1 See especially the classic distinction between the “due process model” and the “crime control model” in Herbert L. Packer, The Limits of the Criminal Sanction 149–73 (Stanford, Cal.: Stanford University Press, 1968).Google Scholar

2 E.g., Opinion Roundup, Pub. Opinion, Aug./Sept. 1982, at 26 (showing that in Lou Harris and Associates opinion polls, the percentage of respondents saying the courts have been “too easy” on criminals increased from 5240 in 1967 to 83% in 1981).Google Scholar

3 Id. A 1981 public opinion poll by the Roper Organization reported that 65% of the respondents with an opinion favored the adoption of a good faith exception to the exclusionary rule while 35% were op posed to it. While the proposed exception had majority support, however, it received the lowest level of public support of six recommendations from the Attorney General's Task Force on Violent Crime (see infra note 5).Google Scholar

4 The search and seizure exclusionary rule was adopted by the federal courts to enforce the Fourth Amendment to the federal Constitution in Weeks v. United States, 232 U.S. 383 (1914), and the federal exclusionary rule was applied to the states in Mapp v. Ohio, 367 US. 643. (1961). Many states also adopted search and seizure exclusionary rules as a matter of state law, often based on state constitutions, prior to Mapp. See Elkins v. United States, 364 U.S. 206,224–32 (1960). Because the states are free to develop their own rationales for their exclusionary rules, this article discusses only the rationale for the federal rule. There are also a number of distinct exclusionary rules that apply to confessions, lineups, or wiretaps. In this article, however, unless otherwise noted I will use the term “exclusionary rule” to refer only to the suppression of evidence seized in an illegal search.Google Scholar

5 prior to the Supreme Court's 1976 decisions in Stone v. Powell, 428 US. 465, and United States v. Janis, 428 U.S. 433, discussed infra in text accompanying notes 102–7, critics called for the abolition of the rule. E.g., Dallin Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). The Reagan administration's Attorney General's Task Force on Violent Crime, however, which was composed largely of long-standing critics of the rule, called only for the modification rather than the abolition of the rule. Attorney General's Task Force on Violent Crime: Final Report, Recommendation 40, at 55-56 (Washington, D.C.: Department of Justice, 1981). Illinois governor James R. Thompson, a member of the task force and critic of the rule, has stated: “our report specifically states the exclusionary rule has a legitimate place in the criminal justice system. That's quite a concession–.” Transcript, Meet the Press, Aug. 16, 1981, at 10 (Washington, D.C.: Kelly Press, 1981). Nevertheless, some critics still call for abolition of the rule, e.g., Malcolm Richard Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary Rule (Washington, D.C.: National Legal Center for the Public Interest, 1982); Steven R. Schlesinger, Exclusionary Injustice: The Problem of Illegally Obtained Evidence (New York: Marcel Dekker, 1975); see also The Exclusionary Rule Bills: Hearings on S.101, S.751, S.1995 Before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., 1st & 2d Sess. 55 (1982) (statement of Schlesinger); and id. at 128 (statement of Frank Carrington).Google Scholar

6 Although the media typically refer to the present controversy as a “good faith” exception, there are actually a number of differing proposals that go under that label. In Gates, the Solicitor General sought a “reasonable good-faith exception.” Supplemental Brief for the United States as Amicus Curiae Supporting Reversal [on reargument] at 3, Illinois v. Gates, 103 S. Ct. 2317 (1983) [hereinafter cited as Brief of the United States in Gates]. In the cases now pending, however, the Solicitor General has explicitly dropped the “good faith” criteria and seeks only a “reasonable mistake exception.” Brief for the United States in United States v. Leon, No. 82-1771, Massachusetts v. Sheppard, No. 82-963, and Colorado v. Quintero, No. 82-1711 at 53 & n.19 (Oct. Term 1983). [hereinafter cited as Brief of the United States in Leon].Google Scholar

7 For commentary supporting a good faith exception, see Ball, Edna F., Good Faith and the Fourth Amendment: The “Reasonable” Exception to the Exclusionary Rule, 69 J. Crim. L. & Criminology 635 (1978);Carrington, Frank, Good Faith Mistakes and the Exclusionary Rule, 1 Crim. Just. Ethics 35 (1982);Schroeder, William A., Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1361 (1981);Coe, Philip S., The ALI Substantiality Test: A Flexible Approach to the Exdusionary Sanction, 10 Ca. L. Rev. 1 (1975);Jensen, D. Lowell & Rosemary, Hart, The Good Faith Restatement of the Exclusionary Rule, 73 J. Crim. L. & Criminology 916 (1982).Google Scholar

8 For commentary opposing such an exception, see Kamisar, Yale, Gates, “Probable Cause,”“Good Faith,” and Beyond, 69 Iowa L. Rev. 551 (1984) (forthcoming); Stewart, Potter, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum. L. Rev. 1365 (1983);LaFave, Wayne R., The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L. Rev. 307, 333–59 (1982);Mertens, William J. & Wasserstrom, Silas, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365 (1981);Sachs, Stephen H., The Exclusionary Rule: A Prosecutor's Defense, 1 Crim. Just. Ethics 28 (1982);Schlag, Pierre J., Assaults on the Exclusionary Rule: Good Faith Limitations and Damage Remedies, 73 J. Crim. L. & Criminology 875 (1982). Certain critics who favor the rule's abolition also oppose any good faith exception; see Wilkey, supra note 5, Schlesinger, supra note 5.Google Scholar

9 See infra text accompanying notes 84–92.Google Scholar

10 Various other “costs” of the rule have also been alleged, e.g., Steven Schlesinger, Criminal Procedure in the Courtroom, in James Q. Wilson, ed., Crime and Public Policy (San Francisco: ICS Press, 1983). but they are speculative in nature and not readily subject to empirical evaluation, so I will not address them in this article.Google Scholar

11 Three cases potentially involving the exception issue were accepted by the court for argument this term (October Term 1983): Commonwealth of Massachusetts v. Sheppard, No. 82–963; United States v. Leon, No. 82-1771; State of Colorado v. Quintero, No 82-1711. However, Quintero has been removed from the Court's docket following the defendant's death.Google Scholar

12 National Institute of Justice, Criminal Justice Research Report—The Effects of the Exclusionary Rule: A Study in California (mimeo. Washington, D.C.: Department of Justice, National Institute of Justice, 1982) [hereinafter cited as the NIJ Study].Google Scholar

13 Report of the Comptroller General of the United States, impact of the Exclusionary Rule on Federal Criminal Prosecutions Rep. No. CDC-79-45 (Apr. 19, 1979) hereinafter cited as the GAO Study].Google Scholar

14 NIJ Study, supra note 12, at 2.Google Scholar

15 National Institute of Justice, Notice of Solicitation, 47 Fed. Reg. 20879 (1982), announcing National Institute of Justice, Criminal Justice Research Solicitation: Regulating the Collection and Use of Criminal Evidence (undated, but requiring preliminary proposals by June 30, 1982, and setting a planned grant award date of September 1982 for a grant of 12–18 months).Google Scholar

16 NIJ Study, supra note 12, at i.Google Scholar

17 The NIJ Study, supra note 12, tends to speak of “cases” even when referring to arrests in which prosecutors declined to file a complaint. Since this usage can lead to misunderstanding of what is being measured, I will use the term “arrests” unless I am referring only to prosecutions in which a complaint was filed. “Arrests” means felony arrests unless otherwise noted.Google Scholar

18 The NIJ Study describes its data as focusing primarily on prosecutor screening: “While some new data are presented on police-initiated releases of arrestees and on court dismissals of cases after prosecutor acceptance of a case, the bulk of the information analyzed for this report derives from prosecutor rejections or later dismissals of cases because of concerns about the search and seizure of evidence.”Id. at 3.Google Scholar

19 For a survey of existing studies on the costs of the exclusionary rule published almost simultaneously with the NIJ Study, see Bradley C. Canon, Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for Its Retention, 23 S. Tex. L.J. 559, 572-77 (1982). Canon reached the following conclusion: “In sum, while the empirical research into the question of the degree to which the exclusionary rule ‘frees’ criminals is not extensive enough to warrant absolute conclusions, virtually all of a growing body of evidence points to the conclusion that the rule has had only a very small impact in keeping seemingly guilty persons out to jail.”Id. at 575. The NIJ Study omits any mention of several of the studies discussed by Canon, including several studies of prosecutor screening conducted by the Institute for Law and Social Research (INSLAW) under funding by NIJ or its predecessor, the Law Enforcement Assistance Administration (LEAA). See infra notes 240, 252-54 and accompanying text.Google Scholar

