b'Legal and Practical Consequences of a\nBlockade of Cuba\nThe President has the power to establish a blockade of Cuba under the laws of the United States\nwithout further congressional action.\nA blockade may be unilaterally established by the United States under international law but its\nestablishment may be questioned within the Organization of American States and the United\nNations. In addition, such a blockade could be regarded by Cuba and other Soviet Bloc nations as an\nact of war.\n\nOctober 19, 1962\n\nMEMORANDUM*\nThis memorandum discusses the legality and practical consequences of a\nblockade of Cuba established unilaterally by the United States in response to the\ncurrent buildup of a military potential in Cuba with clearly aggressive capabilities.\nIt concludes that the President has the power to establish such a blockade under the\nlaws of the United States without further congressional action; that it may be\nconfined to surface vessels or include aircraft as well; that a blockade may be\nunilaterally established by the United States under international law but that its\n*\nEditor\xe2\x80\x99s Note: This unsigned, unaddressed memorandum appears in the daybooks of the Office of\nLegal Counsel and was cited in The President\xe2\x80\x99s Constitutional Authority to Conduct Military\nOperations Against Terrorists and Nations Supporting Them, 25 Op. O.L.C. 188 (2001).\nPrior to publishing the 2001 opinion, we consulted with officials at the Department of State to\ndetermine whether they had any record or evidence of authorship of this memorandum. Although they\nwere unable to locate a copy of the memorandum itself, they pointed us to declassified records of a\nmeeting held on October 19, 1962 (the same date as this memorandum) and attended by a number of\ntop-level administration officials (including Secretary of State Dean Rusk, Attorney General Robert\nKennedy, and National Security Advisor McGeorge Bundy). See U.S. Dep\xe2\x80\x99t of State, Foreign Relations\nof the United States, 1961\xe2\x80\x931963: Volume XI, Cuban Missile Crisis and Aftermath, doc. 31 (Edward C.\nKeefer et al., eds., 1998), available at http://history.state.gov/historicaldocuments/frus1961-63v11/d31\n(last visited Aug. 3, 2012) (notes of October 19, 1962 meeting). These records suggest that the memorandum may have been prepared by Leonard Meeker, Deputy Legal Adviser for the Department of\nState, perhaps in consultation with Nicholas Katzenbach, Deputy Attorney General at the time and\npreviously Assistant Attorney General for OLC. Mr. Meeker kept the notes that are collected in the\ndeclassified records of the October 19 meeting. According to Mr. Meeker, Mr. Katzenbach spoke first\nat the meeting and stated that \xe2\x80\x9cthe President had ample constitutional and statutory authority to take any\nneeded military measures.\xe2\x80\x9d Id. Mr. Meeker recorded that \xe2\x80\x9cmy analysis ran along much the same lines.\xe2\x80\x9d\nId.\nMr. Katzenbach\xe2\x80\x99s and Mr. Meeker\xe2\x80\x99s positions were thus consistent with that of this memorandum.\nThey were also consistent with two other OLC opinions included in this volume\xe2\x80\x94one signed by Robert\nKramer, Assistant Attorney General for OLC, and addressed to Attorney General Kennedy (Authority\nof the President to Blockade Cuba, 1 Op. O.L.C. Supp. 195 (Jan. 25, 1961)); the other signed by\nNorbert Schlei, Assistant Attorney General for OLC, also addressed to Attorney General Kennedy\n(Authority Under International Law to Take Action If the Soviet Union Establishes Missile Bases in\nCuba, 1 Op. O.L.C. Supp. 251 (Aug. 30, 1962)). This memorandum does not cite either of those\nopinions, however, which tends to suggest that it was not prepared by the Department of Justice.\n\n486\n\n\x0cLegal and Practical Consequences of a Blockade of Cuba\n\nestablishment may be questioned within the Organization of American States\n(\xe2\x80\x9cOAS\xe2\x80\x9d) and, perhaps, within the United Nations. In addition, it concludes that\nsuch a blockade could be regarded by Cuba and other Soviet Bloc nations as an act\nof war.\nI. The Legal Requirements of a Blockade\nThe most authoritative definition of blockade reads as follows:\nBlockade is the blocking by men-of-war of the approach to the enemy coast, or a part of it, for the purpose of preventing ingress and\negress of vessels or aircraft of all nations. . . . Although blockade\nis . . . a means of warfare against the enemy, it concerns neutrals as\nwell, because the ingress and egress of neutral vessels are thereby interdicted, and may be punished.\n2 L. Oppenheim, International Law: A Treatise 768 (H. Lauterpacht ed., 7th ed.\n1952).\nHistorically, blockade has been associated with belligerent nations as a measure\nof war.\nWhile the practical effectiveness of a blockade may be influenced by the failure\nto interdict aircraft or, presumably, submarines, the legal effectiveness of a\nblockade is not affected by the failure to do so. Id. at 781. Thus, a blockade may be\ndeclared against shipping alone, or against shipping and aircraft.\nThe formal requirements of a blockade have to do with the manner in which it\nis established and its existence made known. The declaration must state the date on\nwhich a blockade begins and must make clear its geographical limits. In addition,\nit must satisfy three conditions: (1) it must be effectively maintained; (2) it must\nnot bar access to ports and coasts of countries not included within its objectives;\nand (3) it must be applied impartially to the shipping of all nations.\nThe reasons for these conditions are clear. The state declaring the blockade\nmust be able to make it effective against all shipping to the extent that the risk of\nrunning the blockade is clear and apparent. Otherwise, a so-called \xe2\x80\x9cpaper blockade\xe2\x80\x9d would exist and amount to a mere license to commit haphazard acts of\nprivateering. The element of danger must be clearly understood since, as a matter\nof law, any shipping which seeks to run a blockade is liable to seizure and eventual\ncondemnation by the blockading state.\nA blockade may exclude all shipping and, therefore, all cargoes from the blockaded state. Alternatively, the blockading state may declare only certain cargoes\ncontraband.\n\n487\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nII. Blockade as an Act of War\nThere is a good deal of authority to the effect that a blockade assumes the existence of a state of war and that there is legally no such thing as a \xe2\x80\x9cpacific blockade\xe2\x80\x9d\nor \xe2\x80\x9ca blockade during time of peace.\xe2\x80\x9d There are frequent statements by commentators that a blockade necessarily means war, or depends upon a pre-existing state of\nwar, or in and of itself creates a state of war. The United States took such a\nposition with respect to the Anglo-German Blockade of Venezuela in 1902, and\nagain in 1919, with respect to the proposal that the Allied governments blockade\nBolshevist Russia. Broad statements of this kind, however, require considerable\nqualification in the light both of history and of contemporary conditions.\nA. History\nDuring the nineteenth century, a lawyer\xe2\x80\x99s distinction between war and peace\ngrew up. Since international law was divided between that which existed in\npeacetime and that which existed in wartime, it became important to lawyers to\nattempt to make a clear distinction. For example, the law of the high seas in\npeacetime forbade one nation to stop the shipping of another, but during time of\nwar freedom of the seas could be heavily circumscribed through rights of blockade\nand search and seizure.\nIn practice, states never observed the clear-cut distinction between war and\npeace which lawyers insisted must exist. Whenever a state had a limited objective\nin its use of force, it customarily refrained from declaring war, which implied allout hostilities rather than limited action. Often these were referred to as \xe2\x80\x9cacts short\nof war,\xe2\x80\x9d \xe2\x80\x9chostile measures short of war,\xe2\x80\x9d or \xe2\x80\x9creprisals short of war.\xe2\x80\x9d The lawyers,\nhowever, kept insisting that as a matter of strict logic there could be no such thing.\nThere are numerous examples. On several occasions, the United States used\narmed force to protect American property abroad against the will of the state\ninvolved without a declaration of war. One such instance was the bombardment\nand occupation of Vera Cruz, which Mexico insisted was an act of war, though the\nUnited States maintained that no state of war existed. Other states engaged in\nsimilar practices; Corfu is another famous example.\nIn 1902, the British engaged in a blockade of Venezuela as a measure to enforce the collection of a debt. The United States insisted that a blockade required a\ndeclaration of war and demanded that the British either cease the blockade or\ndeclare war on Venezuela. Eventually the British did, and only after they had done\nso did the United States recognize the legality of the blockade.\nThe declaration of a state of war was helpful in ascertaining the rights and\nobligations of neutrals in a given situation. Apart from this, however, it served\nlittle function. War itself, whatever its reason, was legal self-help, and so were\nlesser measures if such could be said to exist.