December 28, 1979

79-90 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL,

CRIMINAL DIVISION

Constitutional Law—Fourth Amendment

Exclusionary Rule—Legislative Proposal

This responds to your request that we consider whether Congress may 

constitutionally limit the scope of the Fourth Amendment exclusionary 

rule in Federal criminal proceedings. Specifically, you have asked us to 

consider whether Congress may constitutionally enact legislation limiting 

the application of the exclusionary rule along the lines of the bill drafted 

by Senator Kennedy’s staff, and establishing alternative remedies similar 

to those provided in the current draft of the Administration’s amendments 

to the Federal Torts Claim Act (FTCA). This legislation would permit 

evidence seized in violation of the Fourth Amendment to be admitted in 

Federal criminal proceedings, if otherwise admissible, if the agent conducting the search or seizure reasonably believed that his conduct was 

lawful; permit victims of illegal searches and seizures to sue the United 

States and receive liquidated damages and special damages upon proof of 

a constitutional violation; deny the United States a good faith defense in 

such suits; and establish disciplinary procedures whereby either the appropriate Federal agency or the victim of an illegal search or seizure could 

bring charges against the offending Federal agent.

It is our conclusion, based on relevant Supreme Court decisions, that, 

absent other equally effective remedies to deter Federal officers from 

violating the Fourth Amendment, the exclusionary rule is required by the 

Constitution to protect that Amendment’s guarantee against unlawful 

searches and seizures. Congress may enact alternative remedies, but the 

ultimate responsibility for evaluating the efficacy of those alternative 

remedies lies with the courts. We believe that the proposed statute would 

be held constitutional, even though it purports to limit the scope of the exclusionary rule, because it provides an alternative that the courts are likely 

to find adequate.

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I. History of the Exclusionary Rule

The exclusionary rule has been shaped more by experience than by logic. 

Imposed by the Supreme Court in Weeks v. United States, 232 U.S. 383 

(1914), the exclusionary rule was initially justified on considerations of 

fair play and on the judgment that notions of judicial integrity should prevent Federal court involvement in illegal searches and seizures:

The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgment of the courts which are charged at all times with the support 

of the Constitution and to which people of all conditions have a 

right to appeal for the maintenance of such fundamental rights.

[Id. at 392.]

Equally important, the exclusionary rule was necessary to protect Fourth 

Amendment rights:

If letters and private documents can thus be seized and held and 

used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure 

against such searches and seizures is of no value, and, so far as 

those thus placed are concerned, might as well be stricken from 

the Constitution.' [Id. at 393.]

The Court several years later read Weeks quite broadly, holding that a person could not be compelled to produce books and documents before a 

grand jury where the materials had been illegally seized by the Government and then returned. Silverthorne Lumber Co. v. United States, 251 

U.S. 385 (1920). Justice Holmes, writing for the Court, rejected the 

arguments that the Government may properly subpoena materials of 

which it knows only because of an illegal search: “ The essence of a provision forbidding the acquisition of evidence in a certain way is that

1 Weeks relied in large part on Boyd v. United States, 116 U.S. 616 (1886), where the Court 

had held that a district court order requiring production of invoices in a forfeiture proceeding 

under the customs laws violated the defendant’s Fourth and Fifth Amendment rights. The 

Court noted the interrelation of the protections of the two Amendments: seizure of private 

papers is tantam ount to compelling a person to testify against himself: and the Fifth Amendment prohibition “ throws light o n ” the reasonableness of the search. Id. at 633. In language 

that has been much quoted, the Court stated:

The principles laid down in this opinion affect the very essence o f constitutional liberty 

and security. They reach farther than the concrete form o f the case then before the 

court, with its adventitious circumstances; they apply to all invasions on the part of the 

government and its employees o f the sanctity o f a m an’s home and the privacies of life. 

It is not the breaking o f his doors, and the rummaging o f his drawers, that constitutes 

the essence o f the offense; but it is the invasion of his indefeasible right of personal 

security, personal liberty and private property, where that right has never been forfeited 

by his conviction o f some public offenses * * * . Breaking into a house and opening 

boxes and drawers are circumstances o f aggravation; but any forcible and compulsory 

extortion of a m an’s own testimony or his private papers to be used as evidence to convict him o f crime or to forfeit his goods, is within the condemnation o f that judgment. 

In this regard, the Fourth and Fifth Amendments ran almost into each other. [Id. 630.]

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not merely evidence so acquired shall not be used before the Court but that 

it shall not be used at all.” 2 Acceptance of the contrary position, Justice 

Holmes wrote, would reduce the Fourth Amendment to “ a form of 

words.” Id. at 392.

The exclusionary rule fashioned in Weeks applied only to evidence illegally obtained by Federal officers for use in Federal trials. In 1949, the 

Court held that the basis of the Fourth Amendment—“ [t]he security of 

one’s privacy against arbitrary intrusion by the police” —is implicit in 

“ the concept of ordered liberty” and thus enforceable against the States 

through the Fourteenth Amendment’s due process clause. W olf v. Colorado, 338 U.S. 25, 27-28 (1949). However, the Court refused to find that 

due process demanded application of the exclusionary rule to start 

criminal proceedings. Although the Court acknowledged that the exclusionary rule might be an effective way to deter unreasonable searches, it 

was not prepared to hold that “ a State’s reliance upon other 

methods * * * if consistently enforced,” could not equally ensure that 

State police conduct would comport with due process dictates. Id. at 31.

In Mapp v. Ohio, 367 U.S. 643 (1961), the Court reversed W olf and 

declared the exclusionary rule applicable to all State criminal proceedings. 

The Court stressed that the rule, as developed in Weeks and Silverthorne,

is “ a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth 

Amendment would have been reduced to ‘a form of words.’” Id. at 648. 