20 E.g., just three months before the release of the NIJ Study, Attorney General William French Smith responded to reporters' comments that studies showed only a small percentage of criminal cases are thrown out of court because of illegal searches by saying: “I think if you talk to prosecutors, you will find quite a different viewpoint…. What those figures do not include are those cases where prosecutions and indictments were never brought because of the fact that the evidence with the exclusionary rule was not sufficient to sustain a conviction.” Looser U.S. Rule Urged for “Illegal” Evidence, Chi. Tribune, Sept. 13, 1982, at 2. Similarly, James R. Thompson, long-time critic of the exclusionary rule, offhandedly dismissed a reporter's inquiry about the findings of the GAO Study, supra note 13, of the effects of the rule in federal prosecutions: “does the report include those cases which were not brought because the prosecutor thought he had no chance of winning under the current state of the case law and therefore didn't bring a prosecution to begin with? Probably not,” Transcript, Meet the Press, supra note 5, at 9. In fact, how ever, the GAO Study does indicate the rate at which federal prosecutors reject arrests because of illegal searches—0.2% of all federal felony arrests. see infra text accompanying notes 256–57.Google Scholar

21 NIJ Study, supra note 12, at 1.Google Scholar

22 Id. at 2.Google Scholar

23 Id. at 18.Google Scholar

24 Id. at 2.Google Scholar

25 Brief of the United States in Gates, supra note 6, at 47–50.Google Scholar

26 103 S. Ct. 2317 (1983).Google Scholar

27 Notwithstanding his amicus status, it was the Solicitor General who was the principal advocate for adoption of a “reasonable good faith exception” for police mistakes in the briefing and argument in Gates. See note 6 supra. The State of Illinois did not press for the adoption of a good faith exception in Gates; even on reargument, Illinois focused its argument on calling for reversal of the two-pronged test for assessing informant hearsay under Aguilar v. Texas, 378 US. 108 (1964), and Spinelli v. United States, 393 US. 410 (1969)—the issue on which the case was ultimately decided and on which Illinois prevailed.Google Scholar

28 Brief of the United States in Gates, supra note 6, at 45. The Solicitor General's treatment of the effects of the rule was not particularly consistent, however. A claim that “the exclusionary rule contributes significantly to the Nation's crime problem,”id. at 50, was immediately qualified in a footnote conceding that the proposed modification of the rule will not “ensure reduction of the crime rate to a material extent,”id. at 50 11.32.Google Scholar

29 E.g., the Solicitor General informed the Court that the GAO Study (supra note 13) had found that in “more than 84% of the cases in which a suppression motion had been denied, a conviction was obtained” but that the “conviction rate dropped dramatically, however, to about 50%. Whenever a suppression motion had been granted in whole or in part.”Id. at 47. What the Solicitor General omitted to tell the Court was that the GAO Study found that successful motions were made in only 1.3% of prosecuted cases. Hence, 1% or less of federal felony prosecutions were lost following successful motions to suppress. See infra text accompanying notes 254-62. The Solicitor General's brief in the pending cases in the Court makes the same selective recitation of the GAO Study data. See Brief of the United States in Leon, supra note 6, at 71 & n.35.Google Scholar

30 Brief of the United States in Gates, supra note 6, at 48-49 (footnotes omitted).Google Scholar

31 E.g., Presidential counselor Edwin Meese 3d, A Rule Excluding Justice, N.Y. Times, Apr. 15, 1983, at 29 (claiming that NIJ estimates that “one-third of all drug cases” are dropped because of the exclusionary rule); Director of the Bureau of Justice Statistics Steven R. Schlesinger, supra note 10, at 194–95.Google Scholar

32 Misstatements of the NIJ Study's findings that grossly exaggerate the effects of illegal searches appeared in Brief Amici Curiae of Seven Former Members of the Attorney General of the United States' Task Force on Violent Crime (1981). et al., in Support of the State of Illinois, Illinois v. Gates, 103 S. Ct. 2317 (1983), filed by Griffin B. Bell, James R. Thompson, David L. Armstrong, Frank G. Carrington, Robert L. Edwards, William L. Hart, and James Q. Wilson, plus a variety of law enforcement officials and organizations. Carrington appeared as counsel for the group. Among other errors, this brief claimed, under “drug felony cases rejected,” that for “California, statewide” the figure was “71.5%,” citing the NIJ Study. That figure is in the NIJ Study, but it is the percentage of all rejected arrests that were drug arrests, not the percentage of all drug arrests that were rejected. Compare id. at 17 with NIJ Study, supra note 12, at 2, 12 table 3. See also infra note 138.Google Scholar

33 The Gates case was unusual in that it was argued and briefed twice before the Supreme Court on different issues. The case was first argued on the issue of whether the warrant in question was supported by probable cause under the two-pronged standard for evaluating hearsay information provided by unidentified informants, as set out in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). Prior to that argument, the State of Illinois requested expansion of the writ of certiorari to include whether the exclusionary rule should be modified to allow an exception for good faith police mistakes, but the court denied that request. After the oral argument on the probable cause issue, however, the Court suasponte ordered reargument on whether the exclusionary rule should be modified to except evidence seized in illegal searches in which the police acted in the “reasonable belief” that the search was legal. Order of Nov. 29, 1982, 103 S. Ct. 436,437. In the decision, however, the five justices in the majority declined to reach the exception issue. Rather, the majority opinion “abandon[ed]” the Aguilar and Spinelli standards and reformulated the probable cause standard to require only a' “common sense” determination that there is a “fair probability” that the proposed search would locate evidence of a crime. 103. S. Ct. at 2332. As noted below, Justice White, concurring, would have created an exception but would not have altered the probable cause standard. (As discussed infra at note 434, however, several commentators conclude that the reduction of the probable cause standard in Gates undercuts any arguable need for a good faith exception in warrant searches.) For a detailed commentary on Gates, see Kamisar, supra note 8.Google Scholar

34 The majority opinion declined to reach the reasonable good faith mistake exception issue “with apologies to all” (103 S. Ct. at 2321) because that issue had not been raised in the Illinois courts and there was no record on the issue, and because Illinois has a state exclusionary rule under Illinois Supreme Court decisions dating from 1923. 103 S. Ct. at 2320-25, 2321, 2323. There were also additional arguments against the jurisdiction of the Court on the exception issue that were not addressed in the Court's opinion, especially an Illinois statutory requirement that evidence seized pursuant to warrant issued on less than probable cause “shall not be admissible.” See I11. Rev. Stat., ch. 38, § 114–12(a), (b) (1981). Respondents argued that because the Supreme Court's decision would have had no effect on the Illinois statutory requirement that the evidence be excluded, any decision on the proposed exception would not affect Illinois decisions and would be advisory only. See the transcript of the oral argument in the U.S. Supreme Court, Mar. 1, 1983, at 41–44.Google Scholar

35 Justice White indicated that he adhered to his earlier views in Stone v. Powell, 428 U.S. 465,537-39 (1976) (White, J., dissenting), and would have created a broad exception for searches conducted pursuant to a warrant. 103 S. Ct. at 2336 (White, J., concurring).Google Scholar

36 103 S. Ct. at 2342 (footnote omitted).Google Scholar

37 Compare the quoted material from Justice White's opinion with the Solicitor General's description set out supra in text accompanying note 30.Google Scholar

38 103 S. Ct. at 2342 n.13 (White, J., concurring) (citation to NIJ Study omitted).Google Scholar

39 See infra text accompanying notes 125-139.Google Scholar

40 See infra note 136 and accompanying text.Google Scholar

41 Similar uses of inappropriate calculations are found in several other sections of the NIJ study, all with the effect of exaggerating the apparent effect of the rule. E.g., see infra text accompanying notes 201–5 (analyzing effects of police releases as percentage of releases rather than as percentage of arrests ending in release because of illegal searches) and note 215 (analyzing percentage of dismissals resulting from illegal searches rather than percentage of arrests ending in dismissal following illegal searches).Google Scholar

42 Brief of the United States in Gates, supra note 6, at 49.Google Scholar

43 See infra text accompanying notes 152–81.Google Scholar

44 See the story on the ABA panel debate, American Bar Association Gives Final Approval to Ethics Rules, 33 Crim. I. Rep. (BNA) 2411-12 (Aug. 17, 1983) [hereinafter cited as ABA panel]. The panel included Deputy Solicitor General Andrew Frey, who IS widely acknowledged as the leading criminal procedure specialist in the Solicitor General's office; Frank Carrington, a long-time critic of the exclusionary rule, a member of NIJ's advisory board, and counsel for the Seven Former Members amici curiae brief in Gates (discussed supra note 32); Shirley Hufstedler, tornier judge on the Ninth Circuit Court of Appeals; and Yale Kamisar, professor of law at the University of Michigan and author of numerous works on criminal procedure. Solicitor General Rex Lee and James K. Stewart, director of NIJ, were in the audience. Hufstedler and Kamisar, relying in part on an early outline of this article, criticized the claims of the NIJ Study, and Stewart responded from the floor.Google Scholar

45 E.g., Fyfe, James J., Enforcement Workshop: The NIJ Study of the Exclusionary Rule, 19 Crim. L. Bull. 253 (1983).Google Scholar