\n\n488\n\n\x0cLegal and Practical Consequences of a Blockade of Cuba\n\nWhether or not a nation declared a state of war it would be found by others to\nexist if that state were claiming rights, such as blockade, normally associated with\nwar. Therefore, it seems to me that legal doctrine to the effect that blockade\nrequires a state of war is utterly tautological. Blockade is a right that existed only\nduring war since it was doctrinally related to wartime rather than peacetime. One\ncould deduce a state of war from the existence of a blockade. And one could not\nconceptually claim rights of blockade without acknowledging its relationship to\nwar. Thus the declaration of war really had no significance apart from clarification\nthat one was claiming the rights normally associated with blockade under international law rather than exceptional rights which would have been unprecedented\ninterference with freedom of the high seas during peacetime.\nApplied to the current situation, one could say that if the United States declared\na blockade and asserted the rights with respect to neutrals normally associated with\nit, there would be no need to declare a state of war as well. Other states might\ninsist, as we did in the case of Venezuela, that we declare a state of war, but it is\ndifficult to see the significance of this insistence in any realistic terms should we\nrefuse to do so. Alternatively, they could state that war existed by virtue of the fact\nthat we have declared a blockade, whether we affirmed the state of war or not.\nIn the light of these facts, what we say with respect to the existence or nonexistence of a state of war is largely a political judgment. I would recommend,\ntherefore, that if we declare a blockade, we simply claim all the rights a blockading nation would have if a state of war existed. This clarifies our position sufficiently for legal purposes. A number of states will say this amounts to a declaration of war against Cuba, but that could scarcely be avoided under any\ncircumstances.\nB. Contemporary Conditions\nIn actuality the existence or non-existence of a state of war has always been a\nquestion of fact, not of law. If actual hostilities exist, then such parts of the law of\nwar as treatment of prisoners, etc., exist irrespective of any formal declaration and\nirrespective of the legality or illegality of the hostilities themselves. Moreover, the\ndistinction between war and peace, as it existed in the nineteenth century, has\nlimited application today. Various acts are made unlawful by the U.N. Charter, a\nsharp distinction from the nineteenth century view that war was itself a lawful\nprerogative of states. The significance, therefore, from a legal point of view of a\ndeclaration of war is less important, since it does not make acts in violation of the\nCharter lawful.\nOne pertinent example of this state of affairs is the blockade of shipping instituted by Egypt against Israel. Egypt sought to invoke its declared state of war with\nIsrael as a justification for the blockade. The Security Council, without questioning\nor commenting upon the existence of a state of war, declared the blockade to be\nunlawful under the Charter.\n\n489\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe legality today of a blockade unilaterally imposed by one state upon another\ndepends upon its compatibility with the language and principles of the Charter.\nOrdinarily it, like other measures involving force, is reserved to the United Nations\nor to regional organizations such as the OAS. If imposed unilaterally without prior\napproval it must be considered a reasonable measure under the circumstances,\nproportional to the threat posed, and limited to a legitimate purpose. It does not\nbecome more or less lawful on the basis of declaration of war or a failure to\ndeclare war.\nThe irrelevancy of a declaration of war is further supported by the fact that\ninstitution of a blockade is a measure granted expressly to the United Nations and\nby inference to the OAS under their respective charters, but nothing is said about\nthe right of these organizations to declare war. In point of fact, the United Nations\nauthorized a blockade in the Korean \xe2\x80\x9cpolice action\xe2\x80\x9d and claimed all of the usual\nlegal incidents of a blockade during a state of war. War, of course, was not\ndeclared by the United Nations or by nations participating.\nIII. Presidential Authority to Declare a Blockade\nBoth practice and authority support the proposition that the President, in the\nexercise of his constitutional power as Commander in Chief, can order a blockade\nwithout prior congressional sanction and without a declaration of war by Congress.\nPresident Lincoln took such action in 1861, and his authority was sustained by the\nSupreme Court in the Prize Cases. 67 U.S. (2 Black) 635 (1862). While the\nSupreme Court there found, in accordance with the doctrine discussed above, that\na state of war existed as a matter of fact and as a result of the proclamation by the\nPresident of a blockade, the Court did not suggest that the President was remiss in\nfailing to seek a declaration of war from Congress.\nOn April 20, 1898, a joint resolution of Congress directed the President to use\nthe land and naval forces of the United States to compel the Government of Spain\nto relinquish its authority over Cuba. Pub. Res. No. 55-24, 30 Stat. 738. In accordance with this resolution, President McKinley, on April 22, issued a proclamation\ninstituting a naval blockade of Cuba. 14 Compilation of the Messages and Papers\nof the Presidents 6472 (James D. Richardson ed., 1909). Subsequently, Congress\ndeclared that a state of war existed and that such state had existed since prior to the\nproclamation. Pub. L. No. 55-189, 30 Stat. 364 (Apr. 25, 1898). But it is clear that\nthe President did not depend upon any congressional declaration of war, or even\nupon a future ratification of his proclamation, when he issued it.\nFinally, President Truman, in 1950, issued an order blockading Korea. He\nstated that he did so in keeping with the Security Council\xe2\x80\x99s request for support, but\nhe did not then seek congressional authorization for the act, nor did he seek a\ndeclaration of war. White House Statement Following a Meeting Between the\nPresident and Top Congressional and Military Leaders to Review the Situation in\nKorea, Pub. Papers of Pres. Harry S. Truman 513 (1950).\n\n490\n\n\x0cLegal and Practical Consequences of a Blockade of Cuba\n\nI believe with or without the congressional resolution of October 3, 1962, Pub.\nL. No. 87-733, 76 Stat. 697, the President could declare a blockade of Cuba, and it\nis doubtful if Congress could circumscribe this right. The instant resolution,\nhowever, tends to support the proposed action, and thus serves a purpose analogous to that of the 1898 Resolution and the 1950 action of the Security Council.\nIt should be noted that even if one were to assume that international law requires a state of war to exist before one can invoke the right of blockade, this\ninternational rule is not pertinent to the President\xe2\x80\x99s authority under the Constitution. There are numerous examples of American Presidents taking measures which\ncould internationally be regarded as acts of war without first seeking congressional\nauthority. And no foreign state could argue that a state of war did or did not exist\nbecause American constitutional procedures were or were not followed in a\nparticular instance.\nIV. Unilaterally Declared Blockade Under the U.N. Charter\nThe most difficult legal problem is to justify a unilateral declaration of blockade in the face of the U.N. Charter. The Charter appears to reserve to the United\nNations, or to regional organizations, most measures involving the use of force.\nBut, at the same time, it explicitly precludes the use of force only against the\n\xe2\x80\x9cterritorial integrity\xe2\x80\x9d or \xe2\x80\x9cpolitical independence\xe2\x80\x9d of another state (Article 2), and\neven this is qualified by recognizing the right of a state to act in self-defense\n(under Article 51) against an armed attack. In addition, the Charter forbids other\nactions which breach the peace or are inimical to the purposes of the United\nNations.\nThree justifications of a unilateral blockade are possible: (1) self-defense;\n(2) that it is necessary to preserve the peace; and (3) that it is not forbidden by the\nCharter.\nSelf-defense is a difficult argument in view of the requirement for an \xe2\x80\x9carmed\nattack.\xe2\x80\x9d Some writers, however, take the realistic view that a state need not wait so\nlong if, in fact, to do so would so jeopardize its security position as to render it\nhelpless.\nAn easier argument, in my judgment, is to assert the right to preserve the peace\nby acting in an emergency on behalf of a regional organization, promptly submitting the matter to the organization for ratification. Acting without prior approval\ncould be justified on the basis of urgency and lack of time. In the case of U.S.\naction against Cuba it could be further bolstered by prior findings of the organization and the long history of U.S. protection of Latin America against threats of\nforeign domination.\nThis latter argument would be difficult to maintain if the United States were\nactually to mount an assault on Cuba. But a blockade is not an action which is\nirreversible if subsequently it fails of ratification, and is correspondingly more\ndefensible as a unilateral step.