Journal of Criminal Law and CriminologyVolume 53Issue 2 June Article 3

Summer 1962

Public Safety v. Individual Liberties: Some Factsand TheoriesYale Kamisar

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Recommended CitationYale Kamisar, Public Safety v. Individual Liberties: Some Facts and Theories, 53 J. Crim. L. Criminology & Police Sci. 171 (1962)

PUBLIC SAFETY v. INDIVIDUAL LIBERTIES: SOME "FACTS" AND "THEORIES"

YALE KAMISAR

The author is Professor of Law in the University of Minnesota Law School. He is also a memberof the Advisory Committee on the Revision of the Minnesota Criminal Law. In 1960-1961, ProfessorKamisar was a Social Science Research Council Fellow, studying the prosecutor's discretion in theState of Minnesota and the substantive criminal law "in practice." Prior to joining the faculty ofthe University of Minnesota in 1957, he was engaged in the practice of law in Washington, D. C.

In the following article, Professor Kamisar replies to an article by Professor Fred E. Inbau, en-titled "Public Safety v. Individual Civil Liberties: The Prosecutor's Stand," which appeared inthe March, 1962, issue of the Jonrnal (Vol. 53, No. 1) at pp. 85-89. The author responds to Inbau'scriticisms of criminal law decisions handed down by the United States Supreme Court in recentyears, discussing in particular cases concerning the exclusion of confessions and illegally seized evi-dence. He then examines the effect of the exclusionary rules upon police attitudes and practices,weighs the value of these rules against possible alternatives, and analyzes the statistical evidencepertaining to the effect of the exclusionary rules upon crime rates..- -EDITOR.

a#e facts that we dislike we call theories; thetheories that we cherish we callfacts."'

Professor Inbau detects a certain irrationality,if not hysteria, in this business of excluding il-legally seized evidence and unlawfully elicitedconfessions "all being done in the name of 'civilliberfies.' ' He pleads for" temperateness. Noemotive words, he begs. No shaking of the Bill ofRights in our faces by "flag-waving civil liber-tarians," please. 2 So, let us accompany him as heapproaches these critical issues of criminal lawadministration calmly and dispassionately:

In order to maintain "public safety and securityfrom another kind of enemy right within ourborders," he asks, shouldn't we remove the "hand-cuffs" the courts have placed on the police? Doyou want "unbridled individual liberties," hecontinues, or a "safe, stable society?" Do youbelieve in the "unconditional" "right to be letalone" or are you willing to impose "reasonabletestraints" "in the interest of public safety andpublic welfare?" Are you for or against decisionsand legislation which have the effect of "lendingaid and comfort to the criminal element?" Whoseside are you on, concludes Inbau, the side of lawand order-or the side of "the burglar, the robber,the rapist?"'

IF. S. Cohen, Field Theory and Judicial Logic, inTHE LEGAL CoNscIeNcE 134 (L. K. Cohen ed. 1960).2 See Inbau, Public Safety v. Individual Civil Liber-

ties: The Prosecutor's Stand, 53 J. Camt. L., C. & P.S.85, 86 (1962) (hereinafter referred to as "Inbau").

'See Inbau 85-86, 89; Inbau, The Social and EthicalRequirements of Criminal Investigation and Prosecution,3 Cas L. Q. (Canada) 329, 333, 350-51 (1960); Inbau,

Of course, Professor Inbau is scarcely the firstopponent of the exclusionary rule to respond to thesound and fury of "starry-eyed civil libertarians"with the voice of reason. For example, a genera-tion ago, at the New York Constitutional Conven-tion of 1938, the District Attorney of New YorkCounty similarly resisted two proposals to excludeevidence obtained in violation of guaranteesagainst unreasonable searches and seizures andunreasonable interception of telephone communi-cations. Alarmed because sponsors of these pro-posals were submitting "something which isdangerous, and concealed by high soundingphrases,'4 he felt compelled "to place on the recordthe facts about both":5

"Who are the people who would be protectedby these proposals? Call the roll: Al Capone,Lucky Luciano, Waxie Gordon', Dutch Schultz,Tootsie Herbert, and all the others.""Another delegate to the convention more or

less threw Hitler, Mussolini, and Stalin into thefray:

"[I]f you vote for the [proposals]... you arenot alone aiding and abetting the crooks butyou are also aiding and abetting ... the Com-munists ahd the Fascists and the Nazi... [TJhe

Restrictions in the Law of Interrogation and Confessions,52 Nw. U.L. REv. 77, 79 (1957).4 1 NEw Yozx CONSTrTUTiOxAL CONVENTION,

RvisED REcoRD 369 (1938) (hereinafter referred toas "NEw YORK CONvENTioN").

a Ibid.Old. at 373.

YA LE KAMISAR

people of this State care if an armory is set upin our midst and that hou-e or home becomes anarmory of crooks or enemies from within and isloaded down with machine guns, and there area hundred machine guns there, and bombs andgrenades, and then we will prohibit our law

enforcement agents: they are prohibited fromusing evidence obtained illegally against thoseenemies from within."7

As for the home-grown, garden-variety criminal,observed this same delegate,

"[hf that propo-ition prevails there will be thegreatest single celebration in the City of NewYork among the crooks and gangdom andracketeers that was ever known in that city,and from far and wide all the other racketeersand murderers and kidnappers and embezzlerswill all collect into the City of New York tocelebrate this famous victory of the forces ofevil, so that they can be protected by the Con-stitution of the State of New York.'8'

Sooner or later, no doubt, someone will come up

with the suggestion that the underlying purposeof the bizarre gathering of "underworld overlords"at Apalachin, New York, was to celebrate the re-cent Benanti "victory" and/or to plot winningstrategy in the forthcoming Elkins and Mappcases.9

THE "INNOVATIONS" OF THE WARRENCOURT

It has become fashionable in some quarters tohail virtually every important decision handed

71d. at 564. Cf. ABA, SUMMARY OF PROCEEDINGSOF SECTION OF CRIMINAL LAW 57-58 (1956): "Ofcourse [commented California prosecutor J. FrancisCoakley], the agents of the international criminalconspiracy of communism who desire to undermineand destroy our government also like these [recentSupreme Court] decisions, because thereby the wayis made easier for them to pursue their trade ....The pendulum has swung too far to the left and itwould be a good thing for this country if the pendulumwould swing back to the middle where it belongs. .. "

' NEW YORK CONVENTION 562-63. Cf. the testi-mony of Edgar Scott, District of Columbia DeputyChief of Police, that the Mallory decision "is going toencourage the criminals to come to Washington...to commit their crimes. If a remedy is not found, thatis what is going to happen." Hearings Before the SpecialSubcommittee To Study Decisions of the Supreme Courtof the United States of the House Committee on the Judici-ary, 85th Cong., 2d Sess., pt. 1, at 47-48 (1957) (here-inafter referred to as the "1957 House Committee Hear-ingY'). A "remedy," i.e., the repeal or relaxation ofthe .lcNabb-Mallory rule, was not found, but ChiefScott's due predictions have not been borne out. Seetext at notes 159-168, infra.9 Benanti v. United States, 355 U.S. 97 (1957),

down by the Warren Court as a radical departurefrom reason and precedent. According to theseobservers, whether or not-like the mule-recentSupreme Court decisions lack hope of posterity,they do lack pride of ancestry.

In this respect, Professor Inbau parts companywith his fellow-critics of the Mallory case.0 Mostof his brethren assumed an absolutely, positivelythunderstruck pose when Mallory was handeddown. While Inbau shares their distress, he canhardly share their astonishment. His difficulty isthat 14 years ago he roundly condemned theMcNabb decision on the very grounds upon whichthe Mallory case is now being criticized. At thattime he said of the Upshaw case, then pending inthe Supreme Court, that since the unreasonabledelay in taking the arrestee before a committingmagistrate preceded Upshaw's confession, "if theCourt really, meant what it seemed to say in the.1fcNabb case, a reversal of the [conviction] is inorder."" The subsequent reversal in Upshaw dem-

barred use of wiretap evidence gathered by state offi-cials in federal prosecutions. Elkins v. United States,364 U.S. 206 (1960), wiped out the "silver platter"exception to the federal exclusionary rule, i.e., thedoctrine that illegally seized evidence may be used in afederal prosecution if state officers present it to federalauthorities on a "silver platter." Mapp v. Ohio, 367U.S. 643 (1961), rendered all evidence obtained byunreasonable searches and seizures inadmissible instate courts.

It has been said that the Apalachin meeting "pointsup the need for strengthening law enforcement on astatewide basis by permitting them to use modernelectronic devices to combat organized crime." NEWJERSEY JOINT LEGISLATIVE COMMITTEE, REPORT ONWIRETAPPING AND THE UNAUTHORIZED RECORDINGOF SPEECH 31 (1958) (minority recommendations).The trouble with this conclusion is that for 13 yearsprior to the meeting, the host, one Joseph Barbara,Sr., had been pursued by a state trooper "in all wayspossible (including tapping of his telephone) and [he]got no evidence of illegality, although he did get wordof the meeting if not of its purpose." United States v.Bufalino, 285 F.2d 408, 419 (2d Cir. 1960) (Clark,J., concurring).10 Mallory v. United States, 354 U.S. 449 (1957),

reaffirming McNabb v. United States, 318 U.S. 332(1943), operates to exclude from federal prosecutionsall confessions or admissions elicited during pre-com-mitment detention, whether or not they appear to hevoluntarily made.

" Inbau, The Confession Dilemma in the UnitedStates Supreme Court, 43 ILL. L. REV. 442, 454-55(1948).

From the outset, the Department of Justice seemedto perfectly comprehend the meaning of McNabb.See, e.g., the Department's Circular No. 3793, datedApril 1, 1943: "The attention of all United States At-torneys is directed to two recent decisions of the Su-preme Court reversing convictions because of the ad-mission of confessions made while the accused wereillegally detained by enforcement officers. McNabb v.

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PUBLIC SAFETY V. INDIVIDUAL LIBERTIES

onstrated that the Court did mean what it said.uSo did the later Mallory reversal. Thus, Inbau'sown writings on the subject amply demonstratethat it was the Stone Court, per Frankfurter, J.,which departed from the conventional voluntary-trustworthy tests. The Vinson Court, per Black,J., reaffirmed tis approach; the Warren Court,per'Frankfurter, J., re-reaffirmed it.

Although Professor Inbau's prior writings havenarrowed the fronts on which he can attackMallory, he has more freedom of movement else-where. Thus he registers shock and dismay overthe Court's "pronouncement" in Culombe v.Connecticutu3 "that if it finds a criminal confessionhas been coerced, the state court conviction willbe reversed even though it is 'convincingly sup-ported by other evidence.' "14

Inbau's fear that C dombe signifies an ominoustrend is difficult to justify. Here, too, the Courtis simply restating "the rule of automatic reversal"in coerced confession cases formulated by theStone and Vinson Courts.15 On at least two oc-

United States; Anderson v. United States, decidedMarch 1, 1943.. .. Although the opinions refer tocircumstances, e.g., ignorance of the accused, discom-forts of place of detention, extended questioning, whichmight be regarded as bringing into question the volun-tary character of the confessions, the decisions areexpressly based upon failure of the arresting officers tocomply with statutory duty to bring arrested persons be-fore a committing magistrate with reasonable promptness."(Emphasis in the original.)

12 Upshaw v. United States, 335 U.S. 410 (1948).13367 U.S. 568, 621 (1961).14 Inbau 87.s See Lyons v. Oklahoma, 322 U.S. 596, 597 n.1

(1944); Malinski v. New York, 324 U.S. 401,404 (1945);Haley v. Ohio, 332 U.S. 596,_ 599 (1948); Stroble v.California, 343 U.S. 181, 190 (1952); Brown v. Allen;344 U.S. 443, 475 (1953).

It is true that there is some language to the con-trary in Stein v. New York, 346 U.S. 156 (1953), aconfession case considerably complicated by the "un-orthodox" New York trial procedures employed to re-solve the voluntariness issue, see Meltzer, InvoluntaryConfessions: The Allocation of Responsibility BetweenJudge and Jury, 21 U. Cm. L. REv. 317, 319-39(1!,54), and by the fact that the automatic reversaldoctrine was "put to a distorted use by the defense,"who unsuccessfully sought an instruction that if thejury found the confessions* involuntary they mustacquit, whereas the proper remedy is the granting of anew trial. McCoMsci, EviDNFcE 245-46 n.27 (1954).Most commentators concluded that Stein did not con-stitute an abandonment of "the rule of automatic re-versal." See McCoumcx, supra; Meltzer, supra at339-54; Miller, The Supreme Court's Revieo of Hypo-thetical Alternatives in a State Confession Case, 5 SYRA-cusE L. REv. 53 (1953); Paulsen, The Fourteenth Amend-ncnt and the Third Degree, 6.S-TA. L. REv. 411, 423-29(1954). They did so largely for the reasons later ad-vanced by the Court for adhering to the Lyons-Malin-ski-Haley rule: "In that case [Stein] this Court did not

casions, Mr. Justice Reed, perhaps this genera-tion's most "conservative" justice in thesematters, 6 made similar "pronouncements" onbehalf of the Court. He noted as early as 1944 that"whether or not the other evidence in the record issufficient to justify the general verdict of guilty isnot necessary to consider" for if "admission of thisconfession denied a constitutional right to de-fendant the error requires reversal."'

