Journal of Criminal Law and CriminologyVolume 52Issue 3 September-October Article 3

Fall 1961

The Exclusionary Rule and Misconduct by thePoliceMonrad G. Paulsen

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Recommended CitationMonrad G. Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J. Crim. L. Criminology & Police Sci. 255 (1961)

THE EXCLUSIONARY RULE AND MISCONDUCT BY THE POLICE

MONRAD G. PAULSEN

The author is Professor of Law in Columbia University. He previously served on the law fac-ulties of the University of Minnesota, Indiana University, and the University of Utah. Pro-fessor Paulsen is the Co-Editor, with Professor Sanford H. Kadish, of a forthcoming casebook oncriminal law.-EniToR.

In the federal courts and in the courts of overtwenty American states, evidence illegally obtainedby law-enforcement officers cannot be received ina criminal prosecution, provided the accusedobjects to its admission." Under the exclusionaryrule if the residence quarters of a kidnapper areillegally searched by the police, the most incrimi-nating evidence found therein, including suchitems as copies of ransom notes actually sent orthe clothing of the victim, could not be used in adiminal proceeding against the kidnapper.2

Whether such a rule can be defended in principleand whether it operates to discourage illegalpolice practices are the questions posed by thisdiscussion.

At the outset it should be recognized that theevidence which may not be introduced is as trust-worthy and reliable as any which may beconsidered in court. The evidence is kept out ofthe trial not because it is unworthy of belief,but because it is the product of police methodswhich violate the law.

The exclusionary evidence rule says nothingabout the content of the law governing the police.

I The jurisdictions are listed in MORGAN, MAGJIE

& WzrusmN, CASES A MATERIAS ON EvmENcE745 (1957).

2 Some states apply the exclusionary rule only incertain classes of cases. In Alabama, evidence illegallyobtained from a dwelling house is excluded in the trialof certain alcohol control cases. ALA. CODE tit. 29, §210(Supp. 1959). In Maryland, illegally obtained evidenceis inadmissible in misdemeanor cases except that suchevidence is admissible in prosecutions for carrying aconcealed weapon. Also, in certain counties of Mary-land, the exclusionary rule is inapplicable in gamblingcases and, in a slightly different list of counties, therule is inapplicable in lottery cases. MD. CODE ANN.art. 35, 15. See Salhburg v. Maryland, 346 U.S. 545(1954). In Michigan, article 2, §10, of the state constitu-tion provides that the exclusionary rule, otherwiseapplicable, shall not bar from evidence certain itemslisted therin." If there is merit in the arguments of this paper, .e.,that the exclusionary rule does work to deter policemisconduct, these compromises must be based upon ajudgment that the deterrent effect of the exclusionaryrule is a value outweighed by the value of securingconvictions in some kinds of cases.

It takes no position with respect to which arrests,searches and seizures, or other enforcement actionsare legal or illegal. To defend the rule is not todefend any particular formulation regulating theactivities of law enforcement. One can support therule and still support the proposition that wire-tapping ought to be permitted in certain circum-stances under certain safeguards. One can supportthe rule and still hold that the present law ofarrest, formed as it was before the appearance ofmodem professional police forces, is outmoded andrequires drastic reformulation. The rule merelystates the consequences of a breach of whateverprinciples might be adopted to control law enforce-ment officers.

Police officers are not controlled more rigorouslyby the exclusionary evidence rule than they areby force of their own respect for the law. If policeobey the rules set by the community to governpolice practice, they obviously will not obtainevidence illegally. The point is often missed. Thechief of police* of Los Angeles, writing afterCalifornia adopted the exclusionary rule, statedthat the "ability to prevent the commission ofcrimes has been greatly diminished. ' 3 He meant tosuggest that the diminution occurred because hewould have to comply with the California decision.Yet, that decision merely adopted the exclusionaryrule in California; it did not change the substantivelaw of arrest or search at all. If the decision dimin-ished the effectiveness of law enforcement inCalifornia, it did so by securing obedience to thelaw in a manner which influenced the police.

Nor are the police alone in falling into the error.Professor Edward Barrett has recently written:

"The interplay between the exclusionary ruleand the rule that searches must be justified asincidental to valid arrests presents the danger oftwo undesirable side effects. Pressure may beplaced on the police to make arrests too earlyin the investigative process. Pressure may be

'PARxER, POLICE 117 (Wilson ed. 1957).

MONRAD G. PA ULSEN[

placed on the courts to water down the standardsfor probable cause to make formal arrests inorder to avoid freeing obviously guilty defendantsbecause of relatively minor invasions of theirprivacy."

4

The pressure to arrest in order to search existsnot because of the exclusionary rule, but becausethe law governing police conduct prohibits asearch without a warrant, unless the search is in-cident to a valid arrest. The "side effects" referredto by Professor Barrett would, I submit, be ob-served in the operation of any sanction severeenough to deter the police. If courts were calledupon to impose mandatory jail sentences or largefines upon officers guilty of minor violations of therules, these side effects would be present. One canimagine judges who would place heavy burdens onthe "technical" violator but who would not free theaccused because of the violation, but I doubt thatsuch judges exist in reality. Whenever the rules areenforced by meaningful sanctions, our attentionis drawn to their content. The comfort of Free-dom's words spoken in the abstract is always dis-turbed by their application to a contested instance.Any rule of police regulation enforced in factwill generate pressures to weaken the rule.