Although “ not basically relevant” to the Court’s constitutional holding, it 

surveyed the years since W olf and found other State remedies for protection of the Fourth Amendment inadequate. Id. at 651-53. The Court cited 

with approval language in Elkins v. United States, 364 U.S. 206, 217 

(1960), that the exclusionary rule is necessary “ to compel respect for the 

constitutional guaranty in the only effective available way.” 3

II. Deterrence and Judicial Integrity

From the exclusionary rule’s inception two principles that have informed the development of the doctrine have been recognized: (1) exclusion of illegally obtained evidence is necessary to protect the guarantees of 

the Fourth Amendment, and (2) courts should not sanction illegal activities of Government agents by permitting the fruits o f such activities to 

be received into evidence. It is now “ commonplace” to refer to those

'This statement has been characterized by the present Court as a “ broad dictum” that has 

been “ substantially undermined by later cases.” United States v. Calandra, 414 U.S. 338, 

352 n. 8 (1974).

"Illegally seized evidence was barred in other situations: Elkins v. United States, 364 U.S. 

206 (I960) (prohibiting Federal use o f evidence illegally obtained by State officials); Rea v. 

United States, 350 U.S. 214 (1956) (Federal officer may be enjoined from providing to State 

authorities evidence seized pursuant to an invalid search warrant); Lee v. Florida, 393 U.S. 

378 (1968) (Federal Communications Act provisions prohibit use o f wiretap conversations in 

State proceeding).

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sources and goals of the exclusionary rule as considerations of “ deterrence” and “ judicial integrity.” 4 Brown v. Illinois, 422 U.S. 590, 599 

(1975). See, e.g., Stone v. Powell, 428 U.S. 465, 484-86 (1976); Terry v. 

Ohio, 392 U.S. 1, 12-13 (1968); Elkins v. United States, 364 U.S. at 

217-23.

The relative importance ascribed by the Court to deterrence and judicial 

integrity in the development o f the exclusionary rule has varied. Where the 

Court has expanded the scope of the doctrine, it has emphasized the 

judicial integrity rationale. See, e.g., Lee v. Florida, 392 U.S. 378, 385-86 

(1968) (evidence seized in violation of Federal Communications Act not 

admissible in State trials); Mapp v. Ohio, 367 U.S. at 659-60; Elkins v. 

United States, 364 U.S. at 222 (overruling “ silver platter” doctrine). 

Where the Court has sought to limit the reach of the exclusionary rule, it 

has relied largely on the deterrence principle and has found that application of the exclusionary rule to the facts of the case would not significantly 

aid in deterring illegal police conduct. See, e.g., Michigan v. DeFillippo,

99 S. Q . 2627, 2633 n. 3 (1979); Stone v. Powell, 428 at 482-95; United

States v. Janis, 428 U.S. 433, 457-60 (1976).

Over the past decade or so, it has become clear that the deterrence rationale now bears the laboring oar in exclusionary rule analysis. Recent Supreme Court cases teach that the doctrine of judicial integrity is not to be

‘The phrase “ the imperative of judicial integrity” was coined by Justice Stewart in Elkins

v. United States, 364 U.S. at 222, which held that evidence seized illegally by State officials 

could not be admitted in Federal trials. The “ judicial integrity” rationale is usually traced to 

the dissenting opinions o f Justices Holmes and Brandeis in Olmstead v. United States, 277 

U .S. 438, 469, 471 (1928):

I think it is a less evil that some criminal should escape than that Government should 

play an ignoble part. [Id. at 470 (Holmes, J., dissenting).]

*******

Decency, security and liberty alike demand that government officials shall be subjected to the same rules o f conduct that are commands to the citizen. In a government of 

laws, existence o f the government will be imperiled if it fails to observe the law 

scrupulously. Our Government is the potent, the omnipresent teacher. For good or for 

ill, it teaches the whole people by its example. Crime is contagious. If the Government 

becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law 

unto himself; it invites anarchy. To declare that in the administration o f the criminal law 

the end justifies the means—to declare that the Government may commit crimes in order 

to secure the conviction o f a private criminal—would bring terrible retribution. Against 

the pernicious doctrine this C ourt should resolutely set its face. [Id. at 485 (Brandeis, J. 

dissenting).]

The dissenters adopted an unfragmented view of the Government as punisher o f criminals: 

“ no distinction can be taken between the Government as prosecutor and the Government as 

judge.” Id. at 470 (Holmes, J., dissenting). The Court in later cases has tended to disaggregate “ the G overnm ent.” See generally Shrock & Welsh, “ Up from Calandra: The Exclusionary Rule as a Constitutional Requirement,” 59 Minn. L. Rev. 251, 254-60 (1974).

While there is a tendency to “ constitutionalize” the words of Justices Holmes and 

Brandeis, their opinions make clear that the obligation o f Federal courts to exclude illegally 

seized evidence arises “ apart from the C onstitution.” 277 U.S. at 469 (Holmes, J., dissenting); id. at 479-85 (Brandeis, J., dissenting). It should be noted, however, that the question 

whether the Federal courts have any power to exclude evidence beyond that arising from the 

Constitution and Federal statutes, i.e., whether they have a reservoir o f “ supervisory 

power,” is presently before the Supreme C ourt. See, United States v. Payner, No. 78-1729, 

Oct. Term 1979.

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treated as determinative; indeed, the cases appear to strip it of any weight.5 

The basis for a critique of the doctrine is that it proves too much: if 

judicial integrity is offended by any use of illegally seized evidence, then 

the doctrine would effectively establish a right not to be convicted upon illegally seized evidence. However, the standing cases, e.g., Rakas v. Illinois, 439 U.S. 128 (1978), and impeachment cases, e.g., Walder v. 