The reason for the rule is not hard to find. AsMr. Justice Whittaker observed for the Court:"[The prosecution] suggests that, apart from theconfession, there was adequate evidence beforethe jury to sustain the verdict. But where, as here,a coerced confegsion constitutes a part of the evi-dence before the jury and a general verdict isreturned, no one can say what credit and weightthe jury gaye to the confession.""

As might be expected, Professor Inbau hassome unkind things to say about MapP v. Ohio,19

although, since former U. S. Attorney GeneralTom Clark wrote the" majority opinion he canhardly blame this one-as he has others-on the"ex-law professors.'uo Police and prosecutors

find that the confession was coerced. Indeed it wasthere recognized that when 'the ruling admitting theconfession is-found on review to be erroneous, the con-viction, at least normally, should fall with the con-fession ....'" Payne v. Arkansas, 356 U.S. 560, 568n.15 (1958).

16 See, e.g., his dissenting opinions in McNabb v.United States, 318-U.S. 332,-347 (1943), and Upshaw v.United States, 335 U.S. 410, 414 (1948).17 Lyons v. Oklahoma, 32.2 U.S. 596, 597 n.1 (1944).

To similar effect is his statejaent in Brovn v. Allen,344 U.S. 443, 475 (1953).

18 Payne v. Arkansas, 356 US. 560, 567-68 (1958).19 Inbau 86-87.20 Thu5, in recent testimony Professor Inbau (who

stressed at the outset that he did not appear "just inthat capacity" but as one with much "practical ex-perience") explained how the McNabb "innovation"came about, Hearings Before a Subcommittee of theSenate Committee on the Judiciary, 85th Cong., 2dSess., on H.R. 11477, S. 2970, S. 3325 and S. 3355, at58, 65 (1958) (hereinafter referred to as the "1958Senate Committee Hearings"):

"Unfortunately, the United States SupremeCourt, and it was made up at that time of some evenmore sensitive souls than we see, perhaps, at thepresent time-there were some law professors on it,ex-law professors--and they assumed that thosepractices which were revealed in these [coerced con-fession] decisions were commonplace, they wereuniversal, and the Court, acting in that feeling ofresentment, laid down in the McNabb case its so-called civilized-standards rule."

Evidently Professor Inbau does not realize thatprior to mounting the teacher's platform "ex-lawprofessor" Frankfurter, author of the much-malignedMcNabb opinion, served several years as an assistantU.S. attorney in the Southern District of New York,

YALE KAMISA R

have been making grating noises about the exclu-sionary rule in search and seizure cases for a longtime. For whatever questions may be raised aboutthe reliability of illegally procured confessions,there is not likely to be much doubt about theevidentiary value of illegally seized narcotics orcounterfeit money. Thus, down through the yearsthe exclusion of illegally seized physical evidencehas drawn the hottest fire from law enforcementofficers.

Mapp v. Ohio was hardly the beginning. Ifanything, it was the culmination of a series ofdevelopments. Then, when did it begin? This isnot an easy question to answer.

"All is fluid and changeable," observed Cardozo."There is an endless 'becoming.' '21 "In a sense,"Lon Fuller has written, "the thing we call 'thestory' is not something that is, but somethingthat becomes; it is... as much directed by men'screative impulses, by their conception of the storyas it ought to be, as it is by the original eventwhich unlocked those impulses.... The statute ordecision is not a segment of being, but, like theanecdote, a process of becoming. By being rein-terpreted it becomes, by imperceptible degrees,something that it was not originally."'

Chief William H. Parker of the Los AngelesPolice Department might well say it began withWolf v. Coloradon where "for the first time in thehistory of the Country the United States SupremeCourt applied the fourth amendment . . . to thestates by virtue of the fourteenth amendment, andthus began a whole new era."21 This takes us backmore than a decade.

Wigmore probably would point to "the hereticalinfluence of Weeks v. United States"25 which"creates a novel exception, where the FourthAmendment is involved, to the fundamentalprinciple that an illegality in the mode of procuringevidence is no ground for excluding it." 2

6 But wehave now travelled back a full half century. Backto Mr. Justice Day, speaking for the WhiteCourt;n and to Mr. Justice Holmes, steadfastly

and, then, an additional year as a special assistantto the U.S. Attorney General.t1 CARDozo, THE NATURE OF THE JUDICIAL PROCESS

28 (1921).FULLER, THE LAW In QUEST OF ITSELF 9-10

(1940)." 338 U.S. 25 (1949).u 1957, House Committee Hearings at 74.26 8 WIGMORE, EVIDENCE §2184, at 32 (3d ed. 1940)

(hereinafter cited as "Wi~oRE").26 Id. at 36. (Emphasis in the original.)

7 Weeks v. United Stdtes, 232 U.S. 383 (1914).

subscribing to and extending the "heretical"principle with the ruling that "the essence of aprovision forbidding the acquisition of evidence ina certain way is that not merely evidence so ac-quired shall not be used before the court but thatit shall not be used at all. 28

Perhaps Mapp's beginnings go back still further,way back to the reign of Elizabeth I. At that time,Wigmore tells us, the attorney-client privilege-the oldest of the privileges for confidentialcommunications--already appears as unques-tioned."

29

The privilege which protects a witness againstself-incrimination and the privileges which shieldconfidential communications between attorneyand client, husband and wife, physician and pa-tient, and priest and penitent "do not in any wiseaid the ascertainment of truth, but rather theyshut out the light. Their sole warrant is the pro-tection of interests and relationships which,rightly or wrongly, are regarded as of sufficientsocial importance to justify some incidentalsacrifice of sources of facts needed in the adminis-tration of justice."30

If the sentiment of loyalty which attaches tothe attorney-client privilege, or the desire to pro-mote full disclosure by the client, overrides the-search for truth, what is so bizarre about regardingthe fourth amendment values and policies as moreimportant than this same search? If the search fortruth may be obstructed in the name of a physi-cian-patient ot marital relationship, what is so'fheretical" about doing so in the name of constitu-tional guarantees?

Whether or not the exclusionary rule in searchand seizure cases is a late offshoot of the deeply-rooted rules of privilege, the Mapp case is thelatest offshoot of the firmly-imbedded Weeks rule.Here, as elsewhere, Professor Inbau cannot attackthis Supreme Court without scathing many pred-

- ecessor Supreme Courts as well.Some 30 years ago, Professor John Barker

Waite, a long-time critic of the exclusionary rules,observed that "such an issue as that in the Olin-stead case is the perfect illustration of the judicialfunction of evaluating conflicting interests."3' Whycan't the same be said for Mapp or Culombe orMallory? I approve of the recent Supreme Court

28 Silverthorne Lumber Co. v. United States, 251U.S. 385, 392 (1920).

29 8 WGMORE §2290.'0 McCoRBiucK, EVIDENCE 152 (1954).3 Comment, 27 MICH. L. REV. 78, 82 (1928).

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PUBLIC SAFETY V. INDIVIDUAL LIBERTIES

decisions, but surely even those who deem themunwise cannot have fbrgotten that "the right tochoose is not destroyed by the unwisdom of thechoice."n

Evidently, Professor Inbau is an ardent ex-ponent of states "rights. He is noticeably disturbedthat Mapp destroyed the "full liberty" of statecourts and state legislatures to accept or rejectthe exclusionary rule.

What is his reaction on learning that the Michi-gan Supreme Court chose to adopt the McNabb-Mallory rule?a This is cited as a sorry example ofwhat the Supreme Court "has already said anddone" "rubbing off" on the state courts, causingthem to "establish similar rules even though theyare not required to do so by any United StatesSupreme Court decision."35 Professor Inbaureiterates this point a moment later: The MichiganCourt "did so of its own volition, since the rule hasnot thus far been labeled as a requirement of dueprocess."" Running through these comments onthe Michigan scene is a certain astonishment:Don't those state judges realize they are notsupposed to do anything above and beyond theminimum requirements of fourteenth amendmentdue process!

The Supreme Court, charges Inbau, has "func-

Cardozo, J., in Pallocco v. Lehigh Valley R.R., 236N.Y. 110, 114, 140 N.E. 212, 213 (1923).

Inbau 86.34 People v. Hamilton, 357 Mich. 410, 102 N.W.2d

738 (1960). Professor Inbau tells us none of the factsabout the Hamilton case nor does he suggest the de-cision might have been a response to local conditions.Consider Bailer & Quick, Evidence and Criminal Law,7 WA= L. REv. 51, 60-61 (1960):

"It is to be noted that the McNabb doctrinewas deemed necdssary in fact, because of the wide-spread official gutting of the remedy of habeas cor-pus, by failure to arraign. This is of a ipecialsignificance in the City of Detroit where there is sub-stantial evidence that the Recorders Court, in co-operation with the police and prosecuting officialshad, before the Hamilton case, effectively debili-tated the grand old remedy of habeas corpus byproviding that on application for habeas corpus thepolice may still be allowed to hold a person notcharged with a crime for up to seventy-two hourseven though there is no evidence against the indi-vidual. Indeed, persons illegally arrested were per-mitted to be incarcerated for shocking periods oftime, even though not suipected of committing acrime. It was done in the interest of practicality (adefense not available to defendants)."Perhaps it is not amiss to note that Kermit Bailer,

Esq., co-author of the above article, is not and neverhas been a law professor, but was a former assistantWayne County prosecutor.

35 Inbau 87. (Emphasis added.)86 Ibid. (Emphasis added.)

tioned at times as a super-legislative body."-How does he take the news that the Illinoislegislature has prohibited law enforcement elec-tronic eavesdropping? This, he protests "was thework of some starry-eyed civil libertarians." 8 Ofcourse, if legislation is passed or state constitutionsare amended to achieve results desired by op-ponents of the exclusionary rules, they tell us thisis because "the people... became sufficiently in-censed."39 Sheriffs and police and prosecutors'associations, they wbuld have us believe, neverpressure legislatures; only civil liberties groupsdo. 40

Current talk about the courts' usurping legisla-

37 Inbau 86.38 Id. at 88.39 Waite, Judges and the Crime Burden, 54 Mc. L.

REv. 169, 197 (1954), discussing the 1936 amendmentto the Micbigan Constitution which permitted theintroduction into evidence of illegally seized firearmsand blackjacks. Narcotic drugs were covered by fur-ther amendment in 1952.

40 But cf. Samuel Dash, former trial attorney in the

Criminal Division of the Department of Justice andformer District Attorney of Philadelphia, commentingon the 1957 California scene, DAsH, KNowLToN &SCHWARTZ, THE EAVESDROPPERS 199-200 (1959):

'"Because of these bills [prohibiting police use 6fbugging equipment] on the one hand and on theother the feeling of the police that additional lawswere needed to aid them in their investigations, thePeace Officers Association of California joined withthe District Attorneys Association and the SheriffsAssociation of California to influence legislativeaction. They prepared an impressive booklet whichset out in brief form all the proposed law-enforce-ment billy. Under each bill, they printed in boldtype 'apSroved,' 'approved with amendment,' or'disapproved.'

"A very active lobbying program was undertakenby the law-enforcement organizations in Sacra-mento. District attorneys and police chiefs wereassigned to meet with legislators during the legisla-tive session and to persuade them to vote againstthe bills the law-enforcement organizations dis-approved and to vote for the bills they approved.One police chief admitted that he had told a senatoron the judiciary committee investigating policewiretapping and bugging that if he wanted to getahead politically, he had better stop interfering withlaw enforcement. The police chief indicated that hewas speaking for the combined forces of the PeaceOfficers Association, the District Attorneys Asso--ciation, and the Sheriffs Association of the state ofCalifornia.

"The only bill that was finally enacted relating topolice bugging was the bill which the law-epforce-ment organizations had marked 'approved.' Staffmembers of the Regan Committee privately ad-mitted that they had censored their own report andhad not pushed for police restrictions because of thepowerful influence of the law-enforcement groups.The governor vetoed this bill on the ground that hedid not believe it was sufficiently restrictive of policebugging activity. This maintained the status quo,with the 1941 law permitting police bugging."

YALE KAMISAR

five powers in the process of "policing the police" 4'is difficult to reconcile with the tactics of ex-clusionary rule opponents a generation ago. Forexample, at the 1938 New York State Constitu-tional Convention, those seeking to write theexclusionary rule into the state constitution weretold to "leave it to the courts":

"If we are well advised we shall leave the con-struction of the language of Constitution andstatute alike to our own courts, as we havedone hitherto. That process supplies, in a con-stantly changing situation, the best and simplestprotection the individual and the public canhave."42Following Olmstead v. United States," permitting

the use of wiretap evidence in federal courts, re-gardless of state laws on the subject, a number ofattempts were made to prohibit or limit tapping.In 1931, one such effort was resisted by Congress-man Oliver of Alabama on the ground that "theweight and effect" of wiretap evidence "under thecharge of the court, may properly be left to thejury."44 When pressed by Congressman LaGuardiaas to where he would "draw the line in respect tolawful and unlawful use of the wires," Congress-man Oliver replied: "I said a few moments agothat it is a matter that must largely address itselfto the courts and to the juries, under proper in-struction."

45If a transcendental principle pervades the camp

of exclusionary rule opponents, it seems to bethis: Whatever the arena in which civil libertiesgroups choose to do battle, tell them they belongin the other one!