One further preliminary observation: The pointis often made that the exclusionary rule should berejected because the law of search and seizureand the law of arrest are filled with technicalitiesand inconsistencies. This point too, goes to thecontent of the rules rather than to the remedy.If the rules are unrealistic or unprincipled theyought to be changed. One may note that theCalifornia Supreme Court, in cases applying theexclusionary rule after its adoption, has greatlybroadened the power of the police to search andto make arrests. 5

Any fair-minded observer will find the caseagainst excluding illegal evidence an impressiveone.

Under the rule, a great many obviously guiltypeople must be acquitted. If the tainted evidenceis barred from trial, the prosecution will frequentlyfail to carry its considerable burden of proof.The aim is to deter law enforcement officers from

' Barrett, Personal Rights, Property Rights and theFourth Amendment, 1960 Sup. CT. REv. 46, 65.

6 Comment, The Cahan Case: The Interpretation andOperation of the Exclusionary Rule in California,4 U.C.L.A. L. REv. 252 (1957); Comment, Two Yearsuith the Cahan Rude, 9 STAN. L. REV. 515 (1957);Comment, Search and Seizure: A Review of the Casessince People v. Cahan, 45 CALIF. L. REV. 50 (1957).

violating individual rights; however, the rule doesnot impose money damages or loss of liberty uponthe offending officers, nor does it provide com-pensation for persons injured by official over-reaching. Opponents have often emphasized thestartling result achieved under the rule: to deterthe police both the guilty defendant and thelaw-breaking officer go unpunished. As JudgeCardozo once put it, "The criminal is to go freebecause the constable blundered."' By freeing thecriminal to return to his trade, the argument goes,the rule punishes not the official law-breaker,but rather the law-abiding citizen. 7

The rule gives an ordinary policeman the powerto confer immunity upon an offender. By over-stepping the bounds of the law, a policeman'saction can place vital evidence beyond the reachof the prosecution.8

The opponents of the rule urge that the exclusionof illegally obtained evidence is appropriate onlyto a tidy "fox-hunting" theory of criminal justice.The community will permit the game only so longas gamblers and other petty crooks are involved."If a murderer, bank robber or kidnapper shouldgo free in the face of his guilt," writes one critic,"the public would surely arise and condemn thehelplessness of the courts against the depradations

of the outlaws." 9 The rule destroys respect forlaw because it provides the spectacle of the courtsletting the guilty go free. -

The rule attempts to redress a violation of law

without the time-honored method of direct com-plaint and trial on a carefully defined issue.'0 The

6 People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585,587 (1926).

7 The proposed indirect and unnatural method is asfollows: "Titus, you have been found guilty of conduct-ing a lottery; Flavius, you have confessedly violatedthe constitution. Titus ought to suffer imprisonmentfor crime, and Flavius for contempt. But no! Weshall let you both go free. We shall not punish Flaviusdirectly, but shall do so by reversing Titus' conviction.This is our way of teaching people like Flavius tobehave, and incidentally of securing respect for theConstitution. Our way of upholding the Constitutionis not to strike at the man who breaks it, but to let offsomebody else who broke something else." 8 WXGMORE,EviDnNcz §2184, at 40 (3d ed. 1940).

8 People v. Defore, 242 N.Y. 13, 23, 150 N.E. 585,588 (1926).

9 Plumb, Illegal Enforcement of the Law, 24 CORNELLL.Q. 337, 379 (1939). This article presents a wellargued case against the exclusionary rule. Another verygood statement in the same vein is Waite, Judges andthe Crime Burden, 54 MicH. L. REv. 169 (1955).

10 On Lee v. United States, 343 U.S. 747, 755 (1951)(Jackson, J.); Wigmore, Using Evidence Obtained byIllegal Search and Seizure, 8 A.B.A.J. 479 (1922).

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THE EXCLUSIONARY RULE

procedure looking toward exclusion of evidenceinterrupts, delays, and confuses the main issue athand-the trial of the accused. The principalproceding may be turned into a trial of the policerather than of the defendant.

Furthermore, it is argued that the social dangerof police excesses is greatly exaggerated.' Thepolice are restrained by their own discipline andby the political power in the community. They willtake pains not to go beyond the limits of socialtolerance. Only the guilty suffer or profit by admis-

-sion or exclusion of evidence, the innocent havelittle to fear. 2 The guilty whose privacy is invadeddo not suffer harm as do the innocent in a similarcircumstance.'3 "He who has made his home a denof thieves, a distillery for the manufacture ofcontraband liquor, a warehouse for infernalmachines, or a safety deposit box for forgeddocuments... has not sustained the damages whenits sanctity is invaded, as has the citizen who hasmaintained that sanctity."'14

Finally, the case against the rule makes themost serious assertion of all: The rule does notsucceed in its principal aim: to discourage illegalpolice aktion. The police, it is said, are not con-cerned with convictions in an important degree. Afailure to convict does not touch the officer in hisperson or his pocketbook."5 Professional law en-forcement training is not iffected by the exclusion-ary rule." Many states which employ it are mostbackward in providing for police education. With-out instruction most well-meaning policemenremain unaware of the law. Abusive police, ofcourse, will be deterred by nothing. Officers willfind illegal practices useful because of the dueswhich they reveal, although the item actuallytaken may not be used in court." Illegal searchesare not less frequent than illegal arrests in thejurisdictions which embrace the rule, yet anillegal search does forbid the use of evidence, butthe illegal arrest does not affect the courts' powerto try the defendant. 8

Most disturbing is the argument that if thepolice are subject to the restrictions of the exclu-sionary rule they cannot obtain the convictions