United States, 347 U.S. 62 (1954), make it clear that “ the exclusionary rule 

has never been interpreted to proscribe the use of illegally seized evidence 

in all proceedings against all persons.” United States v. Calandra, 414 

U.S. 338, 348 (1974). See, Stone v. Powell, 428 U.S. at 485; United States

v. Janis, 428 U.S. at 458 n. 35.6

The saliency of deterrence became clear in Linkletter v. Walker, 381 

U.S. 618 (1965), where the Court refused to give retroactive effect to 

Mapp. See Miles, “ Decline of the Fourth Amendment: Time to Overrule 

Mapp v. Ohio?” 27 Cath. L. Rev. 9, 69 (1977). Faced with perhaps 

thousands of prisoners convicted between W olf and Mapp, the Court 

found refuge in stressing deterrence:

Mapp had as its prime purpose the enforcement of the Fourth 

Amendment through the inclusion of the exclusionary rule 

within its rights. This, it was found, was the only effective deterrent to lawless police action * * * . We cannot say that this purpose would be advanced by making the rule retrospective. This 

misconduct of the police prior to Mapp has already occurred and 

will not be corrected by releasing the prisoners involved * * * . 

Finally, the ruptured privacy of the victims’ homes and effects 

cannot be restored. Reparation comes too late. [Id. at 636—37.]7

’The commentators have generally recognized the decline and fall o f “ the imperative of 

judicial integrity.” See, e.g., Sanders & Robbins, “ Judicial Integrity, The Appearance o f 

Justice, and the Great Writ o f Habeas Corpus: How to Kill Two Thirds (or More) with One 

Stone,” 15 Am. Crim. L. Rev. 63, 76-78 (1977); Schrock & Welsh, supra, note 4, at 263-69. 

They have also noted the inherent difficulties in the concept. See, e.g., McGowan, “ RuleMaking and the Police,” 70 Mich. L. Rev. 659, 692 (1972); Monaghan, “ The Supreme 

Court, 1974 Term—Forward; Constitutional Common Law ,” 89 Harv. L. Rev. 1, 5-6 

(1975); Oaks, “ Studying the Exclusionary Rule in Search and Seizure,” 37 U. Chi. L. Rev. 

665, 668-69 (1970).

‘A broad application o f the judicial integrity principle is also difficult to reconcile with the 

refusal of the Supreme Court to void convictions in cases in which the defendant has been 

brought before the court by illegal police methods. E.g., Frisbie v. Collins, 342 U .S. 519 

(1952); Ker v. Illinois, 119 U.S. 436 (1886).

’Justice Black, who had concurred in Mapp on the ground that the Fourth and Fifth 

Amendments taken together demand exclusion o f illegally obtained evidence in state trials, 

dissented in Linkletter. He wrote:

[T]he undoubted implication o f today’s opinion that the rule is not a safeguard for 

defendants but is a mere punishing rod to be applied to law enforcement officers is a 

rather startling departure from many past opinions, and even from Mapp itself * * * I 

have read and reread the Mapp opinion but have been unable to find one word in it to indicate that the exclusionary search and seizure rule should be limited on the basis that it 

was intended to do nothing in the world except to deter officers o f the law. [381 U.S. 

at 649.]

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This logic has been consistently followed in subsequent cases refusing to 

give retroactive effect to new Fourth Amendment law. See, e.g., Desist v. 

United States, 394 U.S. 244 (1969) (denying retrospective application of 

Katz v. United States, 389 U.S. 347 (1967)).

The deterrence rationale has blossomed in several recent cases that have 

refused to extend the exclusionary rule to various proceedings outside the 

actual criminal trial or to apply new interpretations of the Fourth Amendment retrospectively. In United States v. Calandra, supra, the Court held 

that a witness testifying before a grand jury could not refuse to answer 

questions on the ground that the questions were based on illegally obtained evidence. The Court found that the burdens placed on the functioning of the grand jury were not outweighed by the deterrent value of the exclusionary rule. Justice Powell announced for the Court that the exclusionary rule’s “ prime purpose is to deter future unlawful police conduct.” 

Id. at 348. The “ imperative of judicial integrity” was relegated to a footnote responding to Justice Brennan’s dissent. It stated simply “ that ‘illegal 

conduct’ is hardly sanctioned * * * by declining to make an unprecedented extension of the exclusionary rule to grand jury proceedings where 

the rule’s objectives would not be effectively served and where other important and historic values would be unduly prejudiced.” Id. at 355 

note 11.

In United States v. Peltier, 422 U.S. 531 (1975) (denying restrospective 

application of Almeida-Sanchez v. United States, 413 U.S. 226 (1973)), 

the Court again stressed the deterrent side of the exclusionary rule. 

Although Justice Rehnquist noted the “ imperative of judicial integrity,” 

he wrote for the Court that judicial integrity was not offended where the 

police reasonably believed in good faith that the evidence they seized was 

admissible at trial. Id. at 536-37. Thus, since the policeman could not 

know that his actions were illegal until announcement of the new rule, 

judicial integrity did not support retroactivity.

In United States v. Janis, supra, the Court in an opinion by Justice 

Blackmun held that the evidence seized by State officials in good faith, but 

unconstitutionally, need not be excluded in Federal civil tax proceedings. 