THE "UNcoNDITIoNAL" RIGHT To

BE LET Aioi-E

Professor Inbau, for one, is against "unbridledcivil liberties" and "fed up with such platitudes as'the right to be let alone'-when it is used asthough it were an unconditional right."46

Just what unbridled liberties and unconditionalrights does Professor Inbau have in mind? Cer-tainly, Dolly Mapp wasn't asking for any whenseveral policemen forcibly opened the door to herhouse, prevented her attorney from seeing her oreven entering the house, pulled a fake "warrant"from her bosom after she grabbed it from one of

41 Inbau 86.42Nxw YoRY CoNVENTION 479-80.43 277 U.S. 438 (1928).44 74 CONG. R.c. 2903 (1931).41 Id. at 2904.41 Inbau 89. (Emphasis added.)

the officers who showed it to her, then "hand-cuffed" her because she had been "belligerent" inresisting their "rescue" of the "warrant" from herpersoh . Mr. Culombe would have settled for agood deal less than an unconditional right ofprivacy, too. "A moron or an imbecile" who"spent six years in the third grade" and who "hastwice been in state institutions for the feeble-minded," Mr. Culombe "did not see an attorneyuntil six days after he was first arrested and afterhe had confessed to the police."4 8

In an article appearing in this Journal a yearago, Professor Inbau urged legislation authorizing"privately conducted police interrogation, cover-ing a reasonable period of time, of suspects whoare not unwilling to be interviewed. '49 If the policepresently, lack such authority, this does evidencean era of "unbridled liberties" and "uncondi-tional rights." But do they? If the suspect is "notunwilling," what's the problem? Why do the policehave to arrest him at all, let alone bring him beforea committing magistrate? "It would be absurdto suggest that police must arrest a person beforethey can ask him questions.""

Evidently, Professor Inbau does not share theSupreme Court's view that "while individual caseshave sometimes evoked 'fluctuating differences ofview,'. . . it can hardly be said that in the over-allpattern of Fourth Amendment decisions thisCourt has been either unrealistic or visionary.""But he cannot quarrel with the proposition that

4 7 Mapp v. Ohio, 367 U.S. 643, 644-45 (1962).48 Culombe v. Connecticut, 367 U.S. 568, 639 (1961)

(Douglas, J., concurring).49 Inbau, Police Interrogation-A Practical Necessity,

52 J. Cane. L., C. & P.S. 16, 20 (1961). See also id.at 19.

50 Goldsmith v. United States, 277 F.2d 335, 344(D.C. Cir. 1960). "Interrogation of suspects prior toarrest is a valuable technique," recently observed theU.S. Attorney for the District of Columbia, "and it iswidely utilized by the F. B. I." Memorandum FromOliver Gasch to Maj. Robert V. Murray, Chief of theMetropolitan Police, in Hearings on District of Colum-bia Appropriations for 1961 Before a Subcommittee ofthe House Committee on Appropriations, 86th Cong., 2dSess., at 621 (1960) (hereinafter referred to as "Hear-ings on District of Columbia Appropriations for 1961")."Of course," added Mr. Gasch, "it should be empha-sized that following arraignment [commitment] it ispossible to interrogate the individual concerned." Id.at 622. Only last year, in this Journal, a commentatorwith prior police experience of his own maintainedthat "interviewing of a possibly concerned person haslegal and psychological advantages over interrogationof an arrestee." Mueller, The Law Relating to PoliceInterrogation Privileges and Limitations, 52 J. CRwb.L., C. & P.S. 2, 12 (1961).

"Elkins v. United States, 364 U.S. 206, 222 (1960).

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"what the Constitution forbids is not all searchesand seizures, but unreasonable ones."'2

For example, in the recent Draper case,2 theCourt upheld an arrest (and accompanying search)without a warrant, but based on a tip from aknown and "reliable" informer that petitioner waspeddling narcotics. The information was cor-robbrated only to the extent that the informer'sdetailed description of petitioner and report ofhis whereabouts on a certain morning squared withthe arresting officer's observations. The Courtunderscored the "large-difference" between "whatis required to prove guilt in a criminal case andwhat is required to show probable cause for arrestor search." ' In rejecting petitioner's contentionthat the arresting officer's "hearsay" informationwas insufficient to show probable cause or con-stitute reasonable grounds, the Court recalledthat "in dealing with probable cause... we dealwith probabilities. These are not technical; theyare the factual and practical considerations ofeveryday life on which reasonable and prudentmen, not legal technicians, act."' 5

Similarly, in the still more recent Jones case,"'the Court sustained a search warrant based on atip (corroborated by "other sources" and by thefact that the persons implicated were known to beaddicts) from an unnamed but "reliable" informerthat petitioner and another were engaged inillicit narcotic traffic and kept a ready supply onhand. Jones reaffirms that with or without a war-rant the arresting officer may "rely upon informa-tion received through an informant, rather thanupon his direct observations, so long as the in-formant's statement is reasonably corroborated." -"

Professor Inbau, no doubt, disagrees that Draperand Jones illustrate the general principle. Hepoints to the rule first articulated in Gouled v.United States5 some 40 years ago that objects of"evidentiary value only" are beyond the reachof an otherwise valid warrant or police officersacting on "probable cause."59

I share Inbau's view that the Gouled rule is2 Ibid.

5 Draper v. United States, 358 U.S. 307 (1959)."Id. at 312-13."5 Id. at 313, quoting with approval from Brinegar v.

United States, 338 U.S. 160, 175 (1949).56Jones v. United States, 362 U.S. 257 (1960).'7Id. at 269.68255 U.S. 298, 309-11 (1921). See also, e.g., Abel v.

United States, 362 U.S. 217, 237-38 (1960); Harris v.United States, 33' U.F. 145, 154 (1947); United Statesv. Lefkowitz, 285 U.S. 452, 464-66 (1932).

49Inbau 87. Actually, Professor Inbau points to

unsound and undesirable."0 So, it seems, doesjust about everybody else-"liberal" or "conserva-tive"-who has written on the subject.6' GouIedis wrong because it departs from the fundamentalprinciples pervading search and seizure law. Buthow does it follow that the fundamental principlesare also unsound?

To demonstrate the invalidity of a particularapplication of a general rule is hardly to destroythe general rule itself. If it were, neither the parolevidence rule nor the hearsay rule nor the ruleagainst perpetuities nor any other familiar ridecould survive attack."

the recent (and questionable) application of the Goidedrule in Morrison v. United States, 262 F.2d 449 (D.C.Cir. 1958).

60See Kamisar, The Wiretapping-EavesdroppingProblem: A Professor's View, 44 MINN. L. REv. 891,914-18 (1960). The rule has far more often been pro-fessed in terms than followed in practice; "while 'asearch for an object of purely evidentiary significance'may be taboo, objects have been and will continue tobe found to possess a bit more than 'purely eviden-tiary significance' just about whenever a resourcefuljudge wants to so find." Id. at 917. See also Broeder,The Decline and Fall of Wolf v. Colorado, 41 NEB. L.REV. 185, 211-13 (1961).

In any event, Professor Inbau's fears that "mereevidence"-non-documentary in nature-must now beexcluded from state courts seem unfounded. For onething, it is by no means clear that even in the federalcourts the rule extends to non-documentary objects ofpurely evidentiary significance. See generally Com-ment, 20 U. CaI. L. REv. 319 (1953). For another,"whatever Gouled's contemporary vitality in the fed-eral system, the point is that it rests both on the fourthas well as the fifth amendment, and that it is the fifthrhther than the fourth which precludes the admissionof the purely evidentiary items. Mapp's exclusionarydoctrine on the other. hand rests solely on the fourthamendment so far as the states are concerned. Thus,if Goaled depends both on the fourth and fifth, thedoctrine would appear inapplicable* to the states."Broeder, supra at 212. See also Weinstein, Local Re-sponsibility for Improvement of Search and SeizurePractice, 34 ROCKY Mr. L. REv. 150, 161, 174 n.122(1960).

6See, e.g., MAGUIRE, EVMENCE or GUILT 183(1959); 8 WIGMORE, EvIDENcE §2184a, at 45 (Mc-Naughton rev. 1961); Paulsen, Safeguards in the Lawof Search and Seizure, 52 Nw. U.L. REV. 65, 66 (1957).

62Of course, over the years, opponents of the ex-clusionary rule have worked both sides of the street.They have sought to invalidate the basic principlenot only by pointing to the Gouled doctrine, whichgoes too far, but also by citing the late "silver platter"doctrine-which did not go far enough. Thus, at the1938 New York Constitutional Convention, opponentsof the Weeks rule turned again and again to the "silverplatter" doctrine as proof that "the Federal courtshave been compelled to depart from their own rulein order that the guilty may not escape," NEw YORECONVENTION 372; that "these exceptions to the ruleillustrate its basic unsoundness," ibid.; that "they[the Supreme Court] found in individual cases that therule had to be limited, and they limited it so that it was

YALE KAMISAR

At this point, Professor Inbau would probablytrot out a decision which has nothing to do withthe Gouled rule-Work v. United States,6 thefamous (or infamous) "garbage can" case. Thiscase, Inbau tells us, establishes "the sanctity ofthe garbage can."' ' This case, Inbau insists,"illustrates the general principle.y 65

ridiculous," id. at 467; that there is "no great funda-mental principle involved in this debate... becauseif there was, then the judges of the Supreme Court ofthe United States are also unprincipled because...they also say.. . and have allowed in our Federalcourts down through the years evidence to be usedthat is procured by officers connected with the localpolitical bodies," id. at 527.

No sooner was Elkins handed down, than opponentsof the exclusionary rule hastened to the other side ofthe street. Elkins became support for the view that theCourt is "willing to serve as a super-censor and super-jury over state practices.... Apparently impropersearches and seizures carried out by state officers noware deemed to violate the fourteenth amendment dueprocess clause, without regard to the constitutionaland statutory provisions provided by the states them-selves to govern conduct of their own law enforcementofficers." George, "The Potent, The OmnipresentTeacher": The Supreme Court and Wire-tapping, 47VA. L. REV. 751, 782 (1961).

Would it not be more appropriate for ProfessorGeorge to direct his attack at the scope of the sub-stantive right rather than the Elkins decision imple-menting it? Improper state searches and seizures hadbeen deemed to violate fourteenth amendment morethan a decade earlier-in Wolf v. Colorado, 338 U.S.25 (1949). From that date (with the probable exceptionof the fifth amendment-oriented Gouled rule), anystate provision purporting to narrow the substantiveprotection afforded by the federal constitution againstunreasonable search and seizure was invalid. See Allen,The Wolf Case: Search and Seizure, Federalism, and theCivil Liberties, 45 ILL. L. REv. 1, 6-11 (1950); Kamisar,Wolf and Lustig Ten Years Later: Illegal State Evidencein State and Federal Courts, 43 MINN. L. REV. 1083,1101-08 (1959); af. Foote, Safeguards in the Law ofArrest, 52 Nw. U.L. REv. 16, 36-44 (1957).

Professor George is distressed that Elkins showedlittle regard for state law governing local officers. He isnot disturbed at all, however, over what the "silverplatter" doctrine might have been doing to federal lawgoverning federal officers. Consider, e.g., the remarks ofDelegate T. J. Curran, an opponent of the exclusionaryrule: "I was for four years an assistant United Statesattorney in the Southern District of New York. As amatter of fact, there is no Federal rule, if we mean by'Federal rule' an inviolate principle of law that theFederal courts always enforce.... For instance,Federal officers always work with local police officers.And what happens?... They then say to the localpolice officers, 'We will now leave you to conduct theillegal search.., and when you get the evidence, youwill go to the court and submit the evidence,' and thatevidence is accepted. And there are thousands of casesin the Southern District of New York in which con-victions were obtained by that method, and the samerule applies throughout this country." NEw YoRKCONVENTION 527. See generally Kamisar, supra at1177-90.

83243 F.2d 660 (D.C. Cir. 1957).64 1958 Senate Committee Hearings at 74.65 Ibid.

The facts in Work, according to Inbau, are quitesimple: "Looking into a narcotic peddler's garbagecan was held to be an unreasonable search.""8

"That particular case is an outrage, the casewhere, because the police rooted in somebody'sgarbage can and found evidence of narcotics...the narcotics peddler went free."' ' Can it reallybe that that's all there is to the Work case? Let'stake a closer look.

Without a warrant, and admittedly withoutcause to make a search or arrest absent a warrant,two police officers entered petitioner's dwellingplace. Then, petitioner walked past the officersand-out of the house to an area under the porch.The officers followed her and saw her put some-thing (which turned out to be narcotics) into atrash can located in the porch area, within the"curtilage" of her home.8 "It would be unac-ceptably naive," declared the court, "to concludethat this attempt by her to hide [the phial] im-mediately following the presence of the officers inthe hall, and that the finding of the phial by theofficers, were not direct consequences of theirunlawful entry." 9

Work does not establish the "sanctity of thegarbage can" any more than does Williams v.United States70 the "sanctity of the precinctstation corridor." In the Williams case, defendantwas illegally arrested on the street, ordered intoa police car, and driven to a precinct building. Ashe was being marched through the corridor leadingto "the desk" where suspects are booked andsearched, he dropped a cigarette package (con-taining narcotics) in an unsuccessful attempt torid himself of the incriminating evidence before hereached "the desk." The evidence was suppressedas the "product" of a fourth amendment viola-tion; the "throwing away" occurred as the resultof and only because of the unlawful arrest2'

If Work and Williams do illustrate a "generalprinciple," it is one that Professor Inbau appearsto have missed: The courts will look at the totalityof the circumstances and when they conclude thatthe proffered evidence was the "product" or"fruit" of an unreasonable search or seizure they

61 Inbau 87.67 1958 Senate Committee Hearings at 74. To the same

effect is Peterson, The Crooks Get All the Breaks, Sat.Eve. Post, Sept. 23, 1961, pp. 10, 13.

