Journal of and Criminology

Volume 65 | Issue 4 Article 3

1975 Exclusionary Rule: v. Calandra, 414 U.S. 338 (1974)

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Recommended Citation Exclusionary Rule: United States v. Calandra, 414 U.S. 338 (1974), 65 J. Crim. L. & Criminology 460 (1974)

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EXCLUSIONARY RULE

United States v. Calandra, 414 U.S. 338 (1974)

In United States v. Calandra,' the Supreme exclusionary rule may be invoked by a witness Court again2 considered the application of the before a proceeding to bar ques- 7 exclusionary rule in grand jury proceedings. tioning based on illegally seized . In reversing two lower court decisions the Su- Two early cases, Boyd v. United States,8 preme Court held that a grand jury witness and Weeks v. United States,9 involved applica- was not entitled to invoke the exclusionary tion of the exclusionary rule."' Both decisions rule in refusing to answer questions based on held that no unreasonably or illegally seized an illegal . In a subsidiary evidence could be used in federal criminal question the Court also denied the witness the cases. The holdings stressed the purpose of the right to interrupt the grand jury proceeding in fourth amendment's principles" as they affect order to have a hearing on the legality of the 7 United States v. Calandra, 465 F2d 1218 search. (1972). The court of appeals agreed with the A warrant was issued to search Calandra's lower court's finding that the search and seizure of place of business, the Royal Machine & Tool Calandra's place of business were unlawful. 465 F.2d at 1226 n.5. The Supreme Court, while not in Co., pursuant to a grand jury investigation of accord, failed to contest this finding. It also failed gambling operations. On execution of the war- to consider the order to return Calandra's prop- erty. rant, the agents found no gambling parapher- 8 116 U.S. 616 (1886). nalia but seized records of a loanshark operation 9 232 U.S. 383 (1914). and various books and documents concerning 10 In Boyd, the government claimed that the plaintiffs had fraudulently imported goods into the the suspected loansharking activity. United States and thus forfeited the merchandise. Calandra was subpoenaed to testify before a Plaintiffs entered a claim for the goods and grand jury but refused, invoking his fifth pleaded that the goods had not become forfeited as alleged. Claimants brought an invoice for the amendment privilege against self-incrimination. goods to court to show quantity and value but re- Having received a grant of transactional im- fused to relinquish it to the district attorney argu- munity,3 Calandra moved for suppression and ing that in a forfeiture suit no evidence can be 4 compelled from the claimants themselves and any return of the illegally seized evidence. Follow- statute compelling such evidence is unconstitu- ing a hearing in which Calandra reiterated tional. In Weeks, plaintiff was convicted on the charge that he would not answer questions based on of using the mails for the purpose of transporting the illegally seized evidence, the district court certain coupons or tickets representing chances or granted respondent's motion to suppress5 and shares in lottery or gift enterprises. officers arrested him without a warrant at his place of further ordered that respondent need not an- employment while other police searched his room swer any of the grand jury's questions based twice. While there, they took possession of various 6 papers and articles. No warrant was issued for ei- on that evidence. The Court of Appeals for ther search. Weeks later filed a "Petition to Re- the Sixth Circuit affirmed, holding that the turn Private Papers, Books, and Other Property" alleging that they were being held unlawfully. The 1414 U.S. 338 (1974). court directed the return of non-pertinent material 2 See United States v. Dionisio, 410 U.S. 1 but refused to rule on the pertinent material. (1973); United States v. Mara, 410 U.S. 9 Among the evidence entered at , over Week's (1973). objections, were lottery tickets and statements 3 This grant was made pursuant to 18 U.S.C. § with reference to the lottery. 2514 (1971). 