Probable Cause
.--The concept of ''probable cause'' is central to the
meaning of the warrant clause. Neither the Fourth Amendment nor
the federal statutory provisions relevant to the area define ''probable
cause;'' the definition is entirely a judicial construct. An applicant
for a warrant must present to the magistrate facts sufficient to
enable the officer himself to make a determination of probable cause.
''In determining what is probable cause . . . [w]e are concerned
only with the question whether the affiant had reasonable grounds
at the time of his affidavit . . . for the belief that the law was
being violated on the premises to be searched; and if the apparent
facts set out in the affidavit are such that a reasonably discreet
and prudent man would be led to believe that there was a commission
of the offense charged, there is probable cause justifying the issuance
of a warrant.'' 95 Probable cause
is to be determined according to ''the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal
technicians, act.'' 96 Warrants are
favored in the law and utilization of them will not be thwarted
by a hypertechnical reading of the sup porting affidavit and supporting
testimony. 97 For the same reason,
reviewing courts will accept evidence of a less ''judicially competent
or persuasive character than would have justified an officer in
acting on his own without a warrant.''
98 Courts will sustain the determination of probable cause so
long as ''there was substantial basis for [the magistrate] to conclude
that'' there was probable cause. 99
Much litigation has concerned
the sufficiency of the complaint to establish probable cause. Mere
conclusory assertions are not enough.
100 In United States v. Ventresca,
101 however, an affidavit by a law
enforcement officer asserting his belief that an illegal distillery
was being operated in a certain place, explaining that the belief
was based upon his own observations and upon those of fellow investigators,
and detailing a substantial amount of these personal observations
clearly supporting the stated belief, was held to be sufficient
to constitute probable cause. ''Recital of some of the underlying
circumstances in the affidavit is essential,'' the Court said, observing
that ''where these circumstances are detailed, where reason for
crediting the source of the information is given, and when a magistrate
has found probable cause,'' the reliance on the warrant process
should not be deterred by insistence on too stringent a showing.
102
Requirements for establishing
probable cause through reliance on information received from an
informant has divided the Court in several cases. Although involving
a warrantless arrest, Draper v. United States
103 may be said to have begun the
line of cases. A previously reliable, named informant reported to
an officer that the defendant would arrive with narcotics on a particular
train, and described the clothes he would be wearing and the bag
he would be carrying; the informant, however, gave no basis for
his information. FBI agents met the train, observed that the defendant
fully answered the description, and arrested him. The Court held
that the corroboration of part of the informer's tip established
probable cause to support the arrest. A case involving a search
warrant, Jones v. United States, 104
apparently utilized a test of considering the affidavit as a
whole to see whether the tip plus the corroborating information
provided a substantial basis for finding probable cause, but the
affidavit also set forth the reliability of the informer and sufficient
detail to indicate that the tip was based on the informant's personal
observation. Aguilar v. Texas 105
held insufficient an affidavit which merely asserted that the
police had ''reliable information from a credible person'' that
narcotics were in a certain place, and held that when the affiant
relies on an informant's tip he must present two types of evidence
to the magistrate. First, the affidavit must indicate the informant's
basis of knowledge--the circumstances from which the informant concluded
that evidence was present or that crimes had been committed--and,
second, the affiant must present information which would permit
the magistrate to decide whether or not the informant was trustworthy.
Then, in Spinelli v. United States,
106 the Court applied Aguilar in a situation in which the affidavit
contained both an informant's tip and police information of a corroborating
nature.
The Court rejected the ''totality''
test derived from Jones and held that the informant's tip and the
corroborating evidence must be separately considered. The tip was
rejected because the affidavit contained neither any information
which showed the basis of the tip nor any information which showed
the informant's credibility. The corroborating evidence was rejected
as insufficient because it did not establish any element of criminality
but merely related to details which were innocent in themselves.
No additional corroborating weight was due as a result of the bald
police assertion that defendant was a known gambler, although the
tip related to gambling. Returning to the totality test, however,
the Court in United States v. Harris
107 approved a warrant issued largely on an informer's tip that
over a two-year period he had purchased illegal whiskey from the
defendant at the defendant's residence, most re cently within two
weeks of the tip. The affidavit contained rather detailed information
about the concealment of the whiskey, and asserted that the informer
was a ''prudent person,'' that defendant had a reputation as a bootlegger,
that other persons had supplied similar information about him, and
that he had been found in control of illegal whiskey within the
previous four years. The Court determined that the detailed nature
of the tip, the personal observation thus revealed, and the fact
that the informer had admitted to criminal behavior by his purchase
of whiskey were sufficient to enable the magistrate to find him
reliable, and that the supporting evidence, including defendant's
reputation, could supplement this determination.
The Court expressly abandoned
the two-part Aguilar-Spinelli test and returned to the ''totality
of the circumstances'' approach to evaluate probable cause based
on an informant's tip in Illinois v. Gates.
108 The main defect of the two-part
test, Justice Rehnquist concluded for the Court, was in treating
an informant's reliability and his basis for knowledge as independent
requirements. Instead, ''a deficiency in one may be compensated
for, in determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of reliability.''
109 In evaluating probable cause,
''[t]he task of the issuing magistrate is simply to make a practical,
commonsense decision whether, given all the circumstances set forth
in the affidavit before him, including the 'veracity' and 'basis
of knowledge' of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will be
found in a particular place.'' 110
Particularity
.--''The requirement that warrants shall particularily describe
the things to be seized makes general searches under them impossible
and prevents the seizure of one thing under a warrant describing
another. As to what is to be taken, nothing is left to the discretion
of the officer executing the warrant.''
111 This requirement thus acts to
limit the scope of the search, inasmuch as the executing officers
should be limited to looking in places where the described object
could be expected to be found. 112
First Amendment
Bearing on Probable Cause and Particularity .-- Where the
warrant process is used to authorize seizure of books and other
items entitled either to First Amendment protection or to First
Amendment consideration, the Court has required government to observe
more exacting standards than in other cases.
113 Seizure of materials arguably
protected by the First Amendment is a form of prior restraint that
requires strict observance of the Fourth Amendment. At a minimum,
a warrant is required, and additional safeguards may be required
for large-scale seizures. Thus, in Marcus v. Search Warrant,
114 the seizure of 11,000 copies
of 280 publications pursuant to warrant issued ex parte by a magistrate
who had not examined any of the publications but who had relied
on the conclusory affidavit of a policeman was voided. Failure to
scrutinize the materials and to particularize the items to be seized
was deemed inadequate, and it was further noted that police ''were
provided with no guide to the exercise of informed discretion, because
there was no step in the procedure before seizure designed to focus
searchingly on the question of obscenity.''
