December 28, 1979
79-90 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION
Constitutional Law—Fourth Amendment
Exclusionary Rule—Legislative Proposal
This responds to your request that we consider whether Congress may
constitutionally limit the scope o f the Fourth Amendment exclusionary
rule in Federal criminal proceedings. Specifically, you have asked us to
consider whether Congress may constitutionally enact legislation limiting
the application o f the exclusionary rule along the lines o f the bill drafted
by Senator Kennedy’s staff, and establishing alternative remedies similar
to those provided in the current draft o f the Adm inistration’s amendments
to the Federal Torts Claim Act (FTCA). This legislation would permit
evidence seized in violation o f the Fourth Amendment to be adm itted in
Federal criminal proceedings, if otherwise admissible, if the agent con
ducting the search or seizure reasonably believed that his conduct was
lawful; permit victims o f illegal searches and seizures to sue the United
States and receive liquidated damages and special damages upon proof of
a constitutional violation; deny the United States a good faith defense in
such suits; and establish disciplinary procedures whereby either the ap
propriate Federal agency or the victim o f an illegal search or seizure could
bring charges against the offending Federal agent.
It is our conclusion, based on relevant Supreme Court decisions, that,
absent other equally effective remedies to deter Federal officers from
violating the Fourth Am endm ent, the exclusionary rule is required by the
Constitution to protect that A m endm ent’s guarantee against unlawful
searches and seizures. Congress may enact alternative remedies, but the
ultimate responsibility for evaluating the efficacy o f those alternative
remedies lies with the courts. We believe that the proposed statute would
be held constitutional, even though it purports to limit the scope o f the ex
clusionary rule, because it provides an alternative that the courts are likely
to find adequate.
489
I. History of the Exclusionary Rule
The exclusionary rule has been shaped more by experience than by logic.
Imposed by the Supreme C ourt in Weeks v. United States, 232 U.S. 383
(1914), the exclusionary rule was initially justified on considerations o f
fair play and on the judgm ent that notions o f judicial integrity should pre
vent Federal court involvement in illegal searches and seizures:
The tendency o f those who execute the criminal laws o f the coun
try to obtain conviction by means o f unlawful seizures and en
forced confessions * * * should find no sanction in the judg
ment o f the courts which are charged at all times with the support
o f the C onstitution and to which people o f all conditions have a
right to appeal for the maintenance o f such fundamental rights.
[Id. at 392.]
Equally im portant, the exclusionary rule was necessary to protect Fourth
Am endment rights:
If letters and private docum ents can thus be seized and held and
used in evidence against a citizen accused o f an offense, the pro
tection o f the Fourth Am endm ent declaring his right to be secure
against such searches and seizures is o f no value, and, so far as
those thus placed are concerned, might as well be stricken from
the C onstitution.' [Id. at 393.]
The C ourt several years later read Weeks quite broadly, holding that a per
son could not be compelled to produce books and docum ents before a
grand jury where the materials had been illegally seized by the Govern
ment and then returned. Silverthorne Lum ber Co. v. United States, 251
U.S. 385 (1920). Justice Holmes, writing for the C ourt, rejected the
arguments that the Governm ent may properly subpoena materials of
which it knows only because o f an illegal search: “ The essence o f a provi
sion forbidding the acquisition o f evidence in a certain way is that
1Weeks relied in large part on Boyd v. United States, 116 U.S. 616 (1886), where the C ourt
had held that a district court order requiring production o f invoices in a forfeiture proceeding
under the customs laws violated the defendant’s Fourth and Fifth Am endment rights. The
Court noted the interrelation o f the protections o f the two Am endments: seizure o f private
papers is tantam ount to compelling a person to testify against himself: and the Fifth A m end
ment prohibition “ throws light o n ” the reasonableness o f the search. Id. at 633. In language
that has been much quoted, the C ourt stated:
The principles laid down in this opinion affect the very essence o f constitutional liberty
and security. They reach farther than the concrete form o f the case then before the
court, with its adventitious circumstances; they apply to all invasions on the part o f the
government and its employees o f the sanctity o f a m an’s hom e and the privacies o f life.
It is not the breaking o f his doors, and the rum maging o f his drawers, that constitutes
the essence o f the offense; but it is the invasion o f his indefeasible right o f personal
security, personal liberty and private property, where that right has never been forfeited
by his conviction o f some public offenses * * * . Breaking into a house and opening
boxes and drawers are circumstances o f aggravation; but any forcible and com pulsory
extortion o f a m an’s own testim ony or his private papers to be used as evidence to con
vict him o f crime or to forfeit his goods, is within the condem nation o f that judgm ent.
In this regard, the Fourth and Fifth Am endm ents ran almost into each other. [Id. 630.]
490
not merely evidence so acquired shall not be used before the Court but that
it shall not be used at all.” 2 Acceptance o f the contrary position, Justice
Holmes wrote, would reduce the Fourth Amendment to “ a form o f
words.” Id. at 392.
The exclusionary rule fashioned in Weeks applied only to evidence ille
gally obtained by Federal officers for use in Federal trials. In 1949, the
Court held that the basis o f the Fourth Amendment—“ [t]he security of
one’s privacy against arbitrary intrusion by the police” —is implicit in
“ the concept o f ordered liberty” and thus enforceable against the States
through the Fourteenth Am endm ent’s due process clause. W olf v. Col
orado, 338 U.S. 25, 27-28 (1949). However, the Court refused to find that
due process demanded application o f the exclusionary rule to start
criminal proceedings. Although the C ourt acknowledged that the exclu
sionary rule might be an effective way to deter unreasonable searches, it
was not prepared to hold that “ a State’s reliance upon other
methods * * * if consistently enforced,” could not equally ensure that
State police conduct would com port with due process dictates. Id. at 31.
In Mapp v. Ohio, 367 U .S. 643 (1961), the Court reversed W olf and
declared the exclusionary rule applicable to all State criminal proceedings.