46 E.g., the following statements concerning Fourth Amendment exclusionary rule legislation, before the Subcommittee on Criminal Justice of the House Committee on the Judiciary: D. Lowell Jensen, assist ant attorney general, Criminal Division, U.S. Department of Justice, Apr. 20, 1983 (DOJ-1983-04), at 5 (citing NIJ Study as supporting need for good faith exception); James J. Fyfe, professor, American University, Washington, D.C., Apr. 20,1983 (Washington, D.C.: School of Justice, College of Public and International Affairs, American University), at 13–15; William W. Greenhalgh, chairperson, Criminal Justice Section, American Bar Association, Mar. 10,1983 (Washington, D.C.: American Bar Association), at 22; Richard J. Wilson, on behalf of National Legal Aid and Defender Association, Mar. 10,1983 (Washington, D.C.: National Legal Aid and Defender Association), at 7–9 (the latter three all criticizing the NIJ Study). (Citations are to typescripts issued by the designated organizations at the time of the hearings.)Google Scholar

47 Brief of the United States in Leon, supra note 6, at 69–70. See also infra note 404.Google Scholar

48 Brief of the United States in Gales, supra note 6, at 5; Brief of the United States in Leon, supra note 6, at 23.Google Scholar

49 The data reported by NIJ show that something less than 7% of the arrestees who are released because of illegal search problems are rearrested for any felony offenses against persons, though the NIJ Study, supra note 12, does not make that analysis itself. See infra notes 350–59 and accompanying text.Google Scholar

50 Oaks, supra note 5; James E. Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Stud.243 (1973). But see Bradley C. Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky. L.J. 681 (1973-74).Google Scholar

51 Critique, On the Limitation of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw. U.L. Rev. 740 (1974).Google Scholar

52 NIJ Study, supra note 12, at 2.Google Scholar

53 See infra table 3 and accompanying text.Google Scholar

54 See infra table 4 and accompanying text.Google Scholar

55 E.g., California applied liberal rules of “vicarious” standing to challenge illegal searches. See People v. Martin, 45 Cal. 2d 755, 290 P.2d 855 (1955) (adopting a broad vicarious standing rule for illegal searches); Kaplan v. Superior Court, 6 Cal. 3d 150,161,491 P.2d 1, 8 (1971). Contrast Martin to Rawlings v. Kentucky, 448 U.S. 98 (1980). In addition, the California Supreme Court also declined to follow the Burger Court in several decisions that loosened various exceptions to the warrant requirement such as with regard to searches incident to arrest. E.g., People v. Brisendine, 13 Cal. 3d 528, 531 P.2d 1099, 119 Cal. Rptr. 315 (1975). Contrast Brisendine to United States v. Robinson, 414 U.S. 218 (1973).Google Scholar

56 As discussed infra note 164, about 20% of felony arrests in California are drug arrests. Nationally, however, drug arrests were only 5.5% of all arrests. See U.S., Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics–1981, ed. Timothy J. Flanagan, David J. van Alstyne, & Michael R. Gottfredson, 338 table 4.1 (Washington, D.C.: Government Printing Office, 1982) (showing that there were 558,600 drug arrests in 1979 compared to 10,205,800 total arrests—but note that these figures appear to include both felony and misdemeanor arrests).Google Scholar

57 Brian Forst, Judith Lucianovic, & Sarah J. Cox, What Happens After Arrest? A Court Perspective of Police Operations In the District of Columbia, PROMIS Research Project Publication 4, at 67-68 Exhibit 5.1 (Washington, D.C.: Institute for Law and Social Research, 1977); Kathleen B. Brosi, A Cross City Comparison of Felony Case Processing 16 table 2, 18-19 (Washington, D.C.: Institute for Law and Social Research, 1979); Brian Forst et al., Arrest Convictability as a Measure of Police Performance (Washington, D.C.: National Institute of Justice, 1982). These studies are discussed infra text accompanying notes 241–50.Google Scholar

58 GAO Study, supra note 13. Discussed infra text accompanying notes 255–67.Google Scholar

59 Nardulli, Peter F., The Societal Costs of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F. Res.J. 585 (supra this issue), discussed infra text accompanying notes 220–21, 268–78, 362–66.Google Scholar

60 Floyd Feeney, Forrest Dill, & Adrianne Weir, Arrests without Conviction: How Often They Occur and Why 244 (Washington, D.C.: National Institute of Justice, 1983) (this study was funded by a grant from NIJ but was conducted by outside scholars at the University of California, Davis), discussed infra text accompanying notes 279–81.Google Scholar

61 Id. at xvii.Google Scholar

62 Id. at 244.Google Scholar

63 Richard Van Duizend, L. Paul Sutton, & Charlotte Carter, Review Draft of “The Search Warrant Process: Preconceptions, Perceptions, and Practices” (Williamsburg, Va.: National Center for State Courts, 1983), discussed infra text accompanying notes 282–98.Google Scholar

64 See infra text accompanying notes 168, 231.Google Scholar

65 See infra text accompanying notes 187-96.Google Scholar

66 See infra text accompanying notes 364, 365.Google Scholar

67 See infra text accompanying note 230.Google Scholar

68 See infra text accompanying note 276.Google Scholar

69 See infra table 2.Google Scholar

70 As Justice Stewart notes: “in many of the cases in which exclusion is ordered, police officers would not have discovered the evidence at all if they had originally complied with the fourth amendment.” Stewart, supra note 8, at 1394.Google Scholar

71 Feeney at al., supra note 60, conclude: “The single most important factor in determining whether a jurisdiction will have a high or a low [arrest] attrition rate is the arrest policy followed in the jurisdiction,”id. at xx, and “The single most important factor in determining whether a prosecutor's office will have a high or low conviction rate is the policy that the office follows with respect to screening and filing cases,”id. at 243.Google Scholar

72 E.g., Oaks, supra note 5, at 727. See also Schlesinger, supra note 10, at 193. Schlesinger, one of the most ardent opponents of the exclusionary rule, complains that “officers whose illegal actions result in loss of convictions may receive implicit or explicit approval of their superiors …the loss of convictions through exclusion is not as serious a matter for police as might be thought, since police effectiveness usually is judged by numbers of ‘collars’ or arrests, not by number of convictions(” He also refers to “police practices aimed at harassment or seizure of contraband,”id. at 193, but he does not discuss the significance of any of these factors for assessing the cost (i.e., loss of arrests) of the exclusionary rule. See id. at 194–95.Google Scholar

73 See infra text accompanying notes 347–48; the data reported in the NIJ Study, supra note 12, are inadequate for a precise calculation of this percentage.Google Scholar

74 NIJ Study, supra note 12, at 12 table 3, shows that offenses against persons accounted for only 5.7% of arrests rejected by Calfornia prosecutors for illegal searches; broken down by offenses, murder constituted 0.1% of rejected arrests, rape 0.35%, robbery 2.1%, and assault 3.2%.Google Scholar

75 See infra text accompanying notes 356–58; the data reported in the NIJ Study, supra note 12, are inadequate for a precise calculation of this percentage.Google Scholar

76 During the ABA panel discussion of Gates, Judge Hufstedler reportedly observed that statistics such as those presented in the NIJ Study do not indicate “whether the cases lost or not prosecuted because of search and seizure problems involved egregious Fourth Amendment violations, good-faith mistakes, or conduct that falls into a ‘gray area.’” See ABA panel, supra note 44, at 2411. See also Hearings (statement of Schlesinger), supra note 5, at 55 (data on the frequency of “technical violations” of search law unavailable).Google Scholar

77 E.g., a Vera Institute of Justice report on the dispositions of felony arrests in New York City concluded: “Are serious criminals ‘getting away with it’ in the adult criminal court system and being turned loose or being given inappropriately light sentences? Our probe suggests that this is not the case, and that we may arrive at a different conclusion: Where crimes are serious, evidence is strong, and victims are willing to prosecute, felons with previous criminal histories ended up with relatively heavy sentences. One is thus tempted to conclude that if criminals are ‘getting away with it,’ they may be getting away with it more on the streets than in the courtroom.” Felony Arrests: Their Prosecution and Disposition in New York City's Courts 134 (New York: Vera Institute of Justice, 1977). Some recent studies have also questioned whether due process standards are so qualified by exceptions as to have little practical substance; see Doreen McBarnet, Conviction: Law, the State, and the Construction of Justice (London: Macmillan Press; Atlantic Highlands, N.J.: Humanities Press, 1981), reviewed in Thomas Y. Davies, Do Criminal Due Process Principles Make a Difference? A Review of McBarnet's, Conviction: Law, the State, and the Construction of Justice, 1982 A.B.F. Res. J. 247 [hereinafter cited as Review Essay]. See also Davies, Thomas Y., Affirmed: A Study of Criminal Appeals and Decision-making Norms in a California Court of Appeal, 1982 A.B.F. Res. J. 543, 636–37 [hereinafter cited as Affirmed] (concluding that the popular complaint of frequent reversals of convictions on appeal because of “technicalities” is a red herring); see also the studies cited in id. at 637 n.291.Google Scholar