"18 WiGuoRE, EVIDENCE §2184 (3d ed. 1940)." Plumb, op. cit. supra note 9 at 371.1" Id. at 386.1"Massantonio v. People, 77 Colo. 392, 398, 236

Pac. 1019, 1021 (1925).Is Waite, op. cit. supra note 9, at 194.16 Ibid.17 Plumb, op. cit. supra note 9, at 380.is Waite, op. cit. supra note 9, at 193.

necessary to carry out their law enforcementfunction, and if they cannot obtain such convic-tions they will be tempted to harass suspects, toinflict extra-legal punishments. "The exclusionaryrile," wrote Professor Waite, "has driven thepolice to methods less desirable than those forwhich the judges shut truth from the jury's ears."'19

The case against the rule is an impressive one.In spite of the force of argument, I submit that

the rule should be retained where it is in forceand should be adopted where it is not now re-spected. Some of the arguments against the ruleare unsound. Some can be met by measures otherthan abandoning the rule. The disadvantageswhich the rule does entail are worth the pricewhich must be paid. The exclusionary evidencerule is morally correct and appropriate to a freesociety. It is a rule naturally suggested by theConstitution itself. It insures that the issuesrespecting defendants' rights are raised andlitigated frequently, without great inconvenience.It is the most effective remedy we possess to deterpolice lawlessness.

A moral position of a high order gives supportto the rule. It is unseemly that the governmentshould with one hand forbid certain police conductand yet, at the same time, attempt to convictaccused persons through use of the fruits of thevery conduct which is forbidden. As Mr. JusticeHolmes put it in his Olmstead dissent:

"It is also iesirable that the Governmentsfiould not itself foster and pay for other crimes,when they are the means by which the evidenceis to be*obtained.... I can attach no importanceto protestations of disapproval if it knowinglyaccepts and pays and announces that in thefuture it will pay for the fruits. We have tochoose, and for my part I think it a less evil,that some criminal should escape than the

- Government should play an ignoble part.' 20

And Mr. Justice Brandeis, also dissenting inOlmstead, insisted that the use of illegal evidence"is denied in order to maintain respect for law;in order to promote confidence in the administra-tion of justice; in order to preserve the judicialprocess from contamination."

2

19 Id. at 196.20 Olmstead v. United States, 277 U.S. 438, 470

(1928).21 Id. at 484.The Director of the Federal Bureau of Investigation

has written as follows:"One of the quickest ways for any law enforcement

officer to bring public disrepute upon himself, his

MONRAD G. PAULSEN

The moral point not only rests upon an ethicaljudgment that governmental hypocrisy is an evilto be avoided for its own sake, but also it takesinto account the serious undermining of trust ingovernment which is an unavoidable consequenceof any scheme permitting the state to. benefit fromunlawful conduct. Surely the government is ateacher, particularly in a society which leaves largeareas of life for private planning and action. Publicconduct becomes the model for private behavior.Few things are more subversive of free institutionsthan a mistrust of official integrity. When thepolice themselves break the law and other agenciesof government eagerly reach for the benefits whichflow from the breach, it is difficult for the citizenryto .believe that the government truly meant toforbid the conduct in the first place. In our commonspeech we often refer to our officials with words of"otherness." How often do we say, "they" willtax us, "they" will appoint the police chief, or"they" will pass a law. It is corrosive of the vitallynecessary trust in government if we all understandthat "they" do not abide by the law which "they"assert. The conviction that all government isstaffed by self-seeking hypocrites is easy to instilland difficult to erase.

No one has insisted on this point more eloquentlythan Justices Brandeis and Frankfurter. "OurGovernment is the potent, the omnipresentteacher," wrote Mr. Justice Brandeis.

"For good or for ill, it teaches the whole peopleby its example. Crime is contagious. If theGovernment becomes a lawbreaker, it breedscontempt for law;... it invites anarchy. Todeclare that in the administration of the criminallaw the end justifies the means-to declare thatthe Government may commit crimes in orderto secure the conviction of a private criminal-would bring terrible retribution. Against thatpernicious doctrine this Court should resolutelyset its face. '*2

Mr. Justice Frankfurter put it in these words:"The contrast between morality professed by

organization and the entire profession is to be foundguilty of a violation of civil rights. Our people maytolerate many mistakes of both intent and perform-ance, but, with unerring instinct, they know thatwhen any person is intentionally deprived of hisconstitutional rights those responsible have com-mitted no ordinary offense. A crime of this nature,if subtly encouraged by failure to condemn andpunish, certainly leads down the road to totali-tarianism." FBI Law Enforcement Bulletin 1-2(September 1952).22 Olmstead v. United States, 277 U.S. 438,485 (1928)

(dissenting opinion).

society and immorality practiced on its behalfmakes for contempt of law. Respect for lawcannot be turned off and on as though it werea hot-water faucet."23The use of illegal evidence involves the courts,

the branch of government most dependent uponpopular respect, in a kind of ratification of illegalconduct. Judge Traynor of the Supreme Court ofCalifornia has observed, "The success of the law-less venture depends entirely on the court'slending its aid by allowing the evidence to beintroduced."24 When the prosecutor takes evidencegained by the lawless enforcement of the law and,places it before a court, that court by acceptingthe offer of proof becomes inevitably drawn intothe lawlessness. At least, many of the community'smost scrupulous and noble will see it so. JudgeCondon of Rhode Island has made the point inthese words: "If courts receive evidence knowingthat it has been unconstitutionally obtained,they... give judicial countenance to the govern-ment's violation of the Constitution. " 25 Listenonce more to a sentence from Holmes: "If theexisting code does not permit district attorneysto have a hand in such dirty business it does notpermit the judge to allow such iniquities tosucceed." 26 The exclusionary rule dissociates thecourt from any police policy of systematic viola-tion of law.