115 A state procedure which was
designed to comply with Marcus by the presentation of copies of
books to be seized to the magistrate for his scrutiny prior to issuance
of a warrant was nonetheless found inadequate by a plurality of
the Court, which concluded that ''since the warrant here authorized
the sheriff to seize all copies of the specified titles, and since
[appellant] was not afforded a hearing on the question of the obscenity
even of the seven novels [seven of 59 listed titles were reviewed
by the magistrate] before the warrant issued, the procedure was
. . . constitutionally deficient.''
116 Confusion remains, however, about the necessity for and
the character of prior adversary hearings on the issue of obscenity.
In a later decision the Court held that, with adequate safeguards,
no pre-seizure adversary hearing on the issue of obscenity is required
if the film is seized not for the purpose of destruction as contraband
(the purpose in Marcus and A Quantity of Books), but instead to
preserve a copy for evidence. 117
It is constitutionally permissible to seize a copy of a film
pursuant to a warrant as long as there is a prompt post- seizure
adversary hearing on the obscenity issue. Until there is a judicial
determination of obscenity, the Court advised, the film may continue
to be exhibited; if no other copy is available either a copy of
it must be made from the seized film or the film itself must be
returned. 118
The seizure of a film without
the authority of a constitutionally sufficient warrant is invalid;
seizure cannot be justified as incidental to arrest, inasmuch as
the determination of obscenity may not be made by the officer himself.
119 Nor may a warrant issue based
''solely on the conclusory assertions of the police officer without
any inquiry by the [magistrate] into the factual basis for the officer's
conclusions.'' 120 Instead, a warrant
must be ''supported by affidavits setting forth specific facts in
order that the issuing magistrate may 'focus searchingly on the
question of obscenity.''' 121 This
does not mean, however, that a higher standard of probable cause
is required in order to obtain a warrant to seize materials protected
by the First Amendment. ''Our reference in Roaden to a 'higher hurdle
. . . of reasonableness' was not intended to establish a 'higher'
standard of probable cause for the issuance of a warrant to seize
books or films, but instead related to the more basic requirement,
imposed by that decision, that the police not rely on the 'exigency'
exception to the Fourth Amendment warrant requirement, but instead
obtain a warrant from a magistrate . . . .'''
122
In Stanford v. Texas,
123 a seizure of more than 2,000
books, pamphlets, and other documents pursuant to a warrant which
merely authorized the seizure of books, pamphlets, and other written
instruments ''concerning the Communist Party of Texas'' was voided.
''[T]he constitutional requirement that warrants must particularly
describe the 'things to be seized' is to be accorded the most scrupulous
exactitude when the 'things' are books, and the basis for their
seizure is the ideas which they contain. . . . No less a standard
could be faithful to First Amendment freedoms.''
124
However, the First Amendment does
not bar the issuance or execution of a warrant to search a newsroom
to obtain photographs of demonstrators who had injured several policemen,
although the Court appeared to suggest that a magistrate asked to
issue such a warrant should guard against interference with press
freedoms through limits on type, scope, and intrusiveness of the
search. 125
_______
[Footnote 95] Dumbra v. United States,
268 U.S. 435, 439 , 441 (1925). ''[T]he term 'probable cause'.
. . means less than evidence which would justify condemnation.''
Lock v. United States,
11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States,
267 U.S. 498, 504 -05 (1925). It may rest upon evidence which
is not legally competent in a criminal trial, Draper v. United States,
358 U.S. 307, 311 (1959), and it need not be sufficient to prove
guilt in a criminal trial. Brinegar v. United States,
338 U.S. 160, 173 (1949). See United States v. Ventresca,
380 U.S. 102, 107 -08 (1965).
[Footnote
96] Brinegar v. United States,
338 U.S. 160, 175 (1949).
[Footnote
97] United States v. Ventresca,
380 U.S. 102, 108 -09 (1965).
[Footnote
98] Jones v. United States,
362 U.S. 257, 270 -71 (1960). Similarly, the preference for
proceeding by warrant leads to a stricter rule for appellate review
of trial court decisions on warrantless stops and searches than
is employed to review probable cause to issue a warrant. Ornelas
v. United States, 116 S. Ct. 1657 (1996) (determinations of reasonable
suspicion to stop and probable cause to search without a warrant
should be subjected to de novo appellate review).
[Footnote
99] Aguilar v. Texas,
378 U.S. 108, 111 (1964). It must be emphasized that the issuing
party ''must judge for himself the persuasiveness of the facts relied
on by a [complainant] to show probable cause.'' Giordenello v. United
States,
357 U.S. 480, 486 (1958). An insufficient affidavit cannot be
rehabilitated by testimony after issuance concerning information
possessed by the affiant but not disclosed to the magistrate. Whiteley
v. Warden,
401 U.S. 560 (1971).
[Footnote
100] Byars v. United States,
273 U.S. 28 (1927) (affiant stated he ''has good reason to believe
and does believe'' that defendant has contraband materials in his
possession); Giordenello v. United States,
357 U.S. 480 (1958) (complainant merely stated his conclusion
that defendant had committed a crime). See also Nathanson v. United
States,
290 U.S. 41 (1933).
[Footnote
101]
380 U.S. 102 (1965).
[Footnote
102] Id. at 109.
[Footnote
103]
358 U.S. 307 (1959). For another case applying essentially the
same probable cause standard to warrantless arrests as govern arrests
by warrant, see McCray v. Illinois,
386 U.S. 300 (1967) (informant's statement to arresting officers
met Aguilar probable cause standard). See also Whitely v. Warden,
401 U.S. 560, 566 (1971) (standards must be ''at least as stringent''
for warrantless arrest as for obtaining warrant).
[Footnote
104]
362 U.S. 257 (1960).
[Footnote
105]
378 U.S. 108 (1964).
[Footnote
106]
393 U.S. 410 (1969). Both concurring and dissenting Justices
recognized tension between Draper and Aguilar. See id. at 423 (Justice
White concurring), id. at 429 (Justice Black dissenting and advocating
the overruling of Aguilar).
[Footnote
107]
403 U.S. 573 (1971). See also Adams v. Williams,
407 U.S. 143, 147 (1972) (approving warrantless stop of motorist
based on informant's tip that ''may have been insufficient'' under
Aguilar and Spinelli as basis for warrant).
[Footnote
108]
462 U.S. 213 (1983) (Justice Rehnquist's opinion of the Court
was joined by Chief Justice Burger and by Justices Blackmun, Powell,
and O'Connor. Justices Brennan, Marshall, and Stevens dissented.
[Footnote
109]
462 U.S. at 213 .
[Footnote
110]
462 U.S. at 238 .
[Footnote
111] Marron v. United States,
275 U.S. 192, 196 (1927). See Stanford v. Texas,
379 U.S. 476 (1965). Of course, police who are lawfully on the
premises pursuant to a warrant may seize evidence of crime in ''plain
view'' even if that evidence is not described in the warrant. Coolidge
v. New Hampshire, 403, U.S. 443, 464-71 (1971).
