by Tracey Maclin. New York, NY: Oxford University Press, 2013. 416 pages. Hardcover $89.50. ISBN: 978-0-19-979547-5.
Reviewed by Jack E. Call, Professor of Criminal Justice, Radford University.
pp.387-392
Recent decisions of the United States Supreme Court have made the exclusionary rule a topic of considerable academic discussion. That recent attention makes The Supreme Court and the Fourth Amendment’s Exclusionary Rule a work of timely significance. Its author, Tracey Maclin, a professor of law at Boston University School of Law, has been an important contributor to commentaries on the exclusionary rule in legal journals. In this book, Maclin joins his broad knowledge about the Fourth Amendment with extensive research into the conference notes and internal memoranda of the justices. The result is a work that is likely to give even students of the Fourth Amendment new insights into the evolution and current status of the exclusionary rule.
Maclin traces the development of the exclusionary rule from the earliest decisions of the Supreme Court. He stresses the importance of Weeks v. United States and Silverthorne Lumber Co. v. United States as cases that established from the outset of the Court’s recognition that exclusion of evidence obtained in violation of the Fourth Amendment is dictated by the Fourth Amendment itself. Perhaps the most important quotation (for Maclin) from any Supreme Court opinion dealing with the exclusionary rule is Justice Holmes’ statement in Silverthorne Lumber 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 should not be used at all.” Maclin considers this quotation so important because he views it as creating a strong presumption against exceptions to the exclusionary rule, a presumption that the Court came to ignore repeatedly in the last forty years.
Maclin makes several important contributions to our understanding of the exclusionary rule in this book. First, he makes a compelling argument that Wolf v. Colorado marks the beginning of a change in position by the Court so that the exclusionary rule was no longer viewed as required by the Fourth Amendment. While Wolf held that the Due Process Clause of the Fourteenth Amendment requires that states adhere to the requirements of the Fourth Amendment, six Justices rejected the argument that the Due Process Clause also requires states to exclude evidence obtained in violation of the Fourth Amendment. This dichotomy by the majority necessarily rejects the proposition that the exclusionary rule is required by the Fourth Amendment itself.
Maclin also presents a convincing case that Justice Frankfurter played a critical role in creating this “disconnect” between the Fourth Amendment and the exclusionary rule. Justice Frankfurter [*388] wrote the Court’s opinion in Wolf. His thoughts as reflected in internal memoranda and conference notes make it clear that he was not of the opinion that the Fourth Amendment requires exclusion of evidence obtained in violation of its requirements. According to Frankfurter, unreasonable searches and seizures include a subset of police actions that he called arbitrary intrusions. Arbitrary intrusions are more egregious that other unreasonable searches and seizures. Due process (not the 4th Amendment) requires exclusion of the fruits of arbitrary intrusions but not the fruits of other unreasonable searches and seizures.
A third important contribution by Maclin is to put Mapp v. Ohio in proper perspective. Mapp, of course, is one of the most controversial cases of the Warren Court, making the exclusionary rule applicable to the states just twelve years after issuing a contrary ruling in Wolf. Opinion author Tom Clark made it clear in Mapp that the majority believed that the exclusionary rule is required by the 4th Amendment by saying “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” However, Maclin concludes that “Clark’s opinion in Mapp also contained the seeds of its own destruction. Mapp was an easy target for the Burger and Rehnquist Courts because the opinion was a mixture of constitutional principles and policy arguments.” As a result, Mapp “would meet its demise less than two decades after it was decided with the judicial retrenchment of the conservative justices of the Burger and Rehnquist Courts” (p.86).
Thus, Maclin presents Mapp as a testimony to the dangers of justices using careless language that can be used later by opponents to undermine the clear intent and thrust of an opinion. An example is the statement by Clark in Mapp that the exclusionary rule is “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.’” Of course, there is nothing wrong really with the phrase “judicially implied.” Since the Fourth Amendment does not specifically state the remedy for a violation of its provisions, the Court must necessarily imply a remedy. Nevertheless, the Burger and Rehnquist Courts would use that phrase to buttress their view that the exclusionary rule is not required by the Fourth Amendment.
Another example was language in Mapp suggesting that the exclusionary rule is necessary to insure that the police follow Fourth Amendment requirements. This language was used by the Burger and Rehnquist Courts to engage in examinations of whether application of the rule in a particular setting would undermine the police deterrence objective. If not, there was no reason to apply the exclusionary rule, given the great cost to society as a whole of excluding incriminating evidence.