I 243 F.2d at 661-62.89 Id. at 662.70 237 F.2d 789 (D.C. Cir. 1956).

See Kainisar, Illegal Searches or Seizures and Con-temporaneous Incriminating Statements: A Dialogue on aNeglected Area of Criminal Procedure, 1961 U. ILL.L.F. 78, 126-28, especially n.224.

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will do the same thing in off-beat cases that theydo in routine ones-they will exclude it.

AN EXERCISE ix FutliTY?

Whatever may be said for the courts "preservingthe judicial process from contamination"2 oragainst the government playing "an ignoblepart"" or about it being the "omnipresentteacher,'"' I, for one, would hate to have tojustify throwing out homicide and narcotic andlabor racket cases if I did not believe that suchaction significantly affected police attitudes andpractices.'l At this point, however, I run smack upagainst Professor Inbau's grim, gray "facts":

"Although a trial judge or prosecutor maywell be sensitive to a reversal on appeal, andconsequently the reversal may serve to discipline him to avoid error and misconduct inthe future, such a reaction cannot reasonablybe expected from the police. They are generallyinsensitive to a court's rejection of evidencemerely because of the impropriety of themethods used to obtain it.'n G

"[T]he average police officer whose confession[and presumably whose search] is declared in-valid suffers no embarrassment or loss ofprestige.... The clearance of a case by arrest... is all that really matters so far as the averagepoliceman is concerned; what happens thereafteris the responsibility of the prosecutor and thecourts.'"

72 Olmstead v. United States, 277 U.S. 438, 484(1928) (Brandeis, H., dissenting).

73Id. at 470 (Holmes, J., dissenting).7 Id. at 485 (Brandeis, J., dissenting). Compare

Paulsen, The Exclusionary Rule and Misconduct bythe Police, 52 J. CGRI. L., C. & P.S. 255, 257-58 (1961),w/ith George, supra note 62, at 785-93, and McGarr,The Exclusionary Ride: An Ill-Conceived and IneffectiveRemedy 52 J. CRiu L., C. & P.S. 266, 267 (1961).

76 "[jit would seem that the ultimate test of the ex-clusionary rules is whether they deter police officialsfrom engaging in the objectionable practices. For if,as some assert, reversals of convictions in this areahave had no substantial effect on police conduct, thenthe consequent gains even in terms of popular respectfor law are tenuous, indeed." Allen, Due Process andState Criminal Procedures: Another Look, 48 Nw. U.L.REv. 16, 34 (1953).

76 Inbau, Restrictions in the Law of Interrogation andConfessions, 52 Nw. U.L. REv. 77, 78 (1957).

7 Inbau, The Confession Dilemma in the UnitedStates Supreme Court, 43 ILL. L. REv. 442, 461-62(1948). But cf. INBAU & REI, LIE DETECTION ANDCRIMINAL INTERROGATION 198 (3d ed. 1953) ("a prac-tical and useful manual for criminal interrogators,"according to p. ix): "A criminal interrogator shouldalways remember that it is his function not only toobtain a confession from a guilty subject, but also to

Coming from one with Professor Inbau's practi-cal experience, these are telling blows. But moreimpressive, I submit, are the recent words anddeeds of high law enforcement officials to the con-trary. Evidently, there are jurisdictions wheresomebody up there-the attorney general or thedistrict attorney or the chief of police-caresenough to make the average policeman care too.

Consider the post-Cahan observations of theAttorney General of the State of California:

"I believe ...that because of this decisionthe police are doing better work. Their investi-gations-are more thorough and within Americanconstitutional concepts. More guilty pleas haveresulted because of the intensive pre-arrestwork. For example, District Attorney TomLynch of San Francisco has advised me that ingambling and narcotic raids, as well as in othercases, the police discuss the facts with him andhe is able to advise in advance just what is neces-sary in order to make a good case.

"In a great many instances, prior to theCahan decision the police were satisfied with anarrest. They were not too concerned with con-viction because the apprehension of the in-dividual was sufficient in their minds. In thesecases the defendant, upon his dismissal, wouldfeel that the State was an equal violater of thelaw.

"In the field of narcotics, much more intensivework is being done with the peddler, the whole-saler and the seller. Prior to the Cahan case, theofficers, in order to justify their existence, feltit necessary to make a certain number of arrests.It was always easy to arrest a known addictupon mere suspicion rather than do the tough,thorough work of getting to the wholesaler andpeddler.

"I believe the over-all effects of the Cahandecision, particularly in view of the rules nowworked out by the Supreme Court, have beenexcellent. A much greater education is calledfor on the part of all peace officers of California.As a result, I am confident they will be muchbetter police officers. I think there is more co-operation with the District Attorneys and this

obtain one which meets all the necessary legal require-ments-so that it can be used as evidence at the trial ofthe accused. For this reason, familiarity with the lawconcerning criminal interrogations is in many respectsequally as important as a mastery of the psychologicaltactics and techniques employed in eliciting. the con-fession." (Emphasis added.) This passage opens a 35page discussion of "The Law Concerning CriminalConfessions."

YALE KAMISAR

will make for better administration of criminaljustice."7 8

What of the experience in the District ofColumbia, site of the McNabb-Mallory rule, aswell as the Weeks doctrine? In large measure,the hopes and expectations of exponents of theexclusionary rule have been fulfilled on twocounts.79 Listen to Oliver Gasch, in his fifth year

78Excerpts from letter from Governor Edmund G.Brown, then Attorney General of the State of Cali-fornia, to the Stanford Law Review, Dec. 7, 1956, onfile with the Stanford Law Review, quoted in part inElkins v. United States, 364 U.S. 206, 220-21 (1960),and in part in Note, 9 STAN. L. REv. 515, 538 (1957).I am indebted to the editors of the Stanford Law Re-view for sending me a photostatic copy of the letter,which is on file in the Minnesota Law Library. TheCahan reference is to People v. Cahan, 44 Cal. 2d 434,282 P.2d 905 (1955), which saw the California SupremeCourt overturn precedents of more than 30 years stand-ing to adopt the exclusionary rule.

As Professor Barrett has pointed out, Barrett,Exclusion of Evidence Obtained by Illegal Searches-A Comment on People vs. Cahan, 43 CALIF. L. Rv.565, 587 (1955), prior to the Cahan decision, "theCalifornia situation was most unsatisfactory....

"The rules were ill-defined. There was little directpressure upon the police to conform to the rules. Inpractice, police discretion in determining the reason-ableness of searches was rarely subject to check. Thepossibilities of the situation improving appeared slight.

aw enforcement groups preferred the ambiguity ofseldom-litigated rules and had no real incentive totake the risks involved in seeking legislative action."

The Cahan case led to the appointment of an Attor-ney General's Committee, whose recommendations inturn led to extensive new legislation, in many respectsclarifying and codifying the case law on arrest andsearch and seizure, although not without raising somenew problems. See 32 CAre. STATE B.J. 607-10(1957). Furthermore, as Professor Weinstein has re-cently noted, the state has compiled applicable Cali-fornia decisions in "a simple but well-written trainingpublication for California peace officers that makesclear by hypothetical and rule what the police canand cannot do." Weinstein, supra note 60, at 169-70.

7 I am indebted to Bernard Weisberg, a member ofthe Chicago Bar and General Counsel of the IllinoisDivision of the American Civil Liberties Union, foralerting me to much found in the succeeding text byhis careful summary of the District police's adaptionto the McNabb-Mallory rule in Weisberg, Police In-terrogation of Arrested Persons: A Skeptical View, 52J. CiAm L., C. & P.S. 21, 33-34 (1961).

I want to make it quite clear that my reliance on thestriking District of Columbia experience does not meanthat I quarrel with the proposition that the desire toobtain convictions (as opposed to police "harrass-ment") and "the policeman's remediable ignorance ofthe law" "constitute only a part of the explanationfor American police misconduct." Allen, Federalismand the Fourth Amendement: A Requiem for Wolf,1961 Sup. CT. REV. 1, 37. See also Barrett, PersonalRights, Property Rights, and the Fourth Amendment,1960 StnP. CT. REv. 46, 54-55. But to concede that theexclusionary rule is not always decisive is hardly toagree it is never significant.

Professor Allen has pointed to "a large middle-

as United States Attorney for the District ofColumbia at the time:

"In view of the widely divergent views con-cerning the meaning and effect of the Mallorydecision, we felt that it was highly desirable toinitiate a series of lectures to which supervisoryofficials of the Police Department and the de-tective force would be invited. These lectureswere given about two years ago and in sub-stance they have been repeated on a number ofoccasions both to the retraining classes ofpolicemen as well as to the new men. We haveencouraged questions both during the lecturesand at the conclusion thereof. Our Mallorylectures have been printed by the congressionalcommittee studying this subject.

"At the present time, due largely to the

conscientious cooperation of our Chief of Policeand in accordance with the teaching of thedecisions and our lectures on it, the police aremaking better cases from the evidentiary stand-point. Extensive investigation prior to arrest ofsuspects has resulted. The accumulation of otherevidentiary material has become standardoperating procedure. It has been emphasizedto the force that they may arrest only on prob-able cause and that persons arrested should be

western city in a jurisdiction which for almost fortyyears has applied the exclusionary rule" where-untilrecently-the police department did little to informitself of current search and seizure law. See Allen,supra at 39. What does this necessarily prove otherthan that the exclusionary rule per se is not a "cure-all"?Other than that the exclusionary rule ipso facto can-not override the ill effects of poor leadership and tradi-tion and/or low general quality and inadequate generaltraining? That the exclusionary rule is wasted on somepolice departments scarcely establishes that it failssignificantly to affect the work of better ones.

Is there any doubt that prior to Mapp the policedepartments of many more exclusionary states thanadmissibility states (if any) did demand extensivetraining in the rules of arrest and search and seizure?See, e.g., the late Justice Murphy's mail questionnairestudy of police practices in Wolf v. Colorado, 338 U.S.25, 44-46 (1949) (dissenting opinion). Denver is theonly specific example given of a city in an admissibilityjurisdiction providing fairly comprehensive instructionson search and seizure, id. at 46. But the Denver in-struction manuals Justice Murphy evidently referredto do not bear him out. As was recently observed inWeinstein, supra note 60, at 159 n.45, "the secondedition of MELVILLE, MANUAL or CRIMINAL EVIDENCEIN COrORADO (1954) [written for Denver Police Acad-emy] contains an extensive discussion of how con-fessions should be obtained in order to make themadmissible (pp. 16-21); it ignores the search and seizureproblem, thus furnishing striking evidence of the impactof an exclusionary rule on police training programs."

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given a preliminary hearing without unneces-sary delay. Even though a panel of our Ap-pellate Court decided... that the Mallorydecision does not require a preliminary hearingin the middle of the night, we have followed thepractice of having preliminary hearings inthe middle of the night in those cases in whichcuestion may arise as to the imposition of asanction because of failure to comply withRule Sa of the Federal Rules of CriminalProcedure.

"With respect to search and seizure ... abouttwo years ago, it became very evident to methat the time had come for training and re-training in the field of search and seizure....This project was one of the most useful ac-tivities of our office in my judgment. Thesefour lectures were recorded, carefully annotated,and have recently upon order of the AttorneyGeneral been distributed to all Federal lawenforcement officers. You may be interested inhow we set up these lectures. We asked theChief of Police to circularize his entire forceand to solicit from them questions in the fieldof search and seizure which gave them diffi-culty. We broke these questions down intothree groups. Searches and seizures with war-rants, searches and seizures incident to lawfularrests, and emergency situations. Using en-tirely for problem material the questions ofthe police force, we developed this series of fourlectures. We in the prosecutor's office benefittedgreatly by the need to go to the books and toanalyze the rationale of the decisions for answer-ing the questions presented.

"I am sufficiently optimistic to report toyou that most of the policemen benefitted aswell by these lectures. My men have given mea number of examples which indicate quiteclearly that our policemen are thinking interms of these decisions and our lectures, andto that extent their work has materially im.-proved. Searches and seizures as far as possibleare now bottomed upon a search warrant. Thepolice realize that it renders more effectivetheir work to check out the legal basis for thewarrant with legally trained persons beforeattempting to accomplish a search or seizure."80

80 Gasch "Law Enforcement in the District ofColumbia and Civil Rights" pp. 2,3, 5, unpublishedaddress of March 25, 1960, to Twelfth Annual Con-ference, National Civil Liberties Clearing House,

I am hardly in a position to appraise the generaleffect Mapp v. Ohio has had in those jurisdictionswhich used to admit illegally seized evidence. Ithink I do know that in at least one such juris-diction, my home state of Minnesota, law en-forcement training has already been substantiallyaffected by the exclusionary rule and will con-tinue to be so. Witness the attitude of the At-torney General of the State of Minnesota at oneof several post-Mapp conferences on police pro-cedures relating to the law of arrest and seizure:

"It is my personal opinion that the Mappcase is sound law. Years of experience demon-strate that the only way in which the FourthAmendment 'can be made meaningful is todeclare illegally-obtained evidence inadmis-sible-in short, to remove the incentive forobtaining evidence through illegal means andto make it essential for police officials to becomeskilled in the proper legal methods by whichtheir cases can be built. The very fact thatthese institutes are being held is eloquent testi-mony, it seems to me, of the basic wisdom ofthe Court's decision. We are doing today,because of the Court's ruling, what we shouldhave done all along. We are studying ways inwhich we can bring our police methods andprocedures into harmony with the constitu-tional rights of the people we serve.

