concurring.
I fully concur in Judge Henley’s opinion. The officer acted illegally, seizing the defendants, effecting an arrest without any articulable suspicion or probable cause. He did not act in good faith. He admits that the seizure and interrogation was a mere fishing expedition.
Judge Bowman’s concurring opinion requires a brief response.
The fourth amendment protects the right of all of us to be left alone in our homes, our cars, and wherever we may go. If police are not deterred from illegal intrusions of privacy by excluding whatever evidence is seized, the fourth amendment will have no meaning or force. Surely an appreciation for the history and purpose of our basic freedoms will never allow emotional fear to justify an environment where there is no check on the abuse of police power.1
The fourth amendment protects the good guy as well as the bad. It would mean very little to anyone if it did not. The argument that since 1961 murders have doubled, rapes quadrupled, and robbery quintupled in part because of the exclusionary rule is a statement more fitting for headlines of the National Enquirer. It is irrational hyperbole totally unsupported in fact or in law.
Others have attacked the exclusionary rule.2 The rule serves one purpose — deterrence. United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). In recent years, it has been severely modified. See, e.g., United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (good faith exception). However, Justice Clark wrote for the Court in Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961), that the exclusionary rule was both “logically and constitutionally necessary.” He observed the doctrine was “an essential part of the right to privacy” and was “an essential ingredient of the right” to be free from unreasonable searches and seizure. Id. He then concluded, “to hold otherwise is to grant the right but in reality to withhold its privilege.” Id. All of this makes a great deal of sense to me. But whether this court agrees with this analysis is immaterial. It is the law and must be followed. I would prefer to leave the philosophical debate to the Supreme Court or the Congress.
. A recent thorough study of the deterrent effect of the exclusionary rule among Chicago narcotics officers concluded that the officers respect the rule and have learned to follow proper search and seizure procedures. Orfield, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U.Chi.L.Rev. 1016 (1987). The head of the Narcotics Section of the Organized Crime Division of the Chicago Police Department stated:
I would not do anything to the exclusionary rule. In my personal opinion it is not a detriment to police work. In fact the opposite is true. It makes the police department more professional. It enforces appropriate standards of behavior. * * * In this unit, seldom if ever does the law of search and seizure keep us from making the searches we should be able to make.
Id. at 1016. The officers themselves expressed understanding for the rule. One remarked, "[i]f you abolished the exclusionary rule you would be turning the police department loose. It would be like a military state of some sort. That situation has enormous possibility for abuse.” Id. at 1051.
The study found that when evidence was suppressed, the officer was usually in court to hear why. To ensure his understanding, the officer was required to file a report with his superior and explain the reasons for the suppression. Repeated suppressions damaged an officer’s chances for promotion. The overwhelming evidence was that since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), Chicago narcotics officers dramatically increased their use of search warrants, and had learned to be especially careful when they found it necessary to proceed without a warrant.
. See, e.g., Stone v. Powell, 428 U.S. 465, 496, 96 S.Ct. 3037, 3053, 49 L.Ed.2d 1067 (1976) (Burger, C.J., concurring).