In the federal courts the exclusionary rule isgrounded in the provisions of the Fourth Amend-ment. In part, this constitutional position wastaken because the justices in Weeks v. UnitedStates embraced the view that the courts, bypermitting the use of illegally obtained evidence,came to participate in the violation of the offend-ing federal police officer and hence to violate theConstitution themselves. Mr. Justice Day,speaking for a unanimous court, wrote concerningthe Fourth Amendment:

"This protection is equally extended to theaction of the Government and officers of thelaw acting under it. To sanction such proceed-ings would be to affirm by judicial decision amanifest neglect if not an open defiance of theprohibitions of the Constitution, intended for

2 On Lee v. United States, 343 U.S. 747, 759 (1959)(dissenting opinion).

21 People v. Cahan, 44 Cal.2d 434, 445. 282 P.2d905. 912 (1955).

25 State v. Olynick, 113 A.2d 123, 131 (R.I. 1955)(dissenting opinion).

26 Olmstead v. United States, 277 U.S. 438, 470(1928) (dissenting opinion).

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the protection of the people against suchunauthorized action. '"The point about ratification becomes even more

persuasive if we take a look at the facts of the1955 case, People v. Cahan, in which the SupremeCourt of California overturned a practice of manyyears standing and adopted the exclusionary rule:

"Gerald Wooters, an officer attached to theintelligence unit of that department, testifiedthat after securing the permission of the chief ofpolice to make microphone installations at twoplaces occupied by defendants, he, SergeantKeeler, and Officer Phillips one night at about8:45, entered one 'house through the side win-dow of the first floor,' and that he 'directed theofficers to place a listening device under a chestof drawers.' Another officer made recordingsand transcriptions of the conversations thatcame over in a nearby garage. About a monthlater, at Officer Wooters' direction, a similardevice was surreptitiously installed in anotherhouse and receiving equipment was also set upin a nearby garage"28When I first considered the Cahan case three

years ago I was moved to write:"This police conduct is not only an example ofillegality, it is illegality elaborately plannedwith the connivance of the Los Angeles Chiefof Police. It is not the case of the over-eagerrookie misjudging the fine lines of the law ofarrest. It is constitutional violation as a matterof police policy.' ' 9

So it still seems to me. The violation of constitu-tional rights in the case took place because thechief of police thought the evidence would be used

z Weeks v. United States, 232 U.S. 383, 394 (1914).See also the statement of the Delaware Supreme

Court in Rickards v. State, 45 De. 573, 585, 77 A.2d199, 205 (1950), to the effect that as long as constitu-tional guarantees exist "we have no choice but to useevery means at our disposal to preserve thoseguarantees."

Another constitutional point has been made. "Toprotect that right, every unjustifiable intrusion by theGovemment upon the privacy of the individual, what-ever the means employed, must be deemed a violationof the Fourth Amendment. And the use, as evidence ina criminal proceeding, of facts ascertained by suchintrusion must be deemed a violation of the Fifth."Brandeis, J., dissenting in Olmstead v. United States,277 U.S. 438, 472 (1928). This point has not fared wellwith scholars. See 8 ,VioMoRE, EVIDENcE §2184, at 31(3d ed. 1940) and Allen, The Exdusionary Bule in theAmerican Law of Search and Seizure, 52 J. Cane. L.,C. & P.S. 246, 250 (1961).

U People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d905, 911-12 (1955).

29Paulsen, Safeguards in the Law of Search andSeizure, 52 Nw. U.L. REv. 65, 75-76 (1957).

in court. Otherwise there would have been littlepoint to the planning of the trespass. Had itpermitted the use of the evidence, the court wouldnot only have sanctioned the infraction at handbut also encouraged other violations.

California is not alone in moving to adopt therule because police officers were tempted to un-constitutional action by the availability of theevidence in court. The 1950 opinion of the SupremeCourt of Delaware which recognized the rule inthat state speaks of safeguarding against "delib-erate invasion."30

Most constitutional or statutory restrictionson police conduct are decisions by legislators orconstitution-makers that it is better for someguilty persons to go free than for the police tobehave in forbidden fashion. They are, however,decisions in the abstract. The exclusionary rulehas the advantage of applying the constitutionalor statutory decision to a particular case. Thesecond argument for the rule is thus that the useof the rule is a natural consequence of the re-strictive principle. The rule is needed to make theconstitutional or statutory safeguards somethingreal. At the New York State ConstitutioralConvention of 1938, United States Senator RobertF. Wagner spoke about this point:

"Mr. Chairman, I profoundly beleve that asearch and seizure guarantee wkich does notcarry with it the exclusion of evidence obtainedby its violation is an emrCY gesture; it is anamendment which will be wholly ineffective inprotecting the constitutional right of privacywhich we seek to confer. If I may borrow aphrase of Justice Cardozo's which has not beenquoted before, it speaks the word of promise tothe ear and it breaks it to the hope. I profoundlybelieve that an amendment which does notprovide for the exclusion of evidence is not onlyineffective but it is dangerou§; it is dangerousbecause it will promote the. spectacle, unfor-tunately not unknown in our time, of con-stitutional rights which have their meaning onpaper and on paper alone. Let no one who caresfor civil liberty discount this danger. To guaran-tee civil rights in theory and permit constitutedauthority to deny them in practice, no matterhow justifiable the ends may be or may seem,is to imperil the very foundation on which ourDemocracy rests."'