\n\n491\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe third argument in justification is closely related to the second. I believe one\ncould successfully contend that a state has the right unilaterally to prevent a\nchange in the status quo adverse to its security and itself a threat to the peace\npending action by the OAS (or United Nations), provided the action it takes is\nessentially non-violent and designed to protect rather than irrevocably change the\npre-existing situation. This, of course, would be true of blockade. Thus, until the\nOAS either supported or renounced the U.S. blockade, I believe we would be\njustified in maintaining it as a measure preserving a pre-existing state of affairs\nand preventing a situation which might require more drastic action to overturn or\neven lead to full-scale war.\nV. Blockade and Marine Insurance\nThe effect of a blockade on marine insurance can be viewed from several\nstandpoints. First, from the standpoint of the blockading state it is illegal for\ninsurance companies to write insurance on cargoes destined to the ports of the\nblockaded state. This would, of course, under the historic view be prohibited\ntrading with an enemy. On the other hand, it would not be illegal for an English\ninsurance company to write policies on cargoes destined to a blockade country\nwhere England was not the blockading state. See 2 Joseph Arnould, Arnould on the\nLaw of Marine Insurance and Average \xc2\xa7 760, at 681 (Robert S. Chorley ed., 14th\ned. 1954). As a practical matter, however, it is obvious that British companies will\nnot write policies on cargoes destined to Cuba because of the risk of loss involved.\nA second insurance problem relates to neutral ships on the high seas bound for\na blockaded port before the institution of the blockade or caught in such a port\nwith a cargo taken on before the blockade has been instituted. This situation\ninvolves the application of the usual clause in marine insurance policies covering\nloss arising from \xe2\x80\x9carrests, restraints, and detainments of all kings, princes, and\npeople of what nation, condition, or quality whatsoever.\xe2\x80\x9d Under American law,\nthis clause protects a neutral vessel in the situation described. Olivera v. Union Ins.\nCo., 16 U.S. (3 Wheat.) 183 (1818) (Marshall, C.J.); Vigers v. Ocean Ins. Co., 12\nLa. 362 (1838). Apparently this is also the law in continental European countries.\nOn the other hand, in England \xe2\x80\x9cit has been repeatedly decided, and must now be\ntaken as clear insurance law, that neither interdiction of trade at the port of\ndestination after risk commenced, nor interception of the voyage by blockade, or\nby the imminent and palpable danger of capture or seizure, amounts to a risk for\nwhich English underwriters are answerable under the common form of policy,\neither as an \xe2\x80\x98arrest, restraint, and detention,\xe2\x80\x99 or in any other way whatever.\xe2\x80\x9d\n2 Arnould, Marine Insurance \xc2\xa7 804, at 727.\n\n492\n\n\x0c'


b'December 28, 1979\n\n79-90\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL,\nCRIMINAL DIVISION\nConstitutional Law\xe2\x80\x94Fourth Amendment\nExclusionary Rule\xe2\x80\x94Legislative Proposal\n\nThis responds to your request that we consider whether Congress may\nconstitutionally limit the scope o f the Fourth Amendment exclusionary\nrule in Federal criminal proceedings. Specifically, you have asked us to\nconsider whether Congress may constitutionally enact legislation limiting\nthe application o f the exclusionary rule along the lines o f the bill drafted\nby Senator Kennedy\xe2\x80\x99s staff, and establishing alternative remedies similar\nto those provided in the current draft o f the Adm inistration\xe2\x80\x99s amendments\nto the Federal Torts Claim Act (FTCA). This legislation would permit\nevidence seized in violation o f the Fourth Amendment to be adm itted in\nFederal criminal proceedings, if otherwise admissible, if the agent con\xc2\xad\nducting the search or seizure reasonably believed that his conduct was\nlawful; permit victims o f illegal searches and seizures to sue the United\nStates and receive liquidated damages and special damages upon proof of\na constitutional violation; deny the United States a good faith defense in\nsuch suits; and establish disciplinary procedures whereby either the ap\xc2\xad\npropriate Federal agency or the victim o f an illegal search or seizure could\nbring charges against the offending Federal agent.\nIt is our conclusion, based on relevant Supreme Court decisions, that,\nabsent other equally effective remedies to deter Federal officers from\nviolating the Fourth Am endm ent, the exclusionary rule is required by the\nConstitution to protect that A m endm ent\xe2\x80\x99s guarantee against unlawful\nsearches and seizures. Congress may enact alternative remedies, but the\nultimate responsibility for evaluating the efficacy o f those alternative\nremedies lies with the courts. We believe that the proposed statute would\nbe held constitutional, even though it purports to limit the scope o f the ex\xc2\xad\nclusionary rule, because it provides an alternative that the courts are likely\nto find adequate.\n489\n\n\x0cI. History of the Exclusionary Rule\nThe exclusionary rule has been shaped more by experience than by logic.\nImposed by the Supreme C ourt in Weeks v. United States, 232 U.S. 383\n(1914), the exclusionary rule was initially justified on considerations o f\nfair play and on the judgm ent that notions o f judicial integrity should pre\xc2\xad\nvent Federal court involvement in illegal searches and seizures:\nThe tendency o f those who execute the criminal laws o f the coun\xc2\xad\ntry to obtain conviction by means o f unlawful seizures and en\xc2\xad\nforced confessions * * * should find no sanction in the judg\xc2\xad\nment o f the courts which are charged at all times with the support\no f the C onstitution and to which people o f all conditions have a\nright to appeal for the maintenance o f such fundamental rights.\n[Id. at 392.]\nEqually im portant, the exclusionary rule was necessary to protect Fourth\nAm endment rights:\nIf letters and private docum ents can thus be seized and held and\nused in evidence against a citizen accused o f an offense, the pro\xc2\xad\ntection o f the Fourth Am endm ent declaring his right to be secure\nagainst such searches and seizures is o f no value, and, so far as\nthose thus placed are concerned, might as well be stricken from\nthe C onstitution.\' [Id. at 393.]\nThe C ourt several years later read Weeks quite broadly, holding that a per\xc2\xad\nson could not be compelled to produce books and docum ents before a\ngrand jury where the materials had been illegally seized by the Govern\xc2\xad\nment and then returned. Silverthorne Lum ber Co. v. United States, 251\nU.S. 385 (1920). Justice Holmes, writing for the C ourt, rejected the\narguments that the Governm ent may properly subpoena materials of\nwhich it knows only because o f an illegal search: \xe2\x80\x9c The essence o f a provi\xc2\xad\nsion forbidding the acquisition o f evidence in a certain way is that\n\n1Weeks relied in large part on Boyd v. United States, 116 U.S. 616 (1886), where the C ourt\nhad held that a district court order requiring production o f invoices in a forfeiture proceeding\nunder the customs laws violated the defendant\xe2\x80\x99s Fourth and Fifth Am endment rights. The\nCourt noted the interrelation o f the protections o f the two Am endments: seizure o f private\npapers is tantam ount to compelling a person to testify against himself: and the Fifth A m end\xc2\xad\nment prohibition \xe2\x80\x9c throws light o n \xe2\x80\x9d the reasonableness o f the search. Id. at 633. In language\nthat has been much quoted, the C ourt stated:\nThe principles laid down in this opinion affect the very essence o f constitutional liberty\nand security. They reach farther than the concrete form o f the case then before the\ncourt, with its adventitious circumstances; they apply to all invasions on the part o f the\ngovernment and its employees o f the sanctity o f a m an\xe2\x80\x99s hom e and the privacies o f life.\nIt is not the breaking o f his doors, and the rum maging o f his drawers, that constitutes\nthe essence o f the offense; but it is the invasion o f his indefeasible right o f personal\nsecurity, personal liberty and private property, where that right has never been forfeited\nby his conviction o f some public offenses * * * . Breaking into a house and opening\nboxes and drawers are circumstances o f aggravation; but any forcible and com pulsory\nextortion o f a m an\xe2\x80\x99s own testim ony or his private papers to be used as evidence to con\xc2\xad\nvict him o f crime or to forfeit his goods, is within the condem nation o f that judgm ent.\nIn this regard, the Fourth and Fifth Am endm ents ran almost into each other. [Id. 630.]\n\n490\n\n\x0cnot merely evidence so acquired shall not be used before the Court but that\nit shall not be used at all.\xe2\x80\x9d 2 Acceptance o f the contrary position, Justice\nHolmes wrote, would reduce the Fourth Amendment to \xe2\x80\x9c a form o f\nwords.\xe2\x80\x9d Id. at 392.\nThe exclusionary rule fashioned in Weeks applied only to evidence ille\xc2\xad\ngally obtained by Federal officers for use in Federal trials. In 1949, the\nCourt held that the basis o f the Fourth Amendment\xe2\x80\x94\xe2\x80\x9c [t]he security of\none\xe2\x80\x99s privacy against arbitrary intrusion by the police\xe2\x80\x9d \xe2\x80\x94is implicit in\n\xe2\x80\x9c the concept o f ordered liberty\xe2\x80\x9d and thus enforceable against the States\nthrough the Fourteenth Am endm ent\xe2\x80\x99s due process clause. W olf v. Col\xc2\xad\norado, 338 U.S. 25, 27-28 (1949). However, the Court refused to find that\ndue process demanded application o f the exclusionary rule to start\ncriminal proceedings. Although the C ourt acknowledged that the exclu\xc2\xad\nsionary rule might be an effective way to deter unreasonable searches, it\nwas not prepared to hold that \xe2\x80\x9c a State\xe2\x80\x99s reliance upon other\nmethods * * * if consistently enforced,\xe2\x80\x9d could not equally ensure that\nState police conduct would com port with due process dictates. Id. at 31.