[Footnote
112] ''This Court has held in the past that a search which is
reasonable at its inception may violate the Fourth Amendment by
virtue of its intolerable intensity and scope. Kremen v. United
States,
353 U.S. 346 (1957); Go-Bart Importing Co. v. United States,
282 U.S. 344, 356 -58 (1931); see United States v. Di Re,
332 U.S. 581, 586 -87 (1948). The scope of the search must be
'strictly tied to and justified by' the circumstances which rendered
its initiation permissible. Warden v. Hayden,
387 U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see,
e.g., Preston v. United States,
376 U.S. 364, 367 -368 (1964); Agnello v. United States,
296 U.S. 20, 30 -31 (1925).'' Terry v. Ohio,
392 U.S. 1, 18 -19, (1968). See also Andresen v. Maryland,
427 U.S. 463, 470 -82 (1976), and id. at 484, 492-93 (Justice
Brennan dissenting). In Stanley v. Georgia,
394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and White
would have based decision on the principle that a valid warrant
for gambling paraphernalia did not authorize police upon discovering
motion picture films in the course of the search to project the
films to learn their contents.
[Footnote
113] Marcus v. Search Warrant,
367 U.S. 717, 730 -31 (1961); Stanford v. Texas,
379 U.S. 476, 485 (1965).
[Footnote
114]
367 U.S. 717 (1961). See Kingsley Books v. Brown,
354 U.S. 436 (1957).
[Footnote
115] Marcus v. Search Warrant,
367 U.S. 717, 732 (1961).
[Footnote
116] A Quantity of Books v. Kansas,
378 U.S. 205, 210 (1964).
[Footnote
117] Heller v. New York,
413 U.S. 483 (1973).
[Footnote
118] Id. at 492-93. But cf. New York v. P.J. Video, Inc.,
475 U.S. 868, 875 n.6 (1986), rejecting the defendant's assertion,
based on Heller, that only a single copy rather than all copies
of allegedly obscene movies should have been seized pursuant to
warrant.
[Footnote
119] Roaden v. Kentucky,
413 U.S. 496 (1973). See also Lo-Ji Sales v. New York,
442 U.S. 319 (1979); Walter v. United States,
447 U.S. 649 (1980). These special constraints are inapplicable
when obscene materials are purchased, and there is consequently
no Fourth Amendment search or seizure. Maryland v. Macon,
472 U.S. 463 (1985).
[Footnote
120] Lee Art Theatre, Inc. v. Virginia,
392 U.S. 636, 637 (1968) (per curiam).
[Footnote
121] New York v. P.J. Video, Inc.,
475 U.S. 868, 873 -74 (1986) (quoting Marcus v. Search Warrant,
367 U.S. 717, 732 (1961)).
[Footnote
122] New York v. P.J. Video, Inc.,
475 U.S. 868, 875 n.6 (1986).
[Footnote
123]
379 U.S. 476 (1965).
[Footnote
124] Id. at 485-86. See also Marcus v. Search Warrant,
367 U.S. 717, 723 (1961).
[Footnote
125] Zurcher v. Stanford Daily,
436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned
in text), and id. at 566 (Justice Powell concurring) (more expressly
adopting that position). In the Privacy Protection Act, Pub. L.
No. 96-440, 94 Stat. 1879 (1980), 42 U.S.C. Sec. 2000aa, Congress
provided extensive protection against searches and seizures not
only of the news media and news people but also of others engaged
in disseminating communications to the public, unless there is probable
cause to believe the person protecting the materials has committed
or is committing the crime to which the materials relate.
Development of the Exclusionary
Rule .--Exclusion of evidence as a remedy for Fourth Amendment
violations found its beginning in Boyd v. United States,
167 which, as was noted above, involved
not a search and seizure but a compulsory production of business
papers which the Court likened to a search and seizure. Further,
the Court analogized the Fifth Amendment's self-incrimination provision
to the Fourth Amendment's protections to derive a rule which required
exclusion of the compelled evidence because the defendant had been
compelled to incriminate himself by producing it.
168 The Boyd case was closely limited
to its facts and an exclusionary rule based on Fourth Amendment
violations was rejected by the Court a few years later, with the
Justices adhering to the common- law rule that evidence was admissible
however acquired. 169
Nevertheless, ten years later
the common-law view was itself rejected and an exclusionary rule
propounded in Weeks v. United States.
170 Weeks had been convicted on
the basis of evidence seized from his home in the course of two
warrantless searches; some of the evidence consisted of private
papers like those sought to be compelled in the Boyd case. Unanimously,
the Court held that the evidence should have been excluded by the
trial court. The Fourth Amendment, Justice Day said, placed on the
courts as well as on law enforcement officers restraints on the
exercise of power compatible with its guarantees. ''The tendency
of those who execute the criminal laws of the country to obtain
convictions by means of unlawful searches 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.''
171 The ruling is ambiguously based
but seems to have had as its foundation an assumption that admission
of illegally-seized evidence would itself violate the Amendment.
''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 secured 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 Constitu
tion. The efforts of the courts and their officials to bring the
guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years
of endeavor and suffering which have resulted in their embodiment
in the fundamental law of the land.''
172
Because the Fourth Amendment did
not restrict the actions of state officers,
173 there was no question about
the application of an exclusionary rule in state courts
174 as a mandate of federal constitutional
policy. 175 But in Wolf v. Colorado,
176 a unanimous Court held that
freedom from unreasonable searches and seizures was such a fundamental
right as to be protected against state violations by the due process
clause of the Fourteenth Amendment.
177 However, the Court held that the right thus guaranteed did
not require that the exclusionary rule be applied in the state courts,
since there were other means to observe and enforce the right. ''Granting
that in practice the exclusion of evidence may be an effective way
of deterring unreasonable searches, it is not for this Court to
condemn as falling below the minimal standards assured by the Due
Process Clause a State's reliance upon other methods which, if consistently
enforced, would be equally effective.''
178
It developed, however, that the
Court had not vested in the States total discretion in regard to
the admissibility of evidence, as the Court proceeded to evaluate
under the due process clause the methods by which the evidence had
been obtained. Thus, in Rochin v. California,
179 evidence of narcotics possession
had been obtained by forcible administration of an emetic to defendant
at a hospital after officers had been unsuccessful in preventing
him from swallowing certain capsules. The evidence, said Justice
Frankfurter for the Court, should have been excluded because the
police methods were too objectionable. ''This is conduct that shocks
the conscience. Illegally breaking into the privacy of the petitioner,
the struggle to open his mouth and remove what was there, the forcible
extraction of his stomach's contents . . . is bound to offend even
hardened sensibilities. They are methods too close to the rack and
screw.'' 180 The Rochin standard
was limited in Irvine v. California,
181 in which defendant was convicted of bookmaking activities
on the basis of evidence secured by police who repeatedly broke
into his house and concealed electronic gear to broadcast every
conversation in the house. Justice Jackson's plurality opinion asserted
that Rochin had been occasioned by the element of brutality, and
that while the police conduct in Irvine was blatantly illegal the
admissibility of the evidence was governed by Wolf, which should
be consistently applied for purposes of guidance to state courts.