31 U.S. CoNsT. amend. IV: 4 This motion was made pursuant to FED. R. The right of the people to be secure in their Cram. P. 41 (e). persons, houses, papers, and effects, against 5 The district court based its decision on the unreasonable searches and seizures, shall not grounds that the affidavit supporting the warrant be violated, and no warrant shall issue, but was insufficient and that the search exceeded the upon probable cause, supported by oath or af- scope of the warrant. In re Calandra, 332 F. Supp. firmation and particularly describing the place 737 (N.D. Ohio 1971). to be searched, and the persons or things to 6 Id. at 746. be seized. 19741 SUPREME COURT REVIEW (1974) the very essence of constitutional liberty and that the subpoena was the fruit of the illegal 7 security. 2 Justice Bradley, writing the opinion search.' in Weeks, not only found that the exclusion of In 1961, in a five-to-four decision, the Su- illegally seized evidence enforces the basic preme Court, in Mapp v. Ohio'8 declared that principles of humanity and civil liberty's but the exclusionary rule was constitutionally man- also felt that if the court admitted such evi- dated and therefore had to be followed by all of dence, it would sanction illegal activity by pub- the states.19 The Court viewed the fourth lic officials charged with upholding the amendment as the embodiment in the Constitu- Constitution.' 4 To refuse to return the evidence tion of a principle prohibiting unwarranted after timely objection violated the individual's searches and seizures. The Court then con- constitutional rights. 5 cluded that the exclusionary rule best accom- 0 plished this . Silverthorne Lumber Co. v. United States 20 was the major case in this area, prior to the Eight years later in Davis v. Mississippi, Court's decision in Calandra. In that case fed- Justice Brennan, writing for a majority of the eral agents, during a warrantless search of a Court, held that fingerprints taken from an il- business, had seized several documents belong- legally detained were inadmissible as ing to the Silverthornes. The lumber company evidence. 2' Here, however, the Court stated the owners, under indictment at the time, moved objective of the exclusionary rule as a sanction the lower court to have the documents re- to redress and deter overreaching governmen- turned on the ground that the search was un- tal conduct prohibited by the fourth amend- constitutional. The court granted the motion ment. Relying principally on Bynum v. United 22 and ordered the documents returned. A federal States, the Court stressed that the overriding grand jury issued a subpoena duces tecum to consideration of the exclusionary rule is to the owners ordering them to produce and turn prohibit any gain to those who violate fourth over the documents seized. The owners refused amendment safeguards. It is irrelevant that the and were held in contempt. The Supreme evidence obtained during such seizure and de- Court reversed the contempt citation, holding tention is itself trustworthy, that equivalent ev- 2 idence can conveniently be obtained, or that it 3 See Lord Chandler's judgment in Entich v. may be relatively easy for the government to Carrington, 19 Howell's State 1029. 13 Justice Bradley relied extensively on Brain v. 17 Justice Holmes in his opinion stated: United States, 168 U.S. 532 (1897). [T]he essence of a provision [the fourth 34 The effect of the Fourth Amendment is to amendment forbidding the acquisition of evi- put the of the United States and Fed- dence in a certain way] is that not merely ev- eral officials in the exercise of their power idence so acquired shall not be used before the and authority, under limitations and restraints Court, but that it shall not be used at all. as to the exercise of such power and author- Id. at 392. ity, and to forever secure the people, their 18 367 U.S. 643 (1961). persons, houses, papers and effects against all '9 Historically, there has been a difference of unreasonable searches and seizures under the opinion among the state courts as to whether the guise of the law. This protection reaches all exclusionary rule is merely a judicially made rule alike, whether accused of crime or not, and of evidence or whether the Constitution mandated the duty of giving to it force and effect is ob- this rule. Before 1961, states had, by their choice, ligatory upon all entrusted under our federal accepted or rejected such a rule. system with the enforcement of the laws. The 20 394 U.S. 721 (1969). tendency