specially concurring:
Almost twenty years ago, the United States Supreme Court made a policy choice when it made applicable to the states the exclusionary rule for evidence in criminal cases.1 This rule of evidence was originally applied to the use of evidence secured through a search and seizure conducted in violation of the Fourth Amendment, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Since that time, reliable and probative evidence has been suppressed and excluded from criminal proceedings whenever it has been obtained through searches and seizures that violate the Fourth Amendment, confessions obtained in violation of the Fifth and Sixth Amendments, and identification testimony obtained in violation of these amendments.2
The basic rationale of the rule is that suppression of evidence obtained in violation of an individual’s constitutional rights was necessary to deter the police from using improper methods to obtain that evidence.3 Although other reasons have been advanced to support the rule, such as the need to protect privacy of the individual4 and the need to avoid the evil of government participation in illegal activity,5 it is clear that “the raison d’etre of the exclusionary rule is the deterrence of lawless law enforcement.”6
As it must, the majority applies the exclusionary rule to the well stated findings of fact made by the trial court in this case. We have no alternative, and it is to this situation that my views are directed in this concurring opinion.
There can be no doubt that the constitutional guarantees of both the United States and Colorado Constitutions must be protected against unlawful acts of those we employ to uphold the law. Having thus stated a proposition with which I believe there can be little argument, the question remains as to what form that protection should take. Under existing doctrine as developed by the United States Supreme Court, the exclusionary rule is the sole method through which the cited constitutional guarantees may be protected.
*480The exclusionary rule has been subject to continued and increasing criticism by scholars and judges.7 The criticism which I find most compelling is that the impact of the exclusionary rule falls upon society as a whole rather than on the person who has violated another person’s constitutional rights, the official wrongdoer.
Others have also directed their attention to the anomalous situation in which the individual official whose illegal conduct results in the exclusion of evidence in a criminal trial suffers no direct or indirect sanction. As pointed out by Chief Justice Burger in his dissenting opinion in Bivens v. Six Unknown Federal Narcotics Agents, 403. U.S. 388, 416, 91 S.Ct. 1999, 2015, 29 L.Ed.2d 619, 638 (1971):
“[wjith rare exceptions law enforcement agencies do not impose direct sanctions on the individual officer responsible for a particular judicial application of the suppression doctrine .... Thus there is virtually nothing done to bring about a change in his practices.”
See also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi. L.Rev. 665 (1970), where it was noted that “[but] diligent inquiry has failed to reveal a single law enforcement agency where individual sanctions are tied to an application of the exclusionary rule. The rule is apparently expected to achieve its purpose without them.”
While other defects in the exclusionary rule have been the subject of comment,8 no good purpose would be served by setting them out at length.
The purpose of a criminal trial is to determine the guilt or innocence of the accused. How can this be accomplished while at the same time protecting the constitutional rights of all citizens?
Chief Justice Burger in Bivens suggested that Congress take the lead and provide a meaningful and effective remedy against unlawful conduct by government officials, a remedy that would afford compensation and restitution for persons whose constitutional rights have been violated. Judge Wilkey9 suggests disciplinary measures against erring law enforcement officials and effective civil damage action against both the police and the governmental agency which employs them. In support of the tort remedy approach, Professor Oaks has stated that: *481guarantee. A tort remedy could break free of the narrow compass of the exclusionary rule, and provide a viable remedy with attendant direct deterrent effect upon the police whether the injured party was prosecuted or not. Such an arrangement is long overdue. It is time to have a comprehensive judicial remedy against all illegal arrests and searches and seizures by the police. And it is time to abandon the irrational and costly procedure by which police behavior is reviewed only when the injured party is prosecuted, and the only compensation for injury effectively puts both guilty parties beyond the reach of the law.” Oaks, supra, 37 U.Chi. L.Rev. at 757. (Footnote omitted.)
*480“[a] practical tort remedy would give courts an occasion to rule on the content of constitutional rights (the Canadian example shows how), and it would provide the real consequence needed to give credibility to the
*481In my view, it is necessary to adopt an effective alternative remedy to the exclusionary rule — a remedy that will both deter the governmental agent from improperly exercising the authority given to him and provide the citizen with an effective means of redress. In the absence of a change in position of the United States Supreme Court or action on the part of the Congress10 or the state legislatures to develop such a remedy, however, there is no alternative to enforcement of the exclusionary rule.
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Mapp v. Ohio, supra fn. 1 (search and seizure); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (confessions); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (identification).
The deterrence theory was reaffirmed by Justice Powell, writing for the Court in United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, 571 (1974): “the rule’s prime purpose is to deter future unlawful police conduct.” See also Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
Justice Clark in Mapp v. Ohio, supra fn. 1, 367 U.S. at 655, 81 S.Ct. at 1691, 6 L.Ed.2d at 1090.
Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Justices Brandeis and Holmes dissenting).
Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 334.
Burns, Mapp v. Ohio: An All-American Mistake, 19 De Paul L.Rev. 80 (1969); Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.Rev. 929 (1965); Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw.U. L.Rev. 1 (1969).
See Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 214 (1978).
Wilkey, supra, fn. 8.
s. 881, 93rd Cong., 1st Sess. (1973), a proposal to abolish the exclusionary rule and, in lieu thereof, impose financial liability op the federal government to the victims of illegal search and seizure.