[House Report 104-17]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-17
_______________________________________________________________________
EXCLUSIONARY RULE REFORM ACT OF 1995
_______
February 2, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 666]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 666) to control crime by exclusionary rule reform,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
History of the Exclusionary Rule............................. 2
Justifications Advanced for the Use of the Rule.............. 4
Leon ``Good Faith'' Exception to the Rule.................... 4
The Reach of H.R. 666........................................ 6
Hearings......................................................... 7
Committee Consideration.......................................... 7
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 9
Committee on Government Reform and Oversight..................... 9
New Budget Authority and Tax Expenditures........................ 9
Congressional Budget Office Estimate............................. 9
Inflationary Impact Statement.................................... 10
Section-by-Section Analysis and Discussion....................... 10
Agency Views..................................................... 12
Changes in Existing Law Made by the Bill, as Reported............ 13
Dissenting Views................................................. 15
Purpose and Summary
H.R. 666, the ``Exclusionary Rule Reform Act of 1995'' is
comprised of title VI of H.R. 3, ``The Taking Back Our Streets
Act of 1995.'' H.R. 666 would enact an exception to what is
known as the ``exclusionary rule'' in criminal law
jurisprudence.
The fourth amendment to the United States Constitution
guarantees that the people have a right to be secure against
``unreasonable'' searches and seizures of their persons,
houses, papers, and effects. Under current law, when the court
finds that evidence or testimony was obtained in violation of
the fourth amendment, the court, in criminal cases, applies the
so-called ``exclusionary rule.'' Application of that rule
operates to prohibit the use of the challenged evidence or
testimony during the government's case-in-chief at trial.
The Supreme Court first applied this judicially created
rule to enforce the fourth amendment in Weeks v. United States,
232 U.S. 383 (1914). The Supreme Court later applied the rule
to criminal proceedings in state courts. Mapp v. Ohio, 367 U.S.
643 (1961).
In 1984, the Supreme Court held, in United States v. Leon,
468 U.S. 897 (1984), that evidence gathered pursuant to a
search warrant which was later held to be invalid could,
nevertheless, be used at trial if the prosecution demonstrated
that the law enforcement officers who gathered the evidence did
so with an ``objectively reasonable belief'' that the warrant
was valid at the time the evidence was gathered. The court's
holding in that case is often referred to as the ``good faith''
exception to the exclusionary rule. The Court stated that the
exclusionary rule was created to deter law enforcement
officials from violating the fourth amendment. Thus, the Court
held that excluding evidence gathered by government actors who
in good faith believed they were acting consistently with the
Constitution could serve no deterrent purpose.
H.R. 666 would both codify the holding in Leon and
legislatively expand the ``good faith'' exception of that case
to warrantless searches. Under H.R. 666, evidence gathered in
violation of the fourth amendment by law enforcement officials
with or without a warrant will be admitted at trial, as long as
their actions are later determined by a court to have been
``objectively reasonable'' at the time. The bill would also
make it clear that, except in limited circumstances, evidence
will only be suppressed in federal court if it was gathered in
a manner that violated the Constitution and where the good
faith exception does not apply. Evidence gathered in violation
of a statute, administrative rule or regulation, or rule of
procedure would be admissible, as long as it was gathered in a
manner consistent with the Constitution.
Background and Need for the Legislation
History of the Exclusionary Rule
The fourth amendment to the United States Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
This right is one of the most prized rights enumerated in the
Bill of rights. The scope of this amendment, and the manner of
ensuring compliance with it, have been among the most
controversial and vehemently contested rules of law affecting
our criminal justice system. Quite plainly, the fourth
amendment is the primary protection of personal privacy and
security against unreasonable government intrusion.
Unlike the fifth amendment, which contains explicit
exclusionary language, the fourth amendment is silent as to the
manner of ensuring that its terms are honored. As a result,
over time the courts have taken different actions in an effort
to ensure compliance with its provisions. Prior to 1914, courts
relied upon common law principles to enforce the amendment.
Violations of the amendment were treated as trespass against
the individual entitling a victim to petition the court for the
return of the improperly seized evidence and to sue the
violator for monetary damages. After 1914, however, the manner
of enforcing the amendment was through the application of the
``exclusionary rule.''
The Supreme Court first used this judicially-created rule
of evidence to enforce the fourth amendment in Weeks v. United
States, 232 U.S. 383 (1914). In Weeks, the Court held that
evidence owned by the defendant which was gathered in violation
of the amendment could not be introduced at the trial of the
defendant. Over time, the Court expanded the holding in Weeks
to eliminate the requirement that the defendant actually own
the evidence. In Mapp v. Ohio, 367 U.S. 643 (1961), all the
Court required before suppressing the seized evidence, was that
the defendant had a reasonable expectation of privacy in the
evidence illegally seized. Through that same case, the Court
applied the rule in state criminal proceedings, as well. Mapp
v. Ohio, 367 U.S. 643 (1961).
