Stone v. Powell

Mr. Chief Justice Burger,

concurring.

I concur in the Court’s opinion. By way of dictum, and somewhat hesitantly, the Court notes that the holding in this case leaves undisturbed the exclusionary rule as applied to criminal trials. For reasons stated in my dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 411 (1971), it seems clear to me that the exclusionary rule has been operative long enough to demonstrate its flaws. The time has come to modify its reach, even if it is retained for a small and limited category of cases.

Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when the “constable blunders,” have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the factfinding process. The rhetoric has varied with the rationale to the point where the rule has become a doctrinaire result in search of validating reasons.

In evaluating the exclusionary rule, it is important to bear in mind exactly what the rule accomplishes. Its function is simple — the exclusion of truth from the fact-finding process. Cf. M. Frankel, The Search for Truth— An Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association of the Bar of the City of New York, Dec. 16, 1974. The operation of the rule is therefore unlike that of the Fifth Amendment’s protection against compelled self-incrimination. A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect’s will has been overborne, a cloud hangs over his custodial admissions; the exclusion-ohsuch statements is based essentially on their lack of reliability. This is not the case as to reliable evidence — a pistol, a packet of heroin, counterfeit money, or the body of a murder victim — which may be judicially declared to be the result of an “unreasonable” search. The reliability of such evidence is beyond question; its probative value is certain.

This remarkable situation — one unknown to the common-law tradition — had its genesis in a case calling for the protection of private papers against governmental intrusions. Boyd v. United States, 116 U. S. 616 (1886). See also Weeks v. United States, 232 U. S. 383 (1914). In Boyd, the Court held that private papers were inadmissible because of the Government’s violation of the Fourth and Fifth Amendments. In Weeks, the Court excluded private letters seized from the accused’s home by a federal official acting without a warrant. In both cases, the Court had a clear vision of what it was seeking to protect. What the Court said in Boyd shows how far we have strayed from the original path:

“The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books.and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.” 116 U. S., at 623. (Emphasis added.)

In Weeks, the Court emphasized that the Government, under settled principles of common law, had no right to keep a person’s private papers. The Court noted that the case did not involve “burglar’s tools or other proofs of guilt . . . .” 232 U. S., at 392. (Emphasis added.)

From this origin, the exclusionary rule has been changed in focus entirely. It is now used almost exclusively to exclude from evidence articles which are unlawful to be possessed or tools and instruments of crime. Unless it can be rationally thought that the Framers considered it essential to protect the liberties of the people to hold that which it is unlawful to possess, then it becomes clear that our constitutional course has taken a most bizarre tack.

The drastically changed nature of judicial concern-— from the protection of personal papers or effects in one’s private quarters, to the exclusion of that which the accused had no right to possess — is only one of the more recent anomalies of the rule. The original incongruity was the rule’s inconsistency with the general proposition that “our legal system does not attempt to do justice incidentally and to enforce penalties by indirect means.” 8 J. Wigmore, Evidence § 2181, p. 6 (McNaughten ed. 1961). The rule is based on the hope that events in the courtroom or appellate chambers, long after the crucial acts took place, will somehow modify the way in which policemen conduct themselves. A more clumsy, less direct means of imposing sanctions is difficult to imagine, particularly since the issue whether the policeman did indeed run afoul of the Fourth Amendment is often not resolved until years after the event. The “sanction” is particularly indirect when, as in No. 74-1222, the police go before a magistrate, who issues a warrant. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Imposing an admittedly indirect “sanction” on the police officer in that instance is nothing less than sophisticated nonsense.

Despite this anomaly, the exclusionary rule now rests upon its purported tendency to deter police misconduct, United States v. Janis, ante, p. 433; United States v. Calandra, 414 U. S. 338, 347 (1974), although, as we know, the rule has long been applied to wholly good-faith mistakes and to purely technical deficiencies in warrants. Other rhetorical generalizations, \including the “imperative of judicial integrity,” have not withstood analysis as more and more critical appraisals of the rule’s operation have appeared. See, e. g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). Indeed, settled rules demonstrate that the “judicial integrity” rationalization is fatally flawed. First, the Court has refused to entertain claims that evidence was unlawfully seized unless the claimant could demonstrate that he had standing to press the contention. Alderman v. United States, 394 U. S. 165 (1969). If he could not, the evidence, albeit secured in violation of the Fourth Amendment, is admissible. Second, as one scholar has correctly observed:

“[I]t is difficult to accept the proposition that the exclusion of improperly obtained evidence is necessary for 'judicial integrity’ when no such rule is observed in other common law jurisdictions such as England and Canada, whose courts are otherwise regarded as models of judicial decorum and fairness.” Oaks, supra, at 669.