Maclin’s final contribution is the case he makes for the assertion that “[a]brogation of the exclusionary rule appears to be the ultimate goal of the Court” (p.346). The two recent cases that provide the strongest evidence in support of this conclusion are Hudson v. Michigan and Herring v. United States. The holdings in these cases are less [*389] significant than some of the language used by a majority of the justices in explaining the holdings.
In Hudson, the Court declined to apply the exclusionary rule to evidence obtained after a violation of the knock-and-announce rule. In doing so, Maclin argues that Justice Scalia’s opinion for the Court applies the inevitable discovery and attenuation exceptions to the exclusionary rule in ways the Court had never applied them before. In addition, the opinion applies the balancing analysis by which the deterrent value of the rule is weighed so as to make it more likely in the future that evidence may not need to be suppressed “even if exclusion is the only way to deter police misconduct” (p.335), The import of this opinion on the future of the exclusionary rule is so pronounced that, even though he joined the most critical parts of Scalia’s opinion, Justice Kennedy felt compelled to state in his concurring opinion that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” language which almost seems to have the effect of actually placing the continued operation of the exclusionary rule in doubt.
In Herring, the Court refused to exclude evidence found in a search incident to an arrest that should never have occurred. The arrest was based on an erroneous computer entry (for which the police were assumed to be responsible) indicating that there was an outstanding arrest warrant for the defendant. In his opinion for the Court, Chief Justice Roberts makes the remarkable statement that “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system …. [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The clear suggestion is that the exclusionary rule should never be applied to acts of mere negligence by the police (such as misjudgments as to whether the police had probable cause to search in a situation where a warrant is unnecessary but probable cause is still required, such as exigent circumstances or automobile exception searches). Arguably, this language suggests that the Court has established a full-blown good faith exception to the exclusionary rule without explicitly saying so.
Although these contributions are important and by themselves would make this book significant, the book may be more important because of the insights into the thinking (and the development of the thinking) of many of the justices provided by the references to conference notes and internal memoranda. While the opinions written by such justices as Powell, Blackmun, and O’Connor provide some indicators that those justices were undergoing some change in their thinking about the exclusionary rule, the conference notes and memoranda help us see much more vividly how those changes came about.
In addition, we know from other works (Epstein and Knight 1998) that justices probably act strategically, with a view towards achieving a desired future outcome in an area of significance to a justice. Maclin’s work provides substantial additional evidence to support this view. In a recent case [*390] unrelated to the exclusionary rule (Citizens United v. FEC, 2010), the Court was extremely proactive in asking the parties to argue an issue the parties had not even raised. This book provides another example of action similar to this in its discussion of a case familiar to anyone who is a student of criminal procedure.
In Illinois v. Gates, the police had searched the car and residence of the defendants based on an anonymous tip that the defendants were transporting marijuana from Florida and selling it in the Chicago area. Although the primary issue concerned whether the tip provided probable cause to search the car and residence, the state had asked the Court also to consider whether the drugs could be admitted even if the police lacked probable cause to search because the police had acted in a good faith belief that they had probable cause to search. Initially, the Court refused to hear the good faith issue (probably because the state was raising that issue for the first time before the Supreme Court).
After oral argument in the case, Justice White suggested during conference discussion of the case that the Court decide the case on the basis that the police had acted on a good faith belief that they had probable cause. Four other justices (Blackmun, Powell, Rehnquist, and O’Connor) appear to have agreed with him. When Justice Stevens pointed out that the Court had already denied the state’s request to consider this issue, White moved that the Court issue an order to have the case reargued and garnered the support of five other justices.
As remarkable as this decision was in and of itself, White went a step further. When the state had asked the Court to consider the good faith issue, its request was to decide the issue of good faith reliance where the police acted on the authority of a search warrant. White’s re-argument order asked the parties to present arguments on the issue of whether evidence obtained in violation of the Fourth Amendment should be admissible in all instances where the police acted with a good faith belief that their actions were constitutional – with or without a warrant!
In spite of this strategic, proactive effort to create a full blown good faith exception to the exclusionary rule under questionable circumstances, in the end the Court backed away. Blackmun, Powell, O’Connor, and even Rehnquist had second thoughts and decided that the failure of the lower courts to consider this issue meant that the Court should not decide it either.