\nIn Mapp v. Ohio, 367 U .S. 643 (1961), the Court reversed W olf and\ndeclared the exclusionary rule applicable to all State criminal proceedings.\nThe Court stressed that the rule, as developed in Weeks and Silverthorne,\nis \xe2\x80\x9c a clear, specific, and constitutionally required\xe2\x80\x94even if judicially im\xc2\xad\nplied\xe2\x80\x94deterrent safeguard without insistence upon which the Fourth\nAmendment would have been reduced to \xe2\x80\x98a form o f words.\xe2\x80\x99\xe2\x80\x9d Id. at 648.\nAlthough \xe2\x80\x9c not basically relevant\xe2\x80\x9d to the C ourt\xe2\x80\x99s constitutional holding, it\nsurveyed the years since W olf and found other State remedies for protec\xc2\xad\ntion o f the Fourth Amendment inadequate. Id. at 651-53. The C ourt cited\nwith approval language in Elkins v. United States, 364 U.S. 206, 217\n(1960), that the exclusionary rule is necessary \xe2\x80\x9c to compel respect for the\nconstitutional guaranty in the only effective available way.\xe2\x80\x9d 3\nII. Deterrence and Judicial Integrity\n\nFrom the exclusionary rule\xe2\x80\x99s inception two principles that have in\xc2\xad\nformed the development o f the doctrine have been recognized: (1) exclu\xc2\xad\nsion o f illegally obtained evidence is necessary to protect the guarantees o f\nthe Fourth Amendment, and (2) courts should not sanction illegal ac\xc2\xad\ntivities o f Government agents by permitting the fruits o f such activities to\nbe received into evidence. It is now \xe2\x80\x9c commonplace\xe2\x80\x9d to refer to those\n\n\'T his statement has been characterized by the present C ourt as a \xe2\x80\x9c broad dictum \xe2\x80\x9d that has\nbeen \xe2\x80\x9c substantially undermined by later cases.\xe2\x80\x9d United States v. Calandra, 414 U .S. 338,\n352 n. 8 (1974).\n"Illegally seized evidence was barred in other situations: Elkins v. United States, 364 U .S.\n206 (I960) (prohibiting Federal use o f evidence illegally obtained by State officials); Rea v.\nUnited States, 350 U .S. 214 (1956) (Federal officer may be enjoined from providing to State\nauthorities evidence seized pursuant to an invalid search warrant); Lee v. Florida, 393 U.S.\n378 (1968) (Federal Com m unications Act provisions prohibit use o f wiretap conversations in\nState proceeding).\n\n491\n\n\x0csources and goals o f the exclusionary rule as considerations of \xe2\x80\x9c deter\xc2\xad\nrence\xe2\x80\x9d and \xe2\x80\x9c judicial integrity.\xe2\x80\x9d 4 Brown v. Illinois, 422 U.S. 590, 599\n(1975). See, e.g., Stone v. Powell, 428 U.S. 465, 484-86 (1976); Terry v.\nOhio, 392 U.S. 1, 12-13 (1968); Elkins v. United States, 364 U.S. at\n217-23.\nThe relative importance ascribed by the C ourt to deterrence and judicial\nintegrity in the development o f the exclusionary rule has varied. Where the\nC ourt has expanded the scope o f the doctrine, it has emphasized the\njudicial integrity rationale. See, e.g., Lee v. Florida, 392 U.S. 378, 385-86\n(1968) (evidence seized in violation o f Federal Communications Act not\nadmissible in State trials); M app v. Ohio, 367 U.S. at 659-60; Elkins v.\nUnited States, 364 U.S. at 222 (overruling \xe2\x80\x9c silver platter\xe2\x80\x9d doctrine).\nWhere the Court has sought to limit the reach o f the exclusionary rule, it\nhas relied largely on the deterrence principle and has found that applica\xc2\xad\ntion o f the exclusionary rule to the facts o f the case would not significantly\naid in deterring illegal police conduct. See, e.g., Michigan v. DeFillippo,\n99 S. Q . 2627, 2633 n. 3 (1979); Stone v. Powell, 428 at 482-95; United\nStates v. Janis, 428 U.S. 433, 457-60 (1976).\nOver the past decade or so, it has become clear that the deterrence ration\xc2\xad\nale now bears the laboring oar in exclusionary rule analysis. Recent Su\xc2\xad\npreme C ourt cases teach that the doctrine o f judicial integrity is not to be\n\n\xe2\x80\x98T he phrase \xe2\x80\x9c the imperative of judicial integrity\xe2\x80\x9d was coined by Justice Stewart in Elkins\nv. United States, 364 U .S. at 222, which held that evidence seized illegally by State officials\ncould not be adm itted in Federal trials. The \xe2\x80\x9c judicial integrity\xe2\x80\x9d rationale is usually traced to\nthe dissenting opinions o f Justices Holmes and Brandeis in Olmstead v. United States, 277\nU .S. 438, 469, 471 (1928):\nI think it is a less evil that some criminal should escape than that Government should\nplay an ignoble part. [Id. at 470 (Holm es, J ., dissenting).]\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\nDecency, security and liberty alike dem and th at government officials shall be sub\xc2\xad\njected to the same rules o f conduct that are com m ands to the citizen. In a government of\nlaws, existence o f the government will be imperiled if it fails to observe the law\nscrupulously. O ur Governm ent is the potent, the om nipresent teacher. For good or for\nill, it teaches the whole people by its example. Crime is contagious. If the Government\nbecomes a lawbreaker, it breeds contem pt for law; it invites every man to become a law\nu nto himself; it invites anarchy. T o declare that in the adm inistration o f the criminal law\nthe end justifies the means\xe2\x80\x94to declare that the G overnm ent may commit crimes in order\nto secure the conviction o f a private criminal\xe2\x80\x94would bring terrible retribution. Against\nthe pernicious doctrine this C ourt should resolutely set its face. [Id. at 485 (Brandeis, J.\ndissenting).]\nT he dissenters adopted an unfragm ented view o f the G overnm ent as punisher o f criminals:\n\xe2\x80\x9c no distinction can be taken between the Governm ent as prosecutor and the Governm ent as\njudge.\xe2\x80\x9d Id. at 470 (Holmes, J ., dissenting). The C ourt in later cases has tended to disag\xc2\xad\ngregate \xe2\x80\x9c the G overnm ent.\xe2\x80\x9d See generally Shrock & W elsh, \xe2\x80\x9c Up from Calandra: The Exclu\xc2\xad\nsionary Rule as a Constitutional R equirem ent,\xe2\x80\x9d 59 M inn. L. Rev. 251, 254-60 (1974).\nW hile there is a tendency to \xe2\x80\x9c constitutionalize\xe2\x80\x9d the words o f Justices Holmes and\nBrandeis, their opinions m ake clear th at the obligation o f Federal courts to exclude illegally\nseized evidence arises \xe2\x80\x9c apart from the C onstitution.\xe2\x80\x9d 277 U .S. at 469 (Holmes, J., dissent\xc2\xad\ning); id. at 479-85 (Brandeis, J., dissenting). It should be noted, however, that the question\nwhether the Federal courts have any power to exclude evidence beyond that arising from the\nConstitution and Federal statutes, i.e., whether they have a reservoir o f \xe2\x80\x9c supervisory\npow er,\xe2\x80\x9d is presently before the Supreme C ourt. See, United States v. Payner, N o. 78-1729,\nOct. Term 1979.\n\n492\n\n\x0ctreated as determinative; indeed, the cases appear to strip it o f any weight.5\nThe basis for a critique o f the doctrine is that it proves too much: if\njudicial integrity is offended by any use o f illegally seized evidence, then\nthe doctrine would effectively establish a right not to be convicted upon il\xc2\xad\nlegally seized evidence. However, the standing cases, e.g., Rakas v. Il\xc2\xad\nlinois, 439 U.S. 128 (1978), and impeachment cases, e.g., Walder v.\nUnited States, 347 U.S. 62 (1954), make it clear that \xe2\x80\x9c the exclusionary rule\nhas never been interpreted to proscribe the use o f illegally seized evidence\nin all proceedings against all persons.\xe2\x80\x9d United States v. Calandra, 414\nU.S. 338, 348 (1974). See, Stone v. Powell, 428 U.S. at 485; United States\nv. Janis, 428 U.S. at 458 n. 35.6\nThe saliency o f deterrence became clear in Linkletter v. Walker, 381\nU.S. 618 (1965), where the C ourt refused to give retroactive effect to\nMapp. See Miles, \xe2\x80\x9c Decline o f the Fourth Amendment: Time to Overrule\nMapp v. Ohio?\xe2\x80\x9d 27 Cath. L. Rev. 9, 69 (1977). Faced with perhaps\nthousands o f prisoners convicted between W olf and M app, the Court\nfound refuge in stressing deterrence:\nM app had as its prime purpose the enforcement o f the Fourth\nAmendment through the inclusion o f the exclusionary rule\nwithin its rights. This, it was found, was the only effective deter\xc2\xad\nrent to lawless police action * * * . We cannot say that this pur\xc2\xad\npose would be advanced by making the rule retrospective. This\nmisconduct o f the police prior to M app has already occurred and\nwill not be corrected by releasing the prisoners involved * * * .\nFinally, the ruptured privacy o f the victims\xe2\x80\x99 homes and effects\ncannot be restored. Reparation comes too late. [Id. at 636\xe2\x80\x9437.]7\n\n\xe2\x80\x99The com m entators have generally recognized the decline and fall o f \xe2\x80\x9c the imperative o f\njudicial integrity.\xe2\x80\x9d See, e.g., Sanders & Robbins, \xe2\x80\x9c Judicial Integrity, The A ppearance o f\nJustice, and the Great W rit o f Habeas Corpus: How to Kill Two Thirds (or More) with One\nStone,\xe2\x80\x9d 15 Am. Crim. L. Rev. 63, 76-78 (1977); Schrock & Welsh, supra, note 4, a t 263-69.