Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting from denial of stay.
In the ordinary case, anything more than the most summary
statement of the reasons of an individual Justice for dissenting
from the disposition of an application for a stay by the full Court
would be both a useless and wasteful consumption of the dissenter's
time. I believe, though, that this is not the ordinary case, but
the culmination of a sport of fox and hound which was begun by this
Court's decision in Weeks v. United
Page 443 U.S.
States, 232 U.S.
(1914), 65 years ago. So many factors material to that
decision, and to Mapp v. Ohio, 367 U.S. 643
which applied it to the States, have occurred after the rendition
of these decisions that I think a re- evaluation of the so-called
"exclusionary rule" enunciated by Weeks is overdue. Because of
double jeopardy considerations, I am not prepared to state flatly
that this case would not be moot as a result of a verdict of
acquittal by the time this Court comes to pass on the State's
petition for certiorari, and I am therefore filing this opinion as
a dissent from the denial of a stay of the judgment of the Supreme
Court of California suppressing evidence, the granting of which
could prevent any possibility of mootness. See Fare v. Michael C.,
439 U.S. 1310
19 (1978) (REHNQUIST, J., in chambers).
The anomalous consequences of the exclusionary rule are readily
apparent from an examination of the police conduct in this case.
The officers who conducted the search were responding to a report
of a robbery that had recently been committed. The robbery took
place around 8:30 p. m. on December 19, 1975, at a Safeway Store in
Fremont, Cal. It was committed in the presence of several witnesses
by two individuals armed with handguns. One of the witnesses
followed the two men, observed them get into a car, and trailed the
car for several miles until he was able to identify it as a 1968 or
1969 Ford Fairlane and to write down the license number. The
witness then went directly to the police station and reported what
he had seen. At approximately 9 p. m., the police department
broadcast a description of the getaway vehicle and its license
number. Shortly thereafter, a Fremont police officer spotted a
vehicle matching the description, called for backup units, and
stopped the vehicle. The driver, respondent, was ordered out of the
car, searched, and advised he was under arrest for robbery. He was
the only person in the vehicle and fitted the description of one of
the suspects. The officers also searched the passenger compartment
of the car,
Page 443 U.S.
but neither that search nor the search of respondent revealed
any evidence of the crime or the whereabouts of the second robber.
After an unavailing attempt to locate the key to the car's trunk,
the officers had the car towed to the city corporation yard. Upon
its arrival, the officers picked the lock to the trunk and
discovered it contained a red tote bag. They opened the tote bag,
which contained clothing similar to that described by witnesses to
the robbery, three guns, and a roll of pennies in a wrapper from
the bank used by Safeway.
When the officer who initially stopped the vehicle was asked why
he did not obtain a warrant while "making the decision to search
the car and the trunk," he stated: "Basically, I think, time. In
other words, by searching without the search warrant, we would save
a matter of hours." He was then asked why time was a factor at this
stage, and responded: " Well, we were still looking for a second
suspect." The trial court denied respondent's motion to suppress
the evidence discovered in the tote bag. Respondent was convicted
of two counts of first-degree robbery and was found to have been
armed at the time of his arrest. The Supreme Court of California,
however, reversed the conviction. It concluded that although a
warrantless search of an automobile, if based on probable cause to
believe that the auto contains contraband or evidence of a crime,
is permissible when it takes place after the auto has been towed to
a police station, Chambers v. Maroney, 399 U.S.
, 52 (1970), a search of a container in the automobile is
invalid unless the officers first obtain a warrant.
The foregoing discussion reveals that respondent was apprehended
as a result of conscientious police work, and that the subsequent
search of the trunk of his auto occurred in the course of an
ongoing investigation, while the second suspect was still on the
loose. The case is thus not one in which the officers lacked
probable cause to arrest respondent and to search the trunk of his
auto and the tote bag; it appears rather that " the criminal is to
go free" solely because of a good-faith
Page 443 U.S.
error in judgment on the part of the arresting officers, who
were not sufficiently prescient to realize that while it was
constitutionally permissible for them to search the trunk of an
automobile at the city corporation yard under the exigency
exception to the warrant requirement, courts would later draw a
distinction between searching the trunk and searching a tote bag in
the trunk. This distinction would obtain even though it was equally
likely that the tote bag contained the evidence they were looking
for, and they had no reason, prior to opening the trunk, to
anticipate that such evidence might be hidden from their view
because it was in the tote bag.