The Justice also entertained considerable doubts about the efficacy
of the exclusionary rule. 182 Rochin
emerged as the standard, however, in a later case in which the Court
sustained the admissibility of the results of a blood test administered
while defendant was unconscious in a hospital following a traffic
accident, the Court observing the routine nature of the test and
the minimal intrusion into bodily privacy.
183
Then, in Mapp v. Ohio,
184 the Court held that the exclusionary
rule should and did apply to the States. It was ''logically and
constitutionally necessary,'' wrote Justice Clark for the majority,
''that the exclusion doctrine--an essential part of the right to
privacy--be also insisted upon as an essential ingredient of the
right'' to be secure from unreasonable searches and seizures. ''To
hold otherwise is to grant the right but in reality to withhold
its privilege and enjoyment.'' 185
Further, the Court then held that since illegally- seized evidence
was to be excluded from both federal and state courts, the standards
by which the question of legality was to be determined should be
the same, regardless of whether the court in which the evidence
was offered was state or federal. 186
The Foundations
of the Exclusionary Rule .--Important to determination
of such questions as the application of the exclusionary rule to
the States and the ability of Congress to abolish or to limit it
is the fixing of the constitutional source and the basis of the
rule. For some time, it was not clear whether the exclusionary rule
was derived from the Fourth Amendment, from some union of the Fourth
and Fifth Amendments, or from the Court's supervisory power over
the lower federal courts. It will be recalled that in Boyd
187 the Court fused the search and
seizure clause with the provision of the Fifth Amendment protecting
against compelled self-incrimination. Weeks v. United States,
188 though the Fifth Amendment was
mentioned, seemed to be clearly based on the Fourth Amendment. Nevertheless,
in opinions following Weeks the Court clearly identified the basis
for the exclusionary rule as the self-incrimination clause of the
Fifth Amendment. 189 Then in Mapp
v. Ohio, 190 the Court tied the
rule strictly to the Fourth Amendment, finding exclusion of evidence
seized in violation of the Amendment to be the ''most important
constitutional privilege'' of the right to be free from unreasonable
searches and seizures, finding that the rule was ''an essential
part of the right of privacy'' protected by the Amendment.
''This Court has ever since [Weeks
was decided in 1914] required of federal law officers a strict adherence
to that command which this Court has held to be 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.'''
191 It was a necessary step in the
application of the rule to the States to find that the rule was
of constitutional origin rather than a result of an exercise of
the Court's supervisory power over the lower federal courts, inasmuch
as the latter could not constitutionally be extended to the state
courts. 192 In fact, Justice Frankfurter
seemed to find the exclusionary rule to be based on the Court's
supervisory powers in Wolf v. Colorado
193 in declining to extend the rule
to the States. That the rule is of constitutional origin Mapp establishes,
but this does not necessarily establish that it is immune to statutory
revision.
Suggestions appear in a number
of cases, including Weeks, to the effect that admission of illegally-seized
evidence is itself unconstitutional.
194 These were often combined with a rationale emphasizing ''judicial
integrity'' as a reason to reject the proffer of such evidence.
195 Yet the Court permitted such
evidence to be introduced into trial courts, when the defendant
lacked ''standing'' to object to the search and seizure which produced
the evidence 196 or when the search
took place before the announcement of the decision extending the
exclusionary rule to the States. 197
At these times, the Court turned to the ''basic postulate of
the exclusionary rule itself. The rule is calculated to prevent,
not to repair. Its purpose is to deter--to compel respect for the
constitutional guaranty in the only effectively available way--by
removing the incentive to disregard it.''
198 ''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. Indeed, all
of the cases since Wolf requiring the exclusion of illegal evidence
have been based on the necessity for an effective deterrent to illegal
police action.'' 199
Narrowing Application
of the Exclusionary Rule .--For as long as we have had
the exclusionary rule, critics have attacked it, challenged its
premises, disputed its morality. 200
By the early 1980s a majority of Justices had stated a desire
either to abolish the rule or to sharply curtail its operation,
201 and numerous opinions had rejected
all doctrinal bases save that of deterrence.
202 At the same time, these opinions
voiced strong doubts about the efficacy of the rule as a deterrent,
and advanced public interest values in effective law enforcement
and public safety as reasons to discard the rule altogether or curtail
its application. 203 Thus, the Court
emphasized the high costs of enforcing the rule to exclude reliable
and trustworthy evidence, even when violations have been technical
or in good faith, and suggested that such use of the rule may well
''generat[e] disrespect for the law and administration of justice,''
204 as well as free guilty defendants.
205 No longer does the Court declare
that ''[t]he essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court but that it shall not be used
at all.'' 206
Although the exclusionary rule
has not been completely repudiated, its utilization has been substantially
curbed. Initial decisions chipped away at the rule's application.
Defendants who themselves were not subjected to illegal searches
and seizures may not object to the introduction against themselves
of evidence illegally obtained from co-conspirators or codefendants,
207 and even a defendant whose rights
have been infringed may find the evidence coming in, not as proof
of guilt, but to impeach his testimony.
208 Defendants who have been convicted
after trials in which they were given a full and fair opportunity
to raise claims of Fourth Amendment violations may not subsequently
raise those claims on federal habeas corpus because of the costs
overweighing the minimal deterrent effect.
209 Evidence obtained through a
wrongful search and seizure may sometimes be used in the criminal
trial, if the prosecution can show a sufficient attenuation of the
link between police misconduct and obtaining of the evidence.
210 If an arrest or a search which
was valid at the time it was effectuated becomes bad through the
subsequent invalidation of the statute under which the arrest or
search was made, evidence obtained thereby is nonetheless admissible.
211 A grand jury witness was not
permitted to refuse to answer questions on the ground that they
were based on evidence obtained from an unlawful search and seizure,
212 and federal tax authorities
were permitted to use in a civil proceeding evidence found to have
been unconstitutionally seized from defendant by state authorities.
213
The most severe curtailment of
the rule came in 1984 with adoption of a ''good faith'' exception.
In United States v. Leon, 214 the
Court created an exception for evidence obtained as a result of
officers' objective, good-faith reliance on a warrant, later found
to be defective, issued by a detached and neutral magistrate. Justice
White's opinion for the Court 215
could find little benefit in applying the exclusionary rule
where there has been good-faith reliance on an invalid warrant.
Thus, there was nothing to offset the ''substantial social costs
exacted by the [rule].'' 216 ''The
exclusionary rule is designed to deter police misconduct rather
than to punish the errors of judges and magistrates,'' and in any
event the Court considered it unlikely that the rule could have
much deterrent effect on the actions of truly neutral magistrates.