78 367 U.S. 643 (1961).Google Scholar

79 See generally Stewart, supra note 8, for an insider's view of the origins and development of the exclusionary rule. Stewart places emphasis on exclusion of illegally seized evidence as a constitutionally necessary remedy to enforce the Fourth Amendment and make its protections more than an empty promise. Id. at 1383–89 (explaining at 1389 that he had that thought in mind when he wrote in Elkins v. United States, 364 U.S. 206,217 (1960): “The rule … compel[s] respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it”).Google Scholar

80 See Justice Clark's majority opinion in Mapp:“conviction by means of unlawful seizures…should find no sanction in the judgments of courts.” 367 US. at 648 (quoting Weeks v. United States, 232 U.S. 383,392 (1914)). But see Stewart, supra note 8, at 1382–83, indicating that Stewart does not subscribe to this as a constitutional basis for the rule.Google Scholar

81 For a thorough scholarly treatment of the rule's principled origins, see Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather than an “Empirical Proposition”? 16 Creighton L. Rev. 565 (1982-83). See also Schrock, Thomas S. & Welsh, Robert C., Up from Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn. L. Rev. 251 (1974).Google Scholar

82 See, e.g., Chief Justice Warren's comments on the limitations of the exclusionary rule as a deterrent in Terry v. Ohio, 392 US. 1, 14-15 (1968). See also Critique, supra note 51, at 777 n.145.Google Scholar

83 Roger Traynor, author of the California Supreme Court's influential decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955), explained the reason for adopting the rule in California as follows: “My misgivings about [the admissibility of illegally seized evidence] grew as I observed that time after time it was being offered and admitted as a routine procedure… It was one thing to condone an occasional constable's blunder, to accept his illegally obtained evidence so that the guilty would not go free. It was quite another to condone a steady course of illegal police procedures that deliberately and flagrantly violated the Constitution of the United States as well as the state constitution.” Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 321–22.Google Scholar

84 414 U.S. 338, 354–55 (1974). Justice Stewart has described Calandra as “[p]erhaps the most significant post-Mupp decision on the scope of the exclusionary rule.” Stewart, supra note 8, at 1390.Google Scholar

85 The notion that the purpose of the exclusionary rule was pragmatic rather than normative was earlier put forward by several critics of the rule, especially Oaks, supra note 5, at 671–72.Google Scholar

86 E.g., Kamisar, supra note 81, at 638–42; Schrock & Welsh, supra note 81, at 255; Critique, supra note 51, at 779–90.Google Scholar

87 Calandra, 414 US. 338, held that illegally seized evidence can be used in grand jury proceedings; United States v. Janis, 428 US. 433 (1976), allows the use of illegally seized evidence in government civil cases; United States v. Havens, 446 U.S. 620 (1980), allows illegally seized evidence to be used for impeachment purposes at trial; and Stone v. Powell, 428 U.S. 465 (1976), applying a similar analysis, held that federal habeas corpus review of state prisoners' claims of illegal searches was inappropriate if there had been a hearing on the issue in the state court.Google Scholar

88 James B. White, commenting on the decisions discussed supra note 87, observes that the balancing of deterrent benefits and costs is an “inquiry [that] can never be performed in an adequate way and the reality thus is that the decision must rest not upon those grounds, but upon prior dispositions or unarticulated intuitions that are never justified.”White, James Boyd, Forgotten Points in the “Exclusionary Rule” Debate, 81 Mich. L. Rev. 1273, 1281–82 (1983). See also Kamisar, supra note 81, at 646; Kamisar, supra note 8.Google Scholar

89 Of course, the choice of the phrasing of the analysis in terms of “additional” deterrence is arbitrary; these decisions could be as accurately described as “subtracting” deterrent efficacy from the rule. See Justice Stewart's dissent in United States v. Janis, 428 U.S. at 463–64. See also White, supra note 88, at 1281 n.31; Critique, supra note 51, at 784.Google Scholar

90 E.g., see the cases cited supra note 87. But see United States v. Johnson, 457 US. 537, 561 (1982) (holding that certain search law rulings must be given retroactive effect to give incentives to law enforcement officials to err in the direction of legality in unsettled areas of search law).Google Scholar

91 Canon, supra note 19, at 563 (“By portraying the rule as a pragmatic social policy rather than a basic constitutional principle, its critics have shifted the scope of the debate from arguments about constitutional law (where they lost) to arguments about the empirical data [on deterrence]. The latter are sporadic, ambiguous and subject to differing interpretations”); Critique, supra note 51, at 776–77. See also White, supra note 88, at 1281–83; Kamisar, supra note 8; Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. III. L.F. 518, 537 (“until the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of equilibrium”).Google Scholar

92 The reasons for the critics' optimism are evident. First, at the time of the Calandra decision the empirical literature was limited to the Oaks study, supra note 5, which (before it was subjected to criticism) seemed to condemn the rule. But see text accompanying notes 99–100. Second (prior to any substantial collection of empirical data on the effects of the rule), the critics assumed that the high costs of the rule were self-evident and unchallengeable. Thus, it appears that the majority in Calandra was anticipating the abolition of the rule when it adopted the deterrence rationale in 1973. Indeed, these premises are evident in the argument in Chief Justice Burger's earlier dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 US. 388, 420–24 (1971), as well as his later concurrence in Stone v. Powell, 428 U.S. at 499–500. See also Justice Brennan's statement of concern in his dissent in Calandra:“I am left with the uneasy feeling that today's decision may signal that a majority of my colleagues have positioned themselves to … abandon altogether the exclusionary rule in search and seizure cases.” 414 US. at 365.Google Scholar

93 Oaks, supra note 5.Google Scholar

94 Spiotto, supra note 50.Google Scholar

95 Coincidentally, both studies were funded by LEAA, the predecessor to NIJ.Google Scholar

96 The imposition of the 55-mile-per-hour speed limit on the nation's highways provides a useful analogy to the analytical problem involved. Anyone who drives frequently will have observed that many drivers do not comply with the 55-mph limit. At the same time, however, it seems highly likely that motorists' average speed has decreased from what it was during the era of 70-mph speed limits. Thus, despite the frequent violation of the formal speed limit, it is still likely that the reduced speed limit has influenced motorists' driving behavior. Much the same is probably true about the effects of the exclusionary rule on police behavior. It clearly has not ended illegal searches. Yet it is quite likely that the rule has limited the incidence of illegal searches. The difficulty for empirical research is that it is much harder to measure how often the police refrained from conducting an illegal search than it is to measure how much the speed of automobiles is reduced.Google Scholar

97 Critique, supra note 51, at 744–56; for similar criticisms of these studies, see Bradley, Canon, The Exclusionary Rule: Have the Critics Proven It Doesn't Deter Police? 62 Judicature 398 (1979); Canon, supra note 19, at 560–72. See also Canon's discussion of the rule's critics' unrealistic expectations for deterrence in id. at 563–65. Compare Donald L. Horowitz's assessment of the critics' empirical research on the deterrence issue: Much of the empirical support for the proposition that Mupp does not deter the police from violating the Fourth Amendment has been quite crude. That illegal searches and seizures continue to be widespread despite the exclusionary rule is sometimes taken as evidence that the police are unaffected by the sanction of exclusion. At the most basic level, such inferences take no account of whether there might not be many more illegal searches were it not for the exclusionary rule. At a more refined level, the fact that illegal searches are still conducted to obtain evidence of certain kinds of crimes does not mean that they are still conducted with the same frequency for evidence of other kinds of crimes. That illegal searches are common in some cities does not mean that they are equally common in all cities. Deterrence cannot be viewed as “a monolithic governmental enterprise.” Donald L. Horowitz, The Courts and Social Policy 224–25 (Washington, D.C.: Brookings Institution, 1977).Google Scholar

98 See Canon, supra note 19, at 571–72. Discussing the “impossibility of obtaining proof about the rule's deterrent impact,” Canon writes: “All the methods discussed have their drawbacks, whether in logistics, reliability of the data or in the inability to connect the data with the events in which we are interested. There is no way to demonstrate that the rule works or does not work… or even that it works 35% of the time or 68% of the time or whatever… We have bits and pieces of evidence and we will probably add to them over time, but I do not foresee any dramatic breakthrough in the next few years that will come anywhere close to convincing us all beyond a doubt.”Id. at 572. See also Critique, supra note 5I, at 763–64 (“When all factors are considered, there is virtually no likelihood that the Court is going to receive any ‘relevant statistics’ which objectively measure the ‘practical efficacy’ of the exclusionary rule”).Google Scholar

99 Oaks, supra note 5, at 709. Critics tend to refer to the Oaks study as the “leading” study on deterrence. That is an odd label to apply to an inconclusive study. Oaks's study was among the first empirical studies, but it is too narrow in scope and too dated to be of particular relevance to the current debate.Google Scholar

100 See Stewart, supra note 8, at 1395, “Professor Oaks ultimately determined that no conclusive results could be formulated from existing data about the rule's deterrent value. Yet Oaks's preliminary observations have been a fuel for critics of the rule.” To its credit, the NIJ Study does recognize the disjuncture between Oaks's findings and his opinion. NIJ Study, supra note 12, at 5. However, Brief of the United States in Leon, supra note 6, at 41, does not.Google Scholar

