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1961

Mapp v. Ohio at Large in the Fifty StatesRoger J. Traynor

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Recommended CitationRoger J. Traynor, Mapp v. Ohio at Large in the Fifty States , 1962 DUKE L. J. 319 (1961).Available at: http://repository.uchastings.edu/traynor_scholarship_pub/16

7 E /1

mo

VOLUME 1962 SUMMER NUMBER 3

MAPP V. OHIO AT LARGE IN THEFIFTY STATESt

ROGER J. TRAYNOR*

O F ALL THE two-faced problems in the law, there is none moretormenting than the admissibility of illegally obtained evidence.

Whichever face one turns to the wall, the question of admissibilityremains a haunting one. The evidence may be of the greatest rele-vance. If its admission serves to condone lawless law enforcement,however, it opens the way to government intrusion on the privacy oflaw-abiding people. The dilemma has long troubled lawyers, thoughit is ironically remote froum those ignorant of the long reach of officialpower and hence most vulnerable to it. Their prcocci'pation is withthe immediate threat of private lawlessness, particularly so in our tnewhen it grows apace. The understandably impatient law-abiders, whoapprove official retribution without restraint against wrongdoers, do notvisualize themselves as the objects of oppressive government action inany near future. Not for them are the warnings of history.

The Supreme Court of the United States has been consistentlymindful of the long-range dangers of police lawlessness in searches andscizures since its definitive adoption in 1914 of the rule excluding evi-dence therefrom in federal courts.' Though there has not been likeconsistency in the judicial articulation of what constitutes such lawcs-ness, able critiques of the now abundant cases are at the scr-vice of thecourts for constructive developnnt of ruk at onj e flkxible :31d colsistCnt.2 The 1961 decision in MoVi v. C/V ca n the

- Delivervd as an addrkss at D) U ni n qI t S! ) S( l o , March i9 .

* Associ.ttc Justice, SupremC Co' I of ('lifori.Wccks v. United States, 232 ).S. 383 (1914). .

'sec MAGUIRE, EVIDENCE OF GUILx 167-226 (i939); Allen, Ft/!.'m and! Thie

Fourth Amendment: d Requicer For tolf, 1961 SuP. CT. REv. xi Darrett, Perso-:;!1Rights, Property Rights, n? The Fourth Amendment, 1960 St.T. CT. RNF. 46; Brocder,

sionary rule to state courts affords a starting point for active and intelli-gent cooperation between federal and state courts. The unresolvedquestions that attend the exclusionary rule can serve as catalysts of lawthat could foster harmonious relations among federal and state govern-ments in their common responsibility of balancing individual freedomagainst governmental regulation and restraint.

It bears emphasis at the outset that the exclusionary rule now tobe uniformly observed in state courts is not implemented with specifica-tions such as attend a Uniform Act. There is no mandate in the Mappopinion that as the states henceforth abide by the exclusionary rule,they must also abide by its various interpretations in the federal courts,interpretations freighted with orthodox property and tort concepts.There is no identification of who has standing to invoke the rule. Thereare no directives for or against retroactivity.

There is no bill of particulars as to what constitutes lawful arrestor reasonable search incident to lawful arrest. Silence rings the largequestion of permissible investigation before arrest. Silence rings thelarge question of how much sweep there can be to a search. We willhave to find out what constitutes probable cause for arrest and probablecause for a warrant. We will have to find out what it is that makes asearch or seizure unreasonable. And now that the erstwhile rule ofevidence is transfigured as constitutional doctrine, now that it hasemerged from the wings to the inise en sccdne of the fourth amendment,what will become of its unsettled relations with the fifth amendment,which has not yet so boldly advanced as the fourth from the wings ofthe fourteenthamendmet.To cll but a partial roll of the myriadquestions is to seize how spare is the rule of Mapp and to understandhow wide must be our search for the clues to its orderly evolution. Wewill come upon enduring answers only if we first come to some under-standing of the nature and scope of the right to privacy that the fourthamendment protects.

Such understanding will take time, but it is not impossible to achieve.

The Decline and Fall of Wolf v. Colorado, 4 NsB. L. Rrv. x8s (196z) ; Grant, ThTTarnished Silver Platter: Federalism and Admissibility of Illegally Seized Ecidence, 8U.C.L.A.L. RFv. i (1961) ; Kamisar, Wolf and Lustig Teni Years Later: Illegel StateEvidence in State and Federal Courts, 43 MiNN. L. REV. 1083 (1959). This illustra-tive list may indicate to the interested how rich a literature awaits them. Among themost recent additions is a comprehensive and illuminating comment, Search and Sehurein7 The Supreme Court: Shadows on The Fourth Amendment, 28 U. Cmr. L.. REV. 664.(ig6i).

a 367 U.S. 643 (1961).

DUKE LA W JOURAL [Vol. 19672: 3 19320

At least the unresolved problems about the borderline bctwccii lawfuland unlawful police conduct in search and seizure are now out in theopen. Some have criticized the exclusionary rule as if it had engeit-dered the problems. In fact it has tardily excavated them from theoubliettes where lie the stifled problems of the law. So long as illegallyobtained evidence remained admissible in many states there was littlemotivation for full-scale inquiry. The exclusionary rule of Mlapp pro-vides that motivation, even though it cannot of itself work any imme-diate transformation in the neglected congeries of inchoate conceptsregarding the legality of police conduct.

As some twenty-five states now make up for lost time and begintheir education in the biokinetics of law enforcement agencies, it maybe useful to bear witness to my own education regarding such problems.In 1942 I wrote an opinion rejecting the exclusionary rule4 and in 1955the opinion that established it in California. The education that leadsa judge to overrule himself and his subsequent education in developingthe new rule may serve as a relevant introduction to the responsibilitiesnow incumbent upon all state courts in sequence of Alczpp v. Ohio.

In 1942 clear academic postulates were as yet unclouded by longjudicial experience. Fugitive misgivings about admitting illegally ob-tained evidence gave way to the overwhelming relevance of the evi-dence. True, one was not insensitive to the forward-looking logic thatenvisaged a guilty defendant as a prototype victim of unlawful policeintrusion. Still I was able to decide, though in decidedly negativetenor, that:

It does not necessarily follow, however, that the use in a court of law ofevidence thus obtained is so contrary to fundamental principles of liberty andjustice as to constitute a denial of due process of law. A criminnal trial doesnot constitute a denial of due process so long as it is fair and impartial. . . .The fact that an officer acted improperly in obtaining evidence presented atthe trial in no way precludes the court from rendering a fair and impartialjudgment.6

If that was hardly a ringing endorsement of illegally obtained evidence,it was all that was needed as a ticket of admission.

My misgivings about its admissibility grew as I observed that timeafter time it was being offered and admitted as a routine procedure.

' People v. Gonzales, 2o Cal. 2d 165, 124 P.d 44 (1942).

"People v. Cahan, 44 Cal. 2d 434, 2S2 P.2d 905 (1955).'People v. Gonzales, zo Cal. 2d 16s, 170, 171, 124 P.zd 44, 47 (1942).

Vol. 196:-: 3.9] MAfPP v. OHIO 321

It became impossible to ignore the corollary that illegal searchcs andseizures were also a routine procedure subject to no effective deterrent;else how could illegally obtained evidence come into court with suchregularity? It was one thing to condone an occasional constable's blun-der, to accept his illegally obtained evidence so that the guilty wouldnot go free. It was quite another to condone a steady course of illegalpolice procedures that deliberately and flagrantly violated the Consti-tution of the United States as well as the state constitution.