"Some persons claim the Supreme Court hasgone too far. Others claim to know how con-stitutional protections may be avoided bytricky indirection. Both viewpoints are wrong-this Institute was called to assist us in betterfulfilling our sworn duty to uphold the Constitu-tion. It was not called to second guess theSupreme Court.

"For those who seek techniques to circum-vent the constitutional rights of the people, Isay that it is not only illegal, but contrary toour oath and destructive of the basic principlesof a free society to do so. As Attorney Generalof this state, I do riot propose to permit ourConstitution to be circumvented and I servenotice upon anyone so inclined." 81

in Washington, D. C., reported in the WashingtonPost, March 26, 1960, p. D1, col. 7 (hereinafter re-ferred to as "Gasch"). I am indebted to Bernard Weis-berg of the Chicago Bar for sending me a copy of thisaddress, which is now on file in the Minnesota LawLibrary.

81 Mondale, The Problein of Search and Seizure, 19BENCH & BAR or MnN. 16, 19 (Feb. 1962).

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To observe that the deterrent effect of theexclusionary rules has fallen far short of expecta-tions in jurisdictions other than those mentionedabove is hardly to condemn. So-for millenia-hasthe deterrent effect of the laws against murder,rape, and robbery.

The recent experience in the State of Californiaand the District of Columbia, and the post-Mappprospects in Minnesota, by no means constituteconclusive evidence of the efficacy of the ex-clusionary rules. But they do, I think, rudelydislodge the notion that these rules are merelyan exercise in futility.

MIGHT THERE BE A BETTER WAY?

If the jaded debate over the exclusionary ruleshas accomplished anything, it has illustratedonce again that "answers are not obtained byputting the wrong question and thereby beggingthe real one. ' ' s What are the real questions? One ofthem, surely, turns on what we should appraisethe exclusionary rule against.

The fact that there is disagreement and in-conclusive evidence that the exclusionary rulesubstantially deters police lawlessness is a gooddeal less significant, I think, than the fact thatthere is much agreement and abundant evidencethat all other existing alternatives do not.-' Thus,proponents of the rule are in good position ifone major question is whether or not the ex-clusionary rule is the best presently available,politically feasible means of effectuating theconstitutional safeguards. Evidently, this isnot good enough for opponents of the rule. Thequestion they like to ask is whether the exclu-sionary rule is the very best approach to policemisconduct that man ever conceived, or ever will!Why does it have to be?

Suppose it can be shown that the present systemof criminal law administration is irrational andillogical. That "punishment for a period of timeand then letting him go free is like imprisoning adiphtheria-carrier for awhile and then permittinghim to commingle with his fellows and spread the

8 Frankfurter, J., dissenting in Priebe & Sons,Inc. v. United States, 332 U.S. 407, 420 (1947).

83 A number of vigorous opponents of the exclusion-ary rules have recognized the futility of existing alter-natives. See, e.g., remarks of former federal prosecutorT. J. Curran, Nxw YoRK CoNVENTION 529; McGarr,The Exclusionary Rule: An Ill-Conctived and IneffectiveRemedy, 52 J. Cane L., C. & P.S. 266, 268 (1961)(another former federal prosecutor); Plumb, IllegalEnforcement of the Law, 24 CORELL L.Q. 337, 386-88(1939).

germ of diphtheria?"8 1 If so, it is imperative thatwe strive for improvement, but does it follow weshould burn up the statute books in the mean-time-before we have attained the requisitenumber of trained "social physicians" who candetermine and remove the cause of crime withthe same degree of accuracy that the surgeonfinds and cuts out an inflamed appendix? 5

Suppose it can be demonstrated that "fiendishperpetrators of horrible crimes on children couldbe reformed by being sent first for several yearsto a special hospital" and that "a certain socialenvironment or... an elaborate college coursewill reform a burglar or gunman?"86 Suppose,further, all hands agree that logically, theoretically,ideally, this sort of "treatment" and "re-educa-tion" is much to be preferred over "punishment?"Does it follow that we scrap what we have nowin exchange for the hope or promise that ten ortwenty or fifty years from now we might have thecommunity support, the large funds, and thenecessary psychiatric know-how -to make thetheoretically superior alternative a reality?m

I share Wigmore's view that the Weeks rule is"illogical." '8 I agree, too, that "the natural wayto do justice here would be to enforce the healthyprinciple of the Fourth Amendment directly,i.e., by sending for the high-handed... marshalwho had searched without a warrant, imposing athirty day imprisonment for his contempt of theConstitution, and then proceeding to affirm thesentence of the convicted criminal."8 9 But whatdoes all this mean? It means, I take it, that weare afforded the opportunity to repeal the ex-clusionary rule now." But when-if ever-do weget the chance to vote for legislation authorizingcourts to send for the transgressing marshal andimprison him for his "contempt of the Constitu-

14A criticism quoted in Cardozo, What Medicine-Can Do for Law, in LAw Aim LrrERArutn 90 (1931).

85 See M. R. Cohen, Moral Aspects of the CriminalLaw, in RIASON AND LAw 45 (1950).

86 Id. at 45-46.8 See id. at 46; Dession, Psychiatry and the Condi-

tioning of Criminal Justice, 47 YALE L.J. 319, 332-35(1938).

88 8 WiG Eooa 35.9 Id. at 40.90 The debate has long been bottomed on the prem-

ise that the exclusionary rule is a rule of evidence whichthe Congress or the state legislatures could "repeal."Mapp changed all that. See Weinstein, supra note 60,at 155. For purposes of discussion, however, I am as-suming that either a constitutional amendment orjudicial overruling has occurred, so that we are still"free" to "repeal" the rule.

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tion?" And what do we use to effectuate the FourthAmendment in the meantim?

Those seeking the repeal of the exclusionaryrule have often conceded the inadequacy ofexisting alternative remedies. 91 As a quid pro quofor the abolition of the rule, they have proposed,e.g., the establishment of a civil rights office,independent of the regular prosecutor, "chargedsolely with the responsibility of investigatingand prosecuting alleged violations of the Con-stitution by law enforcement officials";12 "shiftingthe financial responsibility for improper conductof policemen, on a respondent superior basis, to themunicipality or sovereign which employs them."'"

Have we ever known an opponent of the ex-clusionary rule to introduce a bill spelling otitsuch proposals? Have we ever heard of a peaceofficers or sheriffs or district attorneys associ-ation 'qobbying" for such a proposal? When-ifever-they do, the case for the exclusionary rulewill be much weakened. I ask again, what do wedo in the meantime?

I am sure that Professor Inbau and manypeople in law enforcement work would guffawat the suggestion that adoption of the "BritishSystem" of narcotics control (permitting doctorsto furnish narcotics to addicts in certain cases) isthe way to eliminate our narcotics problem.Inbau, no doubt, would share the view that the"British System" is inapplicable to the UnitedStates. No doubt, he would retort, as othershave, that the favorable narcotic situation inEngland is not the result of the "British System"at all but "the British people themselves ....[They] have a definite abhorrence of narcoticdrugs, which has become incorporated into theirmores and culture."'"

Fine. But why, then, does Professor Inbau soblithely point to the fact that "the free, law abidingcountries of England and Canada have alwaysadmitted evidence even though it may have been

,unreasonably seized?"9 5 Why does he not touch

91 See note 83 supra.12 Peterson, Restrictions in the Law of Search and

Seizure, 52 Nw. U.L. Rev. 46, 62 (1957). The disad-vantages of this proposal are considered in Paulsen,The Exclusionary Rule and Misconduct by the Police,52 J. CRm L., C. & P.S. 255, 261 (1961).93 McGarr, supra note 83, at 268. See also Plumb,

supra. note 83, at 387.94 Set CAL. SPECrIA STunv CO'N ON NARCOTICs,

FINAL REPORT 101 (1961).91 n Ibau 86. To say that England has "always"

admitted unreasonably seized evidence is to be some-what misleading. As late as 1955, there was only one

on "the speed and certainty with which theslightest invasion of British individual freedomor minority rights by officials of the governmentis picked up in Parliament, not merely by theopposition but by the party in power, and madethe subject of persistent questioning, criticism,and sometimes rebuke?" 0 Why does he not alludeto recent observations that-

"It must be surprising to any student who isnot thoroughly immersed in English ways ofthought to find that in a country where somuch importance is attached to the liberty of

modem case bearing on the point, Elias v. Pasmore,[1934] 2 K.B. 164, 173, (a decision of a judge of firstinstance at that) and a survey of Commonwealthauthority at that time revealed no uniform rule on theadmissibility of evidence procured through illegalsearches and seizures. See Cowen & Carter, The Ad-rmissibilitj of Evidence Procured Through Illegal Searchesand Seizures, in ESSAYS o THE LAw or EVmENCE 82-83, 100 (1956). That year, when, according to onecommentator, "the lower courts in the Unitid Kingdomseemed ready to revise [the rule of admissibility] ifnot to reject it," Franck, Comment, 33 CAN. B. Rv.721, 722 (1955), a decision of the Privy Council inKuruma v. The Queen, [19551 1 All E.R. 236, sanc-tioned the admissibility of evidence illegally obtained.

Professor Glanville Williams, the English partia-pant in the Northwestern Law School's recent Inter-national Conference on Criminal Law Administration,criticized Kuruma on numerous counts: the opinionindicates that evidence obtained by "trickery" shouldbe ruled out, but not that obtained by unlawful force-seemingly a "more flagrant breach of the law"; oneof the possible reasons for excluding induced confes-sions-"to hold the police and prosecution to properbehaviour"-"would equally suggest the exclusion ofevidence obtained by an illegal search"; Americandecisions to the contrary were omitted and "quitepossibly misunderstood" [only Olnstead was cited;not, for example, the earlier Weeks case nor the laterNardone cases]; Scottish decisions to the contrary"were misinterpreted and misstated." Williams, TheExclusionary Rule Under Foreign nzw: England, 52J. Cum. L., C. & P.S. 272, 273 (1961). Professor Wil-liams notes wistfully that "since decisions of the PrivyCouncil are not absolutely binding in future caseseven upon the Privy Council itself, this important ques-tion of public policy cannot be regarded as finallysettled." Ibid. Most English and Canadian writersshare Williams' dissatisfaction with the Kuruma result.See, e.g., Cowen & Carter, supra at 103-05; DELiN,THE CRIMINAL PRosEcuToN mN ENGLAND 64-65 (1958)(criticizing the earlier Pasmore case); Franck, supraat 723-31.

16 JACKSON, THE SUPREmME CoURT IN TH AMERICANSySTEn Op GOVERMENT 81-82 (1955).

See also Martin, The Exclusionary Rule UnderForeign Law: Canada, 52 J. Camn L., C. & P.S. 271,272 (1961): "The problem of deliberate violation ofthe rights of the citizen by the police in their effortsto obtain evidence has not been as pressing in Canadaas in some other countries.... In addition, the remedyin tort has proved reasonably effective; Canadianjuries are quick to resent illegal activity on the partof the police and to express that resentment by a pro-portionate judgment for damages."

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the subject, the power of search is left so vagueand unregulated. But as always the preferenceis for the unwritten law. The police are expectedto act reasonably; and so long as they do so,the accused is as unlikely to insist upon hisright to immunity from search as he is on hisconstitutional right to silence. The absence ofjudicial regulation suggests the lack of needfor it; no situation has yet arisen in whichanything, corresponding to the Judges' Ruleshas been called for.

"Cases in which the right of search has beenconsidered are from the lawyer's point of viewlamentably few." '

It may well be that at this time the impositionof the exclusionary rule is neither necessary norproper in certain other lands. How does thisresolve our problem? I concede that we are in-tellectually capable of formulating better alterna-tives; I merely doubt that at the moment we arepolitically capable of effectuating them. I confess,further, that I am not enthused about scrappingthe exclusionary rule today in exchange for as-surances that these other potentially superioralternatives will undergo further study next yearor the year after.

I agree that the exclusionary rule is not thebest of all possible approaches in the best of allworlds, but is there a real alternative in the presentstate of affairs? After all, as Reinhold Niebuhr hasput it, "democracy is a method of finding proxi-mate solutions for insoluble problems."98s

As Niebuhr has also observed, however, "anydefinition of a proper balance between freedomand order must always be at least slightly coloredby the exigencies of the moment which may makethe peril of the one seem greater and the securityof the other therefore preferable."99 Thus, toestablish that the exclusionary rule is the bestmeans at hand for effectuating liberty and privacyis to make a point, but hardly to win the debate,A host of questions-real questions, I admit-remain to be answered. In one way or another,they ask: What price, exclusionary rule?