of those who execute the criminal 2l An eighty-six year old white woman who had laws of the country to obtain by allegedly been raped described her assailant as a means of unlawful seizures and enforced con- Negro youth. Police found some fingerprints on fessions . . . should find no sanction in the the window through which the assailant had ap- judgment of the courts which are charged at parently entered. The defendant and others were all times with the support of the Constitution taken to police headquarters where they were and to which people of all conditions have a questioned and fingerprinted. Several days later, right to appeal for the maintenance of such the defendant was jailed and fingerprinted again. fundamental rights. His fingerprints matched those on the window of 232 U.S. at 391. the widow's home. The'defendant was convicted of 15 The Court refused to inquire into the reme- rape, the Court overruling his objection that the dies a defendant may have against the officials, "as fingerprints were inadmissible as the product of an the Fourth Amendment is not directed to individ- unlawful detention. ual misconduct of such officials." 232 U.S. at 398. 22 104 App. D.C. 368, 262 F2d 465 (D.C. Cir. 16 251 U.S. 385 (1920). 1958). EXCLUSIONARY RULE [Vol. 65

prove without using the product of an il- for six Justices,"° rejected the court of ap- 23 legal detention. peals' interpretation of the exclusionary rule as In United States v. Dionisio24 and its com- applied to grand jury proceedings. The Court panion case United States v. Mara,25 Justice found no justification in the fourth amendment Stewart, writing for six members of the for restriciting the grand jury's ability to com- Court,26 expressed the view that compelling a pel a witness to answer questions based on the 2 1 grand jury witness to furnish voice exemplars fruits of an illegal search and seizure. did not violate the fourth amendment and thus Justice Powell stated that the prime purpose did not requirea preliminary showing of rea- of the exclusionary rule was to "deter future sonableness.2 7 A subpoena to appear before a unlawful police conduct," 32 not to compensate grand jury is not a seizure in the fourth the victim of the unlawful search. Acknowledg- amendment sense, however inconvenient and ing that there was little empirical evidence as burdensome it may be.2 8 Additionally, the to the extent of the rule's efficacy, the Court Court rejected respondent's argument that a held that the "rule is a judicially created rem- command to make a voice exemplar is in itself edy designed to safeguard fourth amendment an infringement of an individual's rights. rights generally through its deterrent effect, There is no reasonable expectation that the rather than a personal of '3 sound of one's voice will not be known by the party aggrieved. Thus, Justice Powell 2 9 others. argued, the exclusionary rule has and should In the instant case, Justice Powell, writing continue to be used only in situations where incrimination of the search victim is the gov- 34 23 In dissenting opinions both Justice Black and ernment's primary goal. Justice Stewart argued that this was an unneces- Justice Powell noted that the court of appeals sary expansion of the fourth amendment. Even if the defendant were illegally detained by police, it based its justification of the use of the exclu- was not necessary to exclude the fingerprints, sionary rule in the grand jury proceeding on which can easily be reproduced at trial. 394 U.S. rule 41(e) of the Federal Rules of Criminal at 729 (Black, J., dissenting); 394 U.S. at 730 s (Stewart. J., dissenting). Procedure. Rule 41 (e) provides in part that 24 410 U.S. 1 (1973). "(a) person aggrieved by an unlawful search 25 410 U.S. 9 (1973). and seizure may move the district court . . . 26 Seven members of the Court felt that compel- ling a grand jury witness to furnish voice exem- for the return of the property and to suppress plars did not violate the fifth amendment privilege for the use as evidence anything so obtained. against self-incrimination since the exemplar was 3o Chief Justice Burger and Justices Stewart, to be used solely to measure the physical proper- ties of the witness' voice, not for the content of White, Blackmun and Rehnquist also joined in the opinion. what was said. 31414 U.S. 27 A federal grand jury investigating gambling at 347. 