America's Unwritten Constitution: The Precedents and Principles We Live By (30 page)

Mapp
claimed that without the exclusionary rule, the Fourth Amendment would be virtually meaningless—a mere “form of words,” according to the Court. This hyperbole would likely have rankled the men who actually devised the amendment, men who believed its words to be muscular but who never imagined exclusion as the proper enforcement mechanism. Unlike the
Mapp
Court, whose rule benefited the guilty precisely because they were guilty—precisely because reliable evidence of their guilt had surfaced—the Founders envisioned robust remedies that would
paradigmatically comfort innocent Americans. Many of these envisioned remedies—tort suits against abusive officers, punitive damages to deter future misconduct, proto-class-action devices enabling small-fry search victims to band together—had been showcased in landmark English cases known to every colonial schoolboy. The heroes of these cases, John Wilkes and Lord Camden, became synonymous with liberty. Across America, cities, counties, and later even a major-league baseball park were named in honor of these champions.
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The thrust of the Founders’ remedial vision is visible in the text of the Fourth Amendment. It is, after all, a cluster of property law and tort law, à la Wilkes and Camden—and not any rule freeing criminals—that ordinarily operates to make persons “secure in their persons, houses, papers, and effects.”

The fact that an alleged constitutional principle finds no support in the Fourth Amendment’s text, spirit, or original intent does not end the matter. If exclusion were rooted in America’s widespread norms or practices, in the nation’s deep traditions or symbols, or in first principles of the rule of law, then
Weeks, Mapp
, and their progeny might make sense. But most ordinary Americans have never thrilled to the idea of springing criminals—especially violent ones. None of the other slogans used by supporters of the exclusionary rule holds up under rigorous analysis.

The strongest argument for the rule derives from the need to deter Fourth Amendment violations. But a regime of evidentiary exclusion is upside-down, providing windfalls for the guilty and nothing for the innocent—nothing to deter the abuse of various citizens whom government officials know in advance to be blameless, and indeed nothing to deter government henchmen from committing unreasonable, even brutal, deeds unrelated to the finding of evidence.
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The Founders’ deterrence model of tort law and punitive damages, by contrast, focused precisely on the right thing—the scope of the actual property and/or privacy invasion whether or not criminal evidence happened to turn up in a given search or seizure. To the extent that post-Founding developments—for example, the rise of organized police departments across America—have warranted revisions of old remedial rules, doctrinal updating should have occurred within the framers’ model of civil and protoadministrative
remedies comforting the innocent, not a criminal-exclusion framework rewarding the guilty.
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If the aim is truly deterrence, the limits the Court has placed on the exclusionary rule from
Mapp
to the present make no sense. Exclusion has never applied to civil cases; only criminal ones. Thus, if the government finds a cache of smuggled goods in an unconstitutional search, it cannot introduce the evidence in a criminal case but can introduce everything in a civil forfeiture action brought to gain title to the goods. This bright-line rule cannot be defended on deterrence grounds. Nor does it find support in the Fourth Amendment’s text, which makes no distinction between civil and criminal cases.
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Beyond deterrence, exclusion’s supporters have invoked the principle that government must never profit from its own wrong. This sounds very nice—until one gives the matter a moment’s thought. Where does this principle come from? Not Blackstone or English tradition. (England has never had an exclusionary rule.) Not early American practice. (No exclusion, anywhere.) Not modern practice, either. (As just noted, governments have always been free to bring forfeiture actions and thereby literally profit from searches, even illegal ones.)

Despite its nice sound, the idea that government may never profit from an improper search fails to survive analytic scrutiny. When government finds stolen goods in a constitutionally defective search, must it return these items to the thief? Surely not! But then, government is in fact “profiting” in a sense, if one goal of the searchers was to undo the theft and restore the stolen goods to their rightful owner. Must government return all the illegal drugs to the drug lord? Must it return a kidnapping victim to her abusers if she happens to be found in an improper dragnet?

These questions are classic
doctrinal
questions—the sort of questions lawyers and judges ask about the proper scope and application of rules and principles promulgated in judicial opinions. Yet nothing in the Court’s myriad opinions excluding reliable evidence satisfactorily answered these questions or explained the actual scope of the doctrine in any plausible and principled way. For example, why does exclusion apply only in criminal cases but not civil cases? Post-
Mapp
cases have also made clear that in an illegal search of A’s home that uncovers evidence against A and his
nonresident partner in crime, B, government may lawfully use (and thereby profit from) this evidence in a prosecution against B but not A. How is this rule to be explained on grounds of deterrence or nonprofit?

THERE WAS, AT LEAST ARGUABLY,
a principled answer to some of these questions when
Mapp
was decided. Alas, this answer, though sincere, was highly implausible in 1961 and became even more wildly so in later years.

The decisive fifth vote for exclusion in
Mapp
came from Justice Black, who in the 1949
Wolf v. Colorado
case had voted against applying the exclusionary rule to the states despite his ardent belief in “total incorporation.” In
Wolf
, Black wrote that the exclusionary rule was not implicit in the Fourth Amendment, and that states should be held to the Bill of Rights, the whole Bill of Rights, and nothing but the Bill of Rights. Since exclusion was not in the Fourth, states could do as they pleased. By 1961, Black had changed his mind. As he explained in a separate opinion in
Mapp
, he had come to believe that the exclusionary rule flowed from the Fourth Amendment in tandem with the Fifth Amendment self-incrimination clause.