"CIa WAVES" AND RuLEs Op EvIDENcE

Professor Inbau implies, if he does not assert,that the 98% increase in the crime rate since1950-five times the increase in population-is

7 DEvLiN, op. cit. supra note 95, at 64.98 NEBHRr, THE CHILDREN OF LIGHT AND THE

CHILDRFR oF DA~mrss 118 (1944).9 1 Id. at 78.

the product of recent "'turn 'er loose' courtdecisions and legislation." 00 He hints, none toogently, that his and his daughter's freedom towalk home after dark turns on whether or not werid law enforcement officers of "the strait jacketplaced upon them by present day court andlegislative restrictions."'01

Chief William Parker of the Los Angeles PoliceDepartment, another vigorous critic of the ex-clusionary rule, is not content with innuendo:

"Following the Cahan decision, there was adeparture from the trend of an acceleratingnature with such a skyrocketing effect thatDecember 1955 reflected the worst crime ex-perience in the history of Los Angeles. In at-tempting to determine cause, it must be con-cluded that the greatest single factor repre-senting a change in the current situation wasthe imposition of the exclusionary rule at theclose of April 1955. As the criminal army be-came familiar with the new safeguards providedto them, the acceleration in crime was aninevitable result."I 2

"[I]n Los Angeles during 1956 there was a30 percent increase over the year before, afterwe had experienced a downward trend. TheCahan decision reversed the trend, and the1957 rate is 14 percent over 1956....

"They are the facts. These are the thingsthey don't like to talk about. That is what ishappening throughout America.

"Q. Do you think the Mallory decision willhave a similar impact?

"Yes. I will show you how the Mallory de-cision will put the Cahan decision to shame, asfar as effect upon serious crimes is concerned."' 0Professor Inbau, Chief Parker, and others in

their camp raise real questions, all right. But dothey supply real answers? It may be my ownshortcoming, but I find so much so wrong withtheir reasoning that I am not quite sure whereto begin.

100 Inbau 86. Professor Inbau is referring to FBI,UNreoF m C:FmE REPORTS FOR THE UNITED STATES 1(1960) (hereinafter referred to as "UaoRm CRIMREPORTs" for given year). In 1960, the crime rate forseven major offenses-murder, forcible rape, robbery,aggravated assault, larceny ($50 and over), and autotheft-"was 24 per cent above the average for the past5 years; 66 per cent over 1950, and 96 per cent higherthan 1940." Id. at 2.

101 lnbau 99.'02 PARx9R, POLICE 120 (Wilson ed. 1957).103 1957 House Committee Hearings at 76.

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Perhaps the way to begin is to ask some ques-tions of my own. Wat was the increase in thecrime rate from 1940 to 1950, when fewer juris-dictions utilized the exclusionary rule? From 1930to 1940? Rises in crime, Chief Parker tells us, are"happening throughout America." But until thesummer of 1961, the courts of half our stateslet in illegally seized evidence. Were these ad-missibility jurisdictions undergoing "crime waves"too? Or were the exclusionary states running wellahead of the national average?

Take, for example, the District of Columbia andits surrounding Maryland and Virginia suburbs.Until Mapp was handed down in the summer of1961, Maryland admitted illegally seized evidencein all felony prosecutions; Virginia, in all cases.On the other hand, the District's law enforcementofficers are not only "handcuffed" by the federalexclusionary rule in search and seizure cases butweighed down, too, by the McNabb-Mallory rule-the dread "ball and chain" which hampered noother police force during the 1950-1960 period.One would expect the District, then, to set thepace in crime acceleration, certainly far to out-distance Virginia and Maryland.

The "facts" that fellows like me are not sup-posed to want to talk about reveal that the District'sincidence of rapes, aggravated assaults and grandlarceny was lower in 1960 than in 1950.104 On aper 100,000 population basis, the overall felonyrate increased a puny one per cent in the District,but a redoubtable 69% in the three major Mary-land and Virginia suburbs for which generallycomplete figures were available. 5

No, I am not suggesting that the way to di-minish crime is to adopt exclusionary rules ofevidence. I only suggest that to point to a spec-tacular rise in national crime or in a particularstate's crime is hardly to prove that restrictiverules of evidence have "caused" this increase.

10 See Mintz, Serious Crime Rate Down Here De-spite Furor Raised by Congress, Washington Post,July 5, 1961, p. B1, col. 6.

105 Ibid. Nation-wide, the crime rate for sevenmajor offenses rose 66 per cent during this period.See note 100 supra. Preliminary figures compiled bythe police departments of the District and surroundingsuburbs for the 1961 calendar year indicate that theincidence of serious crime in the suburbs is continuingto rise at a greater rate than in the District. The seven-category felony increase in the District from 1960 to1961 was 9 per cent; suburban increases for thatperiod were: Fairfax, 21 per cent; Prince Georges, 20per cent; Arlington, 15 per cent; Montgomery, '14per cent; and Alexandria, 6 per cent. See Goshko,Major Crime Rate Growing Faster in Suburbs ThanD. C., Washington Post, Mar. 11, 1962, p. B5, col. 1.

Opponents of the exclusionary rules will hastento point out, no doubt, that the above figures donot tell the whole story. Of course they don't.But why do they overlook the point when theytrot out the figures on California and Illinoiscrime?

The explanation for the disparity in the crimeacceleration between the District and its suburbsmay lie in the explosive growth of the suburbsand the concomitant slight decline in the District'spopulation. Or in the superior training of theDistrict police. Or in the undermanned suburbanpolice forces. Perhaps the key to the disparity isthat the suburbs compile more complete recordsof crime than does the District, or better recordsthan they did back in 1950.

I must confess, therefore, that I don't thinkthese figures are decisive. Evidently, the critics ofthe Weeks and McNabb-Mallory rules don'teither. For they have never had a word to sayabout them. If I may be permitted to ask, whatdark inferences would Inbau, Parker & Co. drawif these statistical disparities had been reversed?If the District's crime had shot up 69% and thesuburbs but one per cent. Can you hear thosetrumpets now?

Perhaps the peremptory answer to this "num-bers game" may be found in a masterful, criticalanalysis of the current sad state of criminalstatistics appearing in this very Journal a shorttime ago. On that occasion, Ronald H. Beattie,long-time Chief of the California Bureau ofCriminal Statistics, made an impressive showingthat various cities in the same state, to say nothingof different states, are using such disparate methodsin crime reporting that "the differences observedin Uniform Crime Reports simply cannot beaccepted as possessing any degree of reliabilityfor showing true differences in crime rates amongthe states."'0 6

Though I believe Mr. Beattie's critical analysismakes the "real facts" about the impact of rulesof evidence on crime somewhat fanciful, ChiefParker has a right to be proud of Beattie's com-ments:

"California, in particular, has a history ofpolice development over the past forty years,stemming from the leadership of August Voll-mer, which means not only high levels of policeefficiency and professional performance butalso better and more complete records. This'06Beattie, Criminal Statistics in the United States,

51 J. Cane L., C. & P.S. 49, 54 (1960).

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latter fact in itself causes California to appearto have a high .crime rate. States where ingeneral there are many police agencies withpoor record systems, incomplete reporting, andlower standards of police proficiency should notbe accredited as having less crime simply be-cause the statistical data reported show lesscrine."'

"Los Angeles showed an over-all crime ratetwo and one-half times as great as San Jose,and this difference appears in all offenses.The widest difference occurs in aggravatedassault, where the rates reported were 13 timesgreater for Los Angeles than for San Jose.

"Sacramento and Fresno, which representvalley metropolitan areas presumably not tobdifferent in general composition, showed ratherstrange differences in crimes reported....

"This kind of comparison vividly demon-strates the wide differences in reporting fromdepartments and areas within the same state.Actually, no conclusions about crime rates canpossibly be made with any certainty from thiskind of information. The Los Angeles area inparticular has been named in public releasesas having the highest crime rate in the country.The Los Angeles Police Department has beenan outstanding department for many years.It has been recognized as one of the mosteffective and efficient large metropolitan policeagencies in the country. It would appear thatbecause this department is effective and effi-cient, and has complete records, the area isbeing identified as one with a high crime rate incomparison with other cities that do not havepolice departments of the standard and qualitythat Los Angeles possesses and do not keep asefficient and complete records of the incidenceof crime."' 08

Mr. Beattie cozdd be wrong; the statistics maytruly reflect the extent of crime in various citiesand states. However, I fail to see how this possi-bility aids the critics of the exclusionary rules.

Suppose Los Angeles really does have 1300%the aggravated assault San Jose has? Why? Theyare both in the state of California and both subjectto the same rules of evidence. What if the crimerates in the comparable cities of Sacramento andFresno vary as much as the published figures

107 Id. at 53-54.108 Id. at 55.

indicate? Suppose Sacramento does have nearlytwice the forcible rape rate of Fresno, and Fresno amuch higher aggravated assault rate than Sacra-mento. Whatever the reason, how can it be theCahan decision?

Similar questions can be raised about thestate of crime in Illinois. Why is Chicago's burglaryrate less than twice that of Champaign-Urbana,Peoria, and Rockford, but its robbery rate aboutfive times that of Champaign-Urbana and Peoriaand more than twenty times that of Rockford?Why is it that Peoria and Champaign-Urbana areabout the same in total offense rate, butChampaign-Urbana has about three times themurder-voluntary manslaughter and aggravatedassault rates of Peoria?1 9 If these striking intra-state statistical disparities at all approximate the"real facts," don't they serve to illumine theinsignificance, if not irrelevance, of the state-wideexclusionary rule?

The 98% crime rise which Professor Inbauglibly tosses into the fray is a familiar figure.This is how J. Edgar'Hoover opened an inter-view early this year. 10 Perhaps this is the placeto begin. Midway in this interview, the Director ofthe FBI was asked to account for the sharp rise incrime. He spoke of the "steady decline of parentalauthority," the disintegration of "moral standardsin home and community," the "highly suggestive,and, at times, offensive, scenes" on TV and inthe movies, "public indifference to organizedvice," the number of people who "lack the courageto aid the victim personally, or the interest tosummon help," and the "abuse and maladmin-istration of the systems of parole and probation".'Nary a word about rules of evidence.

Mr. Hoover's discussion of the problem wascomprehensive, but hardly exhaustive. Other"causes" of crime and "crime waves" advancedfrom time to time are "tensions" from two worldwars and/or the "cold war," the "strain" ofmodern living; the crowding of rural people un-accustomed to urban ways into the big cities;the population movement of the Negroes, thedemise of the billy dub, the displacement of thefoot patrolman with the squad car, more laws,better crime reporting, comic books, cigarette

10' Based on Table 4-Index of Crime, 1960, Stand-ard Metropolitan Statistical Areas, UNrolu C1MER1Loirs for 1960 at 53-77.

11 U.S. News & World Rep., Jan. 1, 1962, p. 34." 'Id. at 35-36.

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smoking, poor housing, overcrowded schools,"bad blood," ad infinitum.

While crime in the District of Columbia is stilldown from the peak years in the early 1950's it isup from the ten-year low set in 1957."n What"'caused" this increase? The U.S. Attorney pointedto the "woefully and demonstratively under-staffed" Juvenile Court, ill-equipped to "winaway from a life of crime those border-line juveniledelinquents.""' One District Commissioner foundthe "main reason" in "more probations," "earlierparoles" and the fact that "drunks are sometimessent home rather than to jail."rn This was im-mediately disputed by another Commissioner,who suggested "the cutback in the activities ofthe Metropolitan Police Boys Club [from 17,000boys served, down to 5,000 in two years] mayhave contributed.""15

He -who links "crime waves" with rules of-evidence is a bold man. Bolder than Oliver Gasch,former U.S. Attorney for the District of Columbia,who after wrestling with the McNabb-Malloryrule and the Weeks rule for six years, dismissedthis suggestion as "much too speculative."'un

"He must be a bold man indeed who is confidentthat he knows what causes crime. Those whoselives are devoted to an understanding of theproblem are certain only that they are uncertainregarding the role of the various 'alleged' 'causes'of crime.""7

Perhaps this is not the way to start answeringthe "crime wave" argument. Perhaps we shouldbegin further back, by asking: What "crime wave"?

w See Mintz, supra note 104, at p. B2.I' Gasch, supra note 80, at 6.M Washington Post, Mar. 27, 1960, p. A27, col. 6

(Comm'r Robert F. McLaughlin).2 Ibid. (Comm'r David P. Karrick).

116 Gasch supra note 80, at 7, quoted in MacKenzie,Mallory Ruding Held Blameless in Crime Rise, Wash-ington Post, Mar. 26, 1960, p. D1, col. 7. But morerecently Deputy Police Chief Edgar E.'Scott blamedthe "rise" in District "street crimes" (as against theten-year low-point of 1957) partly on "civil libertar-•ians who scream about the Constitution, due processand the Bill of Rights," centering his criticism of theCourts on the Mallory decision. At the same time,Scott insisted that "the fight to maintain moral stand-ards and good law enforcement is tied with the fightagainst communism, because... nations fall fromweakness and corruption from within, rather thanpower from without." MacKenzie, Scott Blames 'CivilLibertarians' for Street Crime, Washington Post,Mar. .27, 1962, p. B1, col. 2. Chief Scott did not ex-plain why crime is increasing more rapidly in the sub-urbs of Virginia and Maryland-which have no Mc-Nabb-Mallory rule.