33 Rickards v. State, 45 Del. 573, 77 A.2d 199, 205(1950).

31N.Y. STATE CONST. CONV., REVISED REcoRD

559 (1938).

MONRAD G. PA ULSEN

Thirdly, the exclusionary rule gives every pros-ecuted person an opportunity to vindicate searchand seizure principles for the benefit of all, insofaras violations of these principles have resulted inthe production of evidence against the accused.The accused has a motive to challenge the policeoverreaching. He need not resort to another pro-ceeding or hire another lawyer. The rule assures agreat deal of judicial attention to these questions.

The law of arrest and illegal searches is undevel-oped in states without the rule. Many legal ques-tions about proper police conduct cannot beanswered in New York because the New Yorkcourts admit illegally obtaiined evidence and hencehave little chance to pass on questions of policebehavior. The questions have not been resolvedby legislation. As a by-product of California'srecent acceptance of the rule, great clarificationand modification of the law of arrest and searchand seizure has taken place. The task is not doneunless there is an easy opportunity for litigation.

The fourth principal reason supporting theexclusionary evidence rule is a kind of counsel ofdespair. The other remedies are totally unsatis-fa-tory.n On the other hand there are reasons tobeliere that the exclusionary rule has an importantpractical influence.-

An illegJl arrest or search may violate the crimi-nal law. Yet, very few criminal prosecutions ofthose engaging 1a such conduct can be found inthe reported cases--a startling fact when oneconsiders the great numuber of reported instancesof police misconduct. Prosecutions must bebrought by district attorney.-, who are not likelyto take a position opposed to the front line lawenforcement personnel. Prosecutors are judgedin terms of their record of successful prosecutions.They cannot afford the hostility of the police.Even if a willing district attorney were to befound, he would probably have a pessimistic viewof his chances to succeed in a prosecution. In theoverwhelming number of cases, the jury box willhold more who sympathize with the officer thanwith his victim.

Such evidence as we have suggests that tortsuits for trespass or false arrest are ineffectiveeither as deterrents against the police or as instru-ments for compensating the injured persons. Again,

12 Foote, Tort Remedies for Police Violations ofIndhivdual Rights, 39 MiN. L. Rzv. 493 (1955);Note, Search and Seizure in Illinois: Enforcement ofthe Constitutional Right to Privacy, 47 Nw. U.L. REv.493 (1952).

juries in such cases are not apt to be very sym-pathetic to the run-of-the-mill dope peddler,petty thief, or gambler against whom the over-whelming number of police infractions are com-mitted. The typical plaintiff in such actions hassome disadvantages which flow from the rulessurrounding an action for false imprisonment orfalse arrest. Proof of prior reputation may beadmitted to impeach credibility, to mitigate dam-ages by demonstrating that a criminal record hasalready destroyed the plaintiff's reputation, andto show that a proper cause existed to support thearrest. In a good many cases, the potential plain-tiff will have been convicted and imprisoned beforethe tort action can be started. The convictionitself may establish conclusively the presumptionof proper cause for the arrest. This plaintiff willfind it difficult to leave prison in order to testifyand, in some jurisdictions, the civil death statutessuspend the right to sue after a conviction.

Even if he should succeed, the plaintiff in atort action may find himself possessed of a judg-ment against a person unable to pay. Police areneither wealthy nor bonded. Inability to collectdamages may not present the biggest problem.Actual damages may be quite small-inadequateto deter any officer or to encourage the victim tobring suit. Compensatory damages in the case ofan illegal search or arrest of short duration will bean insignificant amount. Punitive damages maynot be available. Infractions will seem to cause avery slight harm, hardly worth the payment ofmoney. In short, the guilty cannot sue and theinnocent will not find it profitable. Thus, injuryto the "peace of mind" of the individual and theharm done to the community-the truly seriousconsequences of police misconduct-escape redress.

Tort recovery from the individual officer andcriminal sanctions against him are disadvan-tageous from another point of view. If the criminaland tort law operate too efficiently against indi-vidual officers, the officers may become over-cautious. Because tort damages are proportionedto harm rather than fault, tort suits may end in agreat injustice to the policeman. A relatively slightinfraction of the rules could result in very greatharm to the victim.

The inadequacy of the conventional remedieshas led to a series of suggestions to supplement orreplace them. Two leading commentators haveurged that the tort law be changed to provide forminimum liquidated damages and for govern-

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THE EXCLUSIONARY RULE

mental liability. They also urge that the positionof the plaintiff in the tort action be improved byrestricting the use of character information againsthim and permitting him to bring suit while incustody.P These changes would enhance the use-fulness of the tort action in controlling officialoverreaching by the police department. Govern-mental liability would assure compensation tothe victim. It would not too harshly penalize theoffending officer. It is assumed that the govern-mental unit would take steps to eliminate policeguilty of serious infractions or of continued minorones. The provision for minimum liquidateddamages would ensure payment to persons ofdamaged reputations. It would also provide re-covery in cases involving little actual damage andin cases where the harm caused by police mis-conduct is difficult to translate into money. Suchproposals are very attractive. Were they a reality,the case in favor of the exclusionary rule would bemuch weakened.