217 Moreover, the Court thought
that the rule should not be applied ''to deter objectively reasonable
law enforcement activity,'' and that ''[p]enalizing the officer
for the magistrate's error . . . cannot logically contribute to
the deterrence of Fourth Amendment violations.''
218 The Court also suggested some
circumstances in which courts would be unable to find that officers'
reliance on a warrant was objectively reasonable: if the officers
have been ''dishonest or reckless in preparing their affidavit,''
if it should have been obvious that the magistrate had ''wholly
abandoned'' his neutral role, or if the warrant was obviously deficient
on its face (e.g., lacking in particularity). The Court applied
the Leon standard in Massachusetts v. Sheppard,
219 holding that an officer possessed
an objectively reasonable belief that he had a valid warrant after
he had pointed out to the magistrate that he had not used the standard
form, and the magistrate had indicated that the necessary changes
had been incorporated in the issued warrant.
The Court then extended Leon to
hold that the exclusionary rule is inapplicable to evidence obtained
by an officer acting in objectively reasonable reliance on a statute
later held violative of the Fourth Amendment.
220 Justice Blackmun's opinion for
the Court reasoned that application of the exclusionary rule in
such circumstances would have no more deterrent effect on officers
than it would when officers reasonably rely on an invalid warrant,
and no more deterrent effect on legislators who enact invalid statutes
than on magistrates who issue invalid warrants.
221
It is unclear from the Court's
analysis in Leon and its progeny whether a majority of the Justices
would also support a good-faith exception for evidence seized without
a warrant, although there is some language broad enough to apply
to warrantless seizures. 222 It
is also unclear what a good-faith exception would mean in the context
of a warrantless search, since the objective reasonableness of an
officer's action in proceeding without a warrant is already taken
into account in determining whether there has been a Fourth Amendment
violation. 223 The Court's increasing
willingness to uphold warrantless searches as not ''unreasonable''
under the Fourth Amendment, however, may reduce the frequency with
which the good-faith issue arises in the context of the exclusionary
rule. 224
Operation of the
Rule: Standing .--The Court for a long period followed
a rule of ''standing'' by which it determined whether a party was
the appropriate person to move to suppress allegedly illegal evidence.
Akin to Article III justiciability principles, which emphasize that
one may ordinarily contest only those government actions that harm
him, the standing principle in Fourth Amendment cases ''require[d]
of one who seeks to challenge the legality of a search as the basis
for suppressing relevant evidence that he allege, and if the allegation
be disputed that he establish, that he himself was the victim of
an invasion of privacy.'' 225 The
Court recently has departed from the concept of ''standing'' to
telescope the inquiry into one inquiry rather than two. Finding
that ''standing'' served no useful analytical purpose, the Court
has held that the issue of exclusion is to be determined solely
upon a resolution of the substantive question whether the claimant's
Fourth Amendment rights have been violated. ''We can think of no
decided cases of this Court that would have come out differently
had we concluded . . . that the type of standing requirement . .
. reaffirmed today is more properly subsumed under substantive Fourth
Amendment doctrine. Rigorous application of the principle that the
rights secured by this Amendment are personal, in place of a notion
of 'standing,' will produce no additional situations in which evidence
must be excluded. The inquiry under either approach is the same.''
226 One must therefore show that
''the disputed search and seizure has infringed an interest of the
defendant which the Fourth Amendment was designed to protect.''
227
The Katz reasonable expectation
of privacy rationale has now displaced property-ownership concepts
which previously might have supported either standing to suppress
or the establishment of an interest that has been invaded. Thus,
it is no longer sufficient to allege possession or ownership of
seized goods to establish the interest, if a justifiable expectation
of privacy of the defendant was not violated in the seizure.
228 Also, it is no longer sufficient
that one merely be lawfully on the premises in order to be able
to object to an illegal search; rather, one must show some legitimate
interest in the premises that the search invaded.
229 The same illegal search might,
therefore, invade the rights of one person and not of another.
230 Again, the effect of the application
of the privacy rationale has been to narrow considerably the number
of people who can complain of an unconstitutional search.
____________________________
[Footnote
167]
116 U.S. 616 (1886).
[Footnote
168] ''We have already noticed the intimate relation between
the two Amendments. They throw great light on each other. For the
'unreasonable searches and seizures' condemned in the Fourth Amendment
are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in
the Fifth Amendment; and compelling a man in a criminal case to
be a witness against himself, which is condemned in the Fifth Amendment,
throws light on the question as to what is an 'unreasonable search
and seizure' within the meaning of the Fourth Amendment. And we
have been unable to perceive that the seizure of a man's private
books and papers to be used in evidence against him is substantially
different from compelling him to be a witness against himself. We
think it is within the clear intent and meaning of those terms.''
Id. at 633. It was this utilization of the Fifth Amendment's clearly
required exclusionary rule, rather than one implied from the Fourth,
on which Justice Black relied and absent a Fifth Amendment self-incrimination
violation he did not apply such a rule. Mapp v. Ohio,
367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New
Hampshire,
403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). The
theory of a ''convergence'' of the two Amendments has now been disavowed
by the Court. Supra, pp.1225-26.
[Footnote
169] Adams v. New York,
192 U.S. 585 (1904). Since the case arose from a state court
and concerned a search by state officers, it could have been decided
simply by holding that the Fourth Amendment was inapplicable. See
National Safe Deposit Co. v. Stead,
232 U.S. 58, 71 (1914).
[Footnote
170]
232 U.S. 383 (1914).
[Footnote
171] Id. at 392.
[Footnote
172] Id. at 393.
[Footnote
173] Smith v. Maryland,
59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit Co. v.
Stead,
232 U.S. 58, 71 (1914). See supra, p.957.
[Footnote
174] The history of the exclusionary rule in the state courts
was surveyed by Justice Frankfurter in Wolf v. Colorado,
338 U.S. 25, 29 , 33-38 (1949). The matter was canvassed again
in Elkins v. United States,
364 U.S. 206, 224 -32 (1960).
[Footnote
175] During the period in which the Constitution did not impose
any restrictions on state searches and seizures, the Court permitted
the introduction in evidence in federal courts of items seized by
state officers which had they been seized by federal officers would
have been inadmissible, Weeks v. United States,
232 U.S. 383, 398 (1914), so long as no federal officer participated
in the search, Byars v. United States,
273 U.S. 28 (1927), or the search was not made on behalf of
federal law enforcement purposes. Gambino v. United States,
275 U.S. 310 (1927). This rule became known as the ''silver
platter doctrine'' after the phrase coined by Justice Frankfurter
in Lustig v. United States,
338 U.S. 74, 78 -79 (1949): ''The crux of that doctrine is that
a search is a search by a federal official if he had a hand in it;