17 Frankfurter, J., dissenting in Winters v. NewYork, 333 U.S. 507, 526-27 (1948).

As Professor Herbert Wechsler, Chief Reporterfor the Model Penal Code, and a former state and-federal assistant attorney general, observed awhileback: "We cannot even be certain that the sta-tistics on crimes 'known to the police' actuallyindicate an increase in the amount of crime."For "better attention to complaints, more carefuland systematic efforts to record and count offenses,more arrests, will make your crime rate go uphigher on paper than in actual fact."

This is not mere speculation. There are strikingexamples of "crime waves" which turned out tobe nothing more than "statistical reportingwaves." When a Philadelphia reform mayor'spolice commissioner assumed office in 1952, hediscovered that for years records had been dis-torted in order to "minimize" crime, e.g., onecenter-city district in one month handled 5,000more complaints than it had recorded. When anew central reporting system was installed, thenumber of "crimes" went up from 16,800 in 1951to 28,600 in 1953-"for the record" a staggeringclimb of over 70% In New York City, similarfaking had gone on for years. Following a surveyby police expert Bruce Smith, a new systemof central recording was established for 1952.Assaults immediately jumped 47%, robberies73%, and burglaries 118%!" 0

I have little doubt that Superintendent OrlandoW. Wilson, if he were not the careful student ofcrime he is,. could contrive an enormous increasein the amount of Chicago's crime. For shortlyafter he became head of the Chicago force he

undertook a drastic revamping of the depart-ment's methods of reporting crime and main-taining records. For the first time, a crime analysissection at police headquarters now works fromcomplete records on all crimes, big or small."'

Common practices of the pre-Wilson era, it seems,were not to report stolen cars as stolen in statisticalrecords if they were recovered within three days,and for a commander to "follow a practice ofignoring a lot of the little stuff to save work andmake the district look better on paper."'m

"' U. S. News & World Rep., Sept. 26, 1960, p. 64."1 Bell, What Crime Wave? Fortune, Jan., 1955, pp.

96, 99. See also Bell, The Myth of Crime Waves, inTH END or IDEor oGa 138-39 (1960).

"2 Ibid.1 See Gowran, Wilson Plea: More Radios, More

Records, Chicago Daily Tribune, Nov. 8, 1961, pt. 1,p. 8, col. 1.

i Ibid.

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DID T CAHAN CASE "CRIPPLE" CALIFORmALAW ENFORCEMENT?

Not only do critics of the exclusionary rule insearch and seizure cases argue that its impositionswells the ranks of the "criminal army" but theyalso indicate that it has "rendered the peoplepowerless to adequately protect themselves againstthe criminal army." The two contentions can beseparated and distinguished. The first conten-tion-the rule breeds more crime---may not betrue, but the second contention-the rule seriouslydiminishes the capacity of law enforcement tocope with whatever crime is bred-may never-theless be true.

Chief Parker found evidence of the severe blowdealt to efficient law enforcement by the Cahandecision in the, reduction of narcotic arrests:"During 1954 the comparative [seasonal] periodsreflected a 15.7 per cent increase in [narcotic]arrests, while a 4.5 per cent decrease followed theCahan decision."1 21

Again, I venture to suggest that the chief hasskipped a premise or two. For example, what arethe comparative figures on narcotic offensesreported? On suspects released after arrest? Onnarcotic offenders formally charged? Convicted?

In any event, assuming Chief Parker's relianceon the arrest data is well placed, what does the"record" show? Adult felony arrests for narcoticlaw violations in California did drop slightly in1955, from 7,457 to 7,313, but they were over9,000 in 1956, over 10,000 in 1957, and, risingsteadily and substantially every post-Cahan year,passed the 14,000 mark in 1960.'m True, Cali-fornia's population has boomed, but the rate ofadult felony arrests for narcotics per 100,000population, which dipped from 60 to 56 in 1955,rose to 67 and 73.1 in 1956 and 1957, respectively,and reached 89.2 in 1960.12 If the 1955 decline innarcotic arrests illustrates the blow Cahan dealtlaw enforcement, what do these more recentfigures evidence?

J. Francis Coakley, District Attorney forAlameda County, California, also sounded thealarm in the summer of 1956 by reporting that

223 PARKER, POLICE 121 (Wilson ed. 1957).'u See CAIF. SPzEMAL STUDY COM'N ON NARcoTIcs,

FINAL REPORT 53 (1961) (hereinafter referred to as"FINAL NARCOTICS REPORT"); CALIF. DEPT. OF JUS-TICE, BUREAU OF CRIMINAL STATISTICS, CRIME INCALIFORNIA 1960, at 47 (hereinafter referred to as"CRME IN CALIFORNIA" for given year).

15 CR IN CALIFORNIA 1956, at 35; 1957, at 32;1960, at 45.

"the Cahan decision establishing the ExclusionaryRule in California has broken the very backboneof narcotics enforcement. 12 6 The only statisticalsupport I can find for this sweeping statement isthat the rate of felony narcotic complaints per100,000 population flied in California SuperiorCourt fell from 22 to 18 in 19551" and the per-centage of narcotics convictions in CaliforniaSuperior Courts dropped from 86.6 to 77.6 in1955, and to a still lower 76.8 in 1956.128

In 1957 the rate of narcotic complaints reached23 per 100,000,129 passing the pre-Cahan rate, andclimbed to 25 in 1959, where it has remained 30

But critics of the exclusionary rule can find somesolace in the percentage of convictions in narcoticscases. Following the Cahan case, this percentagedropped for three successive years to a low of 74.3in 1957.131 While it has climbed back slowly to77.5 in 1960,1 this is still considerably short ofthe pre-Cahan figures of 82.5 (1952) 84.4 (1953)and 86.6 (1954).11 Why?

In 1957, looking at the narcotics and book-making, the two offenses whose conviction per-centage had dropped substantially since theCahan case, the California Bureau of CriminalStatistics suggested the obvious: "Evidently, theadoption of the exclusionary rule has had someeffect on these two offense groups.' 3 4 Two yearslater, however, the Bureau was more cautious.Indeed, it balked at linking the Cahan rule withthese lowered conviction rates, noting that "thelarge number of cases in Los Angeles Countyoften distorts the picture for the rest of theState."3 5

The 1954 Los Angeles 85 per cent convictionrate in narcotic offenses fell to 67 percent in 1957,before it rose somewhat to 70 in 1958 and 73 in1959, but there was "very little change in otherareas of the state."1 6 From 1954 to 1959, forexample, "the nine other Southern Californiacounties in contrast varied only between a high

126 ABA, SUMMARY OF PROCEEDINGS OF SECTION OF

CRmIMIAL LAw 58 (1956).m CRIME IN CALIFORNIA 1955, at 42.

128 CRIME IN CALIFORNA 1954, at 60; 1955, at 60;1956, at 61.2

9 CRIM IN CALIFORNIA 1957, at 53.130 CRIME IN CALIFORNIA 1960, at 95.1I CRIME IN CALIFORIA 1957, at 66.132 CRIE IN CALIFORNIA 1958, at 62 (75.1%); 1959,

at 67 (77.3%); 1960, at 104 (77.5%).SCRME IN CALIFORNIA 1952, at 38; 1953, at 47;

1954, at 60.14 CRmnjN CALIFoRNIA 1957, at 66-67.15 CR l Nl CALIFORNIA 1959, at 68.

11 Id. at 68-69.

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and a low of 88 and 85 percent convicted, re-spectively."'13 The same patterns held for book-making. The only conclusion the Bureau couldreach was:

"Many things, other than the Cahan decisionmay be affecting the statistics on narcotics andbookmaking convictions in Los Angeles County.What has just been reported does not, in itself,prove or disprove any aspect of the multifacetedproblem. All that can be said, with validity, isthat convictions for narcotics and bookmakingin Los Angeles County have decreased since1954 and that they continue to remain at arelatively low level."'1

Further illumination is furnished by a six monthstudy (Aug. 1, 1960, through January 31, 1961)made by the District Attorney's Office, Countyof Los Angeles, to determine the effect of theCahan and Priestly decisions on narcotic cases.Of the total processed 1,420 narcotic cases whichcame to the attention of the District Attorney'sOffice during this period, those rejected by theDistrict Attorney or dismissed by the Courtbecause of Cahan or Priestly and those whichresulted in an acquittal for the same reason cameto a grand total of 128--"approximately eightpercent." 39

During this same period, another 615 LosAngeles cases (140 in Superior Court) were dis-missed, rejected, or otherwise "lost" for non-exclusionary rule reasons.140 How does this com-pare with the pre-Cahan Los Angeles experience?If the California Attorney General's impressionthat Cahan led to "much more intensive [pre-arrest] work" in the field of narcotics is accurate,4'

and these observations hold for Los Angeles aswell as the rest of the state, shouldn't Cahan becredited with a few narcotic conviction "assists,"too? And shouldn't these offset the "losses" a bit?

If not, let me suggest another reason for sup-

137 Ibid.138 Id. at 69.'19 FmAL. NA concs REPORT 112. Eleven of the ex-

clusionary rule releases were said to be due to the re-quirement established by Priestly v. Superior Court,50 Cal. 2d 812, 330 P. 2d 39 (1958), that an informant'sidentity must be disclosed where this information isthe only evidence to establish "probable cause." Thisrule was cut down significantly in May of 1961 whenthe California Supreme Court held that where a searchis made pursuant to a warrant valid on its face, theinformer's identity need not be revealed in order toestablish the legality of the search. People v. Keener,55 Cal. 2d 714, 12 Cal. Rep. 859, 361 P.2d 587 (1961).

4 FiAL NARconcs REPORT 112.1 See text at note 78 supra.

posing the "true figure" is probably lower thaneight per cent. Some 439 other Los Angeles felonynarcotic cases processed during the study periodwere not considered in the calculations becausethey had not yet reached "final disposition."'4'According to the study, however, the Cahan-Priestly factor looms largest at the initial stagesof a case. Thus, of the 128 "losses" due to theexclusionary rule, only 38 occurred after the caseswere brought to Superior Court.i4 To look at itanother way, the exclusionary rule was a factor inonly 4.4% of the 866 cases which reached SuperiorCourt. There is reason to believe, therefore, thatif the other 439 cases were followed up and takeninto account the eight percent figure would beappreciably lower.

Furthermore, whatever the true figure in LosAngeles, there is good cause for supposing theexclusionary rule is a significantly smaller factorin other California narcotic cases. For, as alreadynoted, the narcotics conviction percentage runsabout ten points higher outside Los Angeles.In any event, this much is not speculation: rulingout the exclusionary rule factor, the Los Angelesfelony narcotics conviction percentage is stilllower than most other California areas, takinginto account the exclusionary factor.

This, too, must be said about the narcoticssituation in California. When we stop thinkingabout narcotic offenses in lump form and startviewing the matter in terms of specific types ofnarcotic offenses we discover that while the 1960statewide overall narcotics conviction percentagein California Superior Courts was 77.5, the state-wide figures for both sales of marijuana and salesof narcotics other than marijauna'were 88.2 and88.7, respectively.1 " To look at it another way,of the 460 narcotic cases dismissed in 1960, "ap-proximately four-fifths were possession cases";"there were only a total of 33 sale cases and 9sale to minor cases dismissed.' 45

Finally, it should'not be forgotten that whilethe overall narcotics conviction percentage isdown substantially, from 85.5 in the 1953-1954pre-Cahan years to 77.4 for the years 1959-1960,the rate of arrests as well as felony complaintsfiled in narcotic cases his risen appreciably. Thus,in 1959-1960, which experienced a substantiallylower conviction percentage, some 5,696 were

'42 FNAL NARcoTics R-EPORT 112.2 Ibid.144 Ci= mi CALrnoRNiA 1960, at 122.'s Id. at 77.

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YALE KAMISAR

convicted of narcotic offenses in California Su-perior Courts'48 as against 4,419 for the recordconviction percentage years of 1953-1954.117

I tbink I have demonstrated that the predictionsand descriptions of near-disaster in narcotics lawenforcement which greeted and followed theCahan decision find precious little support inthe available data. Until now, however, we havebeen dwelling on narcotic offenses-the majorcategory of crime most likely to be affected by theexclusionary rule. But opponents of the rule haveproclaimed its adverse effects on crime and lawenforcement generally. Chief Parker reported itseffect "catastrophic as far as efficient law enforce-ment is concerned";148 he considered it "con-ceivable that the imposition of the exclusionaryrule has rendered the people powerless to ade-quately protect themselves against the criminalarmy."'49 An assistant attorney general for theState of California called the Cahan rule "the'Magna Carta' for the criminals."'150 "Crimestatisti6 indicate he is right," declared ChiefCarl Hansson of the Dallas Police Department."Many states," he tells us, "have adopted theExclusionary Rule to the joy of the criminal andthe detriment of society."'' What can be gleanedfrom the records about the effect Cahan has hadon California conviction rates generally?