The Court stressed that the rule, as developed in Weeks and Silverthorne,
is “ a clear, specific, and constitutionally required—even if judicially im
plied—deterrent safeguard without insistence upon which the Fourth
Amendment would have been reduced to ‘a form o f words.’” Id. at 648.
Although “ not basically relevant” to the C ourt’s constitutional holding, it
surveyed the years since W olf and found other State remedies for protec
tion o f the Fourth Amendment inadequate. Id. at 651-53. The C ourt cited
with approval language in Elkins v. United States, 364 U.S. 206, 217
(1960), that the exclusionary rule is necessary “ to compel respect for the
constitutional guaranty in the only effective available way.” 3
II. Deterrence and Judicial Integrity
From the exclusionary rule’s inception two principles that have in
formed the development o f the doctrine have been recognized: (1) exclu
sion o f illegally obtained evidence is necessary to protect the guarantees o f
the Fourth Amendment, and (2) courts should not sanction illegal ac
tivities o f Government agents by permitting the fruits o f such activities to
be received into evidence. It is now “ commonplace” to refer to those
'T his statement has been characterized by the present C ourt as a “ broad dictum ” that has
been “ substantially undermined by later cases.” United States v. Calandra, 414 U .S. 338,
352 n. 8 (1974).
"Illegally seized evidence was barred in other situations: Elkins v. United States, 364 U .S.
206 (I960) (prohibiting Federal use o f evidence illegally obtained by State officials); Rea v.
United States, 350 U .S. 214 (1956) (Federal officer may be enjoined from providing to State
authorities evidence seized pursuant to an invalid search warrant); Lee v. Florida, 393 U.S.
378 (1968) (Federal Com m unications Act provisions prohibit use o f wiretap conversations in
State proceeding).
491
sources and goals o f the exclusionary rule as considerations of “ deter
rence” and “ judicial integrity.” 4 Brown v. Illinois, 422 U.S. 590, 599
(1975). See, e.g., Stone v. Powell, 428 U.S. 465, 484-86 (1976); Terry v.
Ohio, 392 U.S. 1, 12-13 (1968); Elkins v. United States, 364 U.S. at
217-23.
The relative importance ascribed by the C ourt to deterrence and judicial
integrity in the development o f the exclusionary rule has varied. Where the
C ourt has expanded the scope o f the doctrine, it has emphasized the
judicial integrity rationale. See, e.g., Lee v. Florida, 392 U.S. 378, 385-86
(1968) (evidence seized in violation o f Federal Communications Act not
admissible in State trials); M app v. Ohio, 367 U.S. at 659-60; Elkins v.
United States, 364 U.S. at 222 (overruling “ silver platter” doctrine).
Where the Court has sought to limit the reach o f the exclusionary rule, it
has relied largely on the deterrence principle and has found that applica
tion o f the exclusionary rule to the facts o f the case would not significantly
aid in deterring illegal police conduct. See, e.g., Michigan v. DeFillippo,
99 S. Q . 2627, 2633 n. 3 (1979); Stone v. Powell, 428 at 482-95; United
States v. Janis, 428 U.S. 433, 457-60 (1976).
Over the past decade or so, it has become clear that the deterrence ration
ale now bears the laboring oar in exclusionary rule analysis. Recent Su
preme C ourt cases teach that the doctrine o f judicial integrity is not to be
‘T he phrase “ the imperative of judicial integrity” was coined by Justice Stewart in Elkins
v. United States, 364 U .S. at 222, which held that evidence seized illegally by State officials
could not be adm itted in Federal trials. The “ judicial integrity” rationale is usually traced to
the dissenting opinions o f Justices Holmes and Brandeis in Olmstead v. United States, 277
U .S. 438, 469, 471 (1928):
I think it is a less evil that some criminal should escape than that Government should
play an ignoble part. [Id. at 470 (Holm es, J ., dissenting).]
* * * * * * *
Decency, security and liberty alike dem and th at government officials shall be sub
jected to the same rules o f conduct that are com m ands to the citizen. In a government of
laws, existence o f the government will be imperiled if it fails to observe the law
scrupulously. O ur Governm ent is the potent, the om nipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is contagious. If the Government
becomes a lawbreaker, it breeds contem pt for law; it invites every man to become a law
u nto himself; it invites anarchy. T o declare that in the adm inistration o f the criminal law
the end justifies the means—to declare that the G overnm ent may commit crimes in order
to secure the conviction o f a private criminal—would bring terrible retribution. Against
the pernicious doctrine this C ourt should resolutely set its face. [Id. at 485 (Brandeis, J.
dissenting).]
T he dissenters adopted an unfragm ented view o f the G overnm ent as punisher o f criminals:
“ no distinction can be taken between the Governm ent as prosecutor and the Governm ent as
judge.” Id. at 470 (Holmes, J ., dissenting). The C ourt in later cases has tended to disag
gregate “ the G overnm ent.” See generally Shrock & W elsh, “ Up from Calandra: The Exclu
sionary Rule as a Constitutional R equirem ent,” 59 M inn. L. Rev. 251, 254-60 (1974).
W hile there is a tendency to “ constitutionalize” the words o f Justices Holmes and
Brandeis, their opinions m ake clear th at the obligation o f Federal courts to exclude illegally
seized evidence arises “ apart from the C onstitution.” 277 U .S. at 469 (Holmes, J., dissent
ing); id. at 479-85 (Brandeis, J., dissenting). It should be noted, however, that the question
whether the Federal courts have any power to exclude evidence beyond that arising from the
Constitution and Federal statutes, i.e., whether they have a reservoir o f “ supervisory
pow er,” is presently before the Supreme C ourt. See, United States v. Payner, N o. 78-1729,
Oct. Term 1979.
492
treated as determinative; indeed, the cases appear to strip it o f any weight.5
The basis for a critique o f the doctrine is that it proves too much: if
judicial integrity is offended by any use o f illegally seized evidence, then
the doctrine would effectively establish a right not to be convicted upon il
legally seized evidence. However, the standing cases, e.g., Rakas v. Il
linois, 439 U.S. 128 (1978), and impeachment cases, e.g., Walder v.