\nThey have also noted the inherent difficulties in the concept. See, e.g., M cGowan, \xe2\x80\x9c RuleMaking and the Police,\xe2\x80\x9d 70 Mich. L. Rev. 659, 692 (1972); M onaghan, \xe2\x80\x9c The Supreme\nC ourt, 1974 Term \xe2\x80\x94Forw ard; Constitutional Com m on L aw ,\xe2\x80\x9d 89 Harv. L. Rev. 1, 5-6\n(1975); O aks, \xe2\x80\x9c Studying the Exclusionary Rule in Search and Seizure,\xe2\x80\x9d 37 U. Chi. L. Rev.\n665, 668-69 (1970).\n\xe2\x80\x98A broad application o f the judicial integrity principle is also difficult to reconcile with the\nrefusal o f the Supreme C ourt to void convictions in cases in which the defendant has been\nbrought before the court by illegal police m ethods. E.g., Frisbie v. Collins, 342 U .S. 519\n(1952); Ker v. Illinois, 119 U .S. 436 (1886).\n\xe2\x80\x99Justice Black, who had concurred in Mapp on the ground that the Fourth and Fifth\nAmendments taken together dem and exclusion o f illegally obtained evidence in state trials,\ndissented in Linkletter. He wrote:\n[T]he undoubted implication o f today\xe2\x80\x99s opinion that the rule is not a safeguard for\ndefendants but is a mere punishing rod to be applied to law enforcem ent officers is a\nrather startling departure from m any past opinions, and even from Mapp itself * * * I\nhave read and reread the Mapp opinion but have been unable to find one word in it to in\xc2\xad\ndicate that the exclusionary search and seizure rule should be limited on the basis that it\nwas intended to do nothing in the world except to deter officers o f the law. [381 U.S.\nat 649.]\n\n493\n\n\x0cThis logic has been consistently followed in subsequent cases refusing to\ngive retroactive effect to new Fourth Amendment law. See, e.g., Desist v.\nUnited States, 394 U .S. 244 (1969) (denying retrospective application o f\nKatz v. United States, 389 U.S. 347 (1967)).\nThe deterrence rationale has blossomed in several recent cases that have\nrefused to extend the exclusionary rule to various proceedings outside the\nactual criminal trial or to apply new interpretations o f the Fourth Am end\xc2\xad\nment retrospectively. In United States v. Calandra, supra, the C ourt held\nthat a witness testifying before a grand jury could not refuse to answer\nquestions on the ground that the questions were based on illegally ob\xc2\xad\ntained evidence. The C ourt found that the burdens placed on the function\xc2\xad\ning o f the grand jury were not outweighed by the deterrent value o f the ex\xc2\xad\nclusionary rule. Justice Powell announced for the Court that the exclu\xc2\xad\nsionary rule\xe2\x80\x99s \xe2\x80\x9c prime purpose is to deter future unlawful police conduct.\xe2\x80\x9d\nId. at 348. The \xe2\x80\x9c imperative o f judicial integrity\xe2\x80\x9d was relegated to a foot\xc2\xad\nnote responding to Justice B rennan\xe2\x80\x99s dissent. It stated simply \xe2\x80\x9c that \xe2\x80\x98illegal\nconduct\xe2\x80\x99 is hardly sanctioned * * * by declining to make an unprece\xc2\xad\ndented extension o f the exclusionary rule to grand jury proceedings where\nthe rule\xe2\x80\x99s objectives would not be effectively served and where other im\xc2\xad\nportant and historic values would be unduly prejudiced.\xe2\x80\x9d Id. at 355\nnote 11.\nIn United States v. Peltier, 422 U.S. 531 (1975) (denying restrospective\napplication o f Almeida-Sanchez v. United States, 413 U .S. 226 (1973)),\nthe C ourt again stressed the deterrent side o f the exclusionary rule.\nAlthough Justice Rehnquist noted the \xe2\x80\x9c imperative o f judicial integrity,\xe2\x80\x9d\nhe wrote for the C ourt that judicial integrity was not offended where the\npolice reasonably believed in good faith that the evidence they seized was\nadmissible at trial. Id. at 536-37. Thus, since the policeman could not\nknow th at his actions were illegal until announcem ent of the new rule,\njudicial integrity did not support retroactivity.\nIn United States v. Janis, supra, the C ourt in an opinion by Justice\nBlackmun held that the evidence seized by State officials in good faith, but\nunconstitutionally, need not be excluded in Federal civil tax proceedings.\nApplying the deterrence balance, it determined that the \xe2\x80\x9c exclusion from\nfederal civil proceedings o f evidence unlawfully seized by a state criminal\nenforcement officer has not been shown to have a sufficient likelihood o f\ndeterring the conduct o f the state police so that it outweighs the societal\ncosts imposed by the exclusion.\xe2\x80\x9d Id. at 454. Justice Blackmun dealt with\njudicial integrity in a footnote, which if followed by the C ourt would ef\xc2\xad\nfectively render the doctrine inconsequential:\nThe primary meaning o f \xe2\x80\x9c judicial integrity\xe2\x80\x9d in the context o f\nevidentiary rules is that the courts must not commit or encourage\nviolations o f the Constitution. In the Fourth Amendment area,\nhowever, the evidence is unquestionably accurate, and the viola\xc2\xad\ntion is complete by the time the evidence is presented to the\nCourt * * * . The focus therefore must be on the question\n494\n\n\x0cwhether the admission o f the evidence encourages violations o f\nFourth Amendment rights. A s the Court has noted in recent\ncases, this inquiry is essentially the same as the inquiry into\nwhether exclusion would serve a deterrent purpose. [Id. at 458\nnote 35. (Emphasis added.)]\nFinally, in Stone v. Powell, supra, the C ourt held that Federal courts\nshould not entertain State prisoner habeas petitions alleging Fourth\nAmendment violations unless the petitioner had not been afforded an op\xc2\xad\nportunity for full and fair litigation of the claim in State court. The C ourt,\nthrough Justice Powell, determined that the deterrent value o f the exclu\xc2\xad\nsionary rule was minimal in the habeas context. As to judicial integrity,\nthe Court noted: \xe2\x80\x9c [w]hile courts, o f course, must be ever concerned with\npreserving the integrity o f the judicial process, this concern has limited\nforce as a justification for the exclusion o f highly probative evidence.\xe2\x80\x9d Id.\nat 485.\nThe import o f these cases is clear. The Court believes that the \xe2\x80\x9c prime\npurpose o f the [exclusionary] rule, if not the sole one, \xe2\x80\x98is to deter future\nunlawful police conduct.\xe2\x80\x99 United States v. Calandra, 414 U.S. 338, 347\n(1974).\xe2\x80\x9d United States v. Janis, 428 U.S. at 446. The rise o f deterrence as\nthe sole criterion for application o f the exclusionary rule has two conse\xc2\xad\nquences im portant here.8\nFirst, with the attention o f the courts focused on deterring illegal police\nactivity, the exclusionary rule need no longer be considered part and parcel\no f the Fourth Amendment and the due process clause o f the Fourteenth\nAmendment. M app had characterized the exclusionary rule as a \xe2\x80\x9c clear,\nspecific, and constitutionally required\xe2\x80\x94even if judicially implied\xe2\x80\x94deter\xc2\xad\nrent safeguard,\xe2\x80\x9d 367 U.S. at 643, which is \xe2\x80\x9c an essential ingredient o f the\nFourth A m endm ent.\xe2\x80\x9d Id. at 651. And Justice Black concurred in M app\n\n\xe2\x80\xa2The reliance upon deterrence appears to cut only one way: toward limiting applications of\nthe exclusionary rule. To the extent that the exclusionary rule is divorced from the particular\ndefendant, he or she becomes a private attorney general seeking to protect the rights o f all\nagainst illegal police actions. Thus, under a strict deterrence analysis, the traditional standing\ndoctrine should be discarded. However, the C ourt has very recently m ade clear that it will\nstill only permit a defendant whose own Fourth A m endm ent rights have been violated to\nbenefit from the exclusionary rule. Rakes v. Illinois, 439 U.S. 128 (1978). This holding is\ndefended on the ground that \xe2\x80\x9c Fourth Am endment rights are personal rights\xe2\x80\x9d and thus a per\xc2\xad\nson against whom the evidence illegally seized from another is adm itted \xe2\x80\x9c has not had any of\nhis Fourth A m endm ent rights infringed.\xe2\x80\x9d Id. at 133-34. This analysis seems in conflict with\nthe C ourt\xe2\x80\x99s statem ent in Calandra that the exclusionary rule is \xe2\x80\x9c a judicially created remedy\ndesigned to safeguard Fourth Am endment rights generally through its deterrent effect, rather\nthan a personal constitutional right o f the party aggrieved.\xe2\x80\x9d 414 U.S. at 348. This apparent\nconflict is resolved, however, when one focuses on language in Calandra that states that the\nFourth Am endment does not require \xe2\x80\x9c adoption o f every proposal that might deter police\nm isconduct,\xe2\x80\x9d 414 U .S. at 350-51, particularly where the deterrent benefits o f expanding\nstanding are outweighed by the costs o f further encroachm ent upon law enforcem ent. See\ngenerally Burkoff, \xe2\x80\x9c The C ourt that Devoured the Fourth Am endment: The Trium ph o f an\nInconsistent Exclusionary D octrine,\xe2\x80\x9d 58 Ore. L. Rev. 151 (1979).\n\n495\n\n\x0con the ground that from the Fourth and Fifth Amendments a \xe2\x80\x9c constitu\xc2\xad\ntional basis emerges which not only justified but actually requires the ex\xc2\xad\nclusionary rule.\xe2\x80\x9d Id. at 622.\xe2\x80\x99\nThe balancing analysis adopted by the Court in recent years, based on\nthe costs and benefits o f added deterrence, changes the constitutional\ngrounding o f the doctrine; as recast, the exclusionary rule need be invoked\nto protect Fourth Am endm ent rights only when it is deemed efficacious.