Ah, but surely the guilty should still not go free? However gravethe question, it seemed improperly directed at the exclusionary rule.The hard answer is in the United States Constitution as well as in stateconstitutions. They make it clear that the guilty would go free if theevidence necessary to convict could only have been obtained illegally,just as they would go free if such evidence were lacking because thepolice had observed the constitutional restraints upon thcm. It is seri-ously misleading, however, to suggest that wholesale release of theguilty is a consequence of the exclusionary rule. It is a large assiump-tion that the police have invariably exhausted the possibilities of obtain-ing evidence legally when the)' have relied upon illegally obtainedevidence. It is more rational to assume the opposite when the offer ofillegally obtained evidence becomes routine.

It was the cumulativp effect of such routine that led us at last inthe case of People v. Cahan to reject illegally obtained evidence. Ithad become all too obvious that unconstitutional police methods of ob-taining evidence were not being deterred in any other way. Wesummed up the sorry experience that led us to conclude that the exclu-sionary rule was now imperative:

We have been compelled to reach that conclusion because other remedieshave completely failed to secure compliance with the constitutional provisionson the part of police officers with the attendant result that the courts underthe old rule have been constantly required to participate in, and in effectcondone, the lawless activities of law enforcement oficeis.7

The Ca/an decision had one immediate salutary effect. Publicignorance and indifference now gave way to lively public discussm onthe problem of what constitutes lawful police conduct. The realizationlstruck many for the first time that the conduct of police in searches,seizures, arrests, and investigations could be crucially relevant in crimi-nal prosecutions. In the midst of partisan hues and cries more than

'People v. Cahan, 44 Cal. ad 434, 445, 282 P.2d 905, 91:-1: (1955).

DUKE LAT1V JOURNAL [Vol. t96z: zi,322

1962: 3191 .V APP 1. 0HO 323

one thoughtful observer came to realize how passive the average law-abiding citizen must have been and how emotional he had now becomeabout constitutional guarantees that concern him as significantly as theyconcern the most sordid criminal.

Our court had not long to wait for the test cases that would compelclarification of the exclusionary rule. At the same time they wouldsound out whether the rule, set up as a deterrent to lawless police action,was proving itself a realistic influence without facilitating the exonera-tion of crime. Some hundred cases arrived in the wake of Ca/an. Nowthat we look back on them with perspective, we find them a reasonablyorderly constellation. Unquestionably the police now have a cleareridea than before of the restraints upon them. At the same time theyare bound to have a clearer idea of the large authority they may stillinvoke in law enforcement.! It is significant that in the seven-yearperiod of the exclusionary rule in California, marked by long overdueclarification of standards of reasonableness in law enforcement, therehas been substantial abatement of the fear that the rule would frustratelaw enforcement. It has become increasingly clear that acccleration ofcrime in our state, as in others, cannot be explained by simplistic refer-ence to the presence or absence of the exclusionary rule.

By 1961, roughly half of the states had adopted the exclusionaryrule, with local variations. There was no uniformity of interpretation,however, and less than consistency in either the federal or state gloss ofthe rule. There emanated from the federal cases a sensitivity to federal-state relations that goes far to explain the willingness of the UnitedStates Supreme Court to afford the states ample time and latitude todetermine how to enforce the right it had announced in Wolf v. Colo-rado' in 1949. However guarded the Court was about state remedies,it left no doubt that the right was of constitutional dimension, for

Security of one's privacy against arbitrary intrusion by the police-which is atthe core of the Fourth Amendment-is basic to a free societ). It is therefor-eimplicit in "the concept of ordered liberty" and as such tnforccable agrainstthe States through the Due Process Clause.'o

$See Draper, The Cabon Case and Probble Cause, 34 CA IIF. ST. B.J. 251 (19!9)Two Years wit/ the Cahan Rule, STAN. L. Riv. 515 (1957); Comment, The CakanCase: The Exclusionary Rule, and the Law of Search, Seizure, and 4rrest in California,3 U.C.L.A.L. Rev. 55 (1955).

338 U.S. 25 (1949) ; see Schaefer, Federalism and State Criminal Procedure, 70HARv. L. REv. 1 (1956).

10338 U.S. 25, 27-28 (1949).

It was quickly apparent that this otherwise cloquent declarationwent limp on the key word enforceab!.c In many states there had notyet loomed any effective remedies to attend the right that loomed solarge. Wearing its rich constitutional cloak, it went begging for recog-nition. Alone of the princely rights it often went begging in vain. Itbecame a classic right without a remedy. In California six years elapsedbetween Wolf v. Colorado and People v. Caan, and all during thattime we were painfully aware of the right begging in our midst. Weremained mindful of the cogent reasons for the admission of illegallyobtained evidence and clung to the fragile hope that the very brazen-ness of lawless police methods would bring on effective deterrents otherthan the exclusionary rule. Accordingly we were proceeding with cau-tion before responding to the message in Wolf v. Colorado, to the longand short of the handwriting on the distant wall. We needed no morethan Irvine v. California" to read the handwriting on our own wall.In the interim between Irvine v. California and People v. Caan itbecame all too clear in our state that there was no recourse but to theexclusionary rule. In the interim between Irvine v. California andMapp v. Ohio a like reflection of nation wide import must also havebeen developing in the Supreme Court of the Unitci States. Its deci-sion in Irvine had intimated a hope. that in time the many states stilluncommitted to the exclusionary rule would reconsider their evidentiaryrules in the light of the Wolf doctrine that the fouirth amendment isenforceable against the states through the fourteenth. The indifferentresponse must have been disheartening to a Court that had expressedits reluctance to invoke federal power to upset state convictions based onunconstitutionally obtained evidence.

The many states that failed even to re-examine their evidentiaryrules merely postponed the day of reckoning. They had clear warningin Irvine that if the)' defaulted and there were no demonstrably cfec-tive deterrents to unreasonable eirches and seizures in licu of thcexclusionary rule, the Supreme Coirt iiht yet deckde that tiN hadnot complied with "minimal standards" of due procss." When in1961 it so decided in la5' v. Oiio and made the cxcluio rulemandatory in all states, it could.h rdly have taken anyone by surprise.For all their distracting, discordantly nay-saying chimes, the hours hadbeen successively striking that the zero hour was coming.

347 U.S. Co2a1 ( 95-)." Wolf v. Colorado, 3 38 U.IS. 25, 31 (1949).

D I'K E LA1/f1 Jf 0 R.YAlL324 [lot. ,2 : ;19

It may be helpful at this juncture to speculate why it was so longin coming, so that wc can anticipate the problems ahead. .Vlapp ampli-fied the Wolf declaration that the fourteenth amendment incorporatedthe core of the fourth, the constitutional right to be secure against un-reasonable searches and seizures; henceforth that right would be inter-preted as attended by the exclusionary rule in state as well as in federalcourts. It is not enough to say, however, that Mapp thus simplyextended one more constitt'.ional standard of due process to state courts,comparable to others that transcend the orthodox requirements of afair trial. The intriguing question is why this standard came so muchlater than the others, when so vital a constitutional right was in issue.

The Supreme Court had long since moved to protect rights of nogreater importance. Notably, it had long since compelled the exclusionof involuntary confessions." The constant basis for exclusion proved tobe other than untrustworthiness of confessions resulting from coercion,however crude or subtle,14 such confessions could at times be highlytrustworthy. The constant basis for exclusion proved to be other thanthe prejudicial effect of coerced confessions; there was at thmes other in-criminating evidence so overwhchaing as to rule out any pr-obabltythat the admission of the confession contributed to the conviction."There remains a const; it basis for exclusion in the de.os~ated neces-

sity of deterring invasions of a constitutional right, undeterred by lessermeans, with a remedy of constitutional magnitude."' Such a basis ap-pears equally rational whether one envisages the constitutional invasionas beginning with the extraction of the confession' 7 or with the use ofthe confession at the trial."'