101 Canon, supra note 50. See also Canon's later article, Testing the Effectiveness of Civil Liberties Policies at the State and Federal Levels: The Case of the Exclusionary Rule, 5 Am. Pol. Q. 57 (1977).Google Scholar

102 428 US.433 (1976).Google Scholar

103 428 US.465 (1976).Google Scholar

104 Decided together with Stone v. Powell, 428 US. 465 (1976).Google Scholar

105 Janis, 428 U.S. at 450 n.22. Justice Powell expressed the same evaluation of the empirical literature in Stone, 428 U.S. at 492 11.32.Google Scholar

106 Janis, 428 U.S. at 447–60.Google Scholar

107 Stone, 428 U S. at 482–95.Google Scholar

108 E.g., Canon, supra note 19, at 560–72; Horowitz, supra note 97, at 220–54; Sunderland, Lane V., Liberals, Conservatives, and the Exclusionary Rule, 71 J. Crim. L. & Criminology 343 (1980).Google Scholar

109 See Canon, supra note 19, at 562.Google Scholar

110 Although many discussions of the deterrent benefits of the exclusionary rule do not explicitly use it, the distinction between “specific deterrence” and “general deterrence” is quite useful for clarifying the differences in the claims and conceptualizations found in commentary. “Specific deterrence” refers to the deterrent effect of a sanction on the offending officer himself. “General deterrence” refers to the broader, educative effects of the sanction on police officers and police departments. Critics of the rule tend to at tack the rule's weaknesses as a specific deterrent. E.g., Chief Justice Burger focused on the weak specific deterrent effects of the rule on the offending officer in Bivens. Defenders of the rule tend to emphasize the broader general deterrent or educative effects of the rule. E.g., former Justice Stewart has recently written: “the exclusionary rule is not designed to serve a ‘specific deterrence’ function; that is, it is not designed to punish the particular officer for violating a person's fourth amendment rights. Instead, the rule is designed to produce a ‘systematic deterrence’: the exclusionary rule is intended to create an incentive for law enforcement officials to establish procedures by which police officers are trained to comply with the fourth amendment.” Stewart, supra note 8, at 1400.Google Scholar

111 Because these educative effects are varied, what we know about them tends to be fragmentary at present. Among the beneficial effects are increased training in search law (LaFave, Wayne R., Improving Police Performance Through the Exclusionary Rule—Part II: Defining the Norms and Training the Police, 30 Mo. L. Rev. 566, 593–96 (1965)) and increased police use of warrant searches (Stewart, supra note 8, at 1395). There are also a few indications in the literature that police officers who entered the force and were trained subsequent to Mapp have a more positive view of Fourth Amendment requirements than those of the generation that started serving before Mapp. Van Duizend et al., supra note 63, at 5-4, 5-7 to 5-8. Cf. Stephen L. Wasby, Small Town Police and the Supreme Court: Hearing the Word 218 (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1976).Google Scholar

112 See Yale Kamisar, Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment? 62 Judicature 66, 71–73 (1978). Kamisar quotes one detective who described the pre- Mapp situation in Minnesota as follows: “No officer lied upon the witness stand. If you were asked how you got your evidence, you told the truth. You had broken down a door or pried a window open… often we picked locks… The Supreme Court of Minnesota sustained this time after time after time. [The] judiciury okayed it; they knew what the facts were.”Id. at 71–72 (emphasis added). Similarly, police chiefs tended to incorrectly describe the exclusionary rule as though it had imposed new substantive limitations on police searches. Chief William Parker of Los Angeles was concerned that “his officers would be unable to take ‘affirmative action’ unless and until they possessed ‘sufficient information to constitute probable cause.’ He did promise, however, that '[a]s long as the Exclusionary Rule is the law of California, your police will respect it and operate to the best of their ability within the framework of limitations imposed by that rule.” Id. at 72. Similarly, Commissioner Michael Murphy saw Mapp as raising “the issue of defining probable cause to constitute a lawful arrest and subsequent search and seizure.”Id. at 72–73. The tendency for police to think the exclusionary rule had created restrictions on searches is dramatic testimony to the hollowness of the Fourth Amendment in the absence of the rule. See also Milton A. Loewenthal, Evaluating the Exclusionary Rule in Search and Seizure, 49 U. Mo. K.C. L. Rev. 2.4 (1980). Loewenthal interviewed 90 New York City police commanders, as well as judges, prosecutors, and attorneys. He concludes that the police would not respect courts that did not exclude illegally obtained evidence. Id. at 29. Moreover, he suggests that “the police will apparently doubt the significance of the fourth amendment if unconstitutionally obtained evidence is not excluded from court.”Id. at 34. Unfortunately, however, Loewenthal merely states his conclusions from his interview study without reporting anything about the interviewees' statements. Hence, while his conclusions suggest the importance of the rule in shaping police attitudes, his article does not offer an altogether persuasive demonstration of that phenomenon.Google Scholar

113 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,416 (1971) (Burger, C.J. dissenting). See also Malcolm Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence? 62 Judicature 215, 215 (1978) (blaming the rule in part for “the distressing rate of street crimes”).Google Scholar

114 E.g., the NIJ Study, supra note 12, at 9, suggests that its assessment of the costs of the rule is in complete because it does not include any data on “the number of police searches not initiated.”Google Scholar

115 E.g., Kamisar, Yale, The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment More than ‘an Empty Blessing,’ 62 Judicature 337, 343–44 (1979); Brief Amicus Curiae of the American Bar Association at 11, Illinois v. Gates, 103 S. Ct. 2317 (1983): “Of course evidence will be lost if the exclusionary rule is applied as it ought to be, just as evidence will be lost if the police refrain from searching when the Constitution forbids them.”Google Scholar

116 See the works cited infra notes 241–46 and accompanying text. For a summary of studies on the effects of the exclusionary rule published before the NIJ Study, see Canon, supra note 19, at 572–77.Google Scholar

117 See infra text accompanying notes 255–62.Google Scholar

118 Attorney General's Task Force, supra note 5, Recommendation 40, at 55–56.Google Scholar

119 James Q. Wilson, a member of the Attorney General's Task Force on Violent Crime and a critic of the exclusionary rule, made the following observation about the effects of the rule: “It would be a mistake, I think, to argue that the rule has contributed materially to the increase in crime. Very few prosecutions for the kinds of crime we most fear–muggings, burglaries, robberies—involve searches that might be challenged as unreasonable.” Wilson, The Evidence 1s in—Can We Use It? Wash. Post, Oct. 21, 1981 at A–27, col. 2.Google Scholar

120 Most recently, the proposal is contained in the administration's bill for the Comprehensive Crime Control Act of 1983, tit. III of H.R. 2151 As this goes to press, this legislative initiative to change the rule is given little chance of passage. John Riley, Criminal Code Reform Picks Up Steam, Nat'1 L.J., 1, 16, Dec. 12, 1983.Google Scholar

121 Brief of the United States in Gates, supra note 6, at 3.Google Scholar

122 Brief of the United States in Leon, supra note 6, at 19. Note that the Solicitor General has explicitly dropped the “good faith” aspect of the proposed modification. Id. at 53 11.19.Google Scholar

123 President Reagan has attacked the exclusionary rule as “resting on the absurd proposition that a law-enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant or how heinous the crime.” Chi. Sun–Times, Sept. 29, 1981, at 24, col. 1. This rhetoric typifies critics' attacks on hypothetical due process excesses that rarely if ever occur. As described below,' “heinous crimes” are rarely “thrown out of court” by the exclusionary rule. For other examples of the administration's exaggerated rhetoric on the costs of the rule, see supra notes 31, 32, and infra notes 150, 327.Google Scholar

124 See supra text accompanying notes 30, 38.Google Scholar

125 NIJ Study, supra note 12.Google Scholar

126 The NIJ Study states that the OBTS data represent “all” arrests–“all felony arrests” (id. at I); “all adult felony arrests in the State” (id. at 7).Google Scholar

127 While California does have an unusually good statistical reporting system for tracking criminal prosecutions, the BCS clearly warns recipients of their OBTS data that the data are “underreported” to some degree. The Bureau's OBTS data base is compiled from raw data on individual defendants provided by a large number of agencies within the state, and some of those raw data simply do hot make it to BCS. Using data on arrests compiled by other sources as a basis for estimating the completeness of the OBTS data, the cover statement describing OBTS data routinely provided to all users receiving data from BCS estimates that about 70% of all adult felony arrests in the state are included in the OBTS data base. Because BCS has no means to specify the nature of the missing information, any estimate based on the OBTS data necessarily involves some degree of error. Nevertheless, because there are no known systematic biases in the data collection, the BCS cover statement states: “In spite of this underreporting, the arrest dispositions received generally describe the ‘statewide’ processing of arrests.”Google Scholar