\nSee, Stone v. Powell, supra; United States v. Calandra, 414 U.S. at 348\n(\xe2\x80\x9c In sum, the [exclusionary] rule is a judicially created remedy designed to\nsafeguard Fourth Am endm ent rights generally through its deterrent effect,\nrather than a personal constitutional right o f the party aggrieved.\xe2\x80\x9d )\nThe emphasis on the functional analysis openly invites alternative\nremedies that may equally well deter violations o f Fourth Amendment\nrights. Presumably, once such remedies are in place, the exclusionary rule\nmay simply be abolished. See, Bivens v. Six Unknown Nam ed Agents o f\nthe Federal Bureau o f Narcotics, 403 U.S. 388, 414 (1971) (Burger, C .J.,\ndissenting). All that is demanded by the Constitution, in the words o f P ro\xc2\xad\nfessor Kaplan, is \xe2\x80\x9c something that works * * * . The content o f the par\xc2\xad\nticular remedial or prophylactic rule is thus a pragmatic decision rather\nthan a constitutional fiat.\xe2\x80\x9d Kaplan, \xe2\x80\x9c The Limits o f the Exclusionary\nRule,\xe2\x80\x9d 26 Stan. L. Rev. 1027, 1030 (1974). See also, California v. Minjares, 100 S. Ct. 9, 14-15 (1979) (Rehnquist, J., dissenting from denial o f\nstay).\nThe second consequence o f a focus on deterrence is limitation o f the ex\xc2\xad\nclusionary rule to situations in which the law enforcement officer has\nacted unreasonably o r in bad faith. If the exclusionary rule is nothing\nmore than a deterrent to illegal police conduct, it makes little sense to\napply it in situations where it can have no deterrent force, particularly\ngiven the high societal costs generated by the rule\xe2\x80\x99s frustration o f law en\xc2\xad\nforcement. See, Stone v. Powell, 428 U.S. at 489-95. Thus, in numerous\nrecent cases several Justices have suggested that the exclusionary rule not\nbe applied to situations in which the police have acted in good faith, such\nas where agents have relied upon a warrant or a statute later held to be un\xc2\xad\nconstitutional. See, United States v. Scott, 436 U.S. 128, 135-36 (1978)\n(Justice Rehnquist, in dicta, writing for the Court: \xe2\x80\x9c In view o f the deter\xc2\xad\nrent purposes o f the exclusionary rule consideration o f official motives\nmay play some part in determining whether application o f the exclu\xc2\xad\nsionary rule is appropriate after a statutory or constitutional violation has\n\n\'See, United States v. Peltier, 422 U .S. at 550-62 (Brennan, J., dissenting); United States\nv. Calandra, 414 U.S. at 356 (Brennan, J., dissenting):\n[Curtailment o f police misconduct] if a consideration at all, was at best only a hoped-for\neffect o f the exclusionary rule, not its ultim ate objective. Indeed, there is no evidence\nthat the possible deterrent effect o f the rule was given any attention by the judges chiefly\nresponsible for its form ulation. Their concern as guardians o f the Bill o f Rights was to\nfashion an enforcem ent tool to give content and meaning to the Fourth A m endm ent\xe2\x80\x99s\nguarantees.\n\n496\n\n\x0cbeen established.\xe2\x80\x9d ); Stone v. Powell, 428 U.S. at 501-02 (Burger, C .J.,\nconcurring); id. at 538-42 (White, J., dissenting) (exclusionary rule should\nnot apply where evidence was seized \xe2\x80\x9c by an officer acting in the goodfaith belief that his conduct com ported with existing law and having\nreasonable grounds for this b e lie f\xe2\x80\x99); Brown v. Illinois, 422 U.S. at 611-12\n(concurring opinion by Powell, J., joined by Rehnquist, J.); Michigan v.\nTucker, 417 U.S. 433, 447 (1974) (Rehnquist, J., for five members o f the\nCourt) (\xe2\x80\x9c Where the official action was pursued in complete good\nfaith * * * the deterrence rationale loses much o f its force.\xe2\x80\x9d ). C f ,\nUnited States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude evidence\nwhere the Internal Revenue Service violated departm ental procedure in\ngood faith and without violating constitutional rights o f defendant);\nMichigan v. DeFillippo, 99 S. Ct. at 2633, note 2 (purpose o f deterrence\nnot served by excluding evidence seized during lawful arrest under statute\nlater held unconstitutional).10\nm . Congressional Pow er to Devise Alternatives\n\nAlthough the exclusionary rule has been limited by the C ourt in this\ndecade, it has remained a constitutional doctrine. Mapp was reaffirmed in\nStone v. Powell, 428 U.S. at 481 (see, id. at 509-15 (Brennan, J., dissent\xc2\xad\ning)); and M app is decidedly a constitutional decision. Indeed, for the ex\xc2\xad\nclusionary rule to apply to the States it must be a constitutional doctrine,\nfor \xe2\x80\x9c no one * * * would suggest that [the] C ourt possesses any general\nsupervisory power over the state courts.\xe2\x80\x9d M app v. Ohio, 367 U.S. at 678\n(Harlan, J., dissenting). See, M urphy v. Florida, 421 U.S. 794, 797-98\n(1975); id. at 803-04 (Burger, C .J., concurring) (by implication); Cox,\n\xe2\x80\x9c The Role o f Congress in Constitutional Determ inations,\xe2\x80\x9d 40 U. Cinn. L.\nRev. 199, 251 (1971)."\n\n10See also, Com m ent, \xe2\x80\x9c Judicially Required Rulemaking as Fourth Am endment Policy: An\nApplied Analysis o f the Supervisory Power o f Federal C o u rts," 72 Nw. U .L . Rev. 595,\n598-99 (1977); Note, Reason and the Fourth A m endm ent\xe2\x80\x94The Burger C ourt and the Exclu\xc2\xad\nsionary Rule,\xe2\x80\x9d 46 Ford. L. Rev. 139, 168-69 (1977); cf. Israel, \xe2\x80\x9c Criminal Procedure, The\nBurger C ourt, and the Legacy o f the W arren C o u rt,\xe2\x80\x9d 75 Mich. L. Rev. 1319, 1409-15 (1977);\nSchrock & Welsh, \xe2\x80\x9c Reconsidering the Constitutional Com m on Law ,\xe2\x80\x9d 91 Harv. L. Rev.\n1117, 1160-61 (1978).\nEven if the \xe2\x80\x9c imperative o f judicial integrity\xe2\x80\x9d were still deemed to carry weight in exclu\xc2\xad\nsionary rule analysis, the C ourt has stated that \xe2\x80\x9c if the law enforcement officers reasonably\nbelieved in good faith that evidence they had seized was admissible at trial, the \xe2\x80\x98imperative of\njudicial integrity\xe2\x80\x99 is not offended\xe2\x80\x9d by admission o f the evidence at trial. United States v.\nPeltier, 422 U .S. at 537, quoted in Stone v. Powell, 428 U .S. at 485 n. 23. See also, Stone v.\nPowell, 428 U.S. at 540 (W hite, J., dissenting).\n"P rofessor M onaghan has argued that the exclusionary rule, even though applied to the\nStates, is something less than constitutional, and may be displaced by congressional\nremedies. See M onaghan, supra (note 5). His views, which are not easily reconciled with the\nwords o f Mapp and Stone, are thoughtfully and thoroughly criticized in Shrock & Welsh,\n\xe2\x80\x9c Reconsidering the Constitutional Com m on Law ,\xe2\x80\x9d supra (note 10). However, there are\nsome indications in recent Supreme C ourt cases that lend support for the argum ent that the\nMiranda exclusionary rule is less than constitutional. See, New Jersey v. Portash, 440\n(C ontinued)\n\n497\n\n\x0cYet the fact that the exclusionary rule has constitutional roots does not\nmean it is constitutionally m andated. The Chief Justice\xe2\x80\x99s dissent in Bivens\nfirst suggested that congressional provision o f an alternative remedy that\nwould deter official misconduct as well as the exclusionary rule would per\xc2\xad\nmit the C ourt to abolish the rule. 403 U.S. at 411-24. As discussed above,\nthis conclusion flows logically from reliance on the deterrence rationale.12\nIf the defendant has no personal right\' to exclusion o f illegally seized\nevidence, then any remedy that adequately protects Fourth Amendment\nguarantees should meet the constitutional requirement that the Fourth\nAmendment not be rendered a \xe2\x80\x9c form o f words.\xe2\x80\x9d 13 This conclusion is sup\xc2\xad\nported by each o f the scholars consulted by the Senate Judiciary\nCommittee.\nIn other similar situations the C ourt has openly invited Congress to\nenact legislation that could supplement or supplant judicially created pro\xc2\xad\nphylactic rules. In declaring the Miranda rules to protect the Fifth Am end\xc2\xad\nment rights o f subjects o f police interrogation, the Court wrote:\nIt is impossible for us to foresee the potential alternatives for\nprotecting the privilege which might be devised by Congress or\nthe States in the exercise o f their creative rule-making capacities.\nTherefore we cannot say that the C onstitution necessarily re\xc2\xad\nquires adherence to any particular solution for the inherent com\xc2\xad\npulsions o f the interrogation process as it is presently conducted.\nO ur decision in no way creates a constitutional straitjacket which\nwill handicap sound efforts at reform , nor is it intended to have\nthis effect. We encourage Congress and the States to continue\ntheir laudable search for increasingly effective ways o f protecting\nthe rights o f the individual while prom oting efficient enforce\xc2\xad\nment o f our criminal laws. However, unless we are shown other\n\n(Continued)\nU.S. 450 (1979) (use o f immunized grand jury testim ony for impeachment is unconstitu\xc2\xad\ntional; distinguishing cases permitting im peachm ent use o f evidence obtained in violation o f\nMiranda on ground that in those cases no coercion was present); North Carolina v. Butler, 60\nL. Ed. 2d 286, 294 (1979) (Blackmun, J., concurring) (suggesting that standard for waiver of\nlawyer after Miranda warnings is different than standard applied for waiver o f \xe2\x80\x9c fundam en\xc2\xad\ntal constitutional rights\xe2\x80\x9d as established by Johnson v. Zerbst, 304 U .S. 458 (1938)).