" Brown v. Miissippi, 297 U.S. 278 (1936)."Rogers v. Richmond, 365 U.S. 534, 540-41 (196); Watts v. Indiana, 338 U.S.

49) So ( 1949)." See Rogers v. Richmond, supra note 14; Stroble v. California, 343 U.S. 181, 1s9-

go (1952); Malinski v. Ncw York, 324 U.S. 401, 404 -(945). Query v hctr theadmiision of unconstitutionally scizcd evidence is necesc.rily prejudkb!. Sec Z:p .United Sites, 328 U.S. 624, 630 (1946); People v. Tarantino, 4 C21. zd 59o,290 P.2d 0 5 11 (195).

" See People v. Cahan, 44 Cal. 2d 434, 441-42, 282 P.d 905, 910 (1955)." Williams v. United St'tes, 341 U.S. 97, 101 (1951)." The dissent ii, Ar1cy taks the view inslc.l that the b. sis for eXcL in of inls-Ui.

tary confesLsions is not the de terrence of aI les police action but a core pt of fuir trialencompassing the right to such exclusion and henc.e that such exclusion is a constitutionalmandate. Accepting the iew that the bisis for the exclu'ion of evide cc obtAined byunreasonable search or seizure is the deterrence of lawlcs police activn, it does notrecognize such exclusion as a constitutional mandate. The failure to envisage th twosituations as analogous may be attributable first to the large assumption that fair trial

Vol. i962: 3p9) M/IPP v. OHIO

D)UAI LIf' JOURNAL

There ire s:rong parallel between the uncontitutionally obta inetdevidence of involu'ntary coife-sions and the unconstitutionally obe 1

evidence of unreasonable searches and seizures. The more one icfCkeon how serious a turn either sort of unconstitutional invasion can take)the more superficial it seems to view the first as the more heinou..There is no scale of decorum according to setting in the rampages ofthe lawless. So much at last Ma pp recognized, when it invoked as aconstant basis for its newly stated exclusionary rule the demonstratednecessity of thus deterring invasions of a constitutional right, just as ithad in the confession cases.

The lag in recognizing the kinship between involuntary confessionsand unreasonable searches and seizures may be explained by the rela-tively small strain on federal-state relations in local law enforcement.tively limited volume of cases involving the first, and hence their rela-Accordingly, rules have developed of reasonable consistency and ofnation-wide application to govern the exclusion of involuntary confes-sions. In contrast, the pi oblem of what constitutes unreasonablc searchand seizure is omnipresent and of endless variety. It encompasses policeconduct in every stage of police activity from investigation througharrest up to trial and in every kind of situation from the safe and coin-monplace to the dangerous and extraordinary. It is the problem ofgovernment personified, wearing a badge of authority, reaching allsorts of people where they live. It is the problem of protecting theJaw-abiding from the lawless and even the lawless from one another.Most important of all, it is the problem of protecting the law-abidingand even the lawless from excesses of official power. And as always inthe law it is a problem of degree, of what is reasonable or unreasonableunder all the circumstances.

So polymorphous a problem was bound to present unusual risks tofederal-state relations. Strains might ensue from shortsighted orclumsy solutions. Nevertheless there is cause to regret the long Japs-between Wl'olf '. Colorado and Mapp v. Ohio during which the federalexclusionary rule went its meandering way, more state exclusionary rulessprang up and went their meandering ways as did pre-existing ones,

requires exclusioni of involuntary confessions however trustworthy or free of piejudicial

effect, by relation tad: to 1-I" les. police action, and then to a failure to maintain

same standard of fair trial and make the s-am relation back as to evidence obtainedfrom an unreaso'nble s-arch and seizure. The import of such reasoning is plain. Law-

less police action in extracting involuntary confeedons, even though it may involve no

more than skillful psychiatric ques.tioning, is bu libu lassle police action in searches

and seizures, however urrestrained, is not so bad. 367 U.S. at 672-86.

[Vol. 196-: 319

and a loyal oppo-ition of state continued to admit the evidence, and noquestions asked.

For more than a decdde, Wo!f'.. ight without a remedy frustratec

the poss ibilities of litigation iII the Supr eie Court that could have givenmore than spectral illumination of the right. In consequence no caselaw developed at the highest level to yield guiding standards for de-

termining what searches and seizures would be subject to condemnationunder the fourteenth amendnnt. The most we learned was to b

newly skeptical of the old adage that half a wolf is better than none.Even in states most jealous of their prerogatives, most on guard

against federal interference, the growing overlap of state and federalpolice problems must have brou'git home the inevitability of a consti-

tutional remedy to complement the constitutional right against un-reasonabll scarches and sc-ures. There was increasing restiveness overthe uncertainties engendered by the lack of a nationwide exclusionaryrule.

Any state tha't adopted its own exclusionary rule soon learned thatthe day-to-day re'ponsibility of policing the police involves cloSe an1

continuail examination of local poli" practiccs in the co;ext of 1C, 1community problems and loecal statuteS. In the main such a rc 1 ansibility cui hardly be shifted from 't te court conversmt wih t 1:o1

scenc to the United States Supreme Co'rt, particulairly since the jaIierwould be in no position to take on so oncrous a burden.

By way of conveying what such a burden would be, I need onlyrefer to what it has been in my own state and, with adjustments for loalvariations, you can multiply it by fifty. In California alone hundrc 0of scarch and scizure cases have conic beore the appellate courts < Cthe state adopted the cxclusionary rule in 1955, and they have c i

pelled detailed articulation of what is reasonable and what is unre -aable. The procession of cases continucs, though in diminishing forcc,just as the procession continies in any other field of the law whemrc theissue of reasonablCIes turns on a ni% n co mbiiilon of facts. There Iclittlhe chanice thait the Uniited States Supreme Coourt would be willing andable to receive fifty such processions mirching through its doors, callinupon it to give the details that makc u) thC ho ccill l

who search and seize.The Court may well decide to leave to the state courts substanti-l

latitude in the development of local rule-:. Local iro'lens of lawenforcement are of a'qiedifferent order from fedcrl problemn. 'rom

lV/PP 0. OHI0%vol. 1962: 3 t ] 327

DM KI) L l ./ UI) R .2'L l '90. 319

p ett crinmc to major crime, the) present many more unpredivariations. They include manly more situations of what might 1 e.:garden varietiCs of civil disobedience. They are problenms ' ii

likely to call for emcrgency action. They are also much noi cto have direct impact on the community. They are more likely topresent the dilenma that compels balancing the very present evil offreeing the guilty against the evil threat that condonation of lawlesspolice action bodes for the right to privacy of the law-abiding.

The state courts are well situated to develop local precedents flexibleenough to allow for the innocuousness of an occasional unwitting technilcal infraction, flexible enough to take account of the cunulativ ely evilcffcct of deliberate infractions, flexible enough to serve in a variety ofsituations from routine inspections to police emergencies. It is reason-able to assume that there will be appropriate local rules even tloughthey may not be symmetric with the federal ones. To displace thcmechianically would be to invite inpairnent of federal-state relatio t

little purpose. Local rules can serve well as an immediate dcton<to lawIcss action. They will have constitutional sanction, for wh:action is illegal is perforce unrcasonablc. Fromn wh;chevci w'looks at the problem, from the city hall to the nation's c1'pit 1, it '

seems reasonable to supj)psc that it will lie with the state courts to tthe initiative in giving meaning to Ma pp.

