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 . …