it is not a search by a federal official if evidence secured by
state authorities is turned over to the federal authorities on a
silver platter.'' In Elkins v. United States,
364 U.S. 206 (1960), the doctrine was discarded by a five-to-four
majority which held that inasmuch as Wolf v. Colorado,
338 U.S. 25 (1949), had made state searches and seizures subject
to federal constitutional restrictions through the Fourteenth Amendment's
due process clause, the ''silver platter doctrine'' was no longer
constitutionally viable. During this same period, since state courts
were free to admit any evidence no matter how obtained, evidence
illegally seized by federal officers could be used in state courts,
Wilson v. Schnettler,
365 U.S. 381 (1961), although the Supreme Court ruled out such
a course if the evidence had first been offered in a federal trial
and had been suppressed. Rea v. United States,
350 U.S. 214 (1956).
[Footnote
176]
338 U.S. 25 (1949).
[Footnote
177] ''The security of one's privacy against arbitrary intrusion
by the police--which is at the core of the Fourth Amendment--is
basic to a free society. It is therefore implicit in 'the concept
of ordered liberty' and as such enforceable against the States through
the Due Process Clause.'' Id. at 27-28.
[Footnote
178] Id. at 31. Justices Douglas, Murphy, and Rutledge dissented
with regard to the issue of the exclusionary rule and Justice Black
concurred.
[Footnote
179]
342 U.S. 165 (1952). The police had initially entered defendant's
house without a warrant. Justices Black and Douglas concurred in
the result on self-incrimination grounds.
[Footnote
180] Id. at 172.
[Footnote
181]
347 U.S. 128 (1954).
[Footnote
182] Id. at 134-38. Justice Clark, concurring, announced his
intention to vote to apply the exclusionary rule to the States when
the votes were available. Id. at 138. Justices Black and Douglas
dissented on self-incrimination grounds, id. at 139, and Justice
Douglas continued to urge the application of the exclusionary rule
to the States. Id. at 149. Justices Frankfurter and Burton dissented
on due process grounds, arguing the relevance of Rochin. Id. at
142.
[Footnote
183] Breithaupt v. Abram,
352 U.S. 432 (1957). Chief Justice Warren and Justices Black
and Douglas dissented. Though a due process case, the results of
the case have been reaffirmed directly in a Fourth Amendment case.
Schmerber v. California,
384 U.S. 757 (1966).
[Footnote
184]
367 U.S. 643 (1961).
[Footnote
185] Id. at 655-56. Justice Black concurred, doubting that the
Fourth Amendment itself compelled adoption of an exclusionary rule
but relying on the Fifth Amendment for authority. Id. at 661. Justice
Stewart would not have reached the issue but would have reversed
on other grounds, id. at 672, while Justices Harlan, Frankfurter,
and Whittaker dissented, preferring to adhere to Wolf. Id. at 672.
Justice Harlan advocated the overruling of Mapp down to the conclusion
of his service on the Court. See Coolidge v. New Hampshire,
403 U.S. 443, 490 (1971) (concurring opinion).
[Footnote
186] Ker v. California,
374 U.S. 23 (1963).
[Footnote
187] Boyd v. United States,
116 U.S. 616 (1886).
[Footnote
188]
232 U.S. 383 (1914). Defendant's room had been searched and
papers seized by officers acting without a warrant. ''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.
[Footnote
189] E.g., Gouled v. United States,
255 U.S. 298, 306 , 307 (1921); Amos v. United States,
255 U.S. 313, 316 (1921); Agnello v. United States,
269 U.S. 20, 33 -34 (1925); McGuire v. United States,
273 U.S. 95, 99 (1927). In Olmstead v. United States,
277 U.S. 438, 462 (1928), Chief Justice Taft ascribed the rule
both to the Fourth and the Fifth Amendments, while in dissent Justices
Holmes and Brandeis took the view that the Fifth Amendment was violated
by the admission of evidence seized in violation of the Fourth.
Id. at 469, 478-79. Justice Black was the only modern proponent
of this view. Mapp v. Ohio,
367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New
Hampshire,
403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). See,
however, Justice Clark's plurality opinion in Ker v. California,
374 U.S. 23, 30 (1963), in which he brought up the self-incrimination
clause as a supplementary source of the rule, a position which he
had discarded in Mapp.
[Footnote
190]
367 U.S. 643, 656 (1961). Wolf v. Colorado,
338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth
Amendment exclusively.
[Footnote
191] Mapp v. Ohio,
367 U.S. 643, 648 (1961) (emphasis supplied).
[Footnote
192] An example of an exclusionary rule not based on constitutional
grounds may be found in McNabb v. United States,
318 U.S. 332 (1943), and Mallory v. United States,
354 U.S. 449 (1957), in which the Court enforced a requirement
that arrestees be promptly presented to a magistrate by holding
that incriminating admissions obtained during the period beyond
a reasonable time for presentation would be inadmissible. The rule
was not extended to the States, cf. Culombe v. Connecticut,
367 U.S. 568, 598 -602 (1961), but the Court's resort to the
self-incrimination clause in reviewing confessions made such application
irrelevant in most cases in any event. For an example of a transmutation
of a supervisory rule into a constitutional rule, see McCarthy v.
United States,
394 U.S. 459 (1969), and Boykin v. Alabama,
395 U.S. 238 (1969).
[Footnote
193] Weeks ''was not derived from the explicit requirements
of the Fourth Amendment; . . . The decision was a matter of judicial
implication.''
338 U.S. 25, 28 (1949). Justice Black was more explicit. ''I
agree with what appears to be a plain implication of the Court's
opinion that the federal exclusionary rule is not a command of the
Fourth Amendment but is a judicially created rule of evidence which
Congress might negate.'' Id. at 39-40. He continued to adhere to
the supervisory power basis in strictly search-and-seizure cases,
Berger v. New York,
388 U.S. 41, 76 (1967) (dissenting), except where self- incrimination
values were present. Mapp v. Ohio,
367 U.S. 643, 661 (1961) (concurring). And see id. at 678 (Justice
Harlan dissenting); Elkins v. United States,
364 U.S. 206, 216 (1960) (Justice Stewart for the Court).
[Footnote
194] ''The tendency of those who execute the criminal laws of
the country to obtain convictions by means of unlawful searches
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 . . . .'' Weeks v. United States,
232 U.S. 383, 392 (1914). In Mapp v. Ohio,
367 U.S. 643, 655 , 657 (1961), Justice Clark maintained that
''the Fourth Amendment include[s] the exclusion of the evidence
seized in violation of its provisions'' and that it, and the Fifth
Amendment with regard to confessions ''assures . . . that no man
is to be convicted on unconstitutional evidence.'' In Terry v. Ohio,
392 U.S. 1, 12 , 13 (1968), Chief Justice Warren wrote: ''Courts
which sit under our Constitution cannot and will not be made party
to lawless invasions of the constitutional rights of citizens by
permitting unhindered governmental use of the fruits of such invasions.