Nevertheless the United States Supreme Court still confronts aspecial new responsibility of its own. Sooner or later it must establishground rules of unreasonableness to counter whatever local prcssurcsthere might be to spare the evidence that would spoil the exclusionaryrule. Its responsibility thus to exercise a restraining influence looms asa heavy one. It is no mean task to forinulate farsighted constitutionalstandards of what is unrcasonable that lend themselves readily tonation-wide application.

Such basic minimum standards will operate to deter unrcasonablksearches and seizures and to bar legislation that would sanction theadmission of evidence obtained therefi-ron." Evei ry state would re-pecta decision that condemned specific conduct as unreasonible and hcnceoutside conwtitutional boun d. It is this siginf cant much, and no wnv'e,that Mr. Justice Clark's majority opinion in Mlajp appears to connote.

He anticipates that "Federal-state cooperation in the solution of ciM'

"See Mn. ANN. CODI art. 35, § 5 (1957) , MiC. CoNsT. ar. 11, § 0 (1905) as

anendcd in 1936 and 1952 ; S.D. CoDE § 1102 (1935)-

+2S

Vol. 16=: 319] MdIPP v. 01110 329

under constitutional standards will be pronmoteJ, if only .y recognit'* :.

their now mutual obligation to respect the 5 true fundmental criteria intheir approaches."20

The preoccupation is with federal-state harmony on fundamentals,with uniformity on what is unreasonable under the fourth amendmentnow that it is encompassed in the fourtcenth. There is no sug -stionthat the highest court would go beyond the responsibility it now has toformulate standards of what is unreasonable. There is no suggectionthat it would articulate for the states the countless details of what isreasonable. Nor is thcre any suggestion that it would demand fro-ithe states a martinet uniformity of rules within the zone of reasonable-ness. To borrow in this context the words of Mr. Justice Clark: "Thereis no war between the Constitution and common sense.""

Even were they a well-developcd nucleus, federal roles difRientiating the unreasonable from the reasonable in the searches and sei uxi

of federal oflicials might prove inappropriate on the local zCCnC. Itwould be all the more inappropriate to apply indiscriminately to the

local scene the present confu'. federal rules, many of which eundcrdcycloped or oei-refined. It is idlc to seek in the conglonei.

a patteiii of consistent inteipretation of the fourth amcndenixt. Itnot just that the cases are conflicting. They are turbid with the w i ofthe fourth amendment itself, of statutes specifying the authority offederal officers, 2 of local statutes governing their authority to arrest,-of the Supreme Court's monitorship of the federal administration ofcriminal justice." Who can tell with certainty why a search or seizurewas held unreasonable? Who knows whether it was deemed in violationof the Constitution or of lesser law or of both? Where is the lead thatstate courts can follow?

lowever obscure the bases on which the) rest, fedcral rules ha vebeen declared applicable to the conduct of slate ofIlers in obt.in:ng

evidence that they have made available for feld ral ro cio:. T

extension of the federal ruils has met vith folceful critPici.!i et haps

soMapp v. Ohio, 367 U.S. 643, 658 (s96t.Id. at 657.

s See Comment, Scarc/. and Sch-ure in i'e S: [ienie Court: Shadam on ih Fo

Amendment, supra note 2, at 705-o6 n.2 16.'Unitcd States v. Di Re, 332 U.S. 5 F1, 5 S9 (19 4 S).a FED. R. CRIM. P. 3, 4, 26) 41 IS U.S.C. 406-45! (.pp. t9JS).

" Elkins v. United States, 364 U.S. 206, 224 (1960).See dissenting opinion of Mr. Justice Frankfurter in Elkins %. UnitcJ Statcs, supr.r

note 25, at us; Grant, supra note 2, at 20, 43.

there will be no autm:tic extension of all federal rules to state pro-ecu-tions in the wake of AL;. There is no substitute for close evaluationof the local context to determine what is unreasonable. It is idle tosuppose that reference to existing federal rules would do the trick.There is more to the trick than routine incantation and more to the rulesthan deserve application.

Take for example the federal rule that attaches puzzling statussymbols of admissibility to cvidence obtained in the course of a legalsearch and seizure either under a warrant or incident to a valid arrest.2

1

The evidence is admissible if it is contraband, not simply because of itsevidentiary value but apparently also because the defendant has noright to own it.2" The evidence is admissible if it is stolen goods, notsimply bec iuse of its evidentiary value but apparently also because thedefendant is not the rightful owner. One might begin to think thatadmissibility is controlled by propeny concepts, but at this juncture nightfalls. The evidence is also admisi .ble when the defendant hr's the rightto own it and is the rightful owNIr, not simply because of its evicentiary

value but also because it was an instrument or a fr uit of the wrong-

doingr'" or a r ecord that the defendant was required by law,' to keep."

Thus seveial tails wag in the dog of evidentiary value.Dog it is when it has no tail, for the cases declare that the evidence

is not admissible when it is of "evidentiary value only." This groundfor excluding the evidence comes as something of a shock. There areexplanations in the dark that the ratio de'ciden;di flows somehow fromthe fourth amendment to render the eistwhile legal search and seizureillegal and also from the fifth amendment to render the evidenceinadmissible, Cc though ther-e was no compulsion on the defendant toproduce it and hence no implied admission on his part that could beinterpieted as self-incrimination. 3" The plot has only begun to thicken.The rea:1 thick of tih thing iln the disputation aS to ',hat is "evidcentiary

(" G d v . Unitd Sic , :s; I.' . :9V, ;c3c (19:) i see A l - . United St:' L

362 U.S. 217, 234-35 (1960).Ha i 1,. UitdcI! S:.es, 331 1.S. ) 5;-5 (1947).

Ah . UI itd StC i 3 . a 2 ,! (1. ) Mr n 1. inc I St:c ,

.S. 92, 199 (19:').U Z11) %. United Statr!, 325 U.S. (-, 6:6-2, (19 6), Davis v. Unitd Stctes, 328

U.S. 5 82 593 (1941).S i See l s, iEI. OF Gul 23 (,959); Mcltzcr, Require Records, The

AlcCarel. .4ct, and M' Pri:*ilege ~ . :/;u Sr/f-Incri;:inionc, i' U. Ci. L. Rix. 6S7,

700 (1951); Comient, Search and Sc.S7.nre i; 1,- Supone Court: S/.adows on The

Fourth .4nund-weat su1fr not e 2, -At 695-96.

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value only." I)o> the evidence have the vulgar st tus of "cvideti:value only" or has it been sublimated by alditives or does it qualify aa specialty such as a fruit? T apple and the arrow may be admissible,and also the bow; but the qt ,is it no more than an only?

Should any state court in it right mind risk losing it in the pursuitof learning whatever the total message is of a federal rule of suchelaborate obfuscation? Is it not possible to undertake orderly development of local rules consistent with both coinuon sense and tieConstitution?"

In my state the penal code provides that a search warrant may iss.uCfor the search and sci7ur e of any evicnece "which tends to show afelony h been comi>;jed, or tends to show that a partIcular prSonhas committed a felony."33 The statute in effect rejects the fceralrule barring search for evidence "of evidentiary value only." It never-thcless scens well within the Constitution, given the p liminary requi-site of proibable cause for making the scarch. Even apart fron thestatute it might well be consistent with the Constitution to mate acorparble search incident to a valid arrest, subject of cor(et . to w 1CVer Condiltioiis mi g' be necessary to guard a gaint unremonaler .