22 Id. at 347. Justice Powell cited the Court in had subpoenaed about twenty persons and directed Elkins v. United States, 364 U.S. 206, 217 (1960): them to make voice recordings by reading a tran- The rule is calculated to prevent, not to re- script into a recording device. Dionisio refused and pair. Its purpose is to deter-to compel re- the court held him in contempt after the govern- spect for the constitutional guaranty in the ment was granted a petition compelling compli- only effectively available way-by removing ance. The Court of Appeals for the Seventh Circuit the incentive to disregard it. reversed, holding that the fourth anendment Accord, Terry v. Ohio, 392 U.S. 1, 29 (1968); required a preliminary showing of reasonableness Tehan v. Shott, 382 U.S. 406, 416 (1968) ; Mapp before the witness could be compelled to furnish v. Ohio, 367 U.S. 643, 656 (1961). the exemplar. United States v. Dionisio, 442 F.2d 33 414 U.S. at 348. However, a study has been 276 (7th Cir. 1971). In an earlier case, Gelbard v. performed contrasting search and seizure practices United States, 408 U.S. 41 (1971), the Supreme in Toronto, Canada, with those in Chicago. Court held that grand jury witnesses had stand- The study concluded that the deterrent ratio- ing under the wiretap statutes to challenge illegal nale for the rule does not seem to be justified (by electronic surveillances. 2s The Court cited Branzburg the empirical study) and Canada's experience with v. Hayes, 408 the tort remedy suggests that viable alternatives to U.S. 665, 682 (1972), which held that "citizens the rule do exist. generally are not constitutionally immune from Spiotto, The Search and Seizure Problem-Two grand jury subpoenas." The overriding feeling was Approaches: The Canadian Tort Remedy and the that "the public has a right to every man's evi- U.S. Exclusionary Rule, 1 J. PorxcE Sc'. & AD. 36 dence." Id. at 688. (1973). 29United States v. Dionisio, 410 U.S. 1, 14 34 414 U.S. at 348. (1973). 35 465 F2d at 1222. 1974] SUPREME COURT REVIEW (1974)

...." In overruling the appellate court, the Su- merit. The fourth amendment also bars issu- preme Court relied on Alderman v. United ance of a subpoena duces tecum that is "far States,3" and Jones v. United States.37 The too sweeping in its terms to be regarded as Court in these cases held that rule 41(e) "is reasonable." 46 no broader than the constitutional rule" and Justice Powell argued that the basic function therefore is not a statutory expansion of the of the grand jury is to protect citizens against exclusionary rule.38 unfounded criminal prosecutions and to dis- The Court also rejected respondent's claim cover whether probable cause exists to believe that each and every question based on the a crime has been committed. 47 Relying exten- fruits of an illegal search and seizure consti- sively on Branzburg v. Hayes,48 Justice Powell tuted a separate infringement on his fourth stated that the grand jury proceeding is not an amendment rights.39 Justice Powell reasoned adversary proceeding but investigatory in scope that the wrong committed by the government and thus should not be burdened with the tech- 49 officials was the original illegal search and seiz- nical rules of evidence. ure; questions based on the illegally obtained Along with broad investigatory power, the material were only a "derivative use of the Court further emphasized that the grand jury product" of the unlawful activity.40 While must select freely from varied sources of infor- acknowledging that in a criminal trial the de- mation. The character of evidence discovered fendant is entitled to exclusion of illegally should not invalidate an indictment valid on its seized evidence and the derivative use of such face. 50 evidence, the Court refused -to apply that rule Justice Powell concluded that in determining in a grand jury proceeding.41 whether to apply the exclusionary rule to While recognizing that the grand jury's sub- grand jury proceedings one must "weigh the poena power is not unrestrained, the Court ac- potential injury to the historic role and func- knowledged a "historically grounded obligation tions of the grand jury against the potential of every person to appear and give his evi- benefits of the rule as applied in this context." 