Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Barr, William: Files Folder Title: Exclusionary Rule (1 of 2) Box: 6 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ ,;:- WHITE HOUSE LAW LIBRARY ROOM 528 OEOB (2021 395-3391/ ·/ D 57 To @J1 dd:J Room~/~ From~ ( e_, flJ(l:si: t-T eep ___ To Borrow (Date Due _____, ___ Per Your Request/Per Our Conversation ditor's note: Over th e years, critics of the These justices were engaged in a less c/11sio11ary rule have called it, among other ambitious venture, albeit a most important ings, an "illogical," "-irrational," and "un­ one. They were interpreting the Fourth atural" interpretation of the Fourth and Amendment as b est they could. As they saw 011rtee11th Amendments. it, the rule-now known as the federal exclu­ Last fall, for example, U.S. Court of Ap­ sionary rule-rested on "a principled basis 5 als Judge Malcolm Wilkey, writing in the rather than an empirical proposition." all Street Journal, said the rule "is not The dissenters in United States v. Caland­ required by the Constitution . ... The exclu- ra were, I think, plainly right when they ionary rule is a judge-made rule of evidence maintained that "uppermost in the minds of hich bars 'the use of evidence secured the framers of the [exclusionary] mle" was rough an illegal search and seiz ure.' ... not "the rule's possible deterrent effect," but 'h e only excuse offered for this irrational "the twin goals of enabling the judiciary to le is that there is 'no effecti ve altemati ve' avoid the taint of partnership in official tQ make the police obey the la w." lawlessness and of assuring the people [that] fo an effort to explore this controversial the government would not profit from its 1estion furth er, Judicature in vited Judge lawless b ehavior, thus minimizing the risk l ilkey and a def ender of the rule, Yale of seriously undermining popular trust in amisar, to express their views. Judge Wil­ government."6 The main purpose of this ey will explain his opposition and suggest article, then, is to trace, explain and justify alternatives to the rule in a later issue. the original grounding of the exclusionary rule-what has come to be known as "the imperative of judicial intergrity."7 ore than SO years have passed since The Weeks opinion Mthe Supreme Court decided the Weeks tia e, 1 barring the use in federal prosecutions As Professor Francis Allen recently remind­ of ev idence obtained in violation of the t!d us, the Weeks opinion "contains no lan­ Fourth A1~ endment, and the Silverthorne guage that expressly justifi es the rule by case,2 invoking what has come to be known reference to a supposed deterrent eff ect on the " fruit of the poisonous tree" doc­ trine. 3 The justices who decided those cas~s 5. Cf. All en, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. ' ould, I think, be quite surprised to learn ILL .L.F. 518, 536- 37 (pointing out that, unlike the that some day the value of the exclusionary Court's understanding in the fo rmative phases of the rule would be measured by- and the very exclusionary rule's history, in recent years the deterrent function has prevailed as its predom inant justificati on, life of the rule might depend on- an empiri­ and that "until the rule res ts on [returns to?] a princi­ cal evaluati on of its effi cacy in deterring pled basis rather than an empirical proposition," Mapp Police mi sconduct.4 " will remain in a state of unstable equilibrium"). 6. United States v. Calandra, 414 U.S. 338, 357 I. Weeks v . Unitc <l Sta tes, 232 U.S. 38.3 (HH4). (1974) (B re nnan, J., joined b y Douglas and Marshall, 2.· Silverthorn e Lu mher Co. v. United States, 251 JJ ., dissenting). Calandra held that a grand jury witness .s. 385 (1920) may not refu se to answer questi ous on the ground that 3. 1ardone v. United States, 308 U.S. 338 (1939), they are based on evidence obtained from him b y ~efu sing to all ow the prosecution to avoid an inquiry violating the Fourth Amendment. See also, Schrock and l~to its use of informati ou gain ed b y illegal wiretap­ Welsh, Up From Calandra: Th e E xclusionary Rule as a ~ing, fi rst used the phrase "fruit of the poisonous tree." Constitutional Requirem ent, 59 MINN. L. REV. 251 Ree !!