Suppo. C for exsalnplc that ther e f IIs on the cIrs of prI-e a cr) f "D ) :

shoot!" and then wvhat sounds like a shot, then tIe fl1 of a body. Tpolice enter the suspected houce and find a cotp j.e with a bullet wonuel.They search foi and find the gun. The circumstances make itable for them to continue their search, regardless of whether it is incl-dental to the arrest of the cventual defendant or whether he has alrcldymade his escape. Suiely there would be no constitutional conditionthat they could seize only the gun that ws the instiutment of the cimneand that they must keep their distance from other evide-nec that wouldbe "of evidentiary v alue only" on matters of such high relevance aSmotive, premeditation, provocation, self-defensc, or the identity of thekiller.

If states are givec frccdom from nt cunyl lian : witi ',fui:

federal iuiles that have no clear constitutional basis, thCi rc To :4Kis the gieater to look to the Co:0It utioI in the de omr oftlocal iutl. Only by so doing can they d pi prevc mi noon'that the CXC lusionar )1uile cai niiot live up to its purpose in vie w of thepressures to circumvent it by way of mike-believe that excessive searches

" Sec Comment, I.imitati:ons 071 Sizue e of "Eviben'ary" Objec!s: 4 R:Jc in Se.:-chof a Reason, 2o U. Cm. L. REv* 319 (1953)-

" CAL. PEN. Coor § 1S 4(4).

33? [ v1 1 ,: 9 ;19

and seizu: (es atc rea<onshk:." It should b possible to develop vit hdarity as well as constitutional n et rulCS that will Ojprte tealistic Ilywithout frustrating cither the exclusionary rule oF law enforecemet.Mapp v. Ohio provides an opportune occasion to take stock of presentinconsistencies in the law of search and seizure the better to understand

just what it is that the amendment protects.Eloquent declarations of the past have condcmned unreasonable

searches and seizurcs as invasions of the four walls that constitute aman's castle. However clearly such declarations have sounded thefourth amendment's concern with a man's right to privacy, their em-phasis on the castle has not mciely restricted the right to proper tyconnotations but has deadened inquiry into what constitutes the rightin a modern context. The emphasis on the castle has taken somestrangely litetral turns. The unwelcome king could not literally in-sinuate himself or a mechanical extension of himself through the dooror the window or any other opeing.33 l1e was free to post him llanywhere outside, however, and to receive the evidence that c. mcthrough all too thin walls, with mechanical eyes and car as vell as h1town." As a trespvs'er the king stood condem c, but as an e

dropper he was tolerated, however unwelcome his intr usion within raccof the caves."

There has been no lack of signs that the right to privacy transcenclpropetty connotations and that even in a property sense it needs reder-nition. For lack of live reinterpretation, however, confusion in theapplication of the four th amendment has mounted so greatly that ithas more than once been despairingly noted in divergent opinionsemanating from the Supreme Court itself.

" See Barrett, uufra notc 2, at 54-55, 66; Kamis'r, Illegal Serches or Scizures andConten f'r.mo:s Iincriminatn;g Statements: 4 Dialogue on a Niglected Arca of Crinti-nal Procr Jure, 196 1 U. lt . L.F. 78, 11s; Reynard, Frc.omn From: Unre.?sna,! !'

Search n.] Sciz:.,' Scond Cln Conct.t:;:/o R!0/., . Inn. L.. 59 31'

(1950); Way lncreasi:ng Sopc of St ,/ itH l to 10 res, 1 959 Wa.sn. U.L .Q.26i, y275 277.

" Irvine v. Californii, 317 U.S. 13 (1954-" Goldman v. ni1ed S ns, 3)6 .S. 1 29 (1942) Oln.ta d v. United 0 1- 77

ITS. .43F (a9). SIe J')At, Ttt (1v95ors 99)."1 The distvincoti may K.: doome(d by Silverman v. United Se, 36S U.S. 50s, 51 2

(1961): "[1)]) iion here do's not turn upoln the technicality of a tre p:s upn a pa.rtwall as a matter of local law. It is based upon th: reality of an actual intrusion intoa constitutionally pitected area." The court add'd guardedly, "We fnd no occasion tore-examine Golidinn here, but we decline to go bcyoN:d it, by csn a fraction of an inch."lbid.

DI TI1- LP, E JOU'R1,.iL

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Confusion enough has resulted from over-refined preoccupation withtrespass to property instead of with invasion of the right to privacyitself. There has been still more muddle ir the law of search andseizure as a result of the underdeveloped correlation between searchesand seizures under a warrant not incident to a valid arrest and searchesand seizures without a warrant incident to a valid arrest." In the lattersituation the police are not required to call upon a magistrate in advancefor a judicial determination of probable cause. Once they have madean arrest and obtained the evidence, their very success may serve as aretroactive makeweight for probable cause and thus tilt the scales fora judicial finding of such cause. Moreover, searches and seizures with-out a warrant, though always subject to the requirement of reasonable-ness, are not under the constraint of specifications "particularly de-scribing the place to be searched and the persons or things to be seized."We can better appreciate the need for correlation once we perceive thata limited search and seizure under a warrant may culminate in a validarrest and that further search and seizure beyond the warrant specifi-cations may then be legitimated as incident to the valid arrest.39 Inother words, the police may have a shorter reach if they are armedwith a warrant than if they are not. Understandably they may preferto go unarmed.

So patent a discrepancy staggests how great is the need for a reviewof warrant requirements to determine whether they are unrealisticallyrigid in relation to the alternative of warrantless searches and seizures.Such a review would logically entail a converse inquiry, whether thesanctions of warrantless searches and seizures incident to a valid arrestare unduly lax.

Searching inquiry might also reveal a need for correlation of alterna-tives beyond these two. It might be possible, for example. senthe risk of arrest without probable cause by giving the police clearauthorization to stop persons for rest rainedquestioning whenever there

'Compare Chapman v. United States, 365 U.S. 61o (1961) and Jones v. UnitedStates, 357 U.S. 493 (1958) and Kremen v. United States, 353 U.S. 346 (1957) 3??dJeffers v. United States, 342 U.S. 48 (1951) and McDonald v. United States, 335 U.S.45S (1948) and Trupiano v. United States, 334 U.S. 699 (1948) and Johnson v.United States, 333 U.S. to (1948) wilih Abel v. United States, 362 U.S. 217 (t960)and Frank v. Maryland, 359 U.S. 360 (t s) and United States v. Rabinowitz, 339U.S. S6 (195o).

"'Harris v. United States, 331 U.S. 145 (1947); Marron v. United States, 275U.S. 192 (19z7) ; cf. United States v. Lefkowitz, :S U.S. 452 (193) ; Go-Bart Im-porting Co. v. United States, : U.S. 344 (1931).

were circumstanccs sufficient to warrant it, cvn though not tantamount

ause for arrest. Such a minor interference with pCr o:lliberty would touch the right to privacy only to serve it well. Ifquestioning failed to reveal probable cause, it would thereby forestallinvalid arrests of innocent persons on inadequate cause and the attendantinvasion of their personal liberty and reputation. 40 If it revealed prob-able cause, it would do no more than open the way to a valid arrest.It would then not be possible for a guilt)' defendant to magnify slightdetention for questioning, based on probable cause to question, into anarrest lacking the validity that proceeds from a higher level of proba-bility, probable cause to arrest.