United States, 347 U.S. 62 (1954), make it clear that “ the exclusionary rule
has never been interpreted to proscribe the use o f illegally seized evidence
in all proceedings against all persons.” United States v. Calandra, 414
U.S. 338, 348 (1974). See, Stone v. Powell, 428 U.S. at 485; United States
v. Janis, 428 U.S. at 458 n. 35.6
The saliency o f deterrence became clear in Linkletter v. Walker, 381
U.S. 618 (1965), where the C ourt refused to give retroactive effect to
Mapp. See Miles, “ Decline o f the Fourth Amendment: Time to Overrule
Mapp v. Ohio?” 27 Cath. L. Rev. 9, 69 (1977). Faced with perhaps
thousands o f prisoners convicted between W olf and M app, the Court
found refuge in stressing deterrence:
M app had as its prime purpose the enforcement o f the Fourth
Amendment through the inclusion o f the exclusionary rule
within its rights. This, it was found, was the only effective deter
rent to lawless police action * * * . We cannot say that this pur
pose would be advanced by making the rule retrospective. This
misconduct o f the police prior to M app has already occurred and
will not be corrected by releasing the prisoners involved * * * .
Finally, the ruptured privacy o f the victims’ homes and effects
cannot be restored. Reparation comes too late. [Id. at 636—37.]7
’The com m entators have generally recognized the decline and fall o f “ the imperative o f
judicial integrity.” See, e.g., Sanders & Robbins, “ Judicial Integrity, The A ppearance o f
Justice, and the Great W rit o f Habeas Corpus: How to Kill Two Thirds (or More) with One
Stone,” 15 Am. Crim. L. Rev. 63, 76-78 (1977); Schrock & Welsh, supra, note 4, a t 263-69.
They have also noted the inherent difficulties in the concept. See, e.g., M cGowan, “ Rule-
Making and the Police,” 70 Mich. L. Rev. 659, 692 (1972); M onaghan, “ The Supreme
C ourt, 1974 Term —Forw ard; Constitutional Com m on L aw ,” 89 Harv. L. Rev. 1, 5-6
(1975); O aks, “ Studying the Exclusionary Rule in Search and Seizure,” 37 U. Chi. L. Rev.
665, 668-69 (1970).
‘A broad application o f the judicial integrity principle is also difficult to reconcile with the
refusal o f the Supreme C ourt to void convictions in cases in which the defendant has been
brought before the court by illegal police m ethods. E.g., Frisbie v. Collins, 342 U .S. 519
(1952); Ker v. Illinois, 119 U .S. 436 (1886).
’Justice Black, who had concurred in Mapp on the ground that the Fourth and Fifth
Amendments taken together dem and exclusion o f illegally obtained evidence in state trials,
dissented in Linkletter. He wrote:
[T]he undoubted implication o f today’s opinion that the rule is not a safeguard for
defendants but is a mere punishing rod to be applied to law enforcem ent officers is a
rather startling departure from m any past opinions, and even from Mapp itself * * * I
have read and reread the Mapp opinion but have been unable to find one word in it to in
dicate that the exclusionary search and seizure rule should be limited on the basis that it
was intended to do nothing in the world except to deter officers o f the law. [381 U.S.
at 649.]
493
This logic has been consistently followed in subsequent cases refusing to
give retroactive effect to new Fourth Amendment law. See, e.g., Desist v.
United States, 394 U .S. 244 (1969) (denying retrospective application o f
Katz v. United States, 389 U.S. 347 (1967)).
The deterrence rationale has blossomed in several recent cases that have
refused to extend the exclusionary rule to various proceedings outside the
actual criminal trial or to apply new interpretations o f the Fourth Am end
ment retrospectively. In United States v. Calandra, supra, the C ourt held
that a witness testifying before a grand jury could not refuse to answer
questions on the ground that the questions were based on illegally ob
tained evidence. The C ourt found that the burdens placed on the function
ing o f the grand jury were not outweighed by the deterrent value o f the ex
clusionary rule. Justice Powell announced for the Court that the exclu
sionary rule’s “ prime purpose is to deter future unlawful police conduct.”
Id. at 348. The “ imperative o f judicial integrity” was relegated to a foot
note responding to Justice B rennan’s dissent. It stated simply “ that ‘illegal
conduct’ is hardly sanctioned * * * by declining to make an unprece
dented extension o f the exclusionary rule to grand jury proceedings where
the rule’s objectives would not be effectively served and where other im
portant and historic values would be unduly prejudiced.” Id. at 355
note 11.
In United States v. Peltier, 422 U.S. 531 (1975) (denying restrospective
application o f Almeida-Sanchez v. United States, 413 U .S. 226 (1973)),
the C ourt again stressed the deterrent side o f the exclusionary rule.
Although Justice Rehnquist noted the “ imperative o f judicial integrity,”
he wrote for the C ourt that judicial integrity was not offended where the
police reasonably believed in good faith that the evidence they seized was
admissible at trial. Id. at 536-37. Thus, since the policeman could not
know th at his actions were illegal until announcem ent of the new rule,
judicial integrity did not support retroactivity.
In United States v. Janis, supra, the C ourt in an opinion by Justice
Blackmun held that the evidence seized by State officials in good faith, but
unconstitutionally, need not be excluded in Federal civil tax proceedings.