. . . A ruling admitting evidence in a criminal trial . . . has
the necessary effect of legitimizing the conduct which produced
the evidence.''
[Footnote
195] Elkins v. United States,
364 U.S. 206, 222 -23 (1960); Mapp v. Ohio,
367 U.S. 643, 660 (1961). See McNabb v. United States,
318 U.S. 332, 339 -40 (1943).
[Footnote
196] Infra, pp.1269-70.
[Footnote
197] Linkletter v. Walker,
381 U.S. 618 (1965).
[Footnote
198] Elkins v. United States,
364 U.S. 206, 217 (1960).
[Footnote
199] Linkletter v. Walker,
381 U.S. 618, 636 -37 (1965). The Court advanced other reasons
for its decision as well. Id. at 636-40.
[Footnote
200] Among the early critics were Judge Cardozo, People v. Defore,
242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go
free ''because the constable has blundered''); and Dean Wigmore.
8 J. Wigmore, A Treatise on the Anglo-American System of Evidence
2183-84 (3d ed. 1940). For extensive discussion of criticism and
support, with citation to the literature, see 1 Wayne R. LaFave,
Search and Seizure--A Treatise on the Fourth Amendment Sec. 1.2
(2d ed. 1987).
[Footnote
201] E.g., Stone v. Powell,
428 U.S. 465, 496 (1976) (Chief Justice Burger: rule ought to
be discarded now, rather than wait for a replacement as he argued
earlier); id. at 536 (Justice White: modify rule to admit evidence
seized illegally, but in good faith); Schneckloth v. Bustamonte,
412 U.S. 218, 261 (1973) (Justice Powell); Brown v. Illinois,
422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California,
453 U.S. 420, 437 (1981) (Justice Rehnquist); California v.
Minjares,
443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice
Burger); Coolidge v. New Hampshire,
403 U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black's
dissent that ''the Fourth Amendment supports no exclusionary rule'').
[Footnote
202] E.g., United States v. Janis,
428 U.S. 433, 446 (1976) (deterrence is the ''prime purpose''
of the rule, ''if not the sole one.''); United States v. Calandra,
414 U.S. 338, 347 -48 (1974); United States v. Peltier,
422 U.S. 531, 536 -39 (1975); Stone v. Powell,
428 U.S. 465, 486 (1976); Rakas v. Illinois,
439 U.S. 128, 134 n.3, 137-38 (1978); Michigan v. DeFillippo,
443 U.S. 31, 38 n.3 (1979). Thus, admission of the fruits of
an unlawful search or seizure ''work[s] no new Fourth Amendment
wrong,'' the wrong being ''fully accomplished by the unlawful search
or seizure itself,'' United States v. Calandara, supra, 354, and
the exclusionary rule does not ''cure the invasion of the defendant's
rights which he has already suffered.'' Stone v. Powell, supra,
540 (Justice White dissenting). ''Judicial integrity'' is not infringed
by the mere admission of evidence seized wrongfully. ''[T]he courts
must not commit or encourage violations of the Constitution,'' and
the integrity issue is answered by whether exclusion would deter
violations by others. United States v. Janis, supra, at 458 n.35;
United States v. Calandra, supra, at 347, 354; United States v.
Peltier, supra, at 538; Michigan v. Tucker,
417 U.S. 433, 450 n.25 (1974).
[Footnote
203] United States v. Janis,
428 U.S. 433, 448 -54 (1976), contains a lengthy review of the
literature on the deterrent effect of the rule and doubts about
that effect. See also Stone v. Powell,
428 U.S. 465, 492 n.32 (1976).
[Footnote
204] Stone v. Powell,
428 U.S. at 490 , 491.
[Footnote
205] Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388, 416 (1971) (Chief Justice Burger dissenting).
[Footnote
206] Silverthorne Lumber Co. v. United States
251 U.S. 385, 392 (1920).
[Footnote
207] E.g., Rakas v. Illinois,
439 U.S. 128 (1978); United States v. Salvucci,
448 U.S. 83 (1980); Rawlings v. Kentucky,
448 U.S. 98 (1980). In United States v. Payner,
447 U.S. 727 (1980), the Court held it impermissible for a federal
court to exercise its supervisory power to police the administration
of justice in the federal system to suppress otherwise admissible
evidence on the ground that federal agents had flagrantly violated
the Fourth Amendment rights of third parties in order to obtain
evidence to use against others when the agents knew that the defendant
would be unable to challenge their conduct under the Fourth Amendment.
[Footnote
208] United States v. Havens,
446 U.S. 620 (1980); Walder v. United States,
347 U.S. 62 (1954). Cf. Agnello v. United States,
269 U.S. 20 (1925) (now vitiated by Havens). The impeachment
exception applies only to the defendant's own testimony, and may
not be extended to use illegally obtained evidence to impeach the
testimony of other defense witnesses. James v. Illinois,
493 U.S. 307 (1990).
[Footnote
209] Stone v. Powell,
428 U.S. 465 (1976).
[Footnote
210] Wong Sun v. United States,
371 U.S. 471, 487 -88 (1963); Alderman v. United States,
394 U.S. 165, 180 -85 (1969); Brown v. Illinois,
422 U.S. 590 (1975); Taylor v. Alabama,
457 U.S. 687 (1982). United States v. Ceccolini,
435 U.S. 268 (1978), refused to exclude the testimony of a witness
discovered through an illegal search. Because a witness was freely
willing to testify and therefore more likely to come forward, the
application of the exclusionary rule was not to be tested by the
standard applied to exclusion of inanimate objects. Deterrence would
be little served and relevant and material evidence would be lost
to the prosecution. In New York v. Harris,
495 U.S. 14 (1990), the Court refused to exclude a station-house
confession made by a suspect whose arrest at his home had violated
the Fourth Amendment because, even though probable cause had existed,
no warrant had been obtained. And in Segura v. United States,
468 U.S. 796 (1984), evidence seized pursuant to warrant obtained
after an illegal entry was admitted because there had been an independent
basis for issuance of a warrant. This rule applies as well to evidence
observed in plain view during the initial illegal search. Murray
v. United States,
487 U.S. 533 (1988). See also United States v. Karo,
468 U.S. 705 (1984) (excluding consideration of tainted evidence,
there was sufficient untainted evidence in affidavit to justify
finding of probable cause and issuance of search warrant).
[Footnote
211] Michigan v. DeFillippo,
443 U.S. 31 (1979) (statute creating substantive criminal offense).
Statutes that authorize unconstitutional searches and seizures but
which have not yet been voided at the time of the search or seizure
may not create this effect, however, Torres v. Puerto Rico,
442 U.S. 465 (1979); Ybarra v. Illinois,
444 U.S. 85 (1979). This aspect of Torres and Ybarra was to
a large degree nullified by Illinois v. Krull,
480 U.S. 340 (1987), rejecting a distinction between substantive
and procedural statutes and holding the exclusionary rule inapplicable
in the case of a police officer's objectively reasonable reliance
on a statute later held to violate the Fourth Amendment. Similarly,
the exclusionary rule does not require suppression of evidence that
was seized incident to an arrest that was the result of a clerical
error by a court clerk. Arizona v. Evans, 115 S. Ct. 1185 (1995).