\n1\xe2\x80\x99C hief Justice Burger also believes th at the existence o f an effective alternative would\nsatisfy the dem ands o f judicial integrity: \xe2\x80\x9c N or is it easy to understand how a court can be\nthought to endorse a violation o f the F ourth A m endm ent by allowing illegally seized evidence\nto be introduced against a defendant if an effective remedy is provided against the govern\xc2\xad\nm ent.\xe2\x80\x9d 403 U .S. at 414.\n\xe2\x80\x99\xe2\x80\x99Justice Brennan continues to argue that the exclusionary rule is \xe2\x80\x9c part and parcel\xe2\x80\x9d o f the\nF ourth A m endm ent. This argum ent, m ade in dissent, does not appear to reflect the views of\nthe C ourt as presently constituted. See, e.g.. United States v. Calandra, 414 U.S. at 355-67\n(Brennan, J., dissenting); see also, W olf v. Colorado, 338 U.S. at 48 (Rutledge, J., dissent\xc2\xad\ning) (\xe2\x80\x9c 1 * * * reject any intim ation that Congress could validly enact legislation permitting\nthe introduction in federal courts o f evidence seized in violation o f the Fourth\nA m endm ent\xe2\x80\x9d ). For an extensive argum ent that the exclusionary rule is constitutionally m an\xc2\xad\ndated, see Schrock & W elsh, \xe2\x80\x9c Up from C alandra,\xe2\x80\x9d supra (note 4).\n\n498\n\n\x0cprocedures which are at least as effective in apprising accused\npersons o f their right o f silence and in assuring a continuous op\xc2\xad\nportunity to exercise it, the following safeguards must be \xe2\x80\xa2\nobserved * * * . \'4 [384 U.S. 436, 467 (1966). See, id. at 444,\n478-79.]\nSimilarly, in the \xe2\x80\x9c line-up\xe2\x80\x9d cases, United States v. Wade, 388 U.S. 218,\n239 (1967) and Gilbert v. California, 388 U.S. 263, 273 (1967), the C ourt\nnoted that its prophylactic procedures were necessary in the absence o f\nState or Federal rules that eliminated the risks o f abuse attending line-up\nidentifications.\nIn sum, given the emphasis on the exclusionary rule as a tool o f deter\xc2\xad\nrence and analogies to related areas where the Supreme Court has laid\ndown protective rules while inviting prophylactic legislation, we believe\nthe Supreme C ourt would hold that enactment by Congress on an alterna\xc2\xad\ntive remedy that is as effective as the exclusionary rule in deterring viola\xc2\xad\ntions o f the Fourth Amendment would obviate the constitutional necessity\nfor the exclusionary rule. This conclusion raises two additional questions:\nwhat alternative remedies are equally effective, and who is the judge o f the\neffectiveness o f the alternative.\nAnswering the second question first, we believe that it is the Supreme\nCourt that must ultimately decide whether an alternative remedy ade\xc2\xad\nquately protects the Fourth Amendment from becoming a \xe2\x80\x9c form o f\nwords.\xe2\x80\x9d See, Bivens v. Six Unknown Nam ed Agents, 403 U.S. at 423 note\n7 (Burger, C .J., dissenting) (by implication); Dellinger, \xe2\x80\x9c O f Rights and\nRemedies: The C onstitution as a Sw ord,\xe2\x80\x9d 85 Harv. L. Rev. 1532, 1548,\n1552-53 (1972); Note \xe2\x80\x9c Excluding the Exclusionary Rule: Congressional\nAssault on M app v. O hio,\xe2\x80\x9d 61 Geo. L. Rev. 1453, 1471 (1973). This is no\nmore than recognition o f the C ourt\xe2\x80\x99s traditional duty to measure congres\xc2\xad\nsional legislation against the Constitution. Marbury v. Madison, 1 Cr. 137\n(1803). If the Constitution demands some remedy for effectuation o f the\nFourth Amendment, then it is the province of the Court to decide whether\nproffered alternatives meet constitutional requirements. The C ourt may\nfind congressional factfinding persuasive, and it is likely to accord deference\n\xe2\x80\x9c Congress accepted the C o u rt\xe2\x80\x99s invitation, but in a m anner intended to limit the reach o f\n\nMiranda rather than provide adequate alternative safeguards. 18 U .S.C . \xc2\xa7 3501, Title 11 o f\nthe 1968 Om nibus Safe Streets and Crime C ontrol A ct. Although courts have avoided ruling\non the issue, see, e.g.. United States v. Crook, 502 F.(2d) 1378 (3d Cir. 1974), cert, denied,\n419 U.S. 1123 (1975); Ailsworth v. United States, 448 F.(2d) 439 (9th Cir. 1971), the provi\xe2\x96\xa0sion is o f doubtful constitutionality. See W right & Miller, Federal, Practice and Criminal\nProcedure, \xc2\xa7 76, at 120-22 (1969); G andara, \xe2\x80\x9c Admissibility o f Confessions in Federal P ro \xc2\xad\nsecutions; Implem entation o f Section 3501 by Law Enforcem ent Officials and the C o u rts,\xe2\x80\x9d\n63 Geo. L .J. 305 (1974). Imaginative defenses for \xc2\xa7 3501 have been constructed. It has been\nasserted that Miranda was based on factual assum ptions about the coerciveness o f custodial\ninterrogations\xe2\x80\x94assum ptions that Congress has the power to reverse through its factfinding\nprocedures. Alternatively, it has been argued that Congress has power under \xc2\xa7 5 o f the F our\xc2\xad\nteenth Am endm ent, as interpreted by Katzenbach v. Morgan, 384 U.S. 641 (1966), to revise\nconstitutional decisions o f the C ourt. See S. Rept. 1097, 90th C ong., 2d sess. (1968). See\ngenerally Burt, \xe2\x80\x9c M iranda and Title II: A M organatic M arriage,\xe2\x80\x9d (1969) S. Ct. Rev. 81.\n\n499\n\n\x0cto the expressed judgm ent o f Congress that the legislative alternatives are ef\xc2\xad\nficacious. But it remains up to the Court to render final judgment on what\nthe Constitution demands. See, Miranda v. Arizona, 384 U.S. at 490.\nEvaluating the likely effectiveness o f alternatives to the exclusionary\nrule\xe2\x80\x94such as police training and regulations, tort actions, criminal prose\xc2\xad\ncutions, or contem pt proceedings\xe2\x80\x94is a difficult task. An initial problem is\nthat it is unclear what yardstick o f effectiveness should be used because the\nempirical evidence on the deterrent effect o f the exclusionary rule is con\xc2\xad\nflicting at best. Compare, United States v. Jan is, 428 U.S. at 448-53, with,\nElkins v. United States, 364 U.S. at 218; compare, Oaks, supra (note 5),\nwith Critique, \xe2\x80\x9c On the Limitations o f Empirical Evaluations o f the Exclu\xc2\xad\nsionary R ule,\xe2\x80\x9d 69 Nw. U .L. Rev. 740 (1974). The court has recently tend\xc2\xad\ned to express doubt about the rule\xe2\x80\x99s efficacy beyond its application at a\ncriminal trial, and this view has been shared by many com m entators. See,\ne.g., United States v. Janis, 428 U.S. at 448-53 and accompanying foot\xc2\xad\nnotes; Oaks, supra; Wilkey, 62 Judicature 215, 222-23 (1978).\nHowever, the C ourt\xe2\x80\x99s growing disillusionment with the efficacy o f the\nexclusionary rule is in tension with the earlier cases that held that the ex\xc2\xad\nclusionary rule was the only effective means o f guaranteeing that the\nFourth A m endm ent would not become a form o f words. Indeed, M app\xe2\x80\x99s\nreversal o f W olf\xe2\x80\x99s holding (which had left State protection o f the Fourth\nAmendment to other than exclusionary remedies) stated that applying the\nFourth Am endment without the exclusionary rule \xe2\x80\x9c is to grant the right\nbut in reality to withhold its privilege and enjoyment * * *. [T]he pur\xc2\xad\npose o f the exclusionary rule \xe2\x80\x98[is] to deter\xe2\x80\x94to compel respect for the con\xc2\xad\nstitutional guaranty in the only effectively available way\xe2\x80\x94by removing the\nincentive to disregard it.\xe2\x80\x99 Elkins v. United States, [364 U.S.] at 217.\xe2\x80\x9d\nMapp v. Ohio, 367 U.S. at 656.15\nThese statem ents could be viewed as hyperbole or makeweights for\nJustices who believed that the exclusionary rule was constitutionally m an\xc2\xad\ndated in any event. However, similar language has appeared in a recent\ncase. In Franks v. Delaware, 438 U.S. 154 (1978), the C ourt held that a\ndefendant could attack the veracity o f affidavits supporting a search war\xc2\xad\nrant, and that a court could exclude evidence obtained pursuant to the\nwarrant if it determined that police officers had made deliberate\nmisstatements in the affidavits and that the affidavits were necessary to a\nfinding o f probable cause. In describing the general considerations sup\xc2\xad\nporting a rule o f exclusion, Justice Blackmun, writing for seven Justices,\nstated:\n[T]he alternative sanctions o f a perjury prosecution, ad\xc2\xad\nministrative discipline, contem pt, or a civil suit are not likely to\nfill the gap. M app v. Ohio implicitly rejected the adequacy o f\n"See also, Terry v. Ohio, 392 U .S. 1, 12 (1968) (\xe2\x80\x9c experience has taught that [the exclu\xc2\xad\nsionary rule] is the only effective deterrent to police m isconduct\xe2\x80\x9d ); Lee v. Florida, 392 U.S.\n378, 386-87 (1968) (\xe2\x80\x9c nothing short o f m andatory exclusion o f the illegal evidence will com \xc2\xad\npel respect for the federal law\xe2\x80\x9d ); Linkletter v. Walker, 381 U.S. at 634; W olf v. Colorado,\n338 U.S. 25, 41 (1949) (M urphy, J., dissenting) (\xe2\x80\x9c [TJhere is but one alternative to the rule of\nexclusion. T hat is no sanction at all\xe2\x80\x9d ).\n\n500\n\n\x0cthese alternatives. Mr. Justice Douglas noted this in his concur\xc2\xad\nrence in Mapp, 367 U .S., at 670, where he quoted from W olf v.\nColorado, 338 U.S. 25, 42 (1949): \xe2\x80\x9c \xe2\x80\x98Self-scrutiny is a lofty idea,\nbut its exaltation reaches new heights if we expect a District A t\xc2\xad\ntorney to prosecute himself or his associates for well-meaning\nviolations o f the search and seizure clause during a raid the\nDistrict Attorney or his associates have ordered.\xe2\x80\x99 \xe2\x80\x9d [Id. at 169.]