Applying the deterrence balance, it determined that the “ exclusion from
federal civil proceedings o f evidence unlawfully seized by a state criminal
enforcement officer has not been shown to have a sufficient likelihood o f
deterring the conduct o f the state police so that it outweighs the societal
costs imposed by the exclusion.” Id. at 454. Justice Blackmun dealt with
judicial integrity in a footnote, which if followed by the C ourt would ef
fectively render the doctrine inconsequential:
The primary meaning o f “ judicial integrity” in the context o f
evidentiary rules is that the courts must not commit or encourage
violations o f the Constitution. In the Fourth Amendment area,
however, the evidence is unquestionably accurate, and the viola
tion is complete by the time the evidence is presented to the
Court * * * . The focus therefore must be on the question
494
whether the admission o f the evidence encourages violations o f
Fourth Amendment rights. A s the Court has noted in recent
cases, this inquiry is essentially the same as the inquiry into
whether exclusion would serve a deterrent purpose. [Id. at 458
note 35. (Emphasis added.)]
Finally, in Stone v. Powell, supra, the C ourt held that Federal courts
should not entertain State prisoner habeas petitions alleging Fourth
Amendment violations unless the petitioner had not been afforded an op
portunity for full and fair litigation of the claim in State court. The C ourt,
through Justice Powell, determined that the deterrent value o f the exclu
sionary rule was minimal in the habeas context. As to judicial integrity,
the Court noted: “ [w]hile courts, o f course, must be ever concerned with
preserving the integrity o f the judicial process, this concern has limited
force as a justification for the exclusion o f highly probative evidence.” Id.
at 485.
The import o f these cases is clear. The Court believes that the “ prime
purpose o f the [exclusionary] rule, if not the sole one, ‘is to deter future
unlawful police conduct.’ United States v. Calandra, 414 U.S. 338, 347
(1974).” United States v. Janis, 428 U.S. at 446. The rise o f deterrence as
the sole criterion for application o f the exclusionary rule has two conse
quences im portant here.8
First, with the attention o f the courts focused on deterring illegal police
activity, the exclusionary rule need no longer be considered part and parcel
o f the Fourth Amendment and the due process clause o f the Fourteenth
Amendment. M app had characterized the exclusionary rule as a “ clear,
specific, and constitutionally required—even if judicially implied—deter
rent safeguard,” 367 U.S. at 643, which is “ an essential ingredient o f the
Fourth A m endm ent.” Id. at 651. And Justice Black concurred in M app
•The reliance upon deterrence appears to cut only one way: toward limiting applications of
the exclusionary rule. To the extent that the exclusionary rule is divorced from the particular
defendant, he or she becomes a private attorney general seeking to protect the rights o f all
against illegal police actions. Thus, under a strict deterrence analysis, the traditional standing
doctrine should be discarded. However, the C ourt has very recently m ade clear that it will
still only permit a defendant whose own Fourth A m endm ent rights have been violated to
benefit from the exclusionary rule. Rakes v. Illinois, 439 U.S. 128 (1978). This holding is
defended on the ground that “ Fourth Am endment rights are personal rights” and thus a per
son against whom the evidence illegally seized from another is adm itted “ has not had any of
his Fourth A m endm ent rights infringed.” Id. at 133-34. This analysis seems in conflict with
the C ourt’s statem ent in Calandra that the exclusionary rule is “ a judicially created remedy
designed to safeguard Fourth Am endment rights generally through its deterrent effect, rather
than a personal constitutional right o f the party aggrieved.” 414 U.S. at 348. This apparent
conflict is resolved, however, when one focuses on language in Calandra that states that the
Fourth Am endment does not require “ adoption o f every proposal that might deter police
m isconduct,” 414 U .S. at 350-51, particularly where the deterrent benefits o f expanding
standing are outweighed by the costs o f further encroachm ent upon law enforcem ent. See
generally Burkoff, “ The C ourt that Devoured the Fourth Am endment: The Trium ph o f an
Inconsistent Exclusionary D octrine,” 58 Ore. L. Rev. 151 (1979).
495
on the ground that from the Fourth and Fifth Amendments a “ constitu
tional basis emerges which not only justified but actually requires the ex
clusionary rule.” Id. at 622.’
The balancing analysis adopted by the Court in recent years, based on
the costs and benefits o f added deterrence, changes the constitutional
grounding o f the doctrine; as recast, the exclusionary rule need be invoked
to protect Fourth Am endm ent rights only when it is deemed efficacious.
See, Stone v. Powell, supra; United States v. Calandra, 414 U.S. at 348
(“ In sum, the [exclusionary] rule is a judicially created remedy designed to
safeguard Fourth Am endm ent rights generally through its deterrent effect,
rather than a personal constitutional right o f the party aggrieved.” )
The emphasis on the functional analysis openly invites alternative
remedies that may equally well deter violations o f Fourth Amendment
rights. Presumably, once such remedies are in place, the exclusionary rule
may simply be abolished. See, Bivens v. Six Unknown Nam ed Agents o f
the Federal Bureau o f Narcotics, 403 U.S. 388, 414 (1971) (Burger, C .J.,
dissenting). All that is demanded by the Constitution, in the words o f P ro
fessor Kaplan, is “ something that works * * * . The content o f the par
ticular remedial or prophylactic rule is thus a pragmatic decision rather
than a constitutional fiat.” Kaplan, “ The Limits o f the Exclusionary
Rule,” 26 Stan. L. Rev. 1027, 1030 (1974). See also, California v. Min-
jares, 100 S. Ct. 9, 14-15 (1979) (Rehnquist, J., dissenting from denial o f
stay).