Applying the deterrence balance, it determined that the “ exclusion from 

federal civil proceedings of evidence unlawfully seized by a state criminal 

enforcement officer has not been shown to have a sufficient likelihood of 

deterring the conduct of the state police so that it outweighs the societal 

costs imposed by the exclusion.” Id. at 454. Justice Blackmun dealt with 

judicial integrity in a footnote, which if followed by the Court would effectively render the doctrine inconsequential:

The primary meaning of “ judicial integrity” in the context of 

evidentiary rules is that the courts must not commit or encourage 

violations of the Constitution. In the Fourth Amendment area, 

however, the evidence is unquestionably accurate, and the violation is complete by the time the evidence is presented to the 

Court * * * . The focus therefore must be on the question

494
whether the admission of the evidence encourages violations of 

Fourth Amendment rights. A s the Court has noted in recent

cases, this inquiry is essentially the same as the inquiry into

whether exclusion would serve a deterrent purpose. [Id. at 458 

note 35. (Emphasis added.)]

Finally, in Stone v. Powell, supra, the Court held that Federal courts 

should not entertain State prisoner habeas petitions alleging Fourth 

Amendment violations unless the petitioner had not been afforded an opportunity for full and fair litigation of the claim in State court. The Court, 

through Justice Powell, determined that the deterrent value of the exclusionary rule was minimal in the habeas context. As to judicial integrity, 

the Court noted: “ [w]hile courts, of course, must be ever concerned with 

preserving the integrity of the judicial process, this concern has limited 

force as a justification for the exclusion of highly probative evidence.” Id.

at 485.

The import of these cases is clear. The Court believes that the “ prime 

purpose of the [exclusionary] rule, if not the sole one, ‘is to deter future 

unlawful police conduct.’ United States v. Calandra, 414 U.S. 338, 347

(1974).” United States v. Janis, 428 U.S. at 446. The rise of deterrence as 

the sole criterion for application of the exclusionary rule has two consequences important here.8

First, with the attention of the courts focused on deterring illegal police 

activity, the exclusionary rule need no longer be considered part and parcel 

of the Fourth Amendment and the due process clause of the Fourteenth 

Amendment. Mapp had characterized the exclusionary rule as a “ clear, 

specific, and constitutionally required—even if judicially implied—deterrent safeguard,” 367 U.S. at 643, which is “ an essential ingredient of the 

Fourth Amendment.” Id. at 651. And Justice Black concurred in Mapp

•The reliance upon deterrence appears to cut only one way: toward limiting applications of 

the exclusionary rule. To the extent that the exclusionary rule is divorced from the particular 

defendant, he or she becomes a private attorney general seeking to protect the rights of all 

against illegal police actions. Thus, under a strict deterrence analysis, the traditional standing 

doctrine should be discarded. However, the Court has very recently made clear that it will 

still only permit a defendant whose own Fourth Amendment rights have been violated to 

benefit from the exclusionary rule. Rakes v. Illinois, 439 U.S. 128 (1978). This holding is 

defended on the ground that “ Fourth Amendment rights are personal rights” and thus a person against whom the evidence illegally seized from another is admitted “ has not had any of 

his Fourth Amendment rights infringed.” Id. at 133-34. This analysis seems in conflict with 

the C ourt’s statement in Calandra that the exclusionary rule is “ a judicially created remedy 

designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather 

than a personal constitutional right of the party aggrieved.” 414 U.S. at 348. This apparent 

conflict is resolved, however, when one focuses on language in Calandra that states that the 

Fourth Amendment does not require “ adoption o f every proposal that might deter police 

misconduct,” 414 U.S. at 350-51, particularly where the deterrent benefits of expanding 

standing are outweighed by the costs o f further encroachment upon law enforcement. See

generally Burkoff, “ The Court that Devoured the Fourth Amendment: The Triumph of an 

Inconsistent Exclusionary Doctrine,” 58 Ore. L. Rev. 151 (1979).

495
on the ground that from the Fourth and Fifth Amendments a “ constitutional basis emerges which not only justified but actually requires the exclusionary rule.” Id. at 622.’

The balancing analysis adopted by the Court in recent years, based on 

the costs and benefits of added deterrence, changes the constitutional 

grounding of the doctrine; as recast, the exclusionary rule need be invoked 

to protect Fourth Amendment rights only when it is deemed efficacious. 

See, Stone v. Powell, supra; United States v. Calandra, 414 U.S. at 348 

(“ In sum, the [exclusionary] rule is a judicially created remedy designed to 

safeguard Fourth Amendment rights generally through its deterrent effect, 

rather than a personal constitutional right of the party aggrieved.” )

The emphasis on the functional analysis openly invites alternative 

remedies that may equally well deter violations of Fourth Amendment 

rights. Presumably, once such remedies are in place, the exclusionary rule 

may simply be abolished. See, Bivens v. Six Unknown Named Agents o f

the Federal Bureau o f Narcotics, 403 U.S. 388, 414 (1971) (Burger, C .J., 

dissenting). All that is demanded by the Constitution, in the words of Professor Kaplan, is “ something that works * * * . The content of the particular remedial or prophylactic rule is thus a pragmatic decision rather 

than a constitutional fiat.” Kaplan, “ The Limits of the Exclusionary 

Rule,” 26 Stan. L. Rev. 1027, 1030 (1974). See also, California v. Minjares, 100 S. Ct. 9, 14-15 (1979) (Rehnquist, J., dissenting from denial of 

stay).