51 dence before the grand jury." 42 However, the He again stressed the need for an unhampered court cannot force the grand jury witness to investigation, reasoning that separate eviden- answer questions in violation of his fifth tiary hearings would only delay and disrupt the 5 2 amendment privilege.43 Only a grant of immu- proceedings. against nity co-extensive with the privilege 46 See Hale v. Henkel, 201 U.S. 43, 76 (1906). self-incrimination may override the fifth 47 See Branzburg v. Hayes, 408 U.S. 665, 686 44 amendment claim. A grand jury cannot com- (1972).4 9 Id. pel a person to produce books and papers that 49 Justice Powell's argument 45 relied on Blair v. would incriminate him, nor can it invade an United States, 250 U.S. 273 (1919), where the area of privacy protected by the fourth amend- Court stated: It [the grand jury] is a grand inquest, a body 36 394 U.S. 165 (1969). with powers of investigation and inquisition, the scope of whose inquiries is not to be lim- 37 362 U.S. 257 (1960). 38 414 U.S. at 349 n.6. ited narrowly by result of investigation, or by 39 Id. at 353. Justice Powell stated that the doubts whether any particular individual will grand jury questions must not merely invade re- be found properly subject to an accusation of privacy but must also constitute inde- crime. spondent's Id. at 282. pendent violations of his fourth amendment rights Similar language is found in Branzburg v. because they are based on illegally seized evidence. Hayes, 409 U.S. 665, 700 (1972); Costello v. .40Id. at 354. United States, 350 U.S. 359, 364 (1955). 41 Id. 50414 U.S. at 338. The argument followed 42 United States v. Dionisio, 410 U.S. 1, 9 closely that of the majority in Costello v. United (1973). States, 350 U.S. 359 (1955) and Holt v. United -' Hoffman v. United States, 341 U.S. 479 States, 218 U.S. 245 (1910). The Court, in Lawn 1951); Blau v. United States, 340 U.S. 159 v. United States, 355 U.S. 339 (1958), ruled that 1950); Counselman v. Hitchcock, 142 U.S. 547 an indictment based on information obtained in vi- (1892). olation of a defendant's fifth amendment privilege 44Kastigar v. United States, 406 U.S. 441 is valid. 5 (1972). 5 414 U.S. at 349. 45 See Boyd v. United States, 116 U.S. 616, 633 ?See Gelbard v. United States, 408 U.S. 41, 70 (1886). (1971) (White, J., concurring). EXCLUSIONARY RULE [Vol. 65

Against this potential damage to the grand the deterrent effect, but argued that that con- jury process the Court weighed the benefits of sideration did not justify the majority citing it excluding the illegally seized evidence. Recog- as the sole determinant.60 nizing that the rule is an effective measure at Justice Brennan viewed Silverthorne as con- trial, the Court pointed out that not every trolling, where, as here, a grand jury witness method of deterring unlawful police conduct has sought to avoid supplying the grand jury with 53 been adopted. In line with their position that illegally seized evidence. 61 Justice Brennan dis- the exclusionary rule serves merely to deter agreed with the majority's contention that Sil- unlawful official conduct, the Court found that verthorne did not control because the Silver- the slight additional deterrent effect is far out- thornes had already been indicted and had in- weighed by the potential damage to the grand voked the rule as criminal . He jury process. The Court believed that the ap- argued that the Court overlooked the fact that plication of the rule would only deter the the grand jury's interest in again obtaining collection of evidence during a grand jury in- documents from the Silverthornes may have vestigation where there is already enough in- been to secure information leading to further 6 centive to observe the provisions of the fourth criminal charges. ' amendment since illegally seized evidence, al- Justice Brennan also rejected the majority's though admissible at the grand jury stage, is reasoning that 54 the witness' fourth amendment not admissible at trial proceedings. rights are protected "by the inadmissibility of 55 In his dissent, Justice Brennan rejected the illegally seized evidence in a subsequent '6 3 the majority's conclusion that the main objec- criminal prosecution of the search victims. tive of the exclusionary rule is the deterrence He viewed the search as a violation of Calan- of unlawful police conduct, and called it a dra's fourth amendment rights and felt that the "startling misconception . . . of the historical majority was withholdng proper relief. Justice objective and purpose of the rule." 56 He viewed Brennan feared that his colleagues were about to the exclusionary rule as merely a tool to fur- abandon the exclusionary rule in all search and ther implement the provisions of the fourth seizure cases, a rule, which "gave light to amendment. Curtailment of the evil is, at most, Madison's prediction that 'independent tribun- a "hoped for effect of the exclusionary rule, als of justice ... will be naturally led to resist not its ultimate objective." 