The second consequence o f a focus on deterrence is limitation o f the ex
clusionary rule to situations in which the law enforcement officer has
acted unreasonably o r in bad faith. If the exclusionary rule is nothing
more than a deterrent to illegal police conduct, it makes little sense to
apply it in situations where it can have no deterrent force, particularly
given the high societal costs generated by the rule’s frustration o f law en
forcement. See, Stone v. Powell, 428 U.S. at 489-95. Thus, in numerous
recent cases several Justices have suggested that the exclusionary rule not
be applied to situations in which the police have acted in good faith, such
as where agents have relied upon a warrant or a statute later held to be un
constitutional. See, United States v. Scott, 436 U.S. 128, 135-36 (1978)
(Justice Rehnquist, in dicta, writing for the Court: “ In view o f the deter
rent purposes o f the exclusionary rule consideration o f official motives
may play some part in determining whether application o f the exclu
sionary rule is appropriate after a statutory or constitutional violation has
'See, United States v. Peltier, 422 U .S. at 550-62 (Brennan, J., dissenting); United States
v. Calandra, 414 U.S. at 356 (Brennan, J., dissenting):
[Curtailment o f police misconduct] if a consideration at all, was at best only a hoped-for
effect o f the exclusionary rule, not its ultim ate objective. Indeed, there is no evidence
that the possible deterrent effect o f the rule was given any attention by the judges chiefly
responsible for its form ulation. Their concern as guardians o f the Bill o f Rights was to
fashion an enforcem ent tool to give content and meaning to the Fourth A m endm ent’s
guarantees.
496
been established.” ); Stone v. Powell, 428 U.S. at 501-02 (Burger, C .J.,
concurring); id. at 538-42 (White, J., dissenting) (exclusionary rule should
not apply where evidence was seized “ by an officer acting in the good-
faith belief that his conduct com ported with existing law and having
reasonable grounds for this b e lie f’); Brown v. Illinois, 422 U.S. at 611-12
(concurring opinion by Powell, J., joined by Rehnquist, J.); Michigan v.
Tucker, 417 U.S. 433, 447 (1974) (Rehnquist, J., for five members o f the
Court) (“ Where the official action was pursued in complete good
faith * * * the deterrence rationale loses much o f its force.” ). C f ,
United States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude evidence
where the Internal Revenue Service violated departm ental procedure in
good faith and without violating constitutional rights o f defendant);
Michigan v. DeFillippo, 99 S. Ct. at 2633, note 2 (purpose o f deterrence
not served by excluding evidence seized during lawful arrest under statute
later held unconstitutional).10
m . Congressional Pow er to Devise Alternatives
Although the exclusionary rule has been limited by the C ourt in this
decade, it has remained a constitutional doctrine. Mapp was reaffirmed in
Stone v. Powell, 428 U.S. at 481 (see, id. at 509-15 (Brennan, J., dissent
ing)); and M app is decidedly a constitutional decision. Indeed, for the ex
clusionary rule to apply to the States it must be a constitutional doctrine,
for “ no one * * * would suggest that [the] C ourt possesses any general
supervisory power over the state courts.” M app v. Ohio, 367 U.S. at 678
(Harlan, J., dissenting). See, M urphy v. Florida, 421 U.S. 794, 797-98
(1975); id. at 803-04 (Burger, C .J., concurring) (by implication); Cox,
“ The Role o f Congress in Constitutional Determ inations,” 40 U. Cinn. L.
Rev. 199, 251 (1971)."
10See also, Com m ent, “ Judicially Required Rulemaking as Fourth Am endment Policy: An
Applied Analysis o f the Supervisory Power o f Federal C o u rts," 72 Nw. U .L . Rev. 595,
598-99 (1977); Note, Reason and the Fourth A m endm ent—The Burger C ourt and the Exclu
sionary Rule,” 46 Ford. L. Rev. 139, 168-69 (1977); cf. Israel, “ Criminal Procedure, The
Burger C ourt, and the Legacy o f the W arren C o u rt,” 75 Mich. L. Rev. 1319, 1409-15 (1977);
Schrock & Welsh, “ Reconsidering the Constitutional Com m on Law ,” 91 Harv. L. Rev.
1117, 1160-61 (1978).
Even if the “ imperative o f judicial integrity” were still deemed to carry weight in exclu
sionary rule analysis, the C ourt has stated that “ if the law enforcement officers reasonably
believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of
judicial integrity’ is not offended” by admission o f the evidence at trial. United States v.
Peltier, 422 U .S. at 537, quoted in Stone v. Powell, 428 U .S. at 485 n. 23. See also, Stone v.
Powell, 428 U.S. at 540 (W hite, J., dissenting).
"P rofessor M onaghan has argued that the exclusionary rule, even though applied to the
States, is something less than constitutional, and may be displaced by congressional
remedies. See M onaghan, supra (note 5). His views, which are not easily reconciled with the
words o f Mapp and Stone, are thoughtfully and thoroughly criticized in Shrock & Welsh,
“ Reconsidering the Constitutional Com m on Law ,” supra (note 10). However, there are
some indications in recent Supreme C ourt cases that lend support for the argum ent that the
Miranda exclusionary rule is less than constitutional. See, New Jersey v. Portash, 440
(C ontinued)
497
Yet the fact that the exclusionary rule has constitutional roots does not
mean it is constitutionally m andated. The Chief Justice’s dissent in Bivens
first suggested that congressional provision o f an alternative remedy that
would deter official misconduct as well as the exclusionary rule would per
mit the C ourt to abolish the rule. 403 U.S. at 411-24. As discussed above,
this conclusion flows logically from reliance on the deterrence rationale.12
If the defendant has no personal right' to exclusion o f illegally seized
evidence, then any remedy that adequately protects Fourth Amendment
guarantees should meet the constitutional requirement that the Fourth
Amendment not be rendered a “ form o f words.” 13 This conclusion is sup
ported by each o f the scholars consulted by the Senate Judiciary
Committee.
In other similar situations the C ourt has openly invited Congress to
enact legislation that could supplement or supplant judicially created pro
phylactic rules. In declaring the Miranda rules to protect the Fifth Am end
ment rights o f subjects o f police interrogation, the Court wrote:
It is impossible for us to foresee the potential alternatives for
protecting the privilege which might be devised by Congress or
the States in the exercise o f their creative rule-making capacities.
Therefore we cannot say that the C onstitution necessarily re
quires adherence to any particular solution for the inherent com
pulsions o f the interrogation process as it is presently conducted.