If I refer again to local examples, it is only for the advantage ofspeaking from direct experience. We have had to rule in our state onthe validity of an arrest in several cases in which officers on night patrolhave observed automobiles or pedestrians in questionable situations thatarguably fell short of probable cause for arrest. We have upheld theauthority of officers not only to question but also to make a subsequentarrest on the basis of probable cause that developed in the course ofthe questioning."' When questioning prompts flight or obvious attemptsto conceal or dispose of something, such action in sequence of the initialsuspicious circumstances constitutes probable cause for arrest. It wouldseem highly unrealistic to hold such an arrest invalid on the groundthat arrest actually coincided with the initial police questioning and thatthe then suspicious circumstances fell short of probable cause for arrest.Such technicality would invite the circumvention of building up suspi-cious circumstances to probable cause for arrest, and the eventual con-sequence might be lower standards of arrest.42 Surely there is a middleground between the excesses of questioning on mere suspicion and ofinvalidating an arrest that followed upon questioning on suspicion rea-sonably generated by the immediate circumstances.

If we keep in mind that the raison d'itre of the exclusionary rule isthe &terrence of lawless law enforcement, we can guard against confusion in the attendant rules we develop. At the outset we can ruleout spurious reasons for exclusion. The objective of exclusion is cer-

d See Barrett, supra note 2, at 65-66.People v. Duncan, 5 Cal. 2d 523, 346 P.2d 521 (1959)i People v. Blodgett, 46

Cal. ad 114, 293 P.2d 57 (1956); People v. Martin, 46 Cal. Ad io6, 293 P.2d 52

(t956); People v. Simon, 45 Cal. 2d 645, 290 P.2d 531 (,9ss) ; cf. Rios v. UnitedStates, 364 U.S. 253 ( 960); Henry v. United States, 361 U.S. 98 (1959); Brinegarv. United States, 338 U.S. 16o (1949).

" See Barrett, supra note 2, at 69-70.

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tainly not to afford criminals a right to escape prosecution. At mostthe exclusionary rule will afford them a fortuitous escape when there isno way of obtaining evidence against them constitutionally. The objec-tive of the exclusionary rule is certainly not to compensate the defendantfor the past wrong done to him any more than it is to penalize theofficer for the past wrong he has done. The emphasis is forward.

The emphasis in our state on the deterrence of lawless law enforce-ment has given direction to our rules. As a result we have departedfrom long-entrenched federal rules on standing to object to illegallyobtained evidence. Those rules have rested on property concepts,with an admixture of tort concepts. Standing to object has dependedon whether the defendant could show that he had a property interestin the premises searched or the evidence seized. The exclusionary ruleordinarily operated when such an interest existed, but otherwise failedto operate. This limitation may well have lessened its deterrent effect.Not until the Jones case in 1960 was standing to object accorded to"anyone legitimately on premises where a search occurs.""

Whatever advance the decision makes from orthodox concepts, itindicates a continuing tendency to focus on a relation between the de-fendant and the property involved. Such a focus to ferret out someviolated right of the defendant suggests, though perhaps uninten-tionally, that the objective of the exclusionary rule is to make amends tothe defendant. What should be of primary concern is not the griev-ances of selected guilty defendants such as land-owners or the gentryof invitees, but the grievousness of official lawlessness.

That has been the primary concern in my state since we adopted theexclusionary rule in 1955. The defendant's standing to object doesnot depend on his showing that the evidence was illegally obtained inviolation of some right of his, substantial or tenuous. He need onlyshow that the state obtained the evidence illegally, whether in violationof his rights or those of third parties, which is to say that he must showthat the state obtained the evidence in the course of a search and seizurethat was unreasonable. 5

"See cases collected in Jones v. United States, 362 U.S. 257, 26---66 (1960).

36z U.S. at 167."This rule focuses inquiry on the reasonableness of the officer's conduct rather than

on whose rights may have been violated. We pointed out that "if law enforcementofficers are allowed to evade the exclusionary rule by obtaining evidence in violation ofthe rights of third parties, its deterrent effect is to that extent nullified. Moreover, sucha limitation virtually invites law enforcement officers to violate the rights of third par-ties and to trade the escape of a criminal whose rights are violated for the conviction of

DUKE LA V JOUR.YL

A court nced no more be misled by inappropriate concepts of tortthan of property. What matters primarily is not whether official con-duct involved a tort to the defendant, but whether it was unreasonablein the constitutional sense. Thus, suppose that an officer arrested thedefendant without probable cause and incident to the arrest made asearch that established the defendant's guilt. His guilt might deprivehim of an action for false arrest,"4 but it has not obliterated the unrea-sonableness of the arrest. An arrest without probable cause cannot beretroactively justified by what it turns up.47

Hence even in the absence of any tort to the defendant the exclu-sionary rule should operate if it is to serve its purpose of deterringunreasonable official conduct. The fortuitous absence of any tort to thedefendant should no more operate to make the evidence admissiblethan should the fortuitous absence of any property interest that maybe attributable to the defendant. *

The prosecution also would stand to realize some gain if we freedthe exclusionary rule from wooden association with tort and propertyconcepts. With those concepts in the background, the focus would beon the reasonableness of the official conduct in the context of all thecircumstances. It might be adjudged reasonable even if it involved atort to the defendant or an invasion of some property interest of his.The evidence would then be admissible because it had been obtainedwithout violation of the constitutional prohibition against unreasonablesearches and seizures.

Suppose for example that the police respond to a telephone callfrom the operator of a rooming house who asks them to come and getnarcotics that she has just discovered in her basement. They areunaware, as she may also be, that she had no right to enter the base-ment, which was rented to the defendant. The prevailing local viewof privilege in the law of torts would determine whether or not the

others by the use of evidence illegally obtained against them." People v. Martin, 45Cal. Ad 75, 760, 29o P.2d 855, 357 (1955).

" See RESTATEMENT, ToRT § 1 19, comment g (1934).4Johnson v. United States, 333 U.S. to, 16-17 (1948); United States v. Di Re,

332 U.S. Sli, 595 (1948). To hold otherwise "would defeat the purpose of the con-stitutional provisions prohibiting unreasonable searches and seizures and destroy theefficacy of the exclusionary rule in nany felony prosecutions. Officers would be free toarrest and search anyone, however innocent, in the hope that the search would justifythe arrest." People v. Brown, 45 Cal. Ad 64o, 644, 290 P.2d 528, 530 (t955). Theexclusionary rule "would fail of its purpose, if in the only area of its effective opera-tion it could be defeated because the arresting officer guessed correctly in making anarrest." Id. at 644-45, 290 P.2d at 5S.

336 [Vol. 1964:: 319

Vol. 196:: 3 1] AI!PP . ill

police committed a civil trespas. when they eniterd1 the . ::

seized the narcotics. Once it is deterImincd that their cun i no

unreasonable in the circumstances, it is not rendered unre.n: ii

the event that it is deemed to have involved a civil trespass. 11e havesaid as much in a California case."