The Fifth Amendment was indeed a rule of criminal exclusion—it
excluded
a defendant’s compelled testimony in a
criminal
case. It thus had the right logical shape to explain: (1) where the very idea of exclusion came from; (2) why exclusion was proper in criminal but not civil cases (because the Fifth entitled a person not to be compelled to witness against himself “in any criminal case”); and (3) why the government could use stuff it found in A’s house against B but not A (just as it could force A to incriminate B but not himself). A close look at the Court’s
pre-Mapp
case law confirms that almost all of the key exclusionary-rule cases had in fact made at least passing reference, and often more than passing reference, to the anti-self-incrimination principle.
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From a twenty-first-century perspective, however, this sustained effort to fuse the Fourth and Fifth Amendments seems outlandish. How was introducing stolen goods found in a burglar’s hideaway remotely like obliging the burglar to take the stand under oath in his own criminal case? The story of how some judges came to conflate the two situations is a fascinating
tale of doctrinal drift—an object lesson in what can happen when supposedly “constitutional” case law loses sight of the Constitution’s letter and spirit.

The story began before the Bill of Rights was even drafted. In a 1760s English cause célèbre, Crown henchmen lacking proper legal authorization invaded the home of John Wilkes, rummaged through his papers, and grabbed his person. Wilkes was a leading opposition politician, and the Crown was trying to find evidence to charge him with the crime of having anonymously authored an antigovernment essay. Thus, the Wilkes affair was not just an unreasonable search case; it was also a free-expression case in a land that had no First Amendment or any robust guarantee of free expression outside of Parliament itself. No incriminating items were found in the search, and Wilkes successfully sued the henchmen in tort, winning large civil damages designed to deter future government misconduct.
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The Founders obviously drafted and ratified the Fourth Amendment with the Wilkes litigation in mind. (Closely related to the suits brought by Wilkes himself was
Entick v. Carrington
, decided around the same time by the same heroic judge, Lord Camden, and raising similar search-and-seizure issues.) On the rights side, the Fourth Amendment gave special attention to searches and seizures of “persons” (Wilkes had been bodily seized and imprisoned in the Tower of London), “houses” (his private residence had been invaded), and “papers” (his private manuscripts had been rummaged). All other things that government might search or seize were referred to by the Fourth Amendment simply as general “effects.” The amendment went on to condemn all warrants that failed to name a specific person or place that the government had specific reason (“probable cause”) to suspect. These oppressive “general warrants” were the very instruments that the henchmen had unsuccessfully tried to hide behind in the Wilkes litigation. On the remedy side, the amendment’s framers also undoubtedly legislated with the Wilkes model in mind—a model of civil damages, not criminal exclusion.

More than a century after the Founding, American judges seeking to understand the Bill of Rights tried to do so in light of Camden’s rulings, but these jurists ultimately misread both Camden and the Bill. The fact pattern that sparked the Gilded Age judicial imagination involved a diary:
Suppose the government unlawfully seized a man’s diary, prosecuted him, and tried to use passages from the diary against him in that criminal prosecution. According to late nineteenth-century jurists, such a scenario was virtually identical to the
Wilkes
and
Entick
cases, and on these facts, the Fourth Amendment’s rules about papers almost imperceptibly blended into the Fifth Amendment’s ban on compelled self-incrimination. After all, reading a man’s diary against him was tantamount to making him an involuntary witness against himself—and so judges should respond by simply excluding the diary from evidence, thereby preventing the defendant from ever becoming a witness against himself via his diary.
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Or so the Gilded Age judges reasoned. Actually, even in this simple diary case, the judges overlooked obvious counterarguments. Perhaps self-incrimination principles did not really apply when no oath was ever administered to the defendant—and indeed, when no direct coercion had necessarily been brought to bear upon his person. (Imagine that he had not even been present when the diary was seized.) And would the issue have been any different had the government acquired the diary lawfully? If not—if even a lawfully acquired diary should not be introduced into evidence, because reading a man’s diary in open court was itself a privacy intrusion and an arguable violation of self-incrimination principles—then perhaps the antecedent paper-search was a red herring. In the end, it was highly doubtful that the Fourth Amendment really fused with the Fifth such that the two ideas were two sides of the same coin, as Gilded Age jurists argued, and as Justice Black eventually came to believe.

Also, if the issue were simply one of privacy violation, it surely mattered what the defendant was charged with. The Fourth Amendment does not bar all intrusions upon privacy—only unreasonable ones. The severe privacy violation involved in reading a man’s most intimate thoughts to the world in open court might well be obviously unreasonable (and thus unconstitutional) if the government was merely trying to prove that he had scribbled a seditious libel à la Wilkes—a puny offense that in America should not even be a crime! But perhaps the same privacy invasion might be justifiable to prove the defendant guilty of murder. In such a case, the reasonableness balance might tip in the government’s favor, given that incapacitating a murderer might be a good reason to do some things that would otherwise
be off limits. And even if the diary itself were inadmissible, why shouldn’t the government be free to use the diary to develop leads to the location of reliable physical evidence—say, the murder weapon itself?
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Rushing past all these complexities, judges in the late nineteenth and early twentieth centuries began their analogical and doctrinal reasoning with the premise that a court should simply exclude a criminal defendant’s improperly seized diary. Thus was born the ur-exclusionary rule, which in the judicial mind came to be associated with the Fourth Amendment alongside the Fifth. From this starting point, it was an easy step for judges to exclude all “papers” improperly seized from a criminal defendant, even his business records. Never mind that such records raised far fewer reliability issues than did diaries, in which men might fantasize about things that never happened. Also, never mind that business records were far less intimate than diaries, and thus posed none of the special privacy concerns attending the reading of a personal journal in open court.

The next stop on the analogical development of treating like cases alike was to treat all the defendant’s personal property—his “effects”—as equivalent to his “papers.” In the
Lochner
era, judges idolized property. A man was what he owned, and thus anything that he properly owned and that had been improperly grabbed by the government could not be introduced against him. Since a criminal defendant could not be forced to speak against himself, neither could, say, his gloves be used against him.