The second consequence of a focus on deterrence is limitation of the exclusionary rule to situations in which the law enforcement officer has 

acted unreasonably or in bad faith. If the exclusionary rule is nothing 

more than a deterrent to illegal police conduct, it makes little sense to 

apply it in situations where it can have no deterrent force, particularly 

given the high societal costs generated by the rule’s frustration of law enforcement. See, Stone v. Powell, 428 U.S. at 489-95. Thus, in numerous 

recent cases several Justices have suggested that the exclusionary rule not 

be applied to situations in which the police have acted in good faith, such 

as where agents have relied upon a warrant or a statute later held to be unconstitutional. See, United States v. Scott, 436 U.S. 128, 135-36 (1978) 

(Justice Rehnquist, in dicta, writing for the Court: “ In view of the deterrent purposes of the exclusionary rule consideration of official motives 

may play some part in determining whether application of the exclusionary rule is appropriate after a statutory or constitutional violation has

'See, United States v. Peltier, 422 U .S. at 550-62 (Brennan, J., dissenting); United States

v. Calandra, 414 U.S. at 356 (Brennan, J., dissenting):

[Curtailment o f police misconduct] if a consideration at all, was at best only a hoped-for 

effect o f the exclusionary rule, not its ultimate objective. Indeed, there is no evidence 

that the possible deterrent effect o f the rule was given any attention by the judges chiefly 

responsible for its formulation. Their concern as guardians o f the Bill of Rights was to 

fashion an enforcement tool to give content and meaning to the Fourth A m endment’s 

guarantees.

496
been established.” ); Stone v. Powell, 428 U.S. at 501-02 (Burger, C .J., 

concurring); id. at 538-42 (White, J., dissenting) (exclusionary rule should 

not apply where evidence was seized “ by an officer acting in the goodfaith belief that his conduct comported with existing law and having 

reasonable grounds for this b elief’); Brown v. Illinois, 422 U.S. at 611-12 

(concurring opinion by Powell, J., joined by Rehnquist, J.); Michigan v. 

Tucker, 417 U.S. 433, 447 (1974) (Rehnquist, J., for five members of the 

Court) (“ Where the official action was pursued in complete good 

faith * * * the deterrence rationale loses much of its force.” ). C f,

United States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude evidence 

where the Internal Revenue Service violated departmental procedure in 

good faith and without violating constitutional rights of defendant); 

Michigan v. DeFillippo, 99 S. Ct. at 2633, note 2 (purpose of deterrence 

not served by excluding evidence seized during lawful arrest under statute 

later held unconstitutional).10

m . Congressional Power to Devise Alternatives

Although the exclusionary rule has been limited by the Court in this 

decade, it has remained a constitutional doctrine. Mapp was reaffirmed in 

Stone v. Powell, 428 U.S. at 481 (see, id. at 509-15 (Brennan, J., dissenting)); and Mapp is decidedly a constitutional decision. Indeed, for the exclusionary rule to apply to the States it must be a constitutional doctrine, 

for “ no one * * * would suggest that [the] Court possesses any general 

supervisory power over the state courts.” Mapp v. Ohio, 367 U.S. at 678 

(Harlan, J., dissenting). See, Murphy v. Florida, 421 U.S. 794, 797-98

(1975); id. at 803-04 (Burger, C .J., concurring) (by implication); Cox, 

“ The Role of Congress in Constitutional Determinations,” 40 U. Cinn. L. 

Rev. 199, 251 (1971)."

10See also, Comment, “ Judicially Required Rulemaking as Fourth Amendment Policy: An 

Applied Analysis of the Supervisory Power of Federal C ourts," 72 Nw. U .L. Rev. 595, 

598-99 (1977); Note, Reason and the Fourth Am endment—The Burger C ourt and the Exclusionary Rule,” 46 Ford. L. Rev. 139, 168-69 (1977); cf. Israel, “ Criminal Procedure, The 

Burger Court, and the Legacy of the Warren C ourt,” 75 Mich. L. Rev. 1319, 1409-15 (1977); 

Schrock & Welsh, “ Reconsidering the Constitutional Common Law,” 91 Harv. L. Rev. 

1117, 1160-61 (1978).

Even if the “ imperative of judicial integrity” were still deemed to carry weight in exclusionary rule analysis, the Court has stated that “ if the law enforcement officers reasonably 

believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of 

judicial integrity’ is not offended” by admission of the evidence at trial. United States v. 

Peltier, 422 U.S. at 537, quoted in Stone v. Powell, 428 U.S. at 485 n. 23. See also, Stone v. 

Powell, 428 U.S. at 540 (White, J., dissenting).

"Professor Monaghan has argued that the exclusionary rule, even though applied to the 

States, is something less than constitutional, and may be displaced by congressional 

remedies. See Monaghan, supra (note 5). His views, which are not easily reconciled with the 

words o f Mapp and Stone, are thoughtfully and thoroughly criticized in Shrock & Welsh, 

“ Reconsidering the Constitutional Common Law,” supra (note 10). However, there are 

some indications in recent Supreme Court cases that lend support for the argument that the 

Miranda exclusionary rule is less than constitutional. See, New Jersey v. Portash, 440

(Continued)

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Yet the fact that the exclusionary rule has constitutional roots does not 

mean it is constitutionally mandated. The Chief Justice’s dissent in Bivens

first suggested that congressional provision of an alternative remedy that 

would deter official misconduct as well as the exclusionary rule would permit the Court to abolish the rule. 403 U.S. at 411-24. As discussed above, 

this conclusion flows logically from reliance on the deterrence rationale.12 

If the defendant has no personal right' to exclusion of illegally seized 

evidence, then any remedy that adequately protects Fourth Amendment 

guarantees should meet the constitutional requirement that the Fourth 

Amendment not be rendered a “ form of words.” 13 This conclusion is supported by each of the scholars consulted by the Senate Judiciary 

Committee.

In other similar situations the Court has openly invited Congress to 

enact legislation that could supplement or supplant judicially created prophylactic rules. In declaring the Miranda rules to protect the Fifth Amendment rights of subjects o f police interrogation, the Court wrote:

It is impossible for us to foresee the potential alternatives for 

protecting the privilege which might be devised by Congress or 

the States in the exercise of their creative rule-making capacities. 

Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.

