strengthening internal police discipline.108 CAN. STAT. c 44 (1960).100 Certiorari was the common law rcmedy to quash a search Warrant. Rex v. Kehr,

11 Onto 517 (1906); e Yo Iter, 7 D.L.R.3d 185 (Sup. Ct. Brit. Col. 1969). In Ontario thatremedy has been replaced by a statutory motion to quash. ONT. REV. STAT. C. 197, 66(1960); Worrall V Swan and Sawatzky, [1965] 1 Onto 527. The Worrall case might cvenbe read to suggest that under this statute the judge could quash a conviction obtainedby the improperly obtained cvidcnce.

For a discussion of legal standards for the SUfficiency of a warrant or information andfor numerous cases involving attempts to quash warrants, see Parker, supra note 100, at~ ~ ~ ~ ~ ~ 2 :CRANKSHAWS CRIMINAL CODE OF CANADA 42948, at 589613 (7th cd. Popple

1

1970] Exclusionary ule in Search and Seizure 705

lenge official action u ~ H . , e ra warrant, whereas a great ma jority of policearrests (and accompanying searches of the accused's person) are madewithout a warrant. 110

The second and more c o m p r d . : ; : ~ ~ v eoccasion for ruling on thepropriety of police behavior is in a tort action, such as trespass orfalse imprisonment, in which the defendant officer attempts to justifyhis conduct under some common law rule or some act of Parliamentor provincial legislation that protects him from civil liability. Theprincipal federal statute in this area is section 5 of the CanadianCriminal Code, which provides that a person required or authorizedby law to do anything in the administration or enforcement of the

law "is,if

he acts on reasonable and probable grounds, justified indoing what he is required or authorized to do and in using as muchforce as is necessary for that purpose."l11 The word "justified" meansthat the official has a defense against liability if he acts on "reasonableand probable grounds." The defense is clear as to criminal liability,and some authorities have even applied the Code to absolve defendantsfrom civil liability, although there are substantial doubts about itsvalidity in this application. 112 In any case, an officer who has actedreasonably can count on a common law defense against liability fordamages. In order to resolve the applicability of the defense in thedamage action the court must consider and rule upon the meaningof the statutes and common laws relating to arrests and search andseizure. 11s

Another possible factor in the control of Canadian police, difficult

11 It is said that more than 90% of the arrests in Metro Toronto arc made withouta warrant. Weiler, supra note 100, at 430 n.28.

111 CAN. STAT. C. 51, 25 (195354).112 CRANKSHAW's CRIMINAL CODE OF CANADA 4345, at 598 (7th cd. Popple 1959). For

cases in which an action against a police officer for assault or false imprisonment was dismissed on the ground that the officer had acted on reasonable and probable grounds" andthus was free from civi1liabiIity, see Reid V DeGroot and Brown, 42 Can. Crim. 252 (Sup.Ct. Nova Scotia en banc 1964): Pedersen v. Hansen and Reid, 2 Cun. Crim. Cas. Ann. 348(Sup. Ct. Brit. Col. 1963): Kennedy V Tomlinson, 126 Can. Crim. Cas. Ann. 175 (Ont. Ct.App. 1959).

There is a problem of federalism in this use of the Criminal Code to provide a defensein 1m action of tort. The British North America Act of 1867, 30 Viet., C. 3, 9192,6 CAN. REV. STAT. (1952), gives the federal (Dominion) Parliament exclusive authorityin criminal law and procedure, but gives the provincial legislatures exclusive authorityover property and civil rights and all matters of a merely local or private nature. Seeg ~ n e r l l yLeigh, The Supreme ourt lind the anadian Constitution 2 Orr. L. REV. 320,32936 (1968). Some Canndian lawyers have suggested that this division of power makes 25 of the Criminal Code ultra vires because the Dominion has no right to absolve apeace officer from a civil wrong.

113 CAN. REv. STAT. C. 51, 96, 42548 (1952): cases cited and discussed in CRANKSHAWS CRIMINAL CODE OF CANADA 42548, at 588613.


22/48

706 The University ot Chicago Law Review [Vol. 37:665

to isolate but of great potential importance, is their tendency to obeythe rules, irrespective of sanctions. Toronto police officials, prosecutorsand a judge all insisted that their police are greatly concerned aboutobeying the rules and very sensitive to and quick to be influenced byjudicial criticism of their conduct. It is doubtful that comparableUnited States officials would similarly describe the attitudes of theirpolice.

As a final factor of control, the attitude and authority of Canadianprosecutors may be different from those of their United States counterparts. Experienced Toronto prosecutors advised the author that a proseclltor will sometimes exercise what he considers to be his teaching

function with the police by refusing to introduce evidence that he con-siders to have been improperly obtained. Police officers are said to takesuch refusals very seriously and to modify their conduct in response tothem. As a related a nd additional difference, Ca nadian prosecutors arepart of the Ministry of Justice, which has direct or indirect commandauthority over most of the police organizations whose members engage in the

exclusionary rule, studying

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