Our aim should be to provide a system whichcould tolerate isolated instances of over-zealousness, if they were promptly and justlycorrected by sanctions proportioned to the faultof the officer, and which would provide compensa-tion for injury to the victim. These objectivesare consistent with the proposals to put financialresponsibility upon the units of government ratherthan the individual officer. Yet I cannot believethat governmental units will bear any substantialexpenditure to compensate the most probablevictims of illegal police misconduct-the bums,drifters, petty crooks, or big-time operators-inthe face of the pressing public need for schools,hospitals, roads, and yes, prisons. Until somegovernmental unit somewhere is in fact givingadequate civil recovery for unconstitutional lawenforcement, I retain my stubborn doubt whetherthe idea can be made to work.

Imposing liability on government units, more-over, will not completely deter the state fromengaging in unconstitutional practices. It may bevery attractive for state officials, acting accordingto a calculus of police values, to violate now andpay later.

The proposal for a civil rights office, independentof the regular prosecutor, for prosecution of offensescommitted by police officers, has several dis-

3 Foote, op. cit. supra note 32; Barrett, Exclusion ofEvidence Obtained by Illegal Searches and Seizures, AComment on People v. Cahan, 43 CALIp. L. Rnv. 565(1955).

advantagesO' First, it does not provide for com-pensation to the injured party. In this respect itis no better than the exclusionary rule. Secondly,it either puts the sanction directly on the policeofficer, by making him liable to prosecution foreach instance of misconduct, or leaves prosecu-tion so haphazard that it will fail as a deterrent.Administrative elimination of the unfit for re-peated disregard of civil rights is to be preferredto the caution which might result from harshpunishment of the individual officer for a singlemisdeed. Thirdly, even if direct punishment isthought useful, I doubt whether many juries willconvict a policeman who has violated the civilrights of a gangster.

Systematic discipline within the police depart-ment itself would be a splendid sanction if it werepracticed. We just do not have examples of citiesor other governmental units which have insistedthat departments get rid of police officers whorefuse to obey the search and seizure rules.'

The remedies which we have neither deter norcompensate. The exclusionary principle does notmake the injured person whole; does it, in fact, actas a deterrent?

We cannot make an answer irrefutably sup-ported by the facts. The kind of social investigationnecessary to convince the already committed hasnot been made. The pilot studies of the AmericanBar Foundation are reported to be inconclusiveon this issue."8 The student editors of the North-western University Law Review made a statisticalstudy in 1952 of the operation of the rule in abranch of the Municipal Court of Chicago.E7 Thestatistics demonstrated that in from seventy toeighty-five per cent of the gambling cases motionsto suppress evidence on the ground of illegalsearch were granted. Motions succeeded in abouttwenty-five per cent of the narcotics cases, andin about nineteen per cent of the prosecutions for

3 Peterson, Restrictions in the Law of Search andSeizure, 52 Nw. U.L. REv. 46,62 (1957); Note, JudicialControl of Illegal Search and Seizure, 58 YALE L. J.144,163 (1948).

5The internal disciplinary machinery in Phil-adelphia "has not yet been used in the case of an illegalsearch or arrest." Note, Philadelphia Police Practiceand the Law of Arrest, 100 U. PA. L. R1v. 1182, 1211(1952). This note also contains a useful estimate of theavailable remedies for illegal arrest. Id. at 1206-12.36 Kamisar, Wolf and Lustig Ten Years Later: Illegal

State Evidence in State and Federal Courts, 43 MINN.L. REv. 1083, 1145 n.226 (1959).

37 Note, Search and Seizure in Illinois: Enforcementof the Constitutional Right to Privacy, 47 Nw. U.L.REv. 493, 497-99 (1952).

MONRAD G. PA ULSEN

carrying concealed weapons. The data, partialand inconclusive as it is, suggests that the Chicagopolice engaged in a great deal of harassment ofgamblers by bringing cases which they knew theycould not win. In these cases they paid little atten-tion to the rules of law. The lower percentage ofsuccessful motions to suppress made with respectto the more serious crimes, narcotics and carryingconcealed weapons, suggests, however, that thepolice comply with the law in more instances whenthey intend to get a conviction. Perhaps theexclusionary rule has an influence here. At anyrate, any study of the Chicago police must takeinto account the fact that one is, indeed, studyingthe Chicago police department, a departmentwhich has stood in need of a reformation whichcannot be accomplished by legal rules alone.

Any attempt to assess the impact of the ex-clusionary rule is vexed by troublesome questionsof cause and effect.3 Many states with the rule ofadmissibility enjoy police compliance with thelaw, but the very infrequency of police excessesmay be a reason why the rule of admissibility istolerated. The police may control their behaviorfor fear the exclusionary rule might tempt thelocal Supreme Court if unconstitutional policeconduct were to become a serious problem. InCalifornia the exclusionary rule was adopted forthe very reason that outrageous police work hasbecome common under the rule of admissibility.In some states which embrace the exclusionaryprinciple, police behavior is of the worst sort. Yetwe know that bad law enforcement depends on agreat many things in addition to a rule of evi-dence. If the situation is bad in a state having therule, abolition may make things a great deal worse.

If statistical proof is lacking that the rulemodifies police conduct, what evidence do we havethat the rule has an effect on police?

In the first place, the arguments of policespokesmen against the exclusionary evidence rulegive an indication of reluctance to change policepractice. For example, Chief Parker of Los Angelessaid after the Cahan case that now the police couldarrest only if they had sufficient information toconstitute "probable cause" that the suspect wasguilty.39 The law to which the Chief adverted hadbeen in force in California for a long time but,with the new rule of exclusion, the police would

38 See the estimate of the effect of the exclusionaryrule, especially in California after the Cahan case, inKamisar, op. cit. supra note 36, at 1145-58.

39Id. at 1158.

apparently have to take it into account. Therewould be little reason to complain of the substan-tive rules unless the exclusionary rule made themrelevant to police action.

