Search and Seize

by Jeffrey Rosen | March 27, 1995

The Senate Judiciary Committee this week debated a bill that would abolish the exclusionary rule, which bars illegally seized evidence from criminal cases. Instead, the bill would let victims of unreasonable searches sue the government for tort damages. "This hearing is an interesting and worthwhile academic exercise," intoned Senator Joseph Biden, who proceeded to browbeat the Republican's star witness, Akhil Amar of Yale Law School. Amar, a liberal Democrat, wrote an article in 1994 that criticized the exclusionary rule as a betrayal of the original understanding of the Constitution. The Senate bill was drafted by his former student, Michael O'Neil, who is now counsel to Republican Senator Orrin Hatch of Utah.

The Republican fixation on the exclusionary rule is a Federalist Society eccentric priority. In 1988, after interviewing hundreds of police officers and prosecutors, the American Bar Association concluded that "the police ... do not consider search and seizure proscriptions to be a serious obstacle." So why are Republicans clamoring to abolish the exclusionary rule when law enforcement officials have moved on to other battles? The impulse seems to be cultural as well as political, and it reflects suspicion of judge-created social reforms.

The Fourth Amendment says "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," but it unhelpfully says nothing about how the right should be enforced. For the first century after American independence, the remedy for an unreasonable search was simple: sue the offending officer for compensatory or punitive damages under trespass or tort law. The most famous case of the colonial era was Wilkes v. Wood, in which crown officials, acting without a warrant, broke into Wilkes's house and seized his private diaries. English juries made the crown pay 100,000 pounds in damages; and delirious colonists, from Wilkes-Barre, Pennsylvania, to Wilkes County, Georgia, named their villages after the litigious hero.

No court, in England or America, excluded evidence in criminal trials until the Supreme Court invented the exclusionary rule in the 1886 Boyd case. Even friends of the rule agree the Court's reasoning was mystifying. To use a man's diary or personal papers against him in a criminal trial, the Court held, would force him "to be a witness against himself," in violation of the Fifth Amendment. With convoluted logic, the Court then announced that the Fourth and Fifth Amendments "run almost into each other." Courts therefore should refuse to consider evidence illegally seized under the Fourth Amendment, in order to prevent a Fifth Amendment violation. But the Court has never explained how the admission of a bloody glove, for example, forces a suspect to be a witness against himself. In the 1970s, the Burger court backed away from the claim that the exclusionary rule is a constitutional right and defended it instead as a "prophylactic rule," necessary to deter future police misconduct. But the Court has never explained why, if the exclusionary rule is not required by the Constitution, the justices had any business imposing it on the states in the first place.

Despite its muddled pedigree, the exclusionary rule has proved, in practice, an effective way of reforming overzealous police forces in an age when state and federal governments provide few other remedies. And its social costs are hardly overwhelming. A 1983 study by Thomas Davies estimated that between 0.6 percent and 2.35 percent of all felony arrests were lost because of the exclusionary rule. (The numbers are lower for violent crimes, and higher for drug offenses.) Nevertheless, there are other, less tangible costs. The exclusionary rule awards a windfall to guilty victims of illegal searches. And it fails to compensate the innocent people whom the Amendment was designed to protect: when a suspect is innocent, there is no evidence to exclude.

Although the Hatch bill is coherent in theory, the real problem is in the details. For example, the bill would allow innocent victims of illegal searches to recover no more than $10,000 in punitive damages. This falls far short of the "ruinous damages" recommended by the Framers. It also falls short of the frugal damages recommended by the Republican tort reform act, which would cap punitive damages at about three times actual damages. With such meager incentives, innocent plaintiffs won't easily find lawyers to represent them. (During the hearing, Hatch said he was amenable to raising the caps.)

The more serious flaw is the bill's treatment of victims of illegal searches who turn out to be guilty of some crime or other. If you are convicted of any crime based on evidence obtained in an illegal search--even possession of one marijuana cigarette--you can sue only for damages to person and property, not for punitive damages or attorneys' fees. Since most victims of illegal searches are, in fact, guilty, the lack of punitive damages in the vast majority of cases is tantamount to no deterrent at all. The police, therefore, might declare open season on suspects who won't have the incentive or ability to sue. Or they might make crude economic decisions about whether the cost of breaking down a door are outweighed by the likelihood of finding drugs inside.

Amar testified that juries should decide damage claims against the United States, because "the jury is perfectly placed to decide, in any given situation, whom it fears more, the cops or the robbers." But given the mercurial behavior of recent juries, this might lead to wildly inconsistent verdicts. In some areas, such as Simi Valley, California, white juries might refuse to compensate the victims of egregious police brutality, because of their irrational suspicion of convicted felons. In others, such as Washington, D.C., black juries might go overboard in the other direction, because of their irrational suspicion of the police. The Hatch bill may be amended to give plaintiffs the option of choosing judges or juries.

 

If the Hatch bill is fixed to authorize harsh punitive damages for all victims of illegal searches, innocent as well as guilty, it might be taken seriously by liberals. But it would then lose support among conservatives, who fear that too much deterrence could paralyze the police. Because the bill, in its current form, has no apparent political constituency, the Senate seems more likely to adopt the alternative proposed by House Republicans, who would extend the "good faith exception" to the exclusionary rule in an especially baffling way.

Since the 1980s, the Supreme Court has held that when the police make understandable factual errors in good faith, the exclusionary rule doesn't apply. Just last week, for example, the Court held that evidence seized under a warrant that had expired due to a computer error shouldn't be excluded, since the police officer was not at fault. The House bill, however, would excuse legal as well as factual errors committed by the police. This is a radical step that the Court has refused to take, and the results are literally unintelligible. According to the House bill, evidence should be admitted whenever a police officer has an "objectively reasonable belief" that he is acting legally, even though he is, in fact, acting illegally. How an officer can be reasonably ignorant of the law is a paradox Congress has yet to explain. Even more embarrassingly, the House refused to apply the expanded good faith exception to agents of the Bureau of Alcohol, Tobacco and Firearms and the Internal Revenue Service, the two law enforcement agencies that House Republicans seem to fear the most.

Although some civil libertarians have been hyperbolic about the Republican proposals--"Ending of the exclusionary rule ... to me is the same as ending the Fourth Amendment," Nat Hentoff declared on "Nightline"--the rule appears, in practice, to provide tolerable deterrence at relatively low cost. There are plausible academic alternatives to the exclusionary rule, but none, alas, that a majority of the 104th Congress is likely to embrace.

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