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Fiber Evidence" an article in Trial Magazine of August, 1983
"Slow Strangulation" of the Exclusionary Rule
One does not need prophetic powers to predict further erosion, and possibly annihilation, of` the exclusionary rule. The handwriting has been on the wall during the entire tenure of the Burger Court, and the issue may well be decided before the conclusion of the October 1983 term. The ultimate determination will have a tremendous impact on the future practice of criminal law and procedure.
The Supreme Court established the exclusionary rule in 1914 in Weeks v. United States to safeguard rights guaranteed by the Fourth Amendment. The rule enunciated in Weeks prohibited the use of evidence obtained by federal agents in violation of the Fourth Amendment's proscription against illegal searches and seizures. In Mapp v. Ohio, the high court extended the rule to state court proceedings by holding that failure to exclude illegally obtained evidence in state courts violated the Fourteenth Amendment.
The justification underlying the adoption of the exclusionary rule was two-fold:
1) the imperative for judicial integrity, i.e., courts cannot condone lawless invasions of constitutional rights; and
2) the deterrence of unlawful police conduct.
The controversial rule has been continually under scrutiny since its inception, and subsequent to Mapp the Court began to retreat by limiting its application and scope. In United States V. Calandra, the Court permitted the use of illegally obtained evidence in grand jury proceedings. Although United States v. Simmons held that testimony elicited during a hearing on a motion to suppress is not admissible against a defendant at trial, in United States v. Havens the Supreme Court approved the use of illegally obtained evidence to impeach the credibility of a witness. The Supreme Court further limited the application of the exclusionary rule in United States v. Janis by allowing the use of illegally seized evidence in a federal civil proceeding.
In United States v. Peltier, the Supreme Court fashioned the final and most extensive limitation on the exclusionary rule. Denominated as the "good faith exception," the Court allowed admission of evidence obtained from an officer's search and seizure, where the officer conducted the search in good faith reliance that the evidence seized was admissible at trial. Peltier involved a warrantless search of an automobile conducted pursuant to a validly enacted statute permitting such searches. Prior to the decision in Peltier, but subsequent to the search, that statute was invalidated. The Supreme Court allowed the use of the evidence, reasoning that the "imperative of judicial integrity" was not offended by the introduction of the evidence. Thus, a technical Fourth Amendment violation was cured by the "good faith exception".
In his dissent in Peltier, Justice Brennan opined that the majority opinion would result in the "slow strangulation" of the exclusionary rule: "I have no confidence that the new formulation is to be confined to putative retroactivity cases. Rather, l suspect that when a suitable opportunity arises, today's revision of the exclusionary rule will be pronounced applicable to all search and seizure cases."
The following year, in Stone v. Powell, the Court refused to apply the exclusionary rule in federal habeas corpus proceedings where a state prisoner had been afforded full consideration of the rule by state courts at trial and on direct review. Significantly, in his dissent in that case, Justice White proposed two criteria for the admissibility of illegally seized evidence: a subjective test that the officer acted with the good faith belief that his conduct was legal; and the objective test that the officer had a reasonable basis for such a belief.
The Fifth Circuit Court of Appeals en banc decided the first case expressly applying the good faith exception to the exclusionary ruIe—United States v. Williams. The Court held that evidence should not be suppressed under the exclusionary rule when discovered by officers who have a reasonable, good faith, though mistaken belief that their actions are authorized. The "good faith exception to the exclusionary rule," as described by Justice White in dicta in Stone v. Powell, and Justice Brennan's admonition in Peltier may soon become binding precedent in a case presently before the high court, Illinois v. Gates. This case not only presents an issue that is critical to the future practice of criminal law, but also involves a fascinating study of the mechanism by which the Supreme Court found its "suitable opportunity" to reach the issue.
In Gates, certiorari was originally granted to determine whether or not the Supreme Court of Illinois correctly decided the only federal question presented to it: Does the Fourth Amendment prohibit a magistrate from issuing a search warrant based on the type of affidavit filed by an officer in that case? Subsequently, the state of Illinois filed a motion seeking leave to enlarge the question presented for review: Assuming arguendo that the search warrant was defective, should the evidence obtained nevertheless be admitted at trial because “the police acted in a reasonable, good faith belief in the validity of the warrant?" The Court unanimously denied the motion. In October 1982, the parties presented oral argument on the sole issue originally before the Court. In November the case was returned to the calendar for reargument, and the parties were directed to address the question whether the exclusionary rule should be modified so as "not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment."
Justice Stevens filed at strong dissent, joined by Justices Brennan and Marshall. The dissenters opined that the per curiam order was inconsistent with the Court's settled practice of not permitting a party to advance a ground for reversal that was not presented below. "[T]he action [the Court] takes today sheds a distressing light on the Court's conception of the scope of its powers."
The Court rendered its startling decision on June 8, 1983. Justice Rehnquist, writing for majority, deferred to the dissenters to the per curiam order and "with apologies to all" decided that the issue of a reasonable belief exception to the exclusionary rule, which the High Court itself had "framed for the parties," was not presented to the Illinois courts below and therefore could not now be addressed.
The remainder of the opinion, however, was certainly not as lackluster as its inauspicious beginning. Although the Court refused to address the anticipated "good faith" exception issues, it nevertheless dramatically modified the practice of criminal law by rejecting the two-pronged Aguilar—Spinelli test to determine whether an affidavit in support of a warrant contains sufficient information to support a determination of probable cause.
The two-pronged test, the majority stated, "directs analysis into two largely independent channels—the informant's 'veracity' or 'reliability’ and his ‘basis of knowledge.' There are persuasive arguments against according these two elements independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations. The Court abandoned the "two-pronged test" established in Aquilar and Spinelli. "In its place we affirm the totality of the circumstances analysis that traditionally has informed probable cause determinations." Thus, although modifying the standard that a magistrate must apply in deciding whether probable cause to issue a warrant exists, the Court has yet to address the critical issue of the "good faith" exception to the exclusionary rule.
Critics of the exclusionary rule will argue that it impedes the search for truth in that it bars the admissibility of reliable and probative evidence. More significantly, it allows the criminal to go free because of a blunder by the authorities. However, applying the good faith exception raises numerous practical problems. A police officer need only claim that he or she acted in good faith, and the court need only find that belief to be reasonable. Neither "good faith" nor "reasonable belief" are easily capable of objective definition. Thus, we are left with an undefined standard that may require years of litigation before proper guidelines are established. If the Supreme Court were to adopt a per se good faith exception to the exclusionary rule, we may well see the exception swallow the rule, and with that the destruction of our only viable Fourth Amendment safeguard.
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