Despite its avowed deterrent objective, proof is lacking that the exclusionary rule, a purely judge-created device based on “hard cases,” serves the purpose of deterrence. Notwithstanding Herculean efforts, no empirical study has been able to demonstrate that the rule does in fact have any deterrent effect. In the face of dwindling support for the rule some would go so far as to extend it to civil cases. United States v. Janis, ante, p. 433.

To vindicate the continued existence of this judge-made rule, it is incumbent upon those who seek its retention — and surely its extension — to demonstrate that it serves its declared deterrent purpose and to show that the results outweigh the rule's heavy costs to rational enforcement of the criminal law. See, e. g., Killough v. United States, 114 U. S. App. D. C. 305, 315 F. 2d 241 (1962). The burden rightly rests upon those who ask society to ignore trustworthy evidence of guilt, at the expense of setting obviously guilty criminals free to ply their trade.

In my view, it is an abdication of judicial responsibility to exact such exorbitant costs from society purely on the basis of speculative and unsubstantiated assumptions. Judge Henry Friendly has observed:

“[T]he same authority that empowered the Court to supplement the [fourth] amendment by the exclusionary rule a hundred and twenty-five years after its adoption, likewise allows it to modify that rule as the 'lessons of experience’ may teach.” The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 952-953 (1965).

In Bivens, I suggested that, despite its grave shortcomings, the rule need not be totally abandoned until some meaningful alternative could be developed to protect innocent persons aggrieved by police misconduct. With the passage of time, it now appears that the continued existence of the rule, as presently implemented, inhibits the development of rational alternatives. The reason is quite simple: Incentives for¹ developing new procedures or remedies will remain minimal or nonexistent so long as the exclusionary rule is retained in its present form.

It can no longer be assumed that other branches of government will act while judges cling to this Draconian, discredited device in its present absolutist form. Legislatures are unlikely to create statutory alternatives, or impose direct sanctions on errant police officers or on the public treasury by way of tort actions, so long as persons who commit serious crimes continue to reap the enormous and undeserved benefits of the exclusionary rule. And of coursé, by definition the direct beneficiaries of this rule can be none but persons guilty of crimes. With this extraordinary “remedy” for Fourth Amendment violations, however slight, inadvertent, or technical, legislatures might assume that nothing more should be done, even though a grave defect of the exclusionary rule is that it offers no relief whatever to victims of overzealous police work who never appear in court. Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw. U. L. Rev. 1, 14 (1969). And even if legislatures were inclined to experiment with alternative remedies, they have no assurance that the judicially created rule will be abolished or even modified in response to such legislative innovations. The unhappy result, as I see it, is that alternatives will inevitably be stymied by rigid adherence on our part to the exclusionary rule.. I venture to predict that overruling this judicially contrived doctrine — or limiting its scope to egregious, bad-faith conduct — would inspire a surge of activity toward providing some kind of statutory remedy for persons injured by police mistakes or misconduct.

The Court’s opinion today eloquently reflects something of the dismal social costs occasioned by the rule. Ante, at 489-491. As Mr. Justice White correctly observes today in his dissent, the exclusionary rule constitutes a “senseless obstacle to arriving at the truth in many criminal trials.” Post, at 538. He also suggests that the rule be substantially modified “so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law and having reasonable grounds for this belief.” Ibid.

From its genesis in the desire to protect private papers, the exclusionary rule has now been carried to the point of potentially excluding from evidence the traditional corpus delicti in a murder or kidnaping case. See People v. Mitchell, 39 N. Y. 2d 173, 347 N. E. 2d 607, cert. denied, 426 U. S. 953 (1976). Cf. Killough v. United States, supra. Expansion of the reach of the exclusionary rule has brought Cardozo’s grim prophecy in People v. Defore, 242 N. Y. 13, 24, 150 N. E. 585, 588 (1926), nearer to fulfillment:

“A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. . . . We may not subject society to these dangers until the Legislature has spoken with a clearer voice.”

1 1 say “ostensibly” secured both because it is clear that the Court has yet to make its final frontal assault on the exclusionary rule, and because the Court has recently moved in the direction of holding that the Fourth Amendment has no substantive content whatsoever. See, e. g., United States v. Martinez-Fuerte, post, at 567-569 (Brennan, J., dissenting), and cases cited therein.