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1977 Number 1 NORTHERN KENTUCKY LAW REVIEW Volume 4 1977 Number 1 THE EXCLUSIONARY RULE: DOWN AND ALMOST OUT Bernard J. Gilday, Jr. ................................ 1 SYNERGISTIC JURISPRUDENCE AND EUGEN EHRLICH O vid C . L ew is ....................................... 21 PROFESSOR EHRLICH'S CZERNOWITZ SEMINAR OF LIVING LAW W illiam Herbert Page .............................. 37 THE KENTUCKY LONG ARM STATUTE: HOW "LONG" IS IT? K urt A . Philipps ..................................... 65 LEGITIMIZING THE ADMINISTRATIVE STATE: THE JUDICIAL DEVELOPMENT OF THE NONDELEGATION DOCTRINE IN KENTUCKY Edward H. Ziegler, Jr. .. ......................... 87 COMMENTS A CONSTITUTIONAL ANALYSIS OF KENTUCKY'S NONCOMMERCIAL BAIL BONDSMEN SYSTEM ...................................... 121 TRANSFER OF JURISDICTION UNDER THE NEW KENTUCKY JUVENILE COURT ACT ......................................... 141 SIXTH CIRCUIT NOTES CONSTITUTIONAL LAW-SEARCH AND SEIZURE-United States v. Carriger,541 F.2d 546 (6th Cir. 1976) .................... 161 LIMITATION OF ACTIONS-SECURITIES EXCHANGE ACT-IDS Progressive Fund, Inc. v. First of Michigan Corp., 553 F.2d 340 (6th Cir. 1976) .................................. 175 BOOK REVIEWS RESEARCH IN MEDICAL LITERATURE AS TRIAL PREPARATION. BY WESLEY GILMER, JR ....................................... 183 FOR THE DEFENSE. BY F. LEE BAILEY ....................... 187 "... WE ARE THE LIVING PROOF . ." THE JUSTICE MODEL FOR CORRECTIONS. BY DAVID FOGEL ......................... 190 UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA. BY JEROLD S. AUERBACH .......................... 192 NORTHERN KENTUCKY LAW REVIEW Volume 4 1977 Number 1 MICHAEL E. MORTHORST Editor-in-Chief RICHARD L. BELL Managing Editor BEATRICE W. ADAMS GREGORY L. ADAMS GARY W. DEEDS Technical Editor Articles Editor Business Editor LISA L. GROSSE RONALD C. HARRIS CHRISTINE P. HASKETT Comments Editor Articles Editor Book Review Editor DENNIS H. HEITZ TERRY F. LENICK LINDA M. STALLINGS Notes Editor Candidates Editor Manuscript Editor MEMBERS CHARLES T. ANDERSON STANTON R. MILLER DAVID L. BARTH WILLIAM H. HAWKINS RODERICK J. MORTIMER PHYLLIS G. BOSSIN GURNEY A. JOHNSON L. EDWIN PAULSON, JR. JOHNNY C. BURRIS MICHAEL A. KENNEDY TEDDYE PETRO WILLIAM J. DESMOND THOMAS R. KERR JEFFREY H. RAINES KAREN M. DOYLE DAVID A. LANPHEAR JAMES R. SCHOLLES M. JAY EARLEY HOPE M. LEVITT P. DANE SHIELDS RICHARD P. FERENC A. GEORGE MASON ALLEN M. WEINBERG MARK A. GABIS RANDALL S. MAY G. RICHARD WILSON JAMES K. GAYNOR MARIANNE TAYLOR WINSY WALKER Faculty Advisor Secretary Typist The views expressed in the articles appearing in the REVIEW are those of the respective authors, and do not necessarily reflect the opinions of the administration, faculty, or students of Salmon P. Chase College of Law or Northern Kentucky University. Contributing authors are expected to reveal personal, economic, or professional interests or connections which may have influenced the views taken or advocated in their articles. Each author impliedly represents that he or she has made such a disclosure by consenting to publication in this law review. THE EXCLUSIONARY RULE: DOWN AND ALMOST OUT Bernard J. Gilday, Jr.* I. INTRODUCTION For sixty-two years in the federal system and fifteen years in the states, the United States Supreme Court has required the pre-trial and in-trial suppression of evidence where such was searched for and seized in violation of constitutional rights based on the fourth, and fifth' amendments. This suppression is grounded on the princi- ples that the government must play a fair game according to the rules, free of "cheap shots." Not even the government can sit at the table of justice with unclean hands, nor can the courts be accompl- ices in the willful disobedience of the Constitution they are sworn to uphold.' The mandate, called the Exclusionary Rule, has pro- voked more controversy than any other constitutional interpreta- tion. Since the exclusion of wrongfully seized, but otherwise credible and trustworthy physical evidence, frequently enables one factually guilty to escape conviction and penalty, courts at all levels have been aggravated, prosecutors incensed and frustrated, and members of law enforcement allegedly so handcuffed that, for at least some, perjury has become a way of life. In addition, aspiring law-and-order politicians and news commentators who castigated-the "softhearted and softheaded" judiciary for enforcing the Exclusionary Rule have found themselves in new positions of popularity and power. Indeed, constitutional mandates are subject to change. The pres- * A.B., Xavier University; J.D., University of Cincinnati; Mr. Gilday is a member of the firm of Gilday, Jung, & Gilday, Cincinnati, Ohio. 1. U.S. CONST. amend. IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. 