In the second place, it seems reasonable thatthe rule will generate pressure upon enforcementofficers to improve the quality of their work. Ibelieve that the police officers themselves areinterested in obtaining convictions. Men have aninterest in the final product of their work. How-ever that may be, prosecuting attorneys are cer-tainly interested in convictions. They can becounted upon to exercise an influence towardobedience of the law. Public opinion may join theprosecutors in a demand for more careful enforce-ment if citizens witness many persons releasedbecause of official infractions. 40

Thirdly, we can look at police training schoolsand discover that a great deal of emphasis is placedon the rules of arrest and search and seizure in theschools of the exclusionary jurisdictions. Mr.Justice Murphy's inquiry, described in his dissentin Wolf v. Colorado, has often been cited.4a TheMetropolitan Police Department of the Districtof Columbia received a series of lectures on howto operate under the law after the decision inMallory v. United States, a United States SupremeCourt decision excluding from evidence in federalcourts any confession made during a period ofillegal detention. 2 In a speech to the InternationalAssociation of Chiefs of Police in September, 1959,Mr. Quinn Tamm, Assistant Director of the F.B.I.,said:

"We must present in our schools thoughtssuch as these for the cogitation of our trainees:

"What does it profit a police officer to dis-cover and apprehend a person responsible for acrime if he does so in a manner so reprehensibleto the rule of law that the evidence is inadmis-sible in court and consequently worthless inbringing him to justice? What good is a con-fession, even one which conclusively is shownto be true by after-discovered evidence, if it isdeclared inadmissible in evidence because thecourt deems that it was involuntarily obtained?We must emphasize the fact that the short-cutof an involuntary confession becomes a boom-

40 Allen, The Wolf Case: Search and Seizure, Federal-ism, and the Civil Liberties, 45 ILL. L. REV. 1 (1950).

4' 338 U.S. 25, 41 (1949).12 THOMAS, THE MALLORY RULE: PRESENT STATUS

AND ErFFzcT 20 (unpublished paper on file in theColumbia University Law School Library, 1960).

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erang which flies back and hits not only theofficer himself but his entire department andthe community as a whole .... 43

Finally, we sometimes find statements, worthyof our attention, which assert that the rule has acorrective effect. Recently, Mr. Justice Stewartof the United States Supreme Court stated thatthe weight of the available evidence supports theproposition that the exclusionary rule is useful.

"But pragmatic evidence of a sort is notwanting. The federal courts themselves haveoperated under the exclusionary rule of Weeksfor almost half a century; yet it has not beensuggested either that the Federal Bureau ofInvestigation has thereby been rendered in-effective, or that the administration of criminaljustice in the federal courts has thereby beendisrupted.""Mr. Myron G. Ehrlich, a Washington, D. C.,

lawyer, has reported that since the Mallory casemagistrates are available for preliminary exami-nation twenty-four hours a day in the District.4

The Washington Post has reported its opinion thatthe Washington police have exhibited more dil-igence in complying with the law since Mallory."'Governor Brown, while he was still AttorneyGeneral of California, expressed his convictionthat the exclusionary rule had improved policepractice in California.0 Further, a reading of thelower court opinions in the District of Columbialeaves the writer with the impression that policepractices there have changed after Mallory.s

Let me take just a few more moments to makevery brief responses to propositions advanced byopponents of the rule.

Opponents say that the police will act illegallyto obtain dues although, under the rule, anyevidence taken by the illegality could not be used.The point raises a problem under the rule but

Reported in 8 Civil Liberties in New York, No. 2,p. 4, col. 5 (November 1959). This paper is the officialorgan of the New York Civil Liberties Union.

"Elkins v. United States, 364 U.S. 206, 218 (1960).46 THox s, op. cit. supra note 42, at 23. Thomas also

reports that Senator Hennings of Missouri held theopinion that the Mallory rule has changed police prac-rice in the District of Columbia; that the United StatesPark Police claim to have made changes in their modeof operation. Id. at 24. A lawyer in the criminal prac-tice, Mr. James R. Scullen, disagreed and assertedthat police methods in the District are unchanged byMallory. Id. at 23.

4, Washington Post and Times Herald, June 14,1959, p. El, col. 1-6.

0 Letter republished in Kamisar, op. cit. supra note36, at 1158.

48 THoyAs, op. cit. supra note 42, at 3.

not an argument against it. The exclusionaryprinciple applies to the "fruit of the poisonoustree" as well as to the tree itself.4 The problemis how to discover what evidence is the "fruit"of illegality in order to suppress it. The answerlies in requiring the police to disclose the source ofoffered proof if it is requested.w.

Opponents say that the police will, themselves,impose extra-judicial punishments, such as beat-ings, if they are prevented from convicting themost dangerous. Surely no community ought topermit continual assaults by officers, no matterhow lofty the motive with which the blows arestruck. I cannot believe such conduct would longbe tolerated.

Opponents say that the exclusionary rule isitself overly technical and arbitrary. They areright. That the rule is somewhat capricious is anargument for improvement, not abolition. TheUnited States Supreme Court only recently sweptaway a lot of technical law concerning who hasstanding to challenge illegal evidence. 51 Thedeterrent effect of the rule will be increasedbecause of this development.

Opponents say that the rule is disruptive of themain business of a trial. I am not persuaded. Themotion to suppress is properly made in advance.Where a later determination is necessary or proper,there is little in actual experience to suggest thatproceedings are unduly disturbed by the adminis-tration of the rule.