We turn now to questions of procedure. Here too it see us timelyto note that federal rules should not necessarily be controlling in statecourts, since there may be alternatives of equal or superior me rit inthe local context. In my state we have departed in the main from thefederal rule that the defendant who challenges the admissibility of theevidence must ordinarily do so before trial, via a special maution tosuppress.4 In one situation our procedure is analogous. If the dr-fendant fails before trial to challenge a scarch warrant valid on it5 face,in accord with prescribed statutory procedure, he cannot challenge itat the trial. 0 Apart from this special situation, however, we Vif W achallenge to evidence allegedly iesulting from unreasonahc scarch orseizure as we normally view other challenges to admissibilit "

The defendant "makes a prima facic ce wh he t 1 ' bs thatan airest was made without a warr.n' o at p i ; wentr(d or a search m crle without - search wrra, 7nd the blvrdcer

then rests on the pro cuth to sh pi opc. ju 'purpose of determining whether the cdcfendant shoul n tl I1, tIL

prosecution may meet this burden by pioducing eviden to show that

4"In this proceeding wc are not concerned with cn forcing def ;dant's riht' underthe law of trespass and landlord and tenant, but wvith discouraging unrcasonable activityon the part of law enforcement oficers. 'A criminal piocution is more than a <:ncin which the Govcrnment may be checkmn i, awl th gaie lost merely b cu <

officers have not played according to rule.' (Mi. Jumice Stone in McGuire . 1 .edStates, 273 U.S. 95, 99 [4/ S.Ct. 259, 71 L.17d S56]), and when as in t C tlcofficers have acted in good faith with the ro it and at the reqLe c of J hin conducting a search, evidence so obtainr-e c7'not be exclud Io cr ly b thofficers may have made a rvasonable mistak a the extent pf the <People v. Goig, (:1. 796, *s;, 20 P $ , (

v. United S.. ics, 3t.3 (I' , 6:

P.d 721, 722 (1956)

See cases collected in People v. Berger, 44 Cal. 2d 459, 462-64, 2

"People v. ierget, 4if the prosecution ih b. iif ,m * r:to establish at the prlidm;er L 1 o

dence and thus secure a di : f " Ahowevc,, he ha! no way of (4 I 1 b b i t 'j

sBadillo v. Superiot CouI, . -t d 269, 272, 29 P :, 25 (19,6)

3 3S DUKl LITf JOUR1AL [ vol. 1962: 319

the police had reasonablc cau-e to make an arrest and search withouta warrant or that their action was- otherwise justified. When the issueis raised at the trial itself, both sides may present cvidence bearing onthe legality of the police action. On the basis of all of the evidence thetrial court must determine whether the challenged evidence resultedfrom unreasonable search or seizure. As with the usual challenge to theadmissibility of evidence, the decision is made by the trial judge. Thedecision is subject to review on appeal, but it will stand if it is supportedby substantial evidence.

Once the trial judge has ruled on admissibility he does not in ourstate open the door to reconsideration of that issue by the jury. Thereis no parallel with the special procedure in many states, includingCalifornia, regarding involuntary confessions whereby the trial courtmay initially admit the confession and then instruct the jury to disre-gard it if they find it was not voluntary.

We come now to a duster of problems on the retroactive applica-tion of the Mapp case. The reversal of defendant's conviction in thatcase, itself a retroactive application of the newly announced exclusionaryrule, is in keeping with the usual practice when there is nothing to indi-cate that retroactivity would entail undue hardship on those who mayhave relied on law now displaced. They cannot plead reasonablereliance, let alone hardship, who may have relied on the now displacedlaw in violating the Constitution.

The retroactive application of Alapp confirms the similar applicationwe made of the exclusionary rule when we established it in California.If experience is at least one of the best teachers, it may be helpful todraw on it for the cases subsequent to the adoption of our rule toillustrate how various can be the problems that attend retroactivity.

There were appeals in which the record did not clearly establishthat the search or seizure was unreasonable. Even if it might appearso on the face of the record, there was always the possibility that the

" "The rule of the confession cases is ju-Iid by the fact that the jury must neces-sarilv to informed of the circumnswIi, sU iy n the confe sion properly to evaluateit. The probative value of evidence obtained by search or seizure, howvever, does notdepend on whether the search was legal or illegal, and no purpose would be served byhaving the jury make a second determination of that issue. Morcover, the legalit) of asearch or seizure will frcquently depend on 'shether the offices had reasonable cause tomake an arrest, and since such cause is not limited to evidence that would be admissibleat the trial on the issue of guilt . . . , evidence that was otherwise inadmissible andprejudicial would frequently be presented to them if the jury were required to pass onthe legality of the search or seicure." People -. Gorg, .S Cal. 2d 776, 781, 291 P.d

469, 472 (1955).

prosecution could have justified it as reazonab, but regarded. it a;mnnecessary to--do so when there was no bar to the admission of the

evidence in any event under existing law. For the same reason defensecounsel might well have deemed it useless to object to the admissionof the evidence or to lay a foundation for its exclusion. Since we haveno procedure for taking additional evidence on appeal in criminal caseswe had to decide such cases on the records before us. There was a riskof penalizing defendants for failing to take steps to exclude the evidence.There was also a risk of undoing a legitimate conviction merely on thecontention of the defendant that the evidence admitted had ensued froman unreasonable search or seizure. We found a middle ground fordecision. The defendant could raise the issue of admissibility for thefirst time on appeal, if his case had been tried before adoption of theexclusionary rule and if there was substantial evidence in the record ofunreasonable search or seizure.54 If the record was silent on the ques-tion, we presumed that the police acted reasonably."

There were other problems of retroactivity. What of the situationwhere the judgment of conviction had become final before the adoptionof the exclusionary rule? We found guidance in the reasoning of theCahan case that the exclusionary rule was no more than a judiciallycreated rule of evidence. Accordingly such a judgment was not subjectto collateral attack.

In such manner we weathered the period of adjustment that followsany overthrow of a familiar rule of law. By 1961, six years after wedeposed our traditional rule, we were in some measure prepared forthe advent of Mapp v. Ohio. Still, it has given our local revolution anew twist. The exclusionary rule of 1961 that now binds all the statesis no mere rule of evidence, but part and parcel of the Constitution. Ittook time to deliver it to its destiny, but there is no longer any questionthat it has arrived. The great question now is how the fifty states willpay it their respects in view of the Supreme Court's affirmation in Mapp,accompanying the overruling of lolf, thlt the long-standing federalexclusionary rule has been constitutionlY 1required since its recognitionin Weeks v. United States. 6

Specifically, are final judgments of conviction in state courts open-ito collateral attack now that the use of unconstitutionally obtained Cvi-dence at trial amounts to a violation of the Constitution? At least one

"People v. Kitch"rs, 46 Cal. 2d 260, 262-63, 294 P.zd 17, 19 (1956)."People v. Ferrara, 46 Cal. :d 26j, 268-69, 294 P.:d 2i, z3 (19s6).as232 U.S. 38; (11-)

Vol. 1962: ;t9]1 .1I/IPP Z.. OHI10 339

thing is Cde.1r, in state and federal courts alike. Whatever the possi-bilitics that judgments of conviction can continue to withstand collateralattack, they can no longer do so on the ground that the usc of thechallenged evidence violates no more than a rule of evidence.

Are there alternatives? The question is suggested by a significantfootnote in the majority opinion in Mapp: "As is always the case, how-ever, state procedural requirements governing assertion and pursuanceof direct and collateral constitutional challenges to criminal prosecutionsmust be respected. . . .",

In California courts, as in the federal courts) final judgments ofconviction may be collaterally attacked by habeas corpus or other post-conviction procedures if they have ensued from violations of certainconstitutional rights, provided of course that ordinary remedies havebeen exhausted, were not available, or were excusably lost."" We findin the pertinent cases strong reasons to justify so drastic a remedy ascollateral attack to vindicate the particular constitutional rights involved.It would be superficial to assume, however, that invariably there aresuch reasons. I have come to the view, set forth in a recent concurringopinion," that there are no such reasons to justify collateral attack asa method of vindicating a defendant's now-recognized constitutionalright to the exclusion of evidence against him resulting from an unrct-sonable search or seizure.