\nIt is not easy to know what to make o f these words. We believe that, at the\nvery least, the C ourt may demand congressional factfinding concerning\nthe efficacy o f alternatives. We doubt that an adequate showing will be\neasy.16 Alternatives that existed prior to Mapp\xe2\x80\x94e.g., a \xc2\xa7 1983 action\nagainst State officers, a criminal prosecution, or prosecution under the\ncivil rights laws, see, Irvine v. California, 347 U.S. 128, 137-38 (1954)\n(suggestion o f W arren, C .J., and Jackson, J.)\xe2\x80\x94should clearly be rejected\nas inadequate. C f , W olf v. Colorado, 338 U.S. at 41-47 (1949) (Murphy,\nJ., dissenting); People v. Cahan, 44 Cal. 2d 434, 445-48 (1955). The ef\xc2\xad\nficacy o f any remedies enacted since M app are essentially untested because\nthe exclusionary rule was in place at the same time. .Yet abandonm ent o f\nthe exclusionary rule in order to test new alternatives, such as those in the\nproposed amendments to the FTCA, is to risk rendering the Fourth\nAmendment a dead letter if the remedies fail. In short, the C ourt will be\nfaced with little hard data on either side o f the equation; it will have to\nmeasure the unknown deterrent value o f the exclusionary rule against the\nuntested deterrent value o f the alternative.\nThis conclusion, however, does not necessarily mean that the Supreme\nCourt would find a tort-disciplinary scheme an inadequate alternative.\nThe problems associated with the exclusionary rule\xe2\x80\x94such as permitting\nguilty defendants to go free, fostering police perjury, and not com pen\xc2\xad\nsating victims o f illegal searches who do not go to trial\xe2\x80\x94measured against\nthe better \xe2\x80\x9c fit\xe2\x80\x9d o f the tort-discipline alternative may tip the C ourt toward\naccepting the alternative as at least as effective as the exclusionary rule,\nand therefore constitutional. This decision would be aided by the C ourt\xe2\x80\x99s\ntraditional deferrence to legislative factfinding. See, Oregon v. Mitchell,\n400 U.S. 112, 240, 246-49 (1970) (opinion o f Brennan, W hite, and M ar\xc2\xad\nshall, J.J.); Burt, supra (note 14), at 112-14; Cox, supra, at 228-29; c f ,\nRegents o f the Univ. o f California v. Bakke, 438 U.S. 265, 302 note 41\n(1978) (opinion o f Powell, J.).\n\n\'\xe2\x80\x98Two recent studies, taken together, lend further support for the position that alternative\nremedies may be no more effective in deterring violations o f the Fourth A m endm ent than the\nexclusionary rule. Compare Project, \xe2\x80\x9c Suing the Police in Federal C o u rt,\xe2\x80\x9d 88 Yale L .J. 781\n(1979) (\xc2\xa7 1983 actions not effective deterrents o f police misconduct) with Report by the\nComptroller General o f the United States, Impact o f the Exclusionary Rule on Federal\nCriminal Prosecutions (C .A .O . April 19, 1979) (Federal prosecutors decline few prosecutions\non the basis o f Fourth A m endm ent problems; open to interpretation that compliance with\nAm endment\xe2\x80\x99s dictates is substantial given present reliance upon exclusionary rule).\n\n501\n\n\x0cIV. Conclusions\nWe have been asked to consider whether, assuming enactment o f\nremedies similar to the proposed amendm ent to the FTCA, Congress may\nconstitutionally limit or eliminate the exclusionary rule in Federal criminal\nproceedings. We believe that Congress may not, without more, \xe2\x80\x9c repeal\xe2\x80\x9d\nthe exclusionary rule. The rule, in the absence o f alternative remedies, is\nconstitutionally m andated. However, Congress may provide the occasion\nfor judicial repeal o f the exclusionary rule by enacting alternative\nremedies. The C ourt, in its traditional exercise o f judicial review, could\nthen analyze whether the legislative alternatives adequately protect Fourth\nAmendment guarantees. Although two decades ago the C ourt might have\ndeemed the exclusionary rule itself part and parcel o f the Fourth Amend\xc2\xad\nment and therefore not subject to legislative abolition, we believe that the\nC ourt\xe2\x80\x99s redefinition o f the rule in terms o f deterrence would constitu\xc2\xad\ntionally permit the rule\xe2\x80\x99s demise in the face o f efficacious alternatives. We\nhave identified some o f the difficulties implicit in evaluating the deterrent\npotential o f alternative remedies.\nApplying these general conclusions to the draft Senate Judiciary Com\xc2\xad\nmittee bill, we believe that it would be sustained as constitutional. The\nC ourt is likely to determine that the alternative remedy provided by the\nFTCA adequately protects Fourth Amendment rights, and therefore\nwould sustain the abolition o f the exclusionary rule. This conclusion is\nstrengthened by the fact that the draft bill eliminates the exclusionary rule\nonly for good faith violations o f the Fourth Amendment. This is a limita\xc2\xad\ntion that the C ourt may well be willing to impose on its own even in the\nabsence o f alternative remedies.17\nO ur conclusion concerning the C ourt\xe2\x80\x99s likely reaction to the proposed\nlegislation is descriptive, not normative. Although Congress and the Court\nmay be willing to substitute amendm ents to the FTCA for the exclusionary\nrule, we are not convinced that the Departm ent should support the con\xc2\xad\nstitutional minimum.\nWe believe that there are good reasons to question the adequacy o f the\nproposed amendments to the FTCA. The substitution o f the United States\nas the defendant will mean that any monetary recovery will be paid from\nthe U.S. Treasury, and not by the Federal law enforcement officer in\xc2\xad\nvolved. It has been asserted that ultimate taxpayer liability will generate\npublic demands for law-abiding police, see, e.g., Wilkey, 62 Judicature\n215, 231 (1978); whatever force this has on the State level, we believe that\nit is tenuous at best when applied to the Federal fisc. This conclusion has\nempirical support. See Project, \xe2\x80\x9c Suing the Police in Federal C ourt,\xe2\x80\x9d 88\nYale L .J. 781 (1979). Thus the only deterrent for the law enforcement\n\nl7It should be noted that enactm ent o f the proposed legislation will have the anom alous\nresult o f abolishing the exclusionary rule in the Federal courts but not the State courts. O f\ncourse, passage o f the proposal may well spur the C ourt to reevaluate Mapp v. Ohio, supra,\nas recently urged by Justice Rehnquist. California v. Minjares, 100 S. Ct. 9 (1979) (Rehn\xc2\xad\nquist, J ., dissenting from a denial o f a stay).\n\n502\n\n\x0cofficer on the street is the disciplinary proceeding that may be convened.\nThe proposal is silent as to the standards o f responsibility that are to be\napplied in such a proceeding. Presumably, the police officer would be able\nto assert a good-faith defense since it would be unfair to subject him to ad\xc2\xad\nministrative sanctions if he was carrying out his duties in a m anner that a\nreasonable officer would believe was lawful. C f , W ood v. Strickland, 420\nU.S. 308 (1975); United States v. Norton, 581 F. (2d) 390, 393 and note 2\n(4th Cir.) (citing cases), cert, denied, 439 U.S. 1003 (1978); Bivens v. Six\nUnknown Named Agents, 456 F. (2d) 1339, 1348 (2d Cir. 1972) (on re\xc2\xad\nmand). Yet the likelihood o f a person (particularly a convicted defendant)\novercoming a good-faith defense is notoriously low. See, Bivens v. Six\nUnknown Named Agents, 403 U.S. at 421 (Burger, C .J., dissenting). In\nshort, the deterrent effect o f the proposals on the police may be little or no\nmore direct or effective than the exclusionary rule. Indeed, some have sug\xc2\xad\ngested that the likely effect o f the proposed am endments is that the\nGovernment would be able to \xe2\x80\x9c buy\xe2\x80\x9d convictions by paying liquidated\ndamages for Fourth Amendment violations. See Dellinger, supra, 85\nHarv. L. Rev. at 1563. Such a remedy may well provide adequate compen\xc2\xad\nsation to a person who has been the subject o f an illegal search or seizure;\nbut it may do little to stop the Fourth Amendment from becoming a\n\xe2\x80\x9c form o f words.\xe2\x80\x9d\nWhile we are deeply concerned about the ability o f the tort remedy to\ndeter violations o f the Fourth Amendment, we also recognize that the\namendments to the FTCA are im portant in that they extend remedies to\npersons who presently receive no relief after their Fourth Amendment\nrights are violated. Thus, we would suggest enactment o f the FTCA\namendments and continued adherence to the exclusionary rule. If, after an\nappropriate period o f time, it becomes empirically apparent that the tortdiscipline remedy provides adequate deterrence, then we believe that it\nwould be time to reconsider the exclusionary rule. It may be sensible to\namend the draft legislation to include a direction to the Department o f\nJustice that it m onitor over several years the effectiveness o f the FTCA\nremedy and report to Congress. This proposal will supply an orderly proc\xc2\xad\ness for abolition o f the exclusionary rule, if abolition is empirically sup\xc2\xad\nportable. O f course, such a strategy could be frustrated if the Court on its\nown declared that existence o f the new remedies obviated the need for the\nexclusionary rule. Congress could forestall the rule\xe2\x80\x99s untimely demise by\nmaking clear th at its legislation was experimental and not to be deemed an\nalternative to the exclusionary rule. The legislation might expressly pro\xc2\xad\nvide, for example, that Congress will consider the evidence and the\nwisdom o f abolition o f the exclusionary rule at some specific future date.\nLa r r y A . H a m m o n d\n\nActing Assistant A ttorney General\nOffice o f Legal Counsel\n\n503\n\n\x0c'