2. U.S. CONST. amend. V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 3. Olmstead v. United States, 277 U.S. 438 (1928) (Butler, J., dissenting). NORTHERN KENTUCKY LAW REVIEW [Vol. 4/1 sure brought by critics, the ill-advised, and the opportunists suc- ceeded in causing Richard Nixon to bring to the Supreme Court what he has described as the "strict constructionist," thereby caus- ing a radical shift in the Court's approach to and perception of the Exclusionary Rule's constitutional status. Over a four year period, there has been a chipping away and casting aside of the considera- tions which support the principle of rejecting physical and testimo- nial evidence, unlawfully obtained or seized, and today we are but a few shovels away from burying the Exclusionary Rule. Substitutes have been proposed and offered which Chief Justice Burger has described as "reasonable and effective,"' but these are all "Ivory Tower" theories of the campus and are completely ineffective in practice. II. THE BIRTH, DEVELOPMENT, AND DEMISE OF THE EXCLUSIONARY RULE Three distinct theories spawned and nurtured the Exclusionary Rule. The first, known as "The Personal Right Theory," was an- nounced in Weeks v. United States,5 the 1914 decision of Justice William R. Day. Grounded solely on the fourth amendment, the Weeks Court found that the rule of exclusion vindicated the victim's right of privacy and prevented a further invasion of his constitu- tional rights. This emphasis on the personal and individual rights of the accused was short lived. Thereafter the Court found that there was a close interlocking of the fourth and fifth amendments, and it adopted the 1886 reasoning of Boyd v. United States,' that '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. .. is condemned in the Fifth Amendment; ...the Fifth Amendment, [therefore] throws light on the question as to what is an 'unreasonable search and sei- zure' . ... In 1928, in Olmstead v. United States,' we found the Court's majority and Justice Brandeis' famous dissent basing the Exclu- 4. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 421 (1971) (Burger, C.J., dissenting). 5. 232 U.S. 383 (1914). 6. 116 U.S. 616 (1886). 7. Id. at 633. 8. 277 U.S. 438 (1928). 19771 EXCLUSIONARY RULE sionary Rule on two entirely different and distinct principles. The majority maintained that, by excluding evidence illegally obtained, the judiciary declined to legitimize the unconstitutional conduct. Thus was born the Judicial Integrity Theory. Brandeis penned the words which ultimately produced the only surviving reason for the Rule, as he wrote: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. *To declare that in the administration of the crim- inal law the end justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.' Justice Holmes agreed and said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part."' 10 Because of and through Brandeis and Holmes, the Court came to see that in pursuing the Judicial Integrity Theory, it was doing nothing more and nothing less than ostensibly preserving the judici- ary's constitutional "virginity." Actually, the Court was totally con- cerned with its own image for more than thirty-five years. It was not until 1949 when Wolf v. Colorado" was announced that the true basis for the Exclusionary Rule was born. What we know today as the Deterrence Theory sprang from Wolf, and, simply stated, it holds that evidence shall be excluded to deter police from violating constitutional privileges. 2 The rationale assumes that the potential exclusion of items seized will discourage the police from employing unconstitutional methods to obtain evidence. The short-run objec- tive is the deterrence of police misconduct; the long-run goal is an educational effect resulting in fewer fourth amendment violations. Indeed, reliable evidence is suppressed; the accused benefits; and 9. Id. at 485 (Brandeis, J., dissenting). 10. Id. at 470. 11. 338 U.S. 25 (1949). A majority of the Supreme Court, in an opinion by Justice Frank- furter, held that in a state court the fourteenth amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.
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