O ur decision in no way creates a constitutional straitjacket which
will handicap sound efforts at reform , nor is it intended to have
this effect. We encourage Congress and the States to continue
their laudable search for increasingly effective ways o f protecting
the rights o f the individual while prom oting efficient enforce
ment o f our criminal laws. However, unless we are shown other
(Continued)
U.S. 450 (1979) (use o f immunized grand jury testim ony for impeachment is unconstitu
tional; distinguishing cases permitting im peachm ent use o f evidence obtained in violation o f
Miranda on ground that in those cases no coercion was present); North Carolina v. Butler, 60
L. Ed. 2d 286, 294 (1979) (Blackmun, J., concurring) (suggesting that standard for waiver of
lawyer after Miranda warnings is different than standard applied for waiver o f “ fundam en
tal constitutional rights” as established by Johnson v. Zerbst, 304 U .S. 458 (1938)).
1’C hief Justice Burger also believes th at the existence o f an effective alternative would
satisfy the dem ands o f judicial integrity: “ N or is it easy to understand how a court can be
thought to endorse a violation o f the F ourth A m endm ent by allowing illegally seized evidence
to be introduced against a defendant if an effective remedy is provided against the govern
m ent.” 403 U .S. at 414.
’’Justice Brennan continues to argue that the exclusionary rule is “ part and parcel” o f the
F ourth A m endm ent. This argum ent, m ade in dissent, does not appear to reflect the views of
the C ourt as presently constituted. See, e.g.. United States v. Calandra, 414 U.S. at 355-67
(Brennan, J., dissenting); see also, W olf v. Colorado, 338 U.S. at 48 (Rutledge, J., dissent
ing) (“ 1 * * * reject any intim ation that Congress could validly enact legislation permitting
the introduction in federal courts o f evidence seized in violation o f the Fourth
A m endm ent” ). For an extensive argum ent that the exclusionary rule is constitutionally m an
dated, see Schrock & W elsh, “ Up from C alandra,” supra (note 4).
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procedures which are at least as effective in apprising accused
persons o f their right o f silence and in assuring a continuous op
portunity to exercise it, the following safeguards must be •
observed * * * . '4 [384 U.S. 436, 467 (1966). See, id. at 444,
478-79.]
Similarly, in the “ line-up” cases, United States v. Wade, 388 U.S. 218,
239 (1967) and Gilbert v. California, 388 U.S. 263, 273 (1967), the C ourt
noted that its prophylactic procedures were necessary in the absence o f
State or Federal rules that eliminated the risks o f abuse attending line-up
identifications.
In sum, given the emphasis on the exclusionary rule as a tool o f deter
rence and analogies to related areas where the Supreme Court has laid
down protective rules while inviting prophylactic legislation, we believe
the Supreme C ourt would hold that enactment by Congress on an alterna
tive remedy that is as effective as the exclusionary rule in deterring viola
tions o f the Fourth Amendment would obviate the constitutional necessity
for the exclusionary rule. This conclusion raises two additional questions:
what alternative remedies are equally effective, and who is the judge o f the
effectiveness o f the alternative.
Answering the second question first, we believe that it is the Supreme
Court that must ultimately decide whether an alternative remedy ade
quately protects the Fourth Amendment from becoming a “ form o f
words.” See, Bivens v. Six Unknown Nam ed Agents, 403 U.S. at 423 note
7 (Burger, C .J., dissenting) (by implication); Dellinger, “ O f Rights and
Remedies: The C onstitution as a Sw ord,” 85 Harv. L. Rev. 1532, 1548,
1552-53 (1972); Note “ Excluding the Exclusionary Rule: Congressional
Assault on M app v. O hio,” 61 Geo. L. Rev. 1453, 1471 (1973). This is no
more than recognition o f the C ourt’s traditional duty to measure congres
sional legislation against the Constitution. Marbury v. Madison, 1 Cr. 137
(1803). If the Constitution demands some remedy for effectuation o f the
Fourth Amendment, then it is the province of the Court to decide whether
proffered alternatives meet constitutional requirements. The C ourt may
find congressional factfinding persuasive, and it is likely to accord deference
“ Congress accepted the C o u rt’s invitation, but in a m anner intended to limit the reach o f
Miranda rather than provide adequate alternative safeguards. 18 U .S.C . § 3501, Title 11 o f
the 1968 Om nibus Safe Streets and Crime C ontrol A ct. Although courts have avoided ruling
on the issue, see, e.g.. United States v. Crook, 502 F.(2d) 1378 (3d Cir. 1974), cert, denied,
419 U.S. 1123 (1975); Ailsworth v. United States, 448 F.(2d) 439 (9th Cir. 1971), the provi-
■sion is o f doubtful constitutionality. See W right & Miller, Federal, Practice and Criminal
Procedure, § 76, at 120-22 (1969); G andara, “ Admissibility o f Confessions in Federal P ro
secutions; Implem entation o f Section 3501 by Law Enforcem ent Officials and the C o u rts,”
63 Geo. L .J. 305 (1974). Imaginative defenses for § 3501 have been constructed. It has been
asserted that Miranda was based on factual assum ptions about the coerciveness o f custodial
interrogations—assum ptions that Congress has the power to reverse through its factfinding
procedures. Alternatively, it has been argued that Congress has power under § 5 o f the F our
teenth Am endm ent, as interpreted by Katzenbach v. Morgan, 384 U.S. 641 (1966), to revise
constitutional decisions o f the C ourt. See S. Rept. 1097, 90th C ong., 2d sess. (1968). See
generally Burt, “ M iranda and Title II: A M organatic M arriage,” (1969) S. Ct. Rev. 81.
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to the expressed judgm ent o f Congress that the legislative alternatives are ef
ficacious. But it remains up to the Court to render final judgment on what
the Constitution demands. See, Miranda v. Arizona, 384 U.S. at 490.