[Footnote
212] United States v. Calandra,
414 U.S. 338 (1974).
[Footnote
213] United States v. Janis,
428 U.S. 433 (1976). Similarly, the rule is inapplicable in
civil proceedings for deportation of aliens. INS v. Lopez-Mendoza,
468 U.S. 1032 (1984).
[Footnote
214]
468 U.S. 897 (1984). The same objectively reasonable ''good-faith''
rule now applies in determining whether officers obtaining warrants
are entitled to qualified immunity from suit. Malley v. Briggs,
475 U.S. 335 (1986).
[Footnote
215] The opinion was joined by Chief Justice Burger, and by
Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun
also added a separate concurring opinion. Dissents were filed by
Justice Brennan, joined by Justice Marshall, and by Justice Stevens.
[Footnote
216]
468 U.S. at 907 .
[Footnote
217]
468 U.S. at 916 -17.
[Footnote
218]
468 U.S. at 919 , 921.
[Footnote
219]
468 U.S. 981 (1984).
[Footnote
220] Illinois v. Krull,
480 U.S. 340 (1987). The same difficult- to-establish qualifications
apply: there can be no objectively reasonable reliance ''if, in
passing the statute, the legislature wholly abandoned its responsibility
to enact constitutional laws,'' or if ''a reasonable officer should
have known that the statute was unconstitutional.''
480 U.S. at 355 .
[Footnote
221] Dissenting Justice O'Connor disagreed with this second
conclusion, suggesting that the grace period ''during which the
police may freely perform unreasonable searches . . . creates a
positive incentive [for legislatures] to promulgate unconstitutional
laws,'' and that the Court's ruling ''destroys all incentive on
the part of individual criminal defendants to litigate the violation
of their Fourth Amendment rights'' and thereby obtain a ruling on
the validity of the statute.
480 U.S. at 366 , 369.
[Footnote
222] The whole thrust of analysis in Leon dealt with reasonableness
of reliance on a warrant. The Court several times, however, used
language broad enough to apply to warrantless searches as well.
See, e.g.,
468 U.S. at 909 (quoting Justice White's concurrence in Illinois
v. Gates): ''the balancing approach that has evolved . . . 'forcefully
suggest[s] that the exclusionary rule be more generally modified
to permit the introduction of evidence obtained in the reasonable
good-faith belief that a search or seizure was in accord with the
Fourth Amendment'''; and id. at at 919: ''[the rule] cannot be expected,
and should not be applied, to deter objectively reasonable law enforcement
activity.''
[Footnote
223] See Yale Kamisar, Gates, ''Probable Cause,'' ''Good Faith,''
and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a good-faith
exception on top of the ''already diluted'' standard for validity
of a warrant ''would amount to double dilution'').
[Footnote
224] See, e.g., Illinois v. Rodriguez,
497 U.S. 177 (1990) (upholding search premised on officer's
reasonable but mistaken belief that a third party had common authority
over premises and could consent to search); Schneckloth v. Bustamonte,
412 U.S. 218 (1973) (no requirement of knowing and intelligent
waiver in consenting to warrantless search); New York v. Belton,
453 U.S. 454 (1981) (upholding warrantless search of entire
interior of passenger car, including closed containers, as incident
to arrest of driver); United States v. Ross,
456 U.S. 798 (1982) (upholding warrrantless search of movable
container found in a locked car trunk).
[Footnote
225] Jones v. United States,
362 U.S. 257, 261 (1960). That is, the movant must show that
he was ''a victim of search or seizure, one against whom the search
was directed, as distinguished from one who claims prejudice only
through the use of evidence gathered as a consequence of search
or seizure directed at someone else.'' Id. See Alderman v. United
States,
394 U.S. 165, 174 (1969).
[Footnote
226] Rakas v. Illinois,
439 U.S. 128, 139 (1978).
[Footnote
227] Id. at 140.
[Footnote
228] Previously, when ownership or possession was the issue,
such as a charge of possessing contraband, the Court accorded ''automatic
standing'' to one on the basis, first, that to require him to assert
ownership or possession at the suppression hearing would be to cause
him to incriminate himself with testimony that could later be used
against him, and, second, that the government could not simultaneously
assert that defendant was in possession of the items and deny that
it had invaded his interests. Jones v. United States,
362 U.S. 257, 261 -265 (1960). See also United States v. Jeffers,
342 U.S. 48 (1951). But in Simmons v. United States,
390 U.S. 377 (1968), the Court held inadmissible at the subsequent
trial admissions made in suppression hearings. When it then held
that possession alone was insufficient to give a defendant the interest
to move to suppress, because he must show that the search itself
invaded his interest, the second consideration was mooted as well,
and thus the ''automatic standing'' rule was overturned. United
States v. Salvucci,
448 U.S. 83 (1980) (stolen checks found in illegal search of
apartment of the mother in defendant, in which he had no interest;
defendant could not move to suppress on the basis of the illegal
search); Rawlings v. Kentucky,
448 U.S. 98 (1980) (drugs belonging to defendant discovered
in illegal search of friend's purse, in which he had no privacy
interest; admission of ownership insufficient to enable him to move
to suppress).
[Footnote
229] Rakas v. Illinois,
439 U.S. 128 (1978) (passengers in automobile had no privacy
interest in interior of the car; could not object to illegal search).
United States v. Padilla, 508 U.S. 77 (1993) (only persons whose
privacy or property interests are violated may object to a search
on Fourth Amendment grounds; exerting control and oversight over
property by virtue of participation in a criminal conspiracy does
not alone establish such interests). Jones v. United States,
362 U.S. 257 (1960), had established rule that anyone legitimately
on the premises could object; the rationale was discarded but the
result in Jones was maintained because he was there with permission,
he had his own key, his luggage was there, he had the right to exclude
and therefore a legitimate expectation of privacy. Similarly maintained
were the results in United States v. Jeffers,
342 U.S. 48 (1951) (hotel room rented by defendant's aunts to
which he had a key and permission to store things); Mancusi v. DeForte,
392 U.S. 364 (1968) (defendant shared office with several others;
though he had no reasonable expectation of absolute privacy, he
could reasonably expect to be intruded on only by other occupants
and not by police).
[Footnote
230] E.g., Rawlings v. Kentucky,
448 U.S. 98 (1980) (fearing imminent police search, defendant
deposited drugs in companion's purse where they were discovered
in course of illegal search; defendant had no legitimate expectation
of privacy in her purse, so that his Fourth Amendment rights were
not violated, although hers were).