O ur decision in no way creates a constitutional straitjacket which 

will handicap sound efforts at reform, nor is it intended to have 

this effect. We encourage Congress and the States to continue 

their laudable search for increasingly effective ways of protecting 

the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other

(Continued)

U.S. 450 (1979) (use o f immunized grand jury testimony for impeachment is unconstitutional; distinguishing cases permitting impeachment use of evidence obtained in violation of 

Miranda on ground that in those cases no coercion was present); North Carolina v. Butler, 60 

L. Ed. 2d 286, 294 (1979) (Blackmun, J., concurring) (suggesting that standard for waiver of 

lawyer after Miranda warnings is different than standard applied for waiver of “ fundamental constitutional rights” as established by Johnson v. Zerbst, 304 U.S. 458 (1938)).

1’Chief Justice Burger also believes that the existence of an effective alternative would 

satisfy the demands o f judicial integrity: “ Nor is it easy to understand how a court can be 

thought to endorse a violation of the Fourth Amendment by allowing illegally seized evidence 

to be introduced against a defendant if an effective remedy is provided against the governm ent.” 403 U.S. at 414.

’’Justice Brennan continues to argue that the exclusionary rule is “ part and parcel” of the 

Fourth Amendment. This argument, made in dissent, does not appear to reflect the views of 

the Court as presently constituted. See, e.g.. United States v. Calandra, 414 U.S. at 355-67 

(Brennan, J., dissenting); see also, W olf v. Colorado, 338 U.S. at 48 (Rutledge, J., dissenting) (“ 1 * * * reject any intimation that Congress could validly enact legislation permitting 

the introduction in federal courts o f evidence seized in violation o f the Fourth 

Amendment” ). For an extensive argument that the exclusionary rule is constitutionally mandated, see Schrock & Welsh, “ Up from Calandra,” supra (note 4).

498
procedures which are at least as effective in apprising accused 

persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be • 

observed * * * . '4 [384 U.S. 436, 467 (1966). See, id. at 444, 

478-79.]

Similarly, in the “ line-up” cases, United States v. Wade, 388 U.S. 218, 

239 (1967) and Gilbert v. California, 388 U.S. 263, 273 (1967), the Court 

noted that its prophylactic procedures were necessary in the absence of 

State or Federal rules that eliminated the risks of abuse attending line-up 

identifications.

In sum, given the emphasis on the exclusionary rule as a tool of deterrence and analogies to related areas where the Supreme Court has laid 

down protective rules while inviting prophylactic legislation, we believe 

the Supreme Court would hold that enactment by Congress on an alternative remedy that is as effective as the exclusionary rule in deterring violations of the Fourth Amendment would obviate the constitutional necessity 

for the exclusionary rule. This conclusion raises two additional questions: 

what alternative remedies are equally effective, and who is the judge of the 

effectiveness of the alternative.

Answering the second question first, we believe that it is the Supreme 

Court that must ultimately decide whether an alternative remedy adequately protects the Fourth Amendment from becoming a “ form of 

words.” See, Bivens v. Six Unknown Named Agents, 403 U.S. at 423 note 

7 (Burger, C .J., dissenting) (by implication); Dellinger, “ O f Rights and 

Remedies: The Constitution as a Sword,” 85 Harv. L. Rev. 1532, 1548, 

1552-53 (1972); Note “ Excluding the Exclusionary Rule: Congressional 

Assault on Mapp v. Ohio,” 61 Geo. L. Rev. 1453, 1471 (1973). This is no 

more than recognition of the Court’s traditional duty to measure congressional legislation against the Constitution. Marbury v. Madison, 1 Cr. 137 

(1803). If the Constitution demands some remedy for effectuation of the 

Fourth Amendment, then it is the province of the Court to decide whether 

proffered alternatives meet constitutional requirements. The Court may 

find congressional factfinding persuasive, and it is likely to accord deference

“ Congress accepted the C ourt’s invitation, but in a manner intended to limit the reach of 

Miranda rather than provide adequate alternative safeguards. 18 U.S.C. § 3501, Title 11 o f 

the 1968 Omnibus Safe Streets and Crime Control Act. Although courts have avoided ruling 

on the issue, see, e.g.. United States v. Crook, 502 F.(2d) 1378 (3d Cir. 1974), cert, denied, 

419 U.S. 1123 (1975); Ailsworth v. United States, 448 F.(2d) 439 (9th Cir. 1971), the provi- 

■ sion is o f doubtful constitutionality. See Wright & Miller, Federal, Practice and Criminal

Procedure, § 76, at 120-22 (1969); Gandara, “ Admissibility o f Confessions in Federal Prosecutions; Implementation of Section 3501 by Law Enforcement Officials and the C ourts,” 

63 Geo. L .J. 305 (1974). Imaginative defenses for § 3501 have been constructed. It has been 

asserted that Miranda was based on factual assumptions about the coerciveness of custodial 

interrogations—assumptions that Congress has the power to reverse through its factfinding 

procedures. Alternatively, it has been argued that Congress has power under § 5 of the Fourteenth Amendment, as interpreted by Katzenbach v. Morgan, 384 U.S. 641 (1966), to revise 

constitutional decisions o f the Court. See S. Rept. 1097, 90th Cong., 2d sess. (1968). See

generally Burt, “ Miranda and Title II: A Morganatic M arriage,” (1969) S. Ct. Rev. 81.

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to the expressed judgment of Congress that the legislative alternatives are efficacious. But it remains up to the Court to render final judgment on what 

the Constitution demands. See, Miranda v. Arizona, 384 U.S. at 490.