Evaluating the likely effectiveness o f alternatives to the exclusionary
rule—such as police training and regulations, tort actions, criminal prose
cutions, or contem pt proceedings—is a difficult task. An initial problem is
that it is unclear what yardstick o f effectiveness should be used because the
empirical evidence on the deterrent effect o f the exclusionary rule is con
flicting at best. Compare, United States v. Jan is, 428 U.S. at 448-53, with,
Elkins v. United States, 364 U.S. at 218; compare, Oaks, supra (note 5),
with Critique, “ On the Limitations o f Empirical Evaluations o f the Exclu
sionary R ule,” 69 Nw. U .L. Rev. 740 (1974). The court has recently tend
ed to express doubt about the rule’s efficacy beyond its application at a
criminal trial, and this view has been shared by many com m entators. See,
e.g., United States v. Janis, 428 U.S. at 448-53 and accompanying foot
notes; Oaks, supra; Wilkey, 62 Judicature 215, 222-23 (1978).
However, the C ourt’s growing disillusionment with the efficacy o f the
exclusionary rule is in tension with the earlier cases that held that the ex
clusionary rule was the only effective means o f guaranteeing that the
Fourth A m endm ent would not become a form o f words. Indeed, M app’s
reversal o f W olf’s holding (which had left State protection o f the Fourth
Amendment to other than exclusionary remedies) stated that applying the
Fourth Am endment without the exclusionary rule “ is to grant the right
but in reality to withhold its privilege and enjoyment * * *. [T]he pur
pose o f the exclusionary rule ‘[is] to deter—to compel respect for the con
stitutional guaranty in the only effectively available way—by removing the
incentive to disregard it.’ Elkins v. United States, [364 U.S.] at 217.”
Mapp v. Ohio, 367 U.S. at 656.15
These statem ents could be viewed as hyperbole or makeweights for
Justices who believed that the exclusionary rule was constitutionally m an
dated in any event. However, similar language has appeared in a recent
case. In Franks v. Delaware, 438 U.S. 154 (1978), the C ourt held that a
defendant could attack the veracity o f affidavits supporting a search war
rant, and that a court could exclude evidence obtained pursuant to the
warrant if it determined that police officers had made deliberate
misstatements in the affidavits and that the affidavits were necessary to a
finding o f probable cause. In describing the general considerations sup
porting a rule o f exclusion, Justice Blackmun, writing for seven Justices,
stated:
[T]he alternative sanctions o f a perjury prosecution, ad
ministrative discipline, contem pt, or a civil suit are not likely to
fill the gap. M app v. Ohio implicitly rejected the adequacy o f
"See also, Terry v. Ohio, 392 U .S. 1, 12 (1968) (“ experience has taught that [the exclu
sionary rule] is the only effective deterrent to police m isconduct” ); Lee v. Florida, 392 U.S.
378, 386-87 (1968) (“ nothing short o f m andatory exclusion o f the illegal evidence will com
pel respect for the federal law” ); Linkletter v. Walker, 381 U.S. at 634; W olf v. Colorado,
338 U.S. 25, 41 (1949) (M urphy, J., dissenting) (“ [TJhere is but one alternative to the rule of
exclusion. T hat is no sanction at all” ).
500
these alternatives. Mr. Justice Douglas noted this in his concur
rence in Mapp, 367 U .S., at 670, where he quoted from W olf v.
Colorado, 338 U.S. 25, 42 (1949): “ ‘Self-scrutiny is a lofty idea,
but its exaltation reaches new heights if we expect a District A t
torney to prosecute himself or his associates for well-meaning
violations o f the search and seizure clause during a raid the
District Attorney or his associates have ordered.’ ” [Id. at 169.]
It is not easy to know what to make o f these words. We believe that, at the
very least, the C ourt may demand congressional factfinding concerning
the efficacy o f alternatives. We doubt that an adequate showing will be
easy.16 Alternatives that existed prior to Mapp—e.g., a § 1983 action
against State officers, a criminal prosecution, or prosecution under the
civil rights laws, see, Irvine v. California, 347 U.S. 128, 137-38 (1954)
(suggestion o f W arren, C .J., and Jackson, J.)—should clearly be rejected
as inadequate. C f , W olf v. Colorado, 338 U.S. at 41-47 (1949) (Murphy,
J., dissenting); People v. Cahan, 44 Cal. 2d 434, 445-48 (1955). The ef
ficacy o f any remedies enacted since M app are essentially untested because
the exclusionary rule was in place at the same time. .Yet abandonm ent o f
the exclusionary rule in order to test new alternatives, such as those in the
proposed amendments to the FTCA, is to risk rendering the Fourth
Amendment a dead letter if the remedies fail. In short, the C ourt will be
faced with little hard data on either side o f the equation; it will have to
measure the unknown deterrent value o f the exclusionary rule against the
untested deterrent value o f the alternative.
This conclusion, however, does not necessarily mean that the Supreme
Court would find a tort-disciplinary scheme an inadequate alternative.
The problems associated with the exclusionary rule—such as permitting
guilty defendants to go free, fostering police perjury, and not com pen
sating victims o f illegal searches who do not go to trial—measured against
the better “ fit” o f the tort-discipline alternative may tip the C ourt toward
accepting the alternative as at least as effective as the exclusionary rule,
and therefore constitutional. This decision would be aided by the C ourt’s
traditional deferrence to legislative factfinding. See, Oregon v. Mitchell,
400 U.S. 112, 240, 246-49 (1970) (opinion o f Brennan, W hite, and M ar
shall, J.J.); Burt, supra (note 14), at 112-14; Cox, supra, at 228-29; c f ,
Regents o f the Univ. o f California v. Bakke, 438 U.S. 265, 302 note 41
(1978) (opinion o f Powell, J.).
'‘Two recent studies, taken together, lend further support for the position that alternative
remedies may be no more effective in deterring violations o f the Fourth A m endm ent than the
exclusionary rule. Compare Project, “ Suing the Police in Federal C o u rt,” 88 Yale L .J. 781
(1979) (§ 1983 actions not effective deterrents o f police misconduct) with Report by the
Comptroller General o f the United States, Impact o f the Exclusionary Rule on Federal
Criminal Prosecutions (C .A .O . April 19, 1979) (Federal prosecutors decline few prosecutions
on the basis o f Fourth A m endm ent problems; open to interpretation that compliance with
Am endment’s dictates is substantial given present reliance upon exclusionary rule).