Throughout its history the exclusionary rule has proved
controversial, principally due to the fact that its application
always suppresses highly probative and reliable evidence of a
defendant's guilt. In short, application of the rule often
means that ``the criminal is to go free because the constable
has blundered.'' People v. Defore, 242 N.Y. 13, 21, cert.
denied 270 U.S. 657 (1926) (Cardozo, J.).
In light of the significant social cost that results from
excluding evidence of a defendant's guilt, the Supreme Court
has steadily narrowed the application of the rule since the
Mapp decision. For example, the Court has held that the fourth
amendment right is personal and thus evidence obtained
illegally against one defendant may be used against another
person. Alderman v. United States, 394 U.S. 165 (1969)
(allowing use of unconstitutionally obtained evidence against
co-conspirators). The illegally seized evidence may also be
used in grand jury proceedings. United States v. Calandra, 414
U.S. 338 (1974). In fact, it is now settled law that evidence
gathered in violation of the fourth amendment can only be
suppressed in criminal proceedings. United States v. Janis, 428
U.S. 433 (1976) (such evidence may be used in civil
proceedings); Immigration and Naturalization Service v. Lopez-
Mendoza, 468 U.S. 1032 (1984) (such evidence may be used in
deportation proceedings). Finally, the Court has also held that
evidence seized in violation of the fourth amendment may be
used in criminal trials to impeach the testimony of the
defendant. Walder v. United States, 347 U.S. 62 (1954) (use to
rebut direct testimony); United States v. Havens, 446 U.S. 620
(1980) (use on cross-examination).
Justifications Advanced for the Use of the Rule
Three justifications for the use of the rule have been
offered at differing points in the history of the rule. In
1928, Justice Brandeis, in a dissenting opinion, first asserted
that application of the rule was necessary to maintain judicial
integrity. Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting). He believed that if courts allowed
people to be convicted on the basis of improperly obtained
evidence those courts would, in effect, become accomplices to
the government's misconduct, thus ratifying the illegal act.
In Mapp, the Court's plurality held that the exclusionary
rule was an essential part of the right to privacy inherent in
the language of the fourth, fifth, and fourteenth amendments to
the Constitution. In that decision, the Court held that
application of the rule was required by the fourth amendment in
order to prevent any additional invasion of privacy resulting
from the use of unconstitutionally obtained evidence.
Shortly after that decision, however, the Court began to
back away from the notion that either of these rationales
support the application of the rule. In 1965, the Court noted
that ``the ruptured privacy of the victims' homes and effects
cannot be restored'' by the means of the exclusionary rule
because ``reparation comes too late.'' Linkletter v. Walker,
381 U.S. 618 (1965).
In United States v. Calandra, the Court provided a third
rationale for the rule. There, the Court stated that the rule
is a ``judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather
than a personal constitutional right of the party aggrieved.''
414 U.S. at 348. In Stone v. Powell, 428 U.S. 465 (1976) the
Court further eroded the judicial integrity rationale stating
that ``this concern has limited force as a justification for
the exclusion of highly probative evidence.'' 428 U.S. at 485.
Finally, in United States v. Leon, 468 U.S. 986 (1984), the
Court folded the judicial integrity rationale into the
deterrence rationale. The Court stated, ``Our cases establish
that the question whether the use of illegally obtained
evidence in judicial proceedings represents judicial
participation in a Fourth Amendment violation and offends the
integrity of the courts `is essentially the same as the inquiry
into whether the exclusion would serve a deterrent purpose.' ''
468 U.S. at 921, n.22 (quoting United States v. Janis, 428 U.S.
at 459, n.35).
THE LEON ``GOOD FAITH'' EXCEPTION TO THE RULE
In Leon, police gathered evidence pursuant to a search
warrant which had been issued by a neutral and detached
magistrate but which later was held to have been invalid. The
Court held that application of the exclusionary rule was not
appropriate in that case because the police officers had acted
in a reasonably objective belief that their conduct did not
violate the fourth amendment.