Evaluating the likely effectiveness of alternatives to the exclusionary 

rule—such as police training and regulations, tort actions, criminal prosecutions, or contempt proceedings—is a difficult task. An initial problem is 

that it is unclear what yardstick of effectiveness should be used because the 

empirical evidence on the deterrent effect of the exclusionary rule is conflicting at best. Compare, United States v. Jan is, 428 U.S. at 448-53, with,

Elkins v. United States, 364 U.S. at 218; compare, Oaks, supra (note 5), 

with Critique, “ On the Limitations of Empirical Evaluations of the Exclusionary Rule,” 69 Nw. U.L. Rev. 740 (1974). The court has recently tended to express doubt about the rule’s efficacy beyond its application at a 

criminal trial, and this view has been shared by many commentators. See,

e.g., United States v. Janis, 428 U.S. at 448-53 and accompanying footnotes; Oaks, supra; Wilkey, 62 Judicature 215, 222-23 (1978).

However, the C ourt’s growing disillusionment with the efficacy of the 

exclusionary rule is in tension with the earlier cases that held that the exclusionary rule was the only effective means of guaranteeing that the 

Fourth Amendment would not become a form of words. Indeed, M app’s

reversal of W olf’s holding (which had left State protection of the Fourth 

Amendment to other than exclusionary remedies) stated that applying the 

Fourth Amendment without the exclusionary rule “ is to grant the right 

but in reality to withhold its privilege and enjoyment * * *. [T]he purpose of the exclusionary rule ‘[is] to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the 

incentive to disregard it.’ Elkins v. United States, [364 U.S.] at 217.” 

Mapp v. Ohio, 367 U.S. at 656.15

These statements could be viewed as hyperbole or makeweights for 

Justices who believed that the exclusionary rule was constitutionally mandated in any event. However, similar language has appeared in a recent 

case. In Franks v. Delaware, 438 U.S. 154 (1978), the Court held that a 

defendant could attack the veracity of affidavits supporting a search warrant, and that a court could exclude evidence obtained pursuant to the 

warrant if it determined that police officers had made deliberate 

misstatements in the affidavits and that the affidavits were necessary to a 

finding of probable cause. In describing the general considerations supporting a rule of exclusion, Justice Blackmun, writing for seven Justices, 

stated:

[T]he alternative sanctions of a perjury prosecution, administrative discipline, contempt, or a civil suit are not likely to 

fill the gap. Mapp v. Ohio implicitly rejected the adequacy of

"See also, Terry v. Ohio, 392 U.S. 1, 12 (1968) (“ experience has taught that [the exclusionary rule] is the only effective deterrent to police misconduct” ); Lee v. Florida, 392 U.S. 

378, 386-87 (1968) (“ nothing short o f m andatory exclusion of the illegal evidence will compel respect for the federal law” ); Linkletter v. Walker, 381 U.S. at 634; W olf v. Colorado,

338 U.S. 25, 41 (1949) (M urphy, J., dissenting) (“ [TJhere is but one alternative to the rule of 

exclusion. That is no sanction at all” ).

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these alternatives. Mr. Justice Douglas noted this in his concurrence in Mapp, 367 U.S., at 670, where he quoted from W olf v. 

Colorado, 338 U.S. 25, 42 (1949): “ ‘Self-scrutiny is a lofty idea, 

but its exaltation reaches new heights if we expect a District A ttorney to prosecute himself or his associates for well-meaning 

violations of the search and seizure clause during a raid the 

District Attorney or his associates have ordered.’ ” [Id. at 169.]

It is not easy to know what to make of these words. We believe that, at the 

very least, the Court may demand congressional factfinding concerning 

the efficacy of alternatives. We doubt that an adequate showing will be 

easy.16 Alternatives that existed prior to Mapp—e.g., a § 1983 action 

against State officers, a criminal prosecution, or prosecution under the 

civil rights laws, see, Irvine v. California, 347 U.S. 128, 137-38 (1954) 

(suggestion o f Warren, C .J., and Jackson, J.)—should clearly be rejected 

as inadequate. C f, W olf v. Colorado, 338 U.S. at 41-47 (1949) (Murphy, 

J., dissenting); People v. Cahan, 44 Cal. 2d 434, 445-48 (1955). The efficacy of any remedies enacted since Mapp are essentially untested because 

the exclusionary rule was in place at the same time. .Yet abandonment of 

the exclusionary rule in order to test new alternatives, such as those in the 

proposed amendments to the FTCA, is to risk rendering the Fourth 

Amendment a dead letter if the remedies fail. In short, the Court will be 

faced with little hard data on either side of the equation; it will have to 

measure the unknown deterrent value of the exclusionary rule against the 

untested deterrent value of the alternative.

This conclusion, however, does not necessarily mean that the Supreme 

Court would find a tort-disciplinary scheme an inadequate alternative. 

The problems associated with the exclusionary rule—such as permitting 

guilty defendants to go free, fostering police perjury, and not compensating victims of illegal searches who do not go to trial—measured against 

the better “ fit” of the tort-discipline alternative may tip the Court toward 

accepting the alternative as at least as effective as the exclusionary rule, 

and therefore constitutional. This decision would be aided by the Court’s 

traditional deferrence to legislative factfinding. See, Oregon v. Mitchell,

400 U.S. 112, 240, 246-49 (1970) (opinion of Brennan, White, and Marshall, J.J.); Burt, supra (note 14), at 112-14; Cox, supra, at 228-29; c f ,

Regents o f the Univ. o f California v. Bakke, 438 U.S. 265, 302 note 41 

(1978) (opinion of Powell, J.).

'‘Two recent studies, taken together, lend further support for the position that alternative 

remedies may be no more effective in deterring violations of the Fourth Amendment than the 

exclusionary rule. Compare Project, “ Suing the Police in Federal C ourt,” 88 Yale L .J. 781 

(1979) (§ 1983 actions not effective deterrents o f police misconduct) with Report by the 

Comptroller General o f the United States, Impact o f the Exclusionary Rule on Federal 

Criminal Prosecutions (C.A.O. April 19, 1979) (Federal prosecutors decline few prosecutions 

on the basis o f Fourth Amendment problems; open to interpretation that compliance with 

Amendment’s dictates is substantial given present reliance upon exclusionary rule).