~ 11 erally Piti er, 'The Fruit of th e Poisonous Tree' (1974). ev1s1ted a11d Shepardized, 56 CALIF. L. REV. 579 7. Elkins v. United States, 364 U.S. 206, 222 (1960) l968). (Stewart , J.) (overturning the " silver platter" doctrine), th 4. Space <l oes not permit an extensive evaluation of quoted with approval in Mapp v. Ohio, 367 U.S. 643, ,{ recent "empirical studies" of the ex clusionary rule's 656 (196 1) (Clark, J.) (imposin g the exclusionary rule as e ects (if any) on poli ce behavior. But see "Does the to unconstitutionall y seized materi als on state courts as ~ ~l~ sionary rule affect poli ce behavior?" on page 70 of a matter of Fourteenth Am endment Due Process). See is 1s,ue. also United St ates v. Calandra, supra n. 6. 67 police officials."8 Indeed, in the United the judgments of the courts which are charged States Supreme Court, some 35 years were to all times with the support of the Constitution alld pass, as Professor Robert McKay has noted, to which p eople of all conditions have a ri ght appeal for the maintenance of such fundarnent before Wolf v. Colorada9 "introduced the rights. notion of deterrence of official illegality to ... The efforts of the courts and their officiall the debate concerning the wisdom of the to bring the guilty to punishment . .. are not exclusionary rule."10 be aided by the sacrifice of [Fourth AmcndrneniJ As the Weeks justices saw it, if a court principles .... The United States Marshall act ed without sanction of law ... and under color ~ could not "sanction" a search or seizure his office undertook to make a seizure of prh·at before the event-because, for example, the papers in direct violation of the constitutional police lacked sufficient cause to make the prohibition aflinst such action .. .. To s~ncti~ search or were unable to describe the item(s) such procecdmgs would be to affirm by J11dici they sought with the requisite particular­ d ecision a manifest neglect if not an open deS. anee of th e prohibitions of the Constitution, ity-then a court could not, or at least should intended for the protection of the p eople again not, "affirm" or "sanction" the search or such unauthorized action.12 seizure after the event. The courts, after all, are the specific ad­ Ratifying illegal searches dressees of the constitutional command that Although the Fourth Amendment constj. "no Warrants shall issue, but upon" certain tutes a guarantee against unreasonable prescribed conditions. If "not even an order searches and seizures, it does not, of cours of court would have ju stifi ed" the police explicitly state what the consequences of a - action, as it would not have had in Weeks, violation of the guarantee should be. This ' then "much less was it within [the officers'] "specific" of the Bill of Rights turns out, at authority" to proceed on their own "to bring is so often the case, 13 not to be specific abou1 , further proof [of guilt] to ' the aid of the the is sue which confronted the Weeks Court Government." And if the government's and is th e subject of today's debate. agents did proceed on their own, "without This only means that here as elsewhere-­ sanction of law," then the government almost everywhere-the Court "cannot e, should not be permitted to use what their cape the demands of judging or of making agents obtained. The government whose ... diffi cult appraisals." 14 But " ·hat · agents violated the Constitution should be wrong with the Weeks Court's appraisal? in no better position than the government Does its reading of the Fourth Amendment whose agents obeyed it; "the efforts of the do violence to the language or purpose of th courts and th eir officials to bring the guilty guarantee against unreasonable search and to punishment ... are not to be aided by the seizure? Does its interpretation of this con­ sacrifice of [Fourth Amendment] princi­ stitutional provision require an active imagi• I ples." Is any of this really so hard to follow? nation? Is the interpretation straii1ed, illogi• .11 Since so many commentators lately have cal or implausible? 'I emphasized the efficacy (or inefficacy) of the It is plain that Holmes and Brandeis exclusionary rule in preventing illegal thought not. In the Silverthorne ca ei searches and seizures,1 1 it may be profitable Holmes, joined by Brandeis and fi,·e other to take a fresh look at the key passages in the justices, observed: old Weeks case: The essence of a provision forbidding the acqui­ ... The tendency of those who execute the crimi­ sition of evidence in a certain way is that nol , nal laws [to) obtain convictions by means of 12.