501
IV. Conclusions
We have been asked to consider whether, assuming enactment o f
remedies similar to the proposed amendm ent to the FTCA, Congress may
constitutionally limit or eliminate the exclusionary rule in Federal criminal
proceedings. We believe that Congress may not, without more, “ repeal”
the exclusionary rule. The rule, in the absence o f alternative remedies, is
constitutionally m andated. However, Congress may provide the occasion
for judicial repeal o f the exclusionary rule by enacting alternative
remedies. The C ourt, in its traditional exercise o f judicial review, could
then analyze whether the legislative alternatives adequately protect Fourth
Amendment guarantees. Although two decades ago the C ourt might have
deemed the exclusionary rule itself part and parcel o f the Fourth Amend
ment and therefore not subject to legislative abolition, we believe that the
C ourt’s redefinition o f the rule in terms o f deterrence would constitu
tionally permit the rule’s demise in the face o f efficacious alternatives. We
have identified some o f the difficulties implicit in evaluating the deterrent
potential o f alternative remedies.
Applying these general conclusions to the draft Senate Judiciary Com
mittee bill, we believe that it would be sustained as constitutional. The
C ourt is likely to determine that the alternative remedy provided by the
FTCA adequately protects Fourth Amendment rights, and therefore
would sustain the abolition o f the exclusionary rule. This conclusion is
strengthened by the fact that the draft bill eliminates the exclusionary rule
only for good faith violations o f the Fourth Amendment. This is a limita
tion that the C ourt may well be willing to impose on its own even in the
absence o f alternative remedies.17
O ur conclusion concerning the C ourt’s likely reaction to the proposed
legislation is descriptive, not normative. Although Congress and the Court
may be willing to substitute amendm ents to the FTCA for the exclusionary
rule, we are not convinced that the Departm ent should support the con
stitutional minimum.
We believe that there are good reasons to question the adequacy o f the
proposed amendments to the FTCA. The substitution o f the United States
as the defendant will mean that any monetary recovery will be paid from
the U.S. Treasury, and not by the Federal law enforcement officer in
volved. It has been asserted that ultimate taxpayer liability will generate
public demands for law-abiding police, see, e.g., Wilkey, 62 Judicature
215, 231 (1978); whatever force this has on the State level, we believe that
it is tenuous at best when applied to the Federal fisc. This conclusion has
empirical support. See Project, “ Suing the Police in Federal C ourt,” 88
Yale L .J. 781 (1979). Thus the only deterrent for the law enforcement
l7It should be noted that enactm ent o f the proposed legislation will have the anom alous
result o f abolishing the exclusionary rule in the Federal courts but not the State courts. O f
course, passage o f the proposal may well spur the C ourt to reevaluate Mapp v. Ohio, supra,
as recently urged by Justice Rehnquist. California v. Minjares, 100 S. Ct. 9 (1979) (Rehn
quist, J ., dissenting from a denial o f a stay).
502
officer on the street is the disciplinary proceeding that may be convened.
The proposal is silent as to the standards o f responsibility that are to be
applied in such a proceeding. Presumably, the police officer would be able
to assert a good-faith defense since it would be unfair to subject him to ad
ministrative sanctions if he was carrying out his duties in a m anner that a
reasonable officer would believe was lawful. C f , W ood v. Strickland, 420
U.S. 308 (1975); United States v. Norton, 581 F. (2d) 390, 393 and note 2
(4th Cir.) (citing cases), cert, denied, 439 U.S. 1003 (1978); Bivens v. Six
Unknown Named Agents, 456 F. (2d) 1339, 1348 (2d Cir. 1972) (on re
mand). Yet the likelihood o f a person (particularly a convicted defendant)
overcoming a good-faith defense is notoriously low. See, Bivens v. Six
Unknown Named Agents, 403 U.S. at 421 (Burger, C .J., dissenting). In
short, the deterrent effect o f the proposals on the police may be little or no
more direct or effective than the exclusionary rule. Indeed, some have sug
gested that the likely effect o f the proposed am endments is that the
Government would be able to “ buy” convictions by paying liquidated
damages for Fourth Amendment violations. See Dellinger, supra, 85
Harv. L. Rev. at 1563. Such a remedy may well provide adequate compen
sation to a person who has been the subject o f an illegal search or seizure;
but it may do little to stop the Fourth Amendment from becoming a
“ form o f words.”
While we are deeply concerned about the ability o f the tort remedy to
deter violations o f the Fourth Amendment, we also recognize that the
amendments to the FTCA are im portant in that they extend remedies to
persons who presently receive no relief after their Fourth Amendment
rights are violated. Thus, we would suggest enactment o f the FTCA
amendments and continued adherence to the exclusionary rule. If, after an
appropriate period o f time, it becomes empirically apparent that the tort-
discipline remedy provides adequate deterrence, then we believe that it
would be time to reconsider the exclusionary rule. It may be sensible to
amend the draft legislation to include a direction to the Department o f
Justice that it m onitor over several years the effectiveness o f the FTCA
remedy and report to Congress. This proposal will supply an orderly proc
ess for abolition o f the exclusionary rule, if abolition is empirically sup
portable. O f course, such a strategy could be frustrated if the Court on its
own declared that existence o f the new remedies obviated the need for the
exclusionary rule. Congress could forestall the rule’s untimely demise by
making clear th at its legislation was experimental and not to be deemed an
alternative to the exclusionary rule. The legislation might expressly pro
vide, for example, that Congress will consider the evidence and the
wisdom o f abolition o f the exclusionary rule at some specific future date.
La r r y A . H a m m o n d
Acting Assistant A ttorney General
Office o f Legal Counsel
503