Government of the Virgin Islands v. Rasool, Abiff Hiram

ADAMS, Circuit Judge,

concurring.

I concur in the result reached by the majority, because I agree that New York v. *594Belton, — U.S. —, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), governs the admissibility of the evidence in this case. Having determined that Belton is the applicable precedent, however, I find it unnecessary to engage in an analysis of whether the brown paper bag falls within the rationale of Robbins v. California, — U.S. —, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).

The effort to draw bright lines between ear trunks and interiors, or between suitcases and cardboard containers, plastic bags, and brown grocery sacks bound with or without string, has sharply divided the Supreme Court1 as well as the en banc Court of Appeals for the District of Columbia Circuit.2 Lack of coherent guidance for resolving the issues in this case may make the temptation to slip into dubious distinctions ineluctable, and highlights why, in my view, the time is especially ripe for re-examining the exclusionary rule.

Many eminent jurists and scholars have already leveled cogent criticisms against this judicially-crafted evidentiary rule,3 and it is not my intention to repeat them in extenso. But the problem of criminal procedure exemplified by this case shows with unusual clarity how far application of the exclusionary rule has strayed from the practices it was designed to deter.

The rule was adopted in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), a case that arose when the police illegally broke into the defendant’s home while he was at work and seized innocuous private papers such as letters, books, bonds, and stock certificates. The Supreme Court emphasized that the sanctity of one’s home and private papers represented the historical heart of the Fourth Amendment, and that the officers’ transgression of rights had been flagrant. Noting that courts must exercise their authority within the limitations of the Fourth Amendment, the Court reasoned that prosecutorial misconduct “should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution.” 232 U.S. at 392, 34 S.Ct. at 344. Therefore, the Court declared, in order to protect the integrity of the judicial process, the improperly seized items must be excluded as evidence against Weeks.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Court extended the exclusionary rule to bind state courts, presented another instance of obvious disregard of Fourth Amendment rights. Acting on a tip that a suspect was hiding in Mapp’s home, the police went there, and when Mapp refused to admit them without a warrant they forcibly entered over her protests. The officers roughed-up Mapp, handcuffed her, and proceeded to plunder through virtually every drawer, closet, book, suitcase, and room in her home. In the words of the state court that tried Mapp, the officers’ methods of obtaining evidence offended a basic sense of justice. To support its extension of the exclusionary rule the Supreme Court recited the protection of judicial integrity rationale that had been advanced in Weeks, and then offered an additional reason for the rule: to deter “official lawlessness in flagrant abuse” of basic rights and to compel police respect for the Fourth Amendment by “removing the incentive to disregard it.” 367 U.S. at 656, 81 S.Ct. at 1692.

Twenty years of experience under the Mapp rule have demonstrated that the exclusionary rule no longer serves its dual *595purposes of promoting judicial integrity and deterring police misconduct.4 Indeed, various studies suggest that the rule has no deterrent impact, and produces adverse social consequences. Mapp has led to the reversal of innumerable state convictions, even though the evidence of criminal activity was compelling. Public respect for the integrity of the judicial process is hardly enhanced when citizens perceive the criminal “go[ing] free because the constable has blundered.” 5 All too often the constable’s mistakes are a far cry from the clear-cut abuses involved in cases such as Weeks and Mapp. Rather, the officer’s reaction usually represents a measured response in a sensitive law enforcement situation, as in the present case. Frequently, the action seems permissible under Supreme Court pronouncements controlling at the time of the conduct in question; yet when the search later comes under judicial scrutiny it is proclaimed to be improper in light of subsequent decisions.

The situations presented in Robbins, Belton, and the current case illustrate this problem. At the time the officers performed the searches, they reasonably could have regarded their actions as justified under the automobile exception to the warrant requirement as adumbrated in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). It is quite significant that at least three members of the Supreme Court thought the searches at issue in Robbins and Belton fell within this exception. See — U.S. at —, 101 S.Ct. at 2851 (Blackmun, J., dissenting); id. at —, 101 S.Ct. at 2851 (Rehnquist, J., dissenting); id. at —, 101 S.Ct. at 2855 (Stevens, J., dissenting). Yet in Robbins a majority of justices found the search impermissible, without agreeing on a rationale, while the searches performed under virtually identical circumstances in Belton and the present case have been sustained. As the divergent views of the Justices demonstrate, the state of Fourth Amendment jurisprudence may fairly be described as confused, or at least difficult to decipher. Under these circumstances, it is not realistic to expect the exclusionary rule to deter misconduct on the part of police officers. Often there is no misconduct to deter or punish — the officer has simply acted reasonably in a pressured situation and is later told he guessed wrong about how Supreme Court precedents might be interpreted to apply in fine-line situations.

When it is evident that a police officer has blatantly and intentionally violated the basic Fourth Amendment rights of a citizen, as in Weeks and Mapp, I believe that an argument may be advanced that the fruits of the illegal conduct should not be used in the judicial process. But this is a far different standard than that encompassed in the current exclusionary rule, which in effect punishes prosecutors and society because officers on the street are not legal scholars endowed with the ability to foresee constitutional developments.

One of the advantages of our system of government is that it allows for experimentation. But when time has proven that the experiment has not succeeded, it is necessary to recognize this fact and rectify it.6 I believe such a time has been reached for the exclusionary rule.

I agree with the majority that the judgment of the district court should be reversed. A reasonable reading of Belton suggests that the search here did not violate the Fourth Amendment, because the police officers did not engage in clear misconduct or an unreasonable search. Thus, *596neither the policy of deterrence nor that of judicial integrity compels the suppression of the fruits of the endeavor.

. Robbins failed to command a majority, and that case together with Belton provoked 7 separate opinions.

. U. S. v. Ross, 655 F.2d 1159 (D.C.Cir.1981) (en banc).

. See, e. g., Bivens v. Six Unknown Fed’l Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J„ dissenting); Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature No. 5 at 215 (Nov.1978); S. Schlesinger, Exclusionary Injustice: The Problem of Illegally Obtained Evidence (1977); E. Griswold, Search and Seizure: A Dilemma of the Supreme Court (1975); McGowan, Rulemaking and the Police, 70 Mich.L.Rev. 659 (1972); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). But see Kamisar, A Reply to Critics of the Exclusionary Rule, 62 Judicature No. 2 at 66 (Aug. 1978).

. See Wilkey, supra, note 3; Oaks, supra, note 3.

. Justice Cardozo immortalized this observation in People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926).

. At the time Mapp and Weeks were decided, viable alternative remedies had not yet been fashioned. The creation of a constitutional cause of action for damages in Bivens v. Six Unknown Fed’l Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), may provide solace for individuals injured by federal officers, and the recent expansion of § 1983 as a means of recovering for transgressions by state and local officers offers an alternative remedy for state defendants. See Wilkey, supra note 3.