Another example of strategic maneuvering to achieve a desired result is provided by Arizona v. Evans, where the Court ruled that evidence found in a search incident to an illegal arrest made by a police officer on the basis of an erroneous computer record indicating that there was an outstanding arrest warrant for the defendant (an error made by court personnel) should not be suppressed because there was no reason to think exclusion would have a deterrent effect on court employees. Arguably, there would be a deterrent effect on police officers who were responsible for the content of such records. Perhaps anticipating a case where the police were responsible for the error, Chief Justice Rehnquist added a footnote in the Evans opinion indicating [*391] that the reasoning of the opinion would be equally applicable to a case involving police error.
The impact of this language was to implicitly overrule language in United States v. Hensley. In that case, the Court had held that a police officer could lawfully stop a suspect based on a wanted flyer that had been issued by another police department. In upholding this stop, the Court indicated that the admissibility of evidence found as a result of such a stop “turns on whether the officers who issued the flyer were themselves aware of the specific facts which led their colleagues to make the arrest. It does not turn on whether those relying on the flyer were themselves aware of the specific facts which led their colleagues to seek their assistance.” The clear implication seemed to be that a stop based on a flyer for which adequate cause did not exist would make the fruits of such a stop inadmissible. Of course, the Evans decision deviated from this language, at least where the source of the error in the flyer was a court clerk, and not a police officer. However, the language in Chief Justice Rehnquist’s footnote in Evans set the stage for the Court’s decision in Herring v. United States fourteen years later.
While this book is a work of substantial significance, Maclin could have done a couple of things to make it even better. The book would have benefited from a section discussing the extent to which his documentary sources represent an incomplete body of material. For example, it is clear that some justices took extensive notes about conference discussions, but there is no discussion of which justices, if any, did not take (or permit access) to such notes. We know, for example, that Justice Black’s son destroyed his father’s conference notes (at the Justice’s request) (Collins, 1981). Black receives considerable attention in this book, but observations about his thoughts on the exclusionary rule do not benefit from access to his conference notes as do Maclin’s observations about some other justices. It would also be useful to know if it appeared that some of the justices took more extensive notes than other justices or if some justices were inclined to include some kinds observations (especially about other justices) that other justices were not inclined to include.
In some instances, Maclin includes some very interesting and informative exchanges of memoranda between a justice and one of his clerks. However, we are not informed as to whether the papers of some justices did not include memoranda of this type. Information of this sort would allow the reader to make some judgment about the completeness of the picture being painted by Maclin’s discussions of exchanges of thoughts among the justices that is based on the justices’ papers.
The last improvement concerns Maclin’s use of conference notes and internal memoranda. His use of this information makes this an empirical study (to some extent, at least), but Maclin makes no effort to draw many conclusions about what those notes tell us about the behavior of the Justices. He does conclude that “the current Court’s treatment of the exclusionary rule” is a product of “the politics of crucial Justices,” but there is not much systematic treatment of this point (p.349). [*392]
As indicated earlier, this book should be very useful for people who teach courses on criminal procedure or constitutional law. The insight into the internal operations of the Supreme Court provided by references to conference notes and internal memoranda makes the book of possible use in a judicial process or judicial behavior class as well. However, while the book is quite readable by persons with a working knowledge of the Fourth Amendment, this book would probably be difficult reading for undergraduate students.
REFERENCES
Collins, Ronald K.L. 1981. “Mr. Justice Black: Some Passing Observations.” Pepperdine Law Review 9:1-11.
Epstein, Lee and Jack Knight. 1998. Choices Justices Make. Washington, D.C.: CQ Press.
Kamisar, Yale. 1983. “Does (Did) (Should) the Exclusionary Rule Rest on a ‘Principled Basis’ Rather Than an ‘Empirical Proposition’?” Creighton Law Review 16: 565-668.
CASE REFERENCES:
Arizona v. Evans 514 U.S. 1 (1995).
Citizens United v. Federal Election Commission 558 U.S. 310 (2010).
Hudson v. Michigan 547 U.S. 586 (2006).
Herring v. United States 555 U.S. 135 (2009).
Illinois v. Gates 462 U.S. 213 (1983).
Mapp v. Ohio 367 U.S. 643 (1961).
Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920).
United States v. Hensley 469 U.S. 221 (1985).
Weeks v. United States 232 U.S. 383 (1914).
Wolf v. Colorado 338 U.S. 25 (1949).
Copyright 2013 by the Author, Jack E. Call.