Opponents say that the exclusionary rule inter-feres wit& the process of getting at the truth at atrial. They are right. Some evidence may be ex-cluded which could have helped to establish thefacts. Yet, surely, a trial has purposes other thanto lay reality bare. A trial is a part of govern-ment's teaching apparatus. Social values of thegreatest importance receive expression in thecourt room. To reach a decision in accordance withthe truth is only one value which, in some circum-stances, may have to bow before others.

A recently formulated criticism suggests thatthe rule is deficient in that it gives a remedy forinvasions of privacy which are not as important

19 Silverthome Lumber Co. v. United States, 251U.S. 385 (1920).

50 United States v. Frankfeld, 100 F. Supp. 934(D. Md. 1951), shows how difficult it is to get a hearingon wiretapping allegations. The problem is discussedin Note, Exclusion of Evidence Obtained by Wiretapping:An Illusory Safeguard, 61 YALE L. J. 1221 (1952).

" Jones v. United States, 362 U.S. 257 (1960).

MONRAD G. PAULSEN

as other outrages which the exclusionary rulecannot reach.

"An inherent characteristic of the exclusionaryrule is that it puts the greatest pressure toconform to the rules regarding arrest and de-tention. In its direct application, of course, therule comes into play only when a successfulpolice search has turned up evidence which isto be offered at the trial. But even as a deterrentit affects only those aspects of police illegalitywhich are likely to result in the acquisition ofphysical evidence of guilt and are undertakenfor the purpose of securing the prosecution andconviction of a suspected offender. Illegalarrests which are designed to harass rather thanto prosecute, physical abuse of suspects orpersons in custody, unnecessary destruction ofproperty, illegal detentions which are notmotivated by a desire to secure confessions,and similar serious forms of police illegalityare not affected by the rule or by the cognaterule excluding coerced or illegally obtainedconfessions. In short, the rule has a deterrentimpact only on illegal searches and those illegalarrests to which searches are incident. And ithas impact on those procedures only in thosesituations in which the police are proceedingwith the conscious purpose of securing evidenceto use in prosecuting the defendant."u

This passage contributes an important idea tothe discussion, but the argument does not speakto the worth of the exclusionary rule. The passageought to be followed by a call to create better rem-edies it; addition to the rule. To say that the ex-clusionary rule cannot operate to deter all policemisconduct is not to say that the rule should beabandoned. It should be supplemented.

The basic political problem of a free society isthe problem of controlling the public monopolyof force. All the other freedoms, freedom of speech,of assembly, of religion, of political action, pre-suppose that arbitrary and capricious police actionhas been restrained. Security in one's home andperson is the fundamental without which therecan be no liberty. The exclusionary rule is thebest and the most practical way for the law todeter those officials who would make inroads uponthat security. It is morally right. It providesfrequent opportunities for litigation of the issues.It is the best tool we have to give life to theconstitutional safeguards against unreasonable

52 Barrett, op. cit. supra note 4, at 54-55.

interferences by the professional agencies of lawenforcement.

ADDENDum

Since the preceding pages were written the Su-preme Court of the United States has held that thestates are bound to exclude illegally obtained evi-dence in state criminal trials.n The reasons givenfor that decision are, of course, directly relevantto the thesis of the present paper. First, the major-ity of the Court affirmed that the exclusionary ruleis required by the Constitution itself. The rule wassaid to be "a dear, specific, and constitutionallyrequired--even if judicially implied--deterrentsafeguard without insistence upon which theFourth Amendment would have been 'reduced to aform of words'."" An interesting point about thisformulation is the fact that it does assert that theexclusionary rule is a "deterrent safeguard." Thepoint is not simply that the Constitution requiresthe rule without respect to its aspect as a deterrentto police misconduct. Secondly, the opinion pointsout, "If the government becomes a lawbreaker, itbreeds contempt for law." Thirdly, the opinionstates, quoting from Fikins v. United Sk&, u

there is "pragmatic evidence of a sort" to warranta belief that the exclusionary rule does deter.Fourthly, "Our decision, founded on reason andtruth, gives to the individual no more than thatwhich the Constitution guarantees him, to thepolice officer no less than that to which honest lawenforcement is entitled, and, to the courts, thatjudicial integrity so necessary in the true adminis-tration of justice.""6

One final reason was given by the Court. Becausethe states, before Mapp, could use illegally seizedevidence and the federal prosecutors could not, anunhappy temptation existed in some states.

"In non-exclusionary States, federal officers,being human, were by it invited to and did, asour cases indicate, step across the street to theState's attorney with their unconstitutionallyseized evidence. Prosecution on the basis of thatevidence was then had in a-state court in utterdisregard of the enforceable Fourth Amendment.If the fruits of an unconstitutional search hadbeen inadmissible in both state and federal

Mapp v. Ohio, 81 S. Ct. 1684 (1961).'AId. at 1688.55 364 U.S. 206 (1960).56 81 S. Ct. at 1694.

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courts, this inducement to evasion would havebeen sooner eliminated.)' '

Mr. Justice Black joined in the Court's opinionbut based his decision on the ground that the inter-relationship between the Fourth and the FifthAmendments requires the application of the ex-clusionary rule.

57 Id. at 1693.

The battle for the exclusionary evidence rule as aprincipal weapon against police misconduct hasbeen won-for the moment, at least. In my viewthe reasons in support of the rule dearly justifythe outcome. Whether the view is correct is now aquestion to be put to experience. We have a chanceto determine whether we can operate law enforce-ment agencies within the bounds of the constitu-tional rights to privacy.