128 NIJ Study, supra note 12, at 10.Google Scholar

129 Id. (emphasis added).Google Scholar

130 See supra text accompanying note 30 (emphasis added).Google Scholar

131 See supra text accompanying note 38.Google Scholar

132 Unfortunately, the confusion regarding the garbled statement was also contributed to by the respondents' brief, which also quoted the Solicitor General's language on this point. Respondents' Brief on Reargument at 51. Illinois v. Gates, 103 S. Ct. 2317 (1983). While the respondents' brief did not alert the Court to the garbled nature of the Solicitor General's statement, it did argue that the 4.8% calculation it self was irrelevant and misleading. Id. at 51–52.Google Scholar

133 E.g., Fyfe, supra note 45, at 257; Van Duizend et al., supra note 63, at 4–8 to 4–9.Google Scholar

134 Respondents' Brief in Gates, supra note 132, at 51; Brief of the National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and the State Public Defender of California, as Amici Curiae in Support of Respondents, Illinois v. Gates at 1611.32, Illinois v. Gates, 103 S. Ct. 2317 (1983).Google Scholar

135 Columnist Tom Wicker has noted that the data in the NIJ Study showed California prosecutors rejected only 0.78% of arrests because of illegal searches. Tom Wicker, Exploding a Myth, N.Y. Times, May 10, 1983, § Y. at 29. A responding letter from D. Lowell Jensen, assistant attorney general in charge of the criminal division of the U.S. Department of Justice, did not take issue with that percentage calculation (in fact, he agreed that is what the NIJ Study “found”); rather, he argued that Wicker was engaging in ‘“statistical gamesmanship” because’“the focus on the percentages obscures the fact that the 78 percent represents more than 4,130 defendants who were released.” D. Lowell Jensen, Letter to the Editor: The Exclusionary Rule's Many Undeserving Beneficiaries, N.Y. Times, May 27, 1983, at 26. It might have been worthwhile for Jensen to clearly identify that figure as a total for 4 years, however.Google Scholar

136 Let me give a hypothetical example. Assume that 10,000 arrests are forwarded to a prosecutor's office. Of these, 2,000 are rejected—100 are rejected because of illegal searches; 1,000 are rejected because complaining witnesses failed to appear; and 900 are rejected for other reasons. Using the NIJ approach, we would calculate that 5% (100/2,000) of all rejected searches are rejected because of the rule. Now assume that a new program reduces the number of arrests rejected because the complaining witness refuses to appear. Assume that 500 of the cases previously rejected are prosecuted as a result, so that only 1,500 arrests are now rejected. Again using the NIJ approach, we would calculate that 6.6% (100/1,500) of all rejected arrests were rejected because of the rule. Thus, if one adopts the NIJ measurement the effect of the rule would appear to have increased from 5% to 6.6%, even though there had been no change in the number or percentage of arrests rejected for illegal searches at ail. In both examples, illegal searches caused 1 % (100/10,000) of the total number of arrests to be rejected by prosecutors. Similarly, if problems with complaining witnesses failing to appear became worse, so that 2,000 arrests were rejected for that reason, plus 100 rejected because of illegal searches, and 900 for other reasons, then the NIJ measurement would show that only 3.3% (100/3,000) of all rejected arrests would be declined because of illegal searches. But again, the frequency of illegal searches is unchanged. The percentage of declined cases is not useful for measuring the costs of the rule.Google Scholar

137 As discussed infra in text accompanying notes 149–56, the NIJ Study, supra note 12, analyzes the effects of illegal searches in drug cases by calculating the percentage of “all” drug prosecutions rejected because of illegal searches, not the percentage of rejected drug arrests that were declined because of illegal searches.Google Scholar

138 E.g., When the Police Blunder a Little: The Court Considers a Major Exception to the Exclusionary Rule, Time Mag., Mar. 14, 1983, at 56 (incorrectly stating that the NIJ Study showed that “nearly one in 20 felony cases [i.e., 5%] was not brought because of the [exclusionary] rule”); Robert Keating, The D.A.s' War on ‘Technicalities’: Rethinking the Rules for When Cops Blunder, N.Y. Mag., Jan. 30,1984, at 42 (incorrectly stating:”“The National Institute figures showed that 4.8 percent of felony arrests were rejected [because of illegal searches]”); Brief of Seven Former Members in Gates, supra note 32, at 17 (stating that for “California, statewide” 4.8% of “[a]11 felony cases rejected”); Stewart, supra note 8, at 1394 (citing the NIJ Study as finding that “search-and-seizure issues led [California] to decline prosecution in only 4.8% of its felony cases”).Google Scholar

139 NIJ's director, James K. Stewart, reportedly defended NIJ's calculation of the percentage of declined cases on the ground that it is appropriate “to focus on the cases that were rejected for prosecution, rather than the entire universe of complaints, because the rejected cases comprise those in which the exclusionary rule was more likely to be applied“ (indirect quotation reported in ABA panel, supra note 44, at 2411, emphasis added). That is hardly a defensible logic for measuring the costs of the rule; it is akin to calculating the percentage of Democratic voters by sampling only union members or the percentage of Re publican voters by sampling only bankers. The very definition of the sample data to be used as the denominator in the percentage calculation artificially inflates the results.Google Scholar

140 See NIJ Study, supra note 12, at i. The NIJ Study also states that the GAO Study “simply analyzed aggregate data for a wide variety of federal felony arrests and found little apparent impact of the rule.”Id. at 1. “In contrast to the [GAO Study], this study found a major impact of the exclusionary rule on state prosecutions.”Id. at 2. Similarly, the Solicitor General's brief in Gates contrasted the GAO Study with the NIJ Study, claiming that the latter showed that the effects of the rule in California were “12 times” the GAO Study's findings. Brief of the United States in Gates, supra note 6, at 46-49. But see text following note 142 infra. Google Scholar

141 GAO Study, supra note 13, at 13.Google Scholar

142 Id. at 14.Google Scholar

143 Los Angeles prosecutors have rejected felony arrests where the amount of contraband was small or the arrestee had no prior record. Peter W. Greenwood et al., Prosecution of Adult Felony Defendants: A Policy Perspective 16 (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1976) (a Rand Corporation study of adult felony prosecutions in Los Angeles).Google Scholar

144 GAO Study, supra note 13, at 14.Google Scholar

145 The NIJ Study uses the phrase “primary reason,” NIJ Study, supra note 12, at 9, a term that does not appear in BCS's OBTS coding manual. The NIJ Study does suggest that potential confusion between “illegal search” and “insufficient evidence” reasons for rejections might understate the costs of the rule, however. Id. Google Scholar

146 The 1979 cutoff of data chosen by NIJ is difficult to understand since data were available for 1980 and 1981 when the NIJ Study was conducted in late 1982. Indeed, I published relevant aspects of the 1980 OBTS data some time before the NIJ Study was begun. Davies, Review Essay, supra note 77, at 265–66.Google Scholar

147 One aspect of the percentages reported in tables 1 and 2 may mildly deflate this estimate of the effect of the rule on prosecutorial screening. Not all of the arrests identified in the OBTS data are actually presented to prosecutors for decisions whether to file complaints; some arrests are disposed of by release by the police themselves or are initiated by indictment or warrants, without subsequent prosecutor screening. Since these arrests are not submitted to prosecutors for complaints, it might be argued that a more ac curate calculation of the effects of illegal searches on prosecutorial screening would be to use as the de nominator OBTS data for the number of arrests in which the prosecutor is actually requested to issue a complaint. On the other hand, since illegal searches may be a factor in determining the mode by which a prosecution is initiated, this' “correction” may itself be invalid with regard to prosecutions initiated by indictment or warrant. As a practical matter, since the vast majority of arrests are presented to the prosecutor for a complaint, this change in the method of calculation has little effect on the estimate: the percent age of requests for a complaint that are rejected because of illegal searches varies from 0.73% in 1979 to 1.01 % in 1980. See the OBTS data on the number of arrests presented to prosecutors and the percentage rejected because of illegal searches in appendix A. Thus, either method of calculation shows that 1 % or less of reported felony arrests in 1978–81 were declined by California prosecutors because of illegal searches. Because I will add the rate of prosecutor rejections of arrests to the rate at which arrests are lost at other stages of felony processing below, I discuss in the text only the rates calculated on the basis of all reported arrests, because this provides a consistent, cumulative measure of the effects of illegal searches.Google Scholar

148 Since the OBTS data are underreported by about 30% (see supra note 127), however, some correction is needed to estimate the number of arrests rejected. This can be done by multiplying the reported number by 1.43 (i.e., 100%/70%= 1.43). Thus, a reasonable estimate is that the actual number of felony arrests annually rejected by prosecutors because of illegal searches in California has grown from about 1,400 in 1978 to about 2,050 in 1981.Google Scholar