The Court noted that ``[t]he substantial social costs
exacted by the exclusionary rule for the vindication of Fourth
Amendment rights had long been a source of concern.'' 468 U.S.
at 907. It pointed out: ``[o]ur cases have consistently
recognized that unbending application of the exclusionary
sanction to enforce the ideals of governmental rectitude would
impede unacceptably the truth-finding functions of judge and
jury.' '' Id. (quoting United States v. Payner, 447 U.S. 727,
734 (1980). The Court pointed out that ``[t]he Fourth Amendment
contains no provision expressly precluding the use of evidence
obtained in violation of its commands, and an examination of
its origin and purposes makes clear that the use of fruits of a
past unlawful search or seizure `work[s] no new Fourth
Amendment wrongs.' '' 468 U.S. at 906 (quoting United States v.
Calandra, 414 U.S. at 354). It held that the appropriateness of
using the exclusionary rule was dependent on ``weighing the
costs and benefits'' of withholding reliable evidence from the
truth-seeking process. 468 U.S. at 907. In light of that
standard, the Court suggested that ``when law enforcement
officers have acted in objective good faith or their
transgressions have been minor, the magnitude of the benefit
conferred on such guilty defendants offends basic concepts of
the criminal justice system.'' 468 U.S. at 907-08 (quoting
Stone v. Powell, 428 U.S. at 490).
Later in its opinion, the Court noted that the rule
``cannot be expected, and should not be applied, to deter
objectively reasonable law enforcement activity.'' As the court
reasoned, ``where an officer's conduct is objectively
reasonable, excluding the evidence will not further the ends of
the exclusionary rule in any appreciable way; for it is
painfully apparent that * * * the officer is acting as a
reasonable officer would and should under the circumstances.
Excluding the evidence can in no way affect his future conduct
unless it is to make him less willing to do his duty.' '' 468
U.S. at 919-20 (quoting Stone v. Powell, 428 U.S. at 539-40
(White, J., dissenting)).
Following the Leon holding, the Court further limited the
use of the exclusionary rule by recognizing an additional Leon-
type exception. In Illinois v. Krull, 480 U.S. 340 (1987), the
Court held that the exclusionary rule should not be applied to
illegally obtained evidence law enforcement officers reasonably
rely on a statute authorizing them to conduct a search.
In Leon the Court characterized its holding as a ``good
faith'' exception to the exclusionary rule. 468 U.S. at 924. In
fact, however, the label is a misnomer. The subjective good
faith of the government actor is not determinative of the issue
as to whether his or her conduct was objectively reasonable
under the circumstances at the time the evidence was gathered.
While subjective intent may be an element that courts should
consider in determining reasonableness, the holding in Leon
turns on whether the government actors gathered the evidence at
issue in an objectively reasonable belief that their actions
did not violate the fourth amendment. H.R. 666 would
legislatively limit the use of the exclusionary rule in a
manner consistent with the Leon ``objective reasonableness''
philosophy.
The Reach of H.R. 666
H.R. 666 is intended to accomplish two broad purposes.
First, it codifies the Leon holding for cases where evidence is
wrongfully gathered pursuant to a facially valid warrant.
Second, it extends the holding in that case to situations where
government actors gather evidence without a warrant but under
circumstances justifying an objectively reasonable belief that
their actions were proper. Both purposes are based on the
underlying proposal that the exclusionary rule should not be
applied to cases where no deterrence is likely to result.
In noting the lack of any deterrent effect by applying the
exclusionary rule to objectively reasonable police conduct, the
Court stated that ``this is particularly true, we believe, when
an officer acting with objectively reasonable good faith has
obtained a search warrant from a judge or magistrate and is
acting within its scope.'' 468 U.S. at 920. While it may be
``particularly true'' in those situations, the Committee
believes that it is also true in other situations where police
or other government actors gather evidence in the objectively
reasonable belief that their conduct is proper. In fact, the
Supreme Court, itself, has recognized the legitimacy of
warrantless searches in limited situations such as those
involving automobiles, exigent circumstances, inventories,
objects in plain view, pat down searches of persons lawfully
detained, searches incident to an arrest, and where the
evidence would have been inevitably discovered had a warrant
been obtained.
Notwithstanding the Court's allowances in those and other
reasonable situations, the Committee is aware of cases where
government actors gathered evidence without a warrant but with
an objectively reasonable belief that their actions did not
violate the fourth amendment, where a court excluded that
evidence from trial because the evidence had not been gathered
pursuant to a warrant. The Committee believes that in these
situations there is no deterrent effect achieved by applying
the exclusionary rule when the law enforcement officers
believed their actions were consistent with the fourth
amendment. Thus, H.R. 666 will preclude application of the rule
in all situations where government actors gathered evidence in
a manner that violates the fourth amendment but yet did so in
the objectively reasonable belief that they were acting in
accord with that amendment, regardless of whether