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IV. Conclusions

We have been asked to consider whether, assuming enactment of 

remedies similar to the proposed amendment to the FTCA, Congress may 

constitutionally limit or eliminate the exclusionary rule in Federal criminal 

proceedings. We believe that Congress may not, without more, “ repeal” 

the exclusionary rule. The rule, in the absence of alternative remedies, is 

constitutionally mandated. However, Congress may provide the occasion 

for judicial repeal of the exclusionary rule by enacting alternative 

remedies. The Court, in its traditional exercise of judicial review, could 

then analyze whether the legislative alternatives adequately protect Fourth 

Amendment guarantees. Although two decades ago the Court might have 

deemed the exclusionary rule itself part and parcel of the Fourth Amendment and therefore not subject to legislative abolition, we believe that the 

Court’s redefinition o f the rule in terms of deterrence would constitutionally permit the rule’s demise in the face of efficacious alternatives. We 

have identified some o f the difficulties implicit in evaluating the deterrent 

potential of alternative remedies.

Applying these general conclusions to the draft Senate Judiciary Committee bill, we believe that it would be sustained as constitutional. The 

Court is likely to determine that the alternative remedy provided by the 

FTCA adequately protects Fourth Amendment rights, and therefore 

would sustain the abolition o f the exclusionary rule. This conclusion is 

strengthened by the fact that the draft bill eliminates the exclusionary rule 

only for good faith violations o f the Fourth Amendment. This is a limitation that the Court may well be willing to impose on its own even in the 

absence of alternative remedies.17

Our conclusion concerning the Court’s likely reaction to the proposed 

legislation is descriptive, not normative. Although Congress and the Court 

may be willing to substitute amendments to the FTCA for the exclusionary 

rule, we are not convinced that the Department should support the constitutional minimum.

We believe that there are good reasons to question the adequacy o f the 

proposed amendments to the FTCA. The substitution of the United States 

as the defendant will mean that any monetary recovery will be paid from 

the U.S. Treasury, and not by the Federal law enforcement officer involved. It has been asserted that ultimate taxpayer liability will generate 

public demands for law-abiding police, see, e.g., Wilkey, 62 Judicature 

215, 231 (1978); whatever force this has on the State level, we believe that 

it is tenuous at best when applied to the Federal fisc. This conclusion has 

empirical support. See Project, “ Suing the Police in Federal C ourt,” 88 

Yale L.J. 781 (1979). Thus the only deterrent for the law enforcement

l7It should be noted that enactment o f the proposed legislation will have the anomalous 

result of abolishing the exclusionary rule in the Federal courts but not the State courts. O f 

course, passage o f the proposal may well spur the Court to reevaluate Mapp v. Ohio, supra,

as recently urged by Justice Rehnquist. California v. Minjares, 100 S. Ct. 9 (1979) (Rehnquist, J., dissenting from a denial o f a stay).

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officer on the street is the disciplinary proceeding that may be convened. 

The proposal is silent as to the standards of responsibility that are to be 

applied in such a proceeding. Presumably, the police officer would be able 

to assert a good-faith defense since it would be unfair to subject him to administrative sanctions if he was carrying out his duties in a manner that a 

reasonable officer would believe was lawful. C f, Wood v. Strickland, 420 

U.S. 308 (1975); United States v. Norton, 581 F. (2d) 390, 393 and note 2 

(4th Cir.) (citing cases), cert, denied, 439 U.S. 1003 (1978); Bivens v. Six

Unknown Named Agents, 456 F. (2d) 1339, 1348 (2d Cir. 1972) (on remand). Yet the likelihood of a person (particularly a convicted defendant) 

overcoming a good-faith defense is notoriously low. See, Bivens v. Six

Unknown Named Agents, 403 U.S. at 421 (Burger, C .J., dissenting). In 

short, the deterrent effect of the proposals on the police may be little or no 

more direct or effective than the exclusionary rule. Indeed, some have suggested that the likely effect of the proposed amendments is that the 

Government would be able to “ buy” convictions by paying liquidated 

damages for Fourth Amendment violations. See Dellinger, supra, 85 

Harv. L. Rev. at 1563. Such a remedy may well provide adequate compensation to a person who has been the subject of an illegal search or seizure; 

but it may do little to stop the Fourth Amendment from becoming a 

“ form of words.”

While we are deeply concerned about the ability of the tort remedy to 

deter violations of the Fourth Amendment, we also recognize that the 

amendments to the FTCA are important in that they extend remedies to 

persons who presently receive no relief after their Fourth Amendment 

rights are violated. Thus, we would suggest enactment of the FTCA 

amendments and continued adherence to the exclusionary rule. If, after an 

appropriate period of time, it becomes empirically apparent that the tortdiscipline remedy provides adequate deterrence, then we believe that it 

would be time to reconsider the exclusionary rule. It may be sensible to 

amend the draft legislation to include a direction to the Department of 

Justice that it monitor over several years the effectiveness of the FTCA 

remedy and report to Congress. This proposal will supply an orderly process for abolition of the exclusionary rule, if abolition is empirically supportable. O f course, such a strategy could be frustrated if the Court on its 

own declared that existence of the new remedies obviated the need for the 

exclusionary rule. Congress could forestall the rule’s untimely demise by 

making clear that its legislation was experimental and not to be deemed an 

alternative to the exclusionary rule. The legislation might expressly provide, for example, that Congress will consider the evidence and the 

wisdom of abolition of the exclusionary rule at some specific future date.

Larry A. Hammond

Acting Assistant Attorney General

Office o f Legal Counsel

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