149 The earlier deterrence research by Oaks and Spiotto demonstrated the concentration of the exclusionary rule's effects in drug offenses and other victimless crime categories. See Oaks, supra note 5, at 681-83 (noting the “astonishing extent” to which exclusion of evidence is concentrated). Spiotto noted that motions to suppress in prosecutions for violent crimes met with minimal success. Spiotto, supra note 50, at 253. Ten years ago I summarized what those studies showed about the effect of the rule as follows: Spiotto does tell us something about the “countless guilty criminals” that escape through the exclusionary rule. They are not “robbers” or “murderers.” Instead, [those] who escape are offenders caught in the everyday world of police initiated vice and narcotics enforcement. Their offenses are usually true victimless crimes in the sense that there is no civilian complainant… Though critics of the exclusionary rule sometimes sound as though it constitutes the main loophole in the administration of justice, the fact is that it is only a minor escape route in a system that filters out far more offenders through police, prosecutorial, and judicial discretion than it tries, convicts, and sentences. Critique, supra note 51, at 774. The data discussed in this article are consistent with this earlier description.Google Scholar

150 E.g., Vice-president Bush decried instances in which “a brutal murderer [is] acquitted by a deft use of the exclusionary rule” in remarks to the 1981 annual meeting of the ABA (quoted in Geller, William A., Is the Evidence in on the Exclusionary Rule? 67 A.B.A.J. 1642 (1981); Lowell Jensen (see supra note 135). a principal spokesman for the administration regarding the exclusionary rule, claimed before Congress (after the NIJ Study) that the exclusionary rule “operates to free known murderers, robbers, drug traffickers and other violent and non-violent offenders.” Statement of D. Lowell Jensen, supra note 46. Unfortunately, many critics of the rule simply ignore the consistent empirical finding that the rule has a negligible effect in dispositions of violent crime arrests. E.g., Spiotto, James E., The Search and Seizure Problem—Two Approaches: The Canadian Tort Remedy and the US. Exclusionary Rule, 1 J. Police Sci. & Ad. 36, 39 (1973) (giving an example of the rule involving “a robber or a murderer”after his own empirical study disclosed that the effects of the rule were “minimal” in those crimes; see supra note 149). See also infra note 327.Google Scholar

151 The NIJ Study treats the concentration of the rule's effects in drug cases as a “major conclusion.” NIJ Study, supra note 12, at 18.Google Scholar

152 Id. at 10. These two samples were drawn from 1981 arrests.Google Scholar

153 Id. at 13.Google Scholar

154 Id. at 2 states: “32.5 percent of all felony drug arrests referred for prosecution in 1981 to the Pomona (Los Angeles County) prosecutor's office were rejected at the initial case review because of search and seizure problems. A similar rate (29 percent) of drug case rejections for search and seizure problems was found in the sample from the Central Operations office of the Los Angeles District Attorney.”Google Scholar

155 “Analysis of drug arrest screenings at two local prosecutors' offices reveals that 30 percent of all felony drug arrests were rejected for prosecution because of search and seizure problems.”Id. at 18. While this language clearly indicates that the source of the estimate is two offices only, the absence of even a single word of caution anywhere in the NIJ Study regarding the atypicality of the data implies that this estimate of the effects of the rule is of general significance.Google Scholar

156 See supra text accompanying note 30. See also supra note 31.Google Scholar

157 Respondents' brief in Gates, supra note 132, at 52 (“data from the California Bureau of Criminal Statistics for 1980 shows that only 938 of 40,451 [arrests for] drug law violations, or 2.3% were rejected [by prosecutors] because of illegal searches”); Amici Brief of National Association of Criminal Defense Lawyers et al. in Gates, supra note 134, at 17 11.38 (citing the same statistics). Both relied on Davies, Review Essay, supra note 77, at 265. The same data appear infra table 2.Google Scholar

158 The data in table 2 are taken from “disposition tree” computer printouts provided to the author by the California BCS.Google Scholar

159 See supra note 127.Google Scholar

160 NIJ Study, supra note 12, at 8.Google Scholar

161 By “bias” I mean the possibility that coders will unconsciously apply poorly defined codes in ways that will be consistent with preconceived notions. The fact that prosecutors have an occupational interest in limiting the exclusionary rule makes them a poor choice for coders, especially in the absence of precise coding guidelines.Google Scholar

162 NIJ Study, supra note 12, at 11.Google Scholar

163 The small sample size makes the percentage estimates unstable and especially susceptible to a variety of confounding factors. E.g., if a single search incident was related to several drug arrests and the search was illegal, that could lead to multiple lost arrests. A few such clusters (or even one large cluster) could produce atypically high rejection rates in a small sample, even though such effects would be in significant in a larger sample. The NIJ Study does not indicate any sensitivity to such factors.Google Scholar

164 Statewide for California, there were 293,168 adult felony arrests reported by police agencies in 1981, of which 60,765—or 20.7%—were for drug offenses. California Bureau of Criminal Statistics and Special Services, 1981 Criminal Justice Profile: A Supplement to Crime and Delinquency in California—- Statewide 30 (Sacramento, Cal., 1982) [hereinafter cited as BCS Profile]. See also the data in table 2, which show that drug arrests accounted for between 21.4% and 20.6% of all reported arrests in the OBTS data for 1978–82.Google Scholar

165 There were 117,389 adult felony arrests in Los Angeles County in 1981, of which 24,678—21.0%—were for drug offenses. BCS Profile, supra note 164, at 26.Google Scholar

166 NIJ Study, supra note 12, at 13.Google Scholar

167 Greenwood et al., supra note 143, at 7–12.Google Scholar

168 Statewide for California in 1981, only 16,969 felony complaints were issued in 42,308 felony drug arrests; hence, 25,339 such arrests (or 59.9%) were declined for some reason. Of the latter, 12,214 (or 28.9% of total felony drug arrests) were prosecuted as misdemeanors. BCS Profile, supra note 164, at 68. Overall, Los Angeles County felony arrests are slightly more likely to be downgraded to misdemeanors than are arrests elsewhere in the state: 28,364 of 78,265 (or 36.2%) of Los Angeles felony arrests were prosecuted as misdemeanors compared with statewide figures of 67,664 of 205,168 (or 33%) felony arrests. Id. at 61, 63.Google Scholar

169 NIJ Study, supra note 12, at 11.Google Scholar

170 When an arrest is transferred to another agency for processing, presumably it would be efficient to send along the arrest file; but if the arrest were rejected because of an illegal search, there would be no reason to send the file elsewhere. Thus, it is reasonable to expect that the transfer of arrests to the city attorney might reduce the total number of drug arrest files substantially but not the number of files for arrests rejected because of illegal searches.Google Scholar

171 While a precise calculation cannot be made without additional data, it may be noted that it would require something more than a doubling of the reported numbers of drug arrests in the two offices studied to raise the percentage of drug arrests to the 20% proportion of all arrests found at the statewide and Los Angeles County levels. (See supra text accompanying notes 164-66.) Consider the following illustration: Assume there were 20 arrests, 2 of which, or 10%, were for drugs. If the number of drug arrests is doubled to 4, drug arrests would still only be 18.2% of the total arrests (4/22). Moreover, this illustration holds the number of nondrug arrests constant. But since some nondrug arrests would also be involved in any transfer of felony arrests for misdemeanor prosecution, it might well be that 3, 4, or more times the original number of drug arrests would have to be added in for drug arrests to be 20% of the arrests in the offices NIJ studied. Thus, if these“two small studies” did in fact fail to count drug arrests prosecuted as misdemeanors, the number of uncounted drug arrests might well be large enough that the actual percentage of drug cases that were rejected in those offices would be in the neighborhood of 5 to 10%.Google Scholar

172 According to BCS data, prosecutors reject a higher percentage of reported felony arrests in Los Angeles than the state average. In 1981, Los Angeles prosecutors declined to file felony complaints in 67.5% of the felony arrests presented to them (i.e., 43,789 of 64,908); statewide, prosecutors declined to file felony complaints in 53.8% (i.e., 98,976 of 184,046) (for both calculations, law enforcement releases have been subtracted from the total number of felony arrests). BCS Profile, supra note 164, at 61, 63.Google Scholar

173 See infra note 247 and accompanying text.Google Scholar

174 Greenwood et al., supra note 143, at 84–96.Google Scholar

175 At the ABA panel debate, supra note 44, NIJ director Stewart is indirectly quoted as explaining the choice of the two offices as follows: “In responding to criticism of the analysis that led to the 30 percent figure, Stewart stressed that the prosecutors' offices that were chosen were selected because of the reliability of their data. Also, urban areas were selected because those who conducted the study expected to find the rates [of rejections for illegal searches] higher in urban areas. The sample was not ‘too small,’ he asserted.”Id. at 2411–12. The claim that the data in these offices were especially reliable is interesting in light of the the discussion above.Google Scholar

176 NIJ Study, supra note 12, at 10–11 & table 2.Google Scholar

177 These figures cannot be compared with any precision because of the odd measurement used, as discussed supra note 136 and accompanying text. One would expect, however, that there would be some degree of correlation between the rate of rejected arrests that were declined for illegal searches and the rate of all arrests rejected for illegal searches. Note that the 11.8% and 14.6% figures may also be affected by the potential omission of a number of drug arrests in these offices, as discussed supra text accompanying notes 164–71.Google Scholar