The most telling reason for collateral attack on judgments of con-viction is that it operates to eliminate the risk of convicting the innocent.Such a risk attends any conviction ensuing from the witting use ofperjured testimony,e0 the suppression of evidence," an involuntary con-lession," the denial of an opportunity to present a defense, 3 and the

"Mapp v. Ohio, 367 U.S. 643, 659 n.9 (1961)."Waley v,. Johnston, 3t6 U.S. 101 (1942); Bowen v. Johnston, 306 U.S. i9

(1939); Johnson v. Zerbst, 304 U.S. 458 (1938); In re Dixon, 41 Cal. 2d 756, 264P.2d s3 (1953).

"In re Harris, 56 Cal. 2d 898, 899, 366 P.2d 305, 306 (1961).* Alcorta v. Texas, 355 U.S. 28 (1957) ; Mooney v. Holohan, 294 U.S. 103

(3935 .

"'People v. Carter, 48 Cal. 2d 7371 747, 312 P.2d 665, 671 (1957)*"See Lyons v. Oklahoma, 322 U.S. 596, 605 (1944); 3 Wicstour, EvIDENcE

9§ 22-S6 (3d ed. 19.0).

" See concurring opinions of Justice -rankfurter (361 U.S. .160, 167) and JusticeHarlan (36: U.S. 169, 172) in Smith v. California, 361 U.S. 147 (1959); In r"

Harris, 56 Cal. 2d 898, 899, 366 P.2d 305, 306 (1961); cf., Sunal v. Large, 332 U.S.

174, 181-S82 (947) wvhere collateral attack was denied on the ground that the remedyby appeal had not beets exhausted. Sec also Hill %. United States, 368 U.S. 424, 428-29(1962).

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denial of the right to counsel.' A comparable risk arises upon a failureto provide an indigent defendant with a trial transcript necessary toperfect his appeal."-

The most telling distinction of a defendant convicted on evidenceresulting from an unreasonable search or seizure is that he is clearlyguilty. It is not the purpose of the exclusionary rule to protect theguilty. Its purpose of deterring lawless law enforcement will be amplyserved in any state from now on by affording defendants an orderlyprocedure for challenging the admissibility of the evidence at or beforetrial and on appeal.

Deterrence would be served but little more and at exorbitant costby affording the weapon of collateral attack to those defendants whowere convicted before the adoption of any exclusionary rule and hencehad no way of challenging the admissibility of the evidence. To beginwith, their cases arc history, and they should not now be given thepower to rewrite it. To place at the disposition of the guilty 2n extraor-dinary remedy designed to insure the protection of the innocent wouldbe to invite needless disruption in the administration of justice. Thereis a world of difference between a timely objection to evidence on thebasis of the exclusionary rule and the uprooting of final judgments.

Consider the opportunities for collateral attack that would open upwhenever the Supreme Court extended the scope of the exclusionaryrule. Consider what untoward use of collateral attack there might be,for example, in the wake of the recent expansion of the exclusionaryrule to bar in federal trials evidence resulting from unreasonable searchesand seizures by state officers. Or consider a like sequence to the recentliberalization of the rules on standing to challenge the evidence. Theremight well be a quarrel between the Constitution and common sense ifeach such change served to invite fresh attacks on final judgments.Every judgment would be vulnerable that had been affirmed on appealunder the pre-existing rule. *

It is not without significance that before the advent of Mapp thelower federal courts consistently held that the issue of admissibilitycannot be revived by collateral attack."' There is all the more reason

" Powell v. Alabama, 287 U.S. 4S (1932)." Eskridge v. Washington, 357 U.S. 214 (1958); Griffin v. Illinois, 351 U.S. x:

" United States v. Zavada, 291 F.2d 189, 19t (6th Cir. 1961); Alexander v.United States, z9o F.2d 252, 254 (Sth Cir. 596); Jones v. Attorney General of theUnited States, sy8 F.2d 6991 701 (8th Cir. 1g60); Plummer v. United States, 260F.sd 729, 730 (D.C. Cir. tg5s); Wilkins v. United States, aS F.:J 416 (D.C.

34 DIT'KE LIl1V01 R.-! 190..-': 319

for such a vIcw since .iapp. Common scnoc rcmind, us that cxpansionsof the exclusionary rule should not serve to revive an issuc of admissi-bility that has no bearing on the issue of guilt. There is no comparablereopening available to the prosecution in the event of contractions, giventhe rules against double jeopardy.

The more one reflccts on the questions posed by Mapp v. Ohio, themore ramifications they present. This inquiry has been no more thana partial reconnaissance by one who has been over similar ground inhis own jurisdiction and can bring that experience to the task for what-ever it is worth. The reflections I have set forth cover only a few ofthe possible questions. They may nevertheless serve to suggest thatstate courts be wary of a mechanical acceptance of federal rules, and atthe same time that they be alert to fulfill their own responsibilities forconstructive development of the exclusionary rule. Such developmentwould be in keeping with the symbiotic relation between the federal

.government andthestates.We leave still unanswered some of the large questions posed at the

outset. We have still to construct adequate definitions as to whatconstitutes lawful arrest or reasonable search incident to an arrest. Wehave still to clarify what it is that makes a search or seizure unreason-able. We have a job of correlation to do between arrest or search witha warrant and arrest or search without. We have yet to settle the rela-ti-is between the fourth amendment and the fifth within the context ofthETfourteenth. Evei if ojiter space permiitted, there is no time herefor questions of suichmagniitude.

Nor can we fathom in one easy lesson the significance of the fourthamendment beyond the realm of thepolice. It mray be ofthetgreatestrelevance in non-criminal cases involvingcivil regulation. It may beof the greatest relevance in the growing domainof military-regulation.Ift1ioseare two other stories and they- would belonginthe tling.

One reflection remains, however, by way of a postscript to the text,as to the public response to fourth amendment problems that the exclu-sionary rule arouses. We must be prepared for ill-informed and emo-tional debate. Lawyers can do much to clear the air of baseless fears

Cir. 1958); Unitcd States v. Scales, 249 F.2d 368, 370 (7 th Cir. 1957); BarberUnited States, 197 F.2d S1 (oth Cir. 1952); Fowler v. Hunter, 164 F.2d 669, 669-

70 (ioth Cir. 1947); Fowler v. Gill, iS6 F.2d 565, 566 (D.C. Cir. 1946); Grahamv. Squier, 132 F.2d 681, 684-85 (9 th Cir. 1942); Price v. Johnston, 125 F.2d 8o6,sI ( 9 th Cir. 1942); Taylor v. Hudspeth, 113 F.2d 825, 826 (ioth Cir. 1940).

"See Ohio ex rel Eaton v. Price, 364 U.S. 263 (3960); Frank v. Maryland, 359U.S. 360 (1959)*

Vol. 1962: 3191 Mr/PP 1OHIO 343

and to inform the public of the real problems awaiting solution. Theycan enlist support for the recruitment and retention of police wellqualified f the many heavy responsibilities of law enforcement. Theycan bring 1 1, to others that such enforcement calls not only for skilledand intelligent officers of the law but also for a community of peoplewho themselves show respect for the law in their everyday conduct. Itis upon high police standards and community respect for the law andits officers that effective law enforcement basically depends. Giventhese, the courts will have a favorable environment for the orderly de-velopment of the exclusionary rule. Absent these, few would darepredict the consequences of Mapp v. Ohio at large in the fifty states.