The conviction percentage for murder, 67.1 in1953, and 61.2 in 1954, was up to 69.8 in 1960;manslaughter, 81.1 and 90.2 in 1953 and 1954,respectively, is now at 93.2; felony assault, under77.5 for the two pre-Cahan years, was 81.3 in1960; rape, 76.5 and 79.3 in the two years im-mediately preceding Cahan, is now at 81.4.152

Variances in conviction percentages relating torobbery and burglary are barely discernible.Robbery, 84.8 in 1953 and 85.8 the followingyear, rose to 86.3 the year of the Cahan decision,and is now at 85.4. The conviction percentage forburglary, which increased four-tenths of one percent from 1953 to the 1954 figure of 90.8, de-creased the same four-tenths to 90.4 in the Cahanyear and is now at 89.6.153

148 CaRncm n CArpoRIA 1959, at 67; 1960, at 104.147 CRnm N CAr O A 1953, at 47; 1954, at 60.348 PARiER, PoricE 114 (Wilson ed. 1957).'49 Id. at 118.150 Reported in ABA, SUMMARY OF PROCEEDINGS OF

S ON or CaImqAL LAW 54 (1956).151 Ibid.15 CRa i CALmomIA 1953, at 47; 1954, at 60;

1960, at 104.'W Ibid.

The overall felony conviction percentageaveraged 84.5 for the three years immediatelypreceding Cahan,'" registered 85.4 for the Cahanyear, 55 and has been at 86.4 (including the afore-mentioned lower narcotic percentage) for thelast three years.'55 Of course, the number of felonydefendants convicted in California SuperiorCourts has risen substantially; for example, from17,359 in the last pre-Cahan year'5 ' to the 1960total of 24,816.151

Dm =rm MALLORY CASE "CRPP. E" LAWENF R c .NT iN = Dsmrcr

oF CoLUMTIA?

Four years ago, in his testimony before aSenate subcommittee, Professor Inbau "suggested"that "we are paying a great price for the Malloryrule."'I5 Last year, in the pages of this Journal,he was less cautious: "In the federal jurisdictionof Washington, D. C., which must cope with avariety of criminal offenses and problems similarto any other city of comparable size, this federalcourt rule has had a very crippling effect on policeinvestigations."'160 Of course, Professor Inbau'svoice has been but one of many raised in alarm.And the voices have been shrill indeed.

Thus, in his 1957 testimony before a House sub-committee, Robert Murray, Chief of the District'sPolice Department, stated flatly that "if theMallory decision stands, it will result in completebreakdown in law enforcement in the District ofColumbia."' ' Chief Murray claimed, then, that"an overwhelming majority of these major crimecases, and maybe as much as 90 per cent, aresolved after the subject has been brought inand questioned."' 62

Deputy Chief of Police Edgar Scott picked upand amplified his superior's 90 per cent figure:

"The application of the Mallory rule wouldprevent the clearance of a majority of theplanned crimes and serious crimes and thosecommitted by professionals.

"I wish to emphasize that a little bit morebecause I think what the Chief meant on the 90

'" CRn N CAmoRwu 1955, at 44.155 Ibid.155 C s 3xn CALIomNIA 1958, at 62 (86.6%);

1959, at 67 (86.4%); 1960, at 104 (86.3%).'5' CR- nq CAuooos 1954, at 60.'in CR= 'N CAnaoRmA 1960, at 104.

9 1958 Senate Committee Hearings at 73.'50 Inbau, Police Interrogation-A Practical Neces-

sity, 52 J. Cmmo L., C. & P.S. 16, 20 (1961).181 1957 House Committee Hearings at 42.'52 Id. at 43.

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PUBLIC SAFETY V. INDIVIDUAL LIBERTIES

per cent was that 90 per cent of these types ofcrimes by professionals are planned crimes andcould -not be cleared.

"There's another type of crime [unplanned]that would bring the overall clearance to abetter figure, and I would say it would still be amajority of the crimes that could not be cleared,but of the ones committed which are plannedby professionals and that had planned themahead of time, I think the figure of 90 per centis all right."'6

"Mr. Cramer. As to that figure that ChiefScott indicated, that about 90 per cent of thecases require investigation, and fairly lengthyinvestigation, and a majority of the 90 percent would require investigation within thelengthy period of time ruled out in the Mallorycasei what you are saying is that of the plannedcrimes, planned by the professional criminal,90 per cent would probably go free as a resultof their knowledge of the Mallory case and theirunwillingness to cooperate.

"Mr. Scott. Under the application of theMallory case; yes, sir."''1

The 1957 Mallory decision did stand. Considerthe testimony some time later of Howard Covell,Deputy Chief Executive Officer of the DistrictPolice Department:

"First, those tables will show that, viewed inits relationship to the long-term trend in thiscity and nationwide, the present rate of crimein the District of Columbia is not excessive and,in fact, is favorably low.

"In brief, the calendar year 1958 crime rateof the District is only 6.7 per cent above theall-time low rate of the fiscal year 1957, is 31.5per cent below the peak rate of calendar year1952, and is 20.4 per cent below the rate ofcalendar year 1949, while the- nationwidecrime rate, as estimated by the Federal Bureauof Investigation, has increased steadily andby more than 50 per cent since 1949." 165

"Mr. Santangelo. As a matter of fact, itappears to me that the percentage of solutionsof the major crimes has increased down throughthe years?

'"Chief Covell. I would say yes.

"1 Id. at 45.'" Id. at 46.16 Hearings on District of Columbia Appropriatios

for 1960 at 419.

"Mr. Santangelo. For the last 3 years letus say, the homicides, rapes, and aggravatedassaults, your percentage of solutions has in-creased, has it not?

"Chief Covell. I would say yes, but that alsocomes from, and I say this with modesty, froman increased efficiency of the Police Departmentand better coordination of the law enforcementagencies throughout the entire metropolitanarea. I think that the cooperation of all de-partments in' this area reflects in each other'sdepartment to some extent.... During thefiscal year 1958 there was a total of 51 per centof all part 1 crimes [major offenses] solved ascompared with 49.5 during 1957. The rate ofclearance in 1958 is second to the highest;that was 55.6 attained by the Departmentsince the installation of the present system ofreporting, which was made in 1948."166Consider, too, the testimony of Chief Murray

the following year:"Mr. Santangelo.... Can you tell us what yourexperience in 1959 was with respect to thesolution of crimes of criminal homicide andthe other major crimes?"

"Chief Murray.... The average is 52.5, whichI think is perhaps about double or nearly doublethe national average. I think the nationalaverage on clearance of cases is about 27 percent. It runs consistently about 27 per cent."Mr. Santangelo. Last year, in 1958, the per-centage of solution of crimes was 51 per cent,and in the year 1959 it was 52.5 per cent. Soyour percentage of efficiency has increased tothat extent. Is that a correct statement?"Chief Murray. Yes, sir; plus the fact that wehave had a few more men to help us dear it ......

"Mr. Santangelo. Your percentage of solutionshas increased in the cases of robbery."Chief Murray. Yes, sir; we have, I think, avery good record in the clearance of robberies,65 per cent."Mr. Santangelo. That rose from 61.3."Chief Murray. Yes, sir."

*g * *g

"Mr. Santangelo. In aggravated assault, youalso have gone up from 84.3 to 88 per cent. Inhousebreaking, which is another difficult thing

266 Id. at 440-41.

YALE KAMISAR

to solve, you have gone up from 50.5 to 54per cent. Is that correct?"Chief Murray. Yes, sir."Mr. Santangelo. For which I commend you,Chief Murray."67

Remember the 90 per cent figure the District'spolice officials tossed out back in 1957? Listento United States District Attorney Oliver Gaschthree years later:

"Another point I should like to emphasizeconcerning this issue is that while Malloryquestions are well publicized they do not occurin every case. In fact, Mallory questions, thatis to say, confessions or admissions, are ofcontrolling importance in probably less than5% of our criminal prosecutions. At the presenttime, due largely to the conscientious coopera-tion of our Chief of Police and in accordancewith the teaching of the decisions and our lec-tures on it, the police are making better casesfrom the evidentiary standpoint. Extensiveinvestigation prior to arrest of suspects hasresulted. The accumulation of other evidentiarymaterial has become standard operating pro-cedure."

"On the affirmative side, it can be said thatpolice work generally is more thorough andexact. Reliance upon confessions generally hasbeen minimized. It must be mentioned, how-ever, that in some instances we have been un-able to go forward with cases wherein we feltthat we were largely dependent upon a confes-sion and the confession was inadmissible underthe Mallory Doctrine. Pleas to lesser includedoffenses have been accepted; and from thepolice standpoint, their ability to clear throughinterrogation other offenses of which the in-dividual was believed involved has been re-duced. The recovery of stolen property fromsuch individuals has been hampered by reasonof the need for arraignment without unnecessarydelay. In short, the emphasis has been on ac-cording persons arrested a preliminary hearingwith the utmost dispatch."

To me, one of the important aspects of ourlocal law enforcement pictures is this: Prior tothe Mallory decision our police had an out-standingly high rate with reference to solving

167 Hearings on District of Columbia Appropriationsfor 1961 at 619-20.

crimes. That rate is still outstandingly high.This is a great tribute to Chief Murray andhis men. They have worked hard and effec-tively. Lesser men would have thrown up theirhands in despair."u6

CONCLUSION

It is true that the immediate effect of theMcNabb-Mallory rule or the Weeks rule is oftento free the "obviously guilty," but the rationale isthese "hospital cases" have much more far reach-ing and much more salutary effects. This is neithera new nor a novel theory. The late Karl Llewellynexpressed it well a generation ago, talking about,of all things, the law of contracts:

"[M]y guess is... that the real major effect oflaw will be found not so much in the cases inwhich law officials actually intervene, nor yetin those in which such intervention is con-sciously contemplated as a possibility, butrather in contributing to, strengthening, stiffen-ing attitudes toward performance as what isto be expected and what 'is done'. If the con-tract dodger canwt be bothered, if all he needsis a rhinoceros hide to thumb his nose at hiscreditor with impunity, more and more menwill become contract dodgers... [In thisaspect each hospital case is a case with sig-nifica:nie for the hundreds of thousands ofnormal cases."'16 9

How well this theory works-in the form of theMcNabb-Mallory 'and Weeks rules-remains tobe seen. At the moment it appears to be doingquite nicely in the District of Columbia, thejurisdiction which has felt the brunt of whatInbau calls "turn 'em loose" court decisions.

The work of the District police "generally ismore thorough and exact," "reliance upon con-fessions generally has been minimized," "theaccumulation of other evidentiary material hasbecome standard operating procedure," "ex-tensive investigation prior to arrest of suspectshas resulted."'' 0 This, as the song goes, is thewhole idea.

If you are against the exclusionary rules it ishelpful to think they exact an exorbitant price inincreased crime and diminished law enforcement.This makes resolution of the issue easy. But inthe two jurisdictions which have held the spot-

,61 Gasch supra note 80, at 3, 4, 7." Llewellyn, What Price Contrac?-An Essay in

Perspectire, 40 YALE L. J. 704, 725 n.47 (1931).170 Gasch supra note 80, at 3-4.

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PUBLIC SAFETY V. INDIVIDUAL LIBERTIES

light in recent years, the District of Columbia andthe State of California, there is no tangible evidencethat the rules have done any thing of the kind.Of course, if you are for the exclusionary rules,it is comforting to believe that their cost in"letting alone" or "freeing" criminals is de minimis.This also makes resolution of the debate easy.

f do not know (and I doubt) that the cost is orwill be de minimis. I do think I know that op-ponents of the rule have not established thecontrary. They have made loud noises about the"disasterous" and "catastrophic" prices we arepaying to effectuate constitutional liberties, butthey have yet to furnish convincing evidence thatthe price is even substantial.

Even if by some miracle we could cleanlydisentangle the exclusionary rule from the manyother factors which "cause' crime or reduce theefficiency of police and prosecutors, I suspectProfessor Inbau and I would still disagree. Isuspect he would 'contend the data proves "wecan't afford" the rule and I would maintain-unless the data greatly surprises me-that "it'scheap at the price." For we would still differ overthe value of the commodity purchasedY' It

171 And; no doubt, as to the bbjective standards bywhich "police efficiency" can be judged. See Weisberg,

makes a: lot of difference whether one views thefourth amendment as a fundamental safeguardagainst serious abuses or whether one thinks of it asmerely a provision dealing with a formality.ln

I am for the exclusionary rule as the best meansavailable or presently feasible for enforcing guar-antees of liberty and privacy. Professor Inbautells us he believes in these rights, too.iu Howdoes he propose to effectuate them?

He suggests that in the McNabb case the Courtmight have "contented itself with an incidentalreprimand to federal officers for failing to complywith statutory requirements regarding arraigu-ment."'7 As for illegal search or seizure, he feelsthat "an effective way to teach a policeman alesson is by bringing a civil suit directly againsthim."175

I leave it to the reader to decide which of us is"starry eyed."

Police Interrogation of Arrested Persons: A SkepticalView, 52 J. Cpam L., C. & P.S. 21, 37 (1961).

"7 See Frankfurter, J., dissenting in United Statesv. Rabinowitz, 339 U.S. 56, 69 (1950).

i7 See Inbau 86.174 Inbau, The Confession Dilemma in the United

States Supreme Court, 43 ILL. L, Rav. 442, 451 (1948).175 ABA, SUMMARy or PRocEEDms OF SECTION

OF CRInMNAL LAW 60 (1956).