178 NIJ Study, supra note 12, at 10.Google Scholar

179 See supra note 175. Of course, it is entirely proper to compare the rate in urban areas with the statewide rate, but it is inappropriate to treat the urban rate alone as a general estimate, which is what the NIJ Study does.Google Scholar

180 NIJ Study, supra note 12, at 8.Google Scholar

181 See id. at 12 table 3, breaking down the OBTS data on arrests rejected because of illegal searches into the various crime categories and finding that 71.5% of all rejected arrests were for drug offenses.Google Scholar

182 Id. at 12 n.15.Google Scholar

183 Data provided to me by BCS show the following breakdown of charges in the drug arrests prose cutors rejected because of illegal search problems for 1978–81: Offenses Involved in Felony Drug Arrests Rejected by Prosecutors for “Illegal Search,” 1978-81 Combined (BCS offense codes in parentheses) Narcotics: No. Rejected Arrests % of Rejected Arrests Possession (800)… 811 24.6 Sale, possession for sale, transportation. etc. (801-08)… 360 10.9 Marijuana: Possession (810)… 293 8.9 Sale, possession for sale, transportation, etc. (811-15)… 659 20.0 Dangerous drugs: Possession (825)… 687 20.8 Sale, possession for sale, transportation, etc. (820-24,832-35)… 485 14.7 Total… 3,295 99.9 SOURCE: OBTS data provided by BCS. In all, 54.4% of the rejected arrests involved simple possession charges while 45.6% involved sale-type offenses; of the latter, marijuana sale offenses were most common (20%), followed by dangerous drug sale offenses (14.7%). and narcotics sale offenses (10.9%). Of course, with regard to the seriousness of arrests for sale of drugs, it might also be important to distinguish between drug arrests at the “wholesale” and “retail” levels of drug traffic, since arrests at the former level are likely to have a more significant effect on the quantity of drugs reaching the street. See, e.g., Jerome H. Skolnick, Justice Without Trial: Law Enforcement in a Democratic Society 264 (2d ed. New York: John Wiley & Sons, 1975).Google Scholar

184 Of course, questions about the validity and reliability of the OBTS data on this point can only be answered by further studies comparing the OBTS data with data developed from other sources. See also supra note 127 and text accompanying note 144.Google Scholar

185 E.g., the Feeney et al., supra note 60, study of robbery, burglary, and assault cases in Jacksonville and San Diego, which traced nonconvictions in such arrests throughout the stages of felony processing, does not report a single illegal search rejection or dismissal in 466 robbery or assault arrests. The study did find 9 burglary arrests lost, all in San Diego, but those may involve “possession of stolen property” charges that may have resulted from police-initiated enforcement, rather than from specific investigations. See infra text accompanying note 280. Similarly, Nardulli's analysis (supra note 59) of granted motions to suppress indicates that arrests are dismissed at rates of only 0.3% in all crime categories but drugs and weapons possession (which may also be largely police-initiated). See infra text accompanying note 276. And the warrant process study by Van Duizend et al., supra note 63, indicates that warrant searches, which constitute a minority of all searches to begin with, are seldom overturned because of illegalities. See infra text accompanying note 286.Google Scholar

186 See Nardulli, supra note 59, at 600; Davies, Review Essay, supra note 77, at 266.Google Scholar

187 Skolnick, supra note 183, at 161–63, concludes that, in contrast to street “pinches” of narcotics users, investigations of “big” narcotics cases present police “with the conditions under which constitutional standards of legality may best be met.”Google Scholar

188 See supra note 70.Google Scholar

189 See Loewenthal, supra note 112, at 32, concluding: “the study of New York City police indicates that most policemen—particularly plainclothes officers and detectives who do most of the searching—recognize that most illegal searches take place in situations where police officers clearly know, or should know, that they are violating the law, regardless of the pressures of the moment.” But see supra note 112, regarding the limitations of the presentation of this study.Google Scholar

190 Fyfe, James J., Don't Loosen Curbs on Cop Searches, Wash. Post, Feb. 27, 1983, at B1 (emphasis added).Google Scholar

191 Id. Google Scholar

192 See the sources cited in Davies, Affirmed, supra note 77, at 598–600 & nn. 194–95.Google Scholar

193 See Skolnick, supra note 183, at 112–30.143–49,223 (“Especially in the ‘small pinch,’ the police man is not usually interested in arresting the man with a “joint or two of marihuana, but in using him to ‘turn’ his supplier”).Google Scholar

194 Id. at 220.Google Scholar

195 E.g., Oaks, supra note 5, at 143–49 (citing Skolnick).Google Scholar

196 See Stewart, supra note 8, at 1394 (“We have all witnessed situations in which the police have announced that they are on the trail of a suspect in a particularly horrible crime. It is common in those circumstances to hear reports of instructions to police officers to observe the rights of the suspect at all costs so that the evidence obtained may be used against him”).Google Scholar

197 Traynor, supra note 83, at 322.Google Scholar

198 Cal. Penal Code, § 849(b) (West Cum. Supp. 1983).Google Scholar

199 Compiled from BCS “disposition tree” analyses of OBTS data for 1981.Google Scholar

200 Id. Google Scholar

201 NIJ Study, supra note 12, at 9. (There is an OBTS code for police releases that includes illegal searches, but as it also includes releases because of insufficient evidence, it is not useful.)Google Scholar

202 Id. Google Scholar

203 Id. Google Scholar

204 The NIJ Study stated: “San Diego officials estimate that in 1981, approximately 130 felony arrestees were released…primarily because of a search and seizure problem.” NIJ Study, supra note 12, at 9. Since the 130 releases are an estimate for 12 months based on actual data collected only for October 1981, it appears that only 11 (130/12) releases for illegal searches were studied. If these 11 cases represented 6% of all releases, then only about 184 (11/0.06) releases were examined.Google Scholar

205 San Diego Police released 3,220 of 15,380 felony arrests—or 20.9%—in 1981, compared to state wide police releases of 21,122 of 205,168 felony arrests—or 10.3%; police in Los Angeles County released 13,357 of 78,265 felony arrests—or 17.1%. BCS Profile, supra note 164, at 61, 63, 65.Google Scholar

206 My calculations based on OBTS data indicate that 9.7% of reported arrests were released by police in 1978, 10.7% in 1979, 10.6% in 1980, and 10.3% in 1981. Id. at 11.Google Scholar

207 Although the NIJ Study does not discuss it, the OBTS data do contain codes to report dismissals in the preliminary hearing lower courts and in the superior courts. OBTS data supplied me by BCS indicate a lesser effect than do the NIJ data and a decline in search dismissals over time. The data reported are as follows (note that percentages reported here are percentages of dismissals, not percentages of arrests): OBTS Data for Reasons for Court Dismissals Reasons for Lower Court Dismissals Total Search Problems^a Other Specified Reasons^b Catchall “Dismissal” Category^c No. No. (%) No. (%) No. (%) 1978… 24,263 201 (0.8) 2,725 (11.2) 21,337 (87.9) 1979… 26,588 92 (0.3) 2,926 (11.0) 23,570 (88.6) 1980… 30,481 80 (0.3) 3.118 (10.2) 27,283 (89.5) 1981… 29,689 24 (0.1) 2,419 (8.1) 27,246 (91.8) Reasons for Superior Court Dismissals Total Search Problems^a Other Specified Reasons^b Catchall “Dismissal” Category^c No. No. (%) No. (%) No. (%) 1978… 3,759 162 (4.3) 977 (26.0) 2,620 (69.7) 1979… 3,702 91 (2.4) 742 (20.0) 2,869 (77.5) 1980… 3,906 31 (0.8) 766 (19.6) 3,109 (79.6) 1981… 5,019 10 (0.2) 476 (9.5) 4,533 (90.3) ^aOBTS codes 18 (“dismissal 1538.5”) and 19 (“dismissal 1538.5 and 995”) combined. ^bOBTS codes 10, 13, 14, 20. 21, 22, combined. ^cOBTS code 14 (“dismissed”). Unfortunately, there is reason to question the reliability of these data. The OBTS coding sheet contains a general “dismissed” category in addition to specific categories for “dismissed 1538.5” (1538.5 is the Penal Code section relating to motions to suppress) and “dismissed 1538.5 and 995” (995 is the section of the Penal Code for motions to quash), among others. Most dismissals (more than 90% in 1981) are coded in the catchall “dismissal” category, however. This suggests that the specific categories for dismissals may not always have been marked when appropriate and that some dismissals resulting from illegal searches may have been incorrectly coded in a general “dismissal” category rather than in the specific illegal search category. Thus, until the data are checked for reliability, they should be treated with extreme caution. Fortunately, the OBTS coding on reasons for prosecutors' rejections does not suffer from this coding shortcoming; there is no catchall rejection category.Google Scholar

208 E.g., Feeney et al., supra note 60, at 83: “While California law provides defense counsel a number of procedural opportunities to exclude unlawful confessions or other illegally obtained evidence, normally counsel will attempt to suppress such evidence at the time of the preliminary hearing.”Google Scholar