In Defense of the Search and Seizure Exclusionary Rule

By Kamisar, Yale | Harvard Journal of Law & Public Policy, Winter 2003 | Go to article overview

In Defense of the Search and Seizure Exclusionary Rule


Kamisar, Yale, Harvard Journal of Law & Public Policy


I.    INTRODUCTION
II.   THE PRE-MAPP ERA
III.  THE LAW ENFORCEMENT COMMUNITY'S
      REACTION TO MAPP
IV.   HAS THE EXCLUSIONARY RULE INHIBITED THE
      DEVELOPMENT OF ALTERNATIVE REMEDIES ?
V.    ARE TODAY'S POLITICIANS MORE LIKELY TO
      IMPOSE EFFECTIVE "DIRECT SANCTIONS"
      AGAINST THE POLICE THAN THE
      POLITICIANS OF YESTERYEAR?
VI.   POLICE PERJURY AND JUDICIAL "WINKING"
VII.  THE COSTS OF THE EXCLUSIONARY RULE
VIII. JUDGE CALABRESI'S PROPOSAL

I. INTRODUCTION (1)

About a quarter-century ago, after my co-authors and I had published the fourth edition of our criminal procedure casebook, (2) I attended a conference with A. Kenneth Pye, then the Dean of the Duke Law School. During a break in the conference proceedings, Dean Pye, a strong admirer of the Warren Court, (3) took me aside to give me some advice about casebook writing. This is a fairly accurate recollection of what Dean Pye said:

   On thumbing through the new edition of your casebook, I couldn't
   help noticing that you have eliminated a number of the pre-Warren
   Court cases you had in the earlier editions. I realize you were
   responding to the need to add a good deal of new material to the
   book without letting an already big book get any larger. But taking
   out the old cases has serious costs. In the years ahead, as more
   and more interesting new cases are handed down, you will feel much
   pressure to take out still more older cases. But this is a process
   you must resist.

   Otherwise, by the time you and your co-authors publish your
   eighth or tenth edition, the confessions chapter will begin  with
   Miranda (4) and the search and seizure chapter with Mapp. (5) This
   would be calamitous. For many law students (and a few young
   criminal procedure professors) won't appreciate Mapp and
   Miranda--won't really understand why the Court felt the need to
   take the big steps it did--unless casebooks like yours contain
   material that enables readers of the books to get some idea of how
   unsatisfactory the prevailing rules and doctrines were before the
   Warren Court arrived on the scene.

I think Dean Pye's advice about casebook writing was sound, (6) and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.

II. THE PRE-MAPP ERA

Perhaps we should begin with People v. Cahan, (7) the pre-Mapp case in which California adopted the exclusionary rule on its own initiative. (8) At first, Justice Roger Traynor, who wrote the majority opinion, had not been a proponent of the exclusionary rule. Indeed, thirteen years earlier, he had written the opinion of the California Supreme Court reaffirming the admissibility of illegally seized evidence. (9) By 1955, he and a majority of his colleagues felt compelled to overrule state precedents and adopt the exclusionary rule. Why? The Cahan majority explained:

   [O]ther remedies have completely failed to secure compliance with
   the constitutional provisions on the part of police officers with
   the attendant result that the courts under the old rule [of
   admissibility] have been constantly required to participate in,
   and in effect condone, the lawless activities of law enforcement
   officers. (10)

Justice Traynor and his colleagues seemed astounded by how casually and routinely illegally seized evidence was being offered and admitted in the California courts. After noting that Los Angeles police had candidly admitted that they had illegally installed listening devices in the defendants' homes and had described, with equal candor, how they had forcibly entered buildings without bothering to obtain warrants by breaking windows and kicking in doors, (11) Justice Traynor observed:

   [W]ithout fear of criminal punishment or other discipline, law
   enforcement officers . … 

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

In Defense of the Search and Seizure Exclusionary Rule
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.