57 every encroachment upon rights expressly stip- Justice Brennan further stated that the exclu- ulated for in the Constitution by the declara- sionary rule works towards minimizing the loss tion of rights.'" 64 of public trust in government by separating the 60 414 U.S. at 359 (Brennan, J., dissenting). judiciary 11Id. at 360 (Brennan, 3., dissenting). from officials acting in lawless activ- 2 ity. In Weeks,58 the Court pointed out that Id. at 362 (Brennan, J., dissenting). Justice Brennan cited the enactment of 18 U.S.C. § 2515 sanctioning such illegal official behavior is ov- (1971) by Congress as an outgrowth of the Silver- ertly opposed to the objectives of the fourth thorne case. It provides that: amendment. Justice Brennan acknowledged Whenever any wire or oral communication 59 has been intercepted, no part of the contents that the Court in Mapp v. Ohio, considered of such communication and no evidence de- rived there from may be received in evidence 53 In Alderman v. United States, 394 U.S. 165, in any . . . proceeding in or before any . . . 174 (1969), the Court refused to extend the exclu- grand jury ... if the disclosure of that infor- sionary rule to anyone except the victim of the mation would be in violation of this chapter. search. Justice Brennan also cited the Court in Silver- 54 414 U.S. at 351. The Court reasoned further thorne in its comment on the new law: that a would be unlikely to obtain an Moreover, § 2515 serves not only to protect indictment if he felt he would be unable to get a the privacy of communications, but also to in- conviction. sure that the courts do not become partners to 55 He was joined by Justices Douglas and Mar- illegal conduct: the evidentiary prohibition shall. was enacted also to protect the integrity of 56 414 U.S. at 356 (Brennan, J., dissenting). court and administrative proceedings. 57 Id. 408 U.S. at 51. 58232 U.S. 383, 391 (1914). Accord, Terry v. 63 414 U.S. at 351 (Brennan, J., dissenting). Ohio, 392 U.S. 1, 12 (1968); Olmstead v. United Having been granted transactional immunity any- States, 277 U.S. 438, 485 (1928) (Brandeis, way, Calandra could not be criminally prosecuted. Holmes, JJ.; dissenting). 64 Id. at 366 (Brennan, J., dissenting). See 1 59 367 U.S. 643, 651 (1961). ANNALS oF CONG. 439 (1778). 1974] SUPREME COURT REVIEW (1974)

Both the majority and dissenting opinions considerations of privacy are secondary. It was considered at length the historical function of the majority's view that the exclusionary rule the grand jury. The majority stressed its in- is necessary only to deter future unlawful official vestigatory purpose which was not to be un- conduct. Once the wrong has been committed, necessarily hampered. The dissent stressed the there is no need to suppress evidence which need to protect citizens from harassment by has been uncovered for use in the grand jury the government. The majority took the view investigation. that the grand jury is necessary to secure the Although this case severely limits the appli- fair and prompt administration of criminal jus- cation of the exclusionary rule in grand jury tice. The right of privacy is secondary to the proceedings, use of the rule is still preserved search for the truth in the grand jury proceed- at trial. The Court seemed to feel that because ings. In going beyond Dionisio, the majority the grand jury is merely an investigatory and found no reasonable expectation of privacy in intermediary step in the administration of jus- private papers when they are pertinent to a tice, to allow interminable objections and hear- grand jury investigation. It is every person's ings into the admission of evidence would un- duty to come forward and give his evidence; necessarily delay the criminal justice process.