I do not claim to be an expert in comparative law, but I feel
morally certain that the United States is the only nation in the
world in which the most relevant, most competent evidence as to the
guilt or innocence of the accused is mechanically excluded because
of the manner in which it may have been obtained. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S.
, 415 (1971) (BURGER, C. J., dissenting ); see also Stone v.
Powell, 428 U.S.
, 499 (1976) (BURGER, C. J., concurring). This unique
jurisprudential rule, as discussed in Stone v. Powell, imposes
tremendous costs on the judicial process at criminal trials and on
"The costs of applying the exclusionary rule even at trial and
on direct review are well known: the focus of the trial, and the
attention of the participants therein, are diverted from the
ultimate question of guilt or innocence that should be the central
concern in a criminal proceeding. Moreover, the physical evidence
sought to be excluded is typically reliable and often the most
probative information bearing on the guilt or innocence of the
defendant. As Mr. Justice Black emphasized in his dissent in
Kaufman [v. United States, 394 U.S. 217
" 'A claim of illegal search and seizure under the Fourth
Amendment is crucially different from many other constitutional
rights; ordinarily the evidence
Page 443 U.S.
seized can in no way have been rendered untrustworthy by the
means of its seizure and indeed often this evidence alone
establishes beyond virtually any shadow of a doubt that the
defendant is guilty.' 394 U.S., at 237.
"Application of the rule thus
deflects the truthfinding process and often frees the guilty. The
disparity in particular cases between the error committed by the
police officer and the windfall afforded a guilty defendant by
application of the rule is contrary to the idea of proportionality
that is essential to the concept of justice. Thus, although the
rule is thought to deter unlawful police activity in part through
the nurturing of respect for Fourth Amendment values, if applied
indiscriminately it may well have the opposite effect of generating
disrespect for the law and administration of justice." Id. , at
489-491 (footnotes omitted).
If I am correct in this belief, the Court has made a wrong turn
at some point between its decision in Weeks, 65 years ago, and the
present case. See Burger, Who Will Watch the Watchman?, 14
Am.Univ.L.Rev. 1 (1964).
In Weeks, the Court held, almost casually, that evidence seized
in violation of the Fourth Amendment was inadmissible against the
accused at a federal criminal trial. Weeks was decided in 1914 when
the federal Criminal Code was still a rather slim volume. The
villains of the 1914 federal Code, and thus the beneficiaries of
the Weeks rule, were smugglers, federal income tax evaders,
counterfeiters, and the like. The defendant in Weeks itself was
charged with the unlawful use of the mails to transport lottery
tickets. It is quite conceivable that society can tolerate an
occasional counterfeiter or smuggler going unwhipped of justice
because of what seems to the great majority of the citizens of the
country to be a technical violation of the rights secured to him by
the Fourth Amendment to the United States Constitution. The
Page 443 U.S.
could be expected to be quite different today, when Weeks serves
to free the perpetrators of crimes affecting life and property,
crimes which have traditionally been the principal responsibility
of the States to enforce and administer.
In Byars v. United States, 273 U.S. 28
( 1927), the
Court held that "probable cause" could only be measured by
objective facts known to the police officer prior to the search.
The search in Byars was conducted pursuant to a warrant supported
by the affiant's statement that he had "good reason" to believe
that the defendant had intoxicating liquors and related articles in
his possession. The search proved the affiant correct, producing
whiskey-bottle stamps. The Court held that the search was conducted
in violation of the Fourth Amendment, because under Fourth
Amendment standards, it was not "material that the search was
successful in revealing evidence of a violation of a federal
statute." Id., at 29. This result, while taken for granted today,
was not inevitable. The Court certainly could have held that
discovery of the articles sought is compelling evidence that the
search was justified, or that any violation of the Fourth Amendment
in such a case was harmless error.
In Wolf v. Colorado, 338 U.S. 25
Court held that the Fourth Amendment was applicable to the States
by incorporation through the Fourteenth Amendment. This was, and
remains, a thoroughly defensible proposition. Equally defensible,
was the proposition established by Mr. Justice Frankfurter's
majority opinion that the exclusionary rule of Weeks was not a
necessary concomitant of the Fourth Amendment. In a 6-3 decision,
the Court held that although the Fourth Amendment applied against
the States, the States were free to choose any number of means of
enforcing the Fourth Amendment and were not required to adopt the
exclusionary rule. Mr. Justice Frankfurter relied on Judge
Cardozo's opinion in People v. Defore, 242 N.Y. 13, 150 N.E. 585 (
1926), concluding that the exclusionary rule would not be applied
Page 443 U.S.
York. Cardozo's reasoning was cogently summarized in his
conclusion that there was no reason why "[t]he criminal is to go
free because the constable has blundered." Id., at 21, 150 N.E., at
Mr. Justice Murphy wrote a dissenting opinion in which Mr.
Justice Rutledge joined. (Mr. Justice Douglas dissented
separately.) Mr. Justice Murphy's dissent was premised on the
belief that the exclusionary rule was the only effective sanction
for violations of the Fourth Amendment. He therefore concluded that
application of the Fourth Amendment to the States without
application of the exclusionary rule was a nullity.
Twelve years later, by a vote of 6-3 in the case of Mapp v.
Ohio, 367 U.S.
(1961), this Court overruled Wolf v. Colorado (Mr. Justice
STEWART concurred in the judgment on independent grounds without
reaching the Fourth Amendment issues). The Court held that the
Fourteenth Amendment did incorporate the exclusionary rule and
therefore adherence to that rule by the States was mandatory. The
Court essentially adopted the reasoning of Mr. Justice Murphy's
Wolf dissent, concluding that the exclusionary rule represented the
only feasible means of enforcing the Fourth Amendment. The Mapp
majority opinion, written by Mr. Justice Clark, adopted the view,
espoused by Mr. Justice Murphy, that a person injured by a Fourth
Amendment infraction had no effective redress available. Police
officers were generally impecunious, preventing the recovery of
money damages, and county prosecutors who secured the conviction
through use of the illegally seized evidence would be unlikely to
prosecute the police officers responsible for producing the
Mapp was decided only 18 years ago. Application of the
exclusionary rule to the States is not supported by a long
tradition of history in its favor. It should therefore be judged
freely by its reason. Moreover, one of the central themes in the
procession of cases from Weeks to the present day has been a
continuing re-evaluation of past assumptions. Thus,
Page 443 U.S.
Mapp reassessed the factual and conceptual underpinnings of Wolf
in light of intervening cases and empirical data. See 367 U.S., at
651-653, 81 S. Ct. 1684. Events that have intervened in the 18
years since Mapp and the 65 years since Weeks lead me to believe
that another such reassessment is in order. The justifications for
a rule once found compelling may no longer withstand scrutiny.
Weeks, the seminal case on the necessity for the exclusionary
rule, seemed grounded upon an interpretation of the Fourth
Amendment itself. In holding that illegally seized evidence must be
excluded in federal prosecutions, this Court reasoned that if
illegally seized evidence were admissible, "the protection of the
Fourth Amendment declaring [a] right to be secure against such
searches and seizures is of no value, and . . . might as well be
stricken from the Constitution. The efforts of the courts and their
officials to bring the guilty to punishment, praiseworthy as they
are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted
in their embodiment in the fundamental law of the land. . . . To
sanction such proceedings would be to affirm by judicial decision a
manifest neglect if not an open defiance of the prohibitions of the
Constitution, intended for the protection of the people against
such unauthorized action." 232 U.S., at 393-394. Despite Weeks'
linkage of the exclusionary rule with the fundamental guarantees of
the Fourth Amendment, this Court held in Wolf that the protections
of the rule were not fundamental enough to merit incorporation
through the Fourteenth Amendment. In Mapp, which overruled that
portion of Wolf, a plurality of this Court implied that the
exclusionary rule was a necessary corollary of the Fourth
Amendment. See 367 U.S., at 655-657. Mr. Justice Black, in a
concurrence, indicated that the Fourth Amendment had to be read in
conjunction with the Fifth in order to justify the exclusionary
rule. See id., at 661; See also Stone v. Powell, 428 U.S., at 484
More recently, however, we have rejected the argument that
Page 443 U.S.
the Fourth Amendment mandates exclusion of evidence as a
necessary corollary to its guarantees against unreasonable
searches. In Stone v. Powell, for example, we "reaffirm[ed] that
the exclusionary rule is a judicially created remedy rather than a
personal constitutional right . . . ." Id., at 495 n. 37. This
distinction manifests itself in those cases where we have permitted
admission of illegally seized evidence because its exclusion would
serve no deterrent purpose. See, e. g., United States v. Calandra,
414 U.S. 338
(1974) (exclusionary rule not applicable to grand jury proceedings
). Clearly, proponents of the exclusionary rule must look beyond
the corners of the Fourth Amendment for support.
A direct descendant of the constitutional rationale for the
exclusionary rule is the argument that the rule somehow maintains
the integrity of the judiciary. This argument received a full
exposition in Elkins v. United States, 364 U.S. 206
There, this Court relied upon its "supervisory power over the
administration of criminal justice in the federal courts," and
rejected the "silver platter" doctrine under which federal
authorities prosecuted defendants with evidence seized illegally by
state authorities. This practice, according to Elkins, made federal
courts "accomplices in the willful disobedience of a Constitution
they are sworn to uphold." Id., at 223. In Mapp, this Court also
relied upon the "judicial integrity" argument, even though we have
no supervisory powers over the conduct of state courts.
There are several answers to the assertion that courts should
exclude illegally seized evidence in order to preserve their
integrity. First, while it is quite true that courts are not to be
participants in "dirty business," neither are they to be ethereal
vestal virgins of another world, so determined to be like Caesar's
wife, Calpurnia, that they cease to be effective forums in which
both those charged with committing criminal acts and the society
which makes the charge may have a fair trial in which relevant
competent evidence is received in order to determine whether or not
the charge is true. As Mr. Jus
Page 443 U.S.
tice Stone noted in McGuire v. United States, 273 U.S.
, 99 (1927), "[a] criminal prosecution is more than a game in
which the Government may be checkmated and the game lost merely
because its officers have not played according to rule."
Moreover, the judicial-integrity justification has on more than
one occasion failed to persuade this Court. In United States v.
Peltier, 422 U.S.
(1975), the Court observed that it had consistently refused
to apply newly announced doctrines of search-and- seizure law
retroactively. In such cases, the Court has recognized that the
introduction of evidence which had been seized by law enforcement
officials in good-faith compliance with then-prevailing
constitutional norms did not make the courts "accomplices in the
willful disobedience of a Constitution they are sworn to uphold."
Similarly, in Stone v. Powell, we asserted that "[w]hile courts, of
course, must ever be concerned with preserving the integrity of the
judicial process, this concern has limited force as a justification
for the exclusion of highly probative evidence." 428 U.S., at 485.
Although someone undoubtedly should be disciplined when a
deliberate violation of the Fourth Amendment occurs, that
proposition does not require the conclusion that the whole criminal
prosecution must be aborted to preserve judicial integrity.
Of course, the "primary" justification for the exclusionary rule
is the need for deterrence of illegal police conduct. See Stone v.
Powell, 428 U.S., at 486. But since Mapp, various changes in
circumstances make redress more easily obtainable by a defendant
whose constitutional rights have been violated.
Four months prior to the decision in Mapp, this Court
resurrected a long-dormant statute, 1 of the Ku Klux Act, 42 U.S.C.
1983, which gave a private cause of action for redress of
constitutional violations by state officials. Monroe v. Pape,
365 U.S. 167
(1961). The subsequent developments in this area have, to say the
least, expanded the reach of that statute. Monell v. New York City
Dept. of Social Services, 436 U.S. 658
not only the individual police offi-
Page 443 U.S.
cer who may have committed the wrong, and who may have been
impecunious, but also the municipal corporation which employed him,
equally liable under many circumstances. Bivens v. Six Unknown Fed.
Narcotics Agents, 403
(1971), made individual agents of the Federal Bureau
of Narcotics suable for damages resulting from violations of Fourth
Amendment guarantees. In addition, many States have set up courts
of claims or other procedures so that an individual can as a matter
of state law obtain redress for a wrongful violation of a
constitutional right through the state mechanism.
In his dissent in Wolf v. Colorado, Mr. Justice Murphy
disparaged civil actions as a remedy for illegal searches and
seizures. Some of his objections have been vitiated by Monroe's
provision of a federal forum for the dispute or by Monell's
provision of a deep state pocket. As for other concerns voiced by
Mr. Justice Murphy, I believe that modern juries can be trusted to
return fair awards in favor of injured plaintiffs who allege
constitutional deprivations. If, as this Court announced in Rogers
v. Missouri Pacific R. Co., 352 U.S. 500
juries are capable of awarding damages as between injured railroad
employees and railroads, they surely are capable of awarding
damages as between one whose constitutional rights have been
violated and either the agent who or the government agency that
violated those rights. Thus, most of the arguments advanced as to
why the exclusionary rule was theonly practicable means for
enforcing the Fourth Amendment, whether or not they were true in
1949 or 1961, are no longer correct.
The most comprehensive study on the exclusionary rule is
probably that done by Dallin Oaks for the American Bar Foundation
in 1970. See Oaks, Studying the Exclusionary Rule in Search and
Seizure, 37 U.Chi.L.Rev. 665 (1970). According to this article, it
is an open question whether the exclusionary rule deters the police
from violating Fourth Amendment protections of individuals. Whether
or not this
Page 443 U.S.
be the case, the exclusionary rule certainly deters the police
and prosecuting authorities from convicting many guilty
There is no question that the police are badly in need of rules
that may be relatively easily understood in carrying out their work
of apprehending and assisting in convicting those guilty of conduct
made criminal by the legislature. There is equally no doubt that
those who have been damaged by official action infringing on rights
guaranteed them by the Constitution should have an avenue for
redress of that damage. But it does not at all follow from either
of these statements that the forum for redress of the individual's
rights and the forum in which the police officer learns of the
limitations on his authority should be one and the same. It would
be quite rational, I think, for the criminal trial to take place
either without any application of the exclusionary rule in either
federal or state cases, or at least without any application in
state cases . A difference in approach between state and federal
prosecutions could be justified on the basis of the different roles
that state and federal law enforcement officials play in our
society, even today. See, e. g., Cady v. Dombrowski, 413 U.S. 433
, 440-441 (
1973). Not only has the list of federal criminal statutes greatly
expanded since 1914, but also crimes against person and
property-the traditional common-law crimes-have largely remained
the preserve of the State. Thus, Mapp v. Ohio brought to bear in
favor of accused murderers and armed robbers a rule which had
previously largely had an application to bootleggers and purveyors
of stolen lottery tickets through the mail. This difference is not
without force in any reasoned perception by the members of the
society of how well the system of administration of criminal
justice as a whole is working.
The reasons for applying the exclusionary rule in the criminal
trial, as opposed to giving the individual criminal defendant
redress in some other forum quite apart from the question whether
he is guilty or not of the criminal charges,
Page 443 U.S.
are substantially weaker today than they were either in 1949,
when Wolf v. Colorado was decided, or in 1961, when Mapp v. Ohio
was decided. Given these changes, I would grant the stay and
request the parties and the Solicitor General to brief the question
of whether, and to what extent, the so-called "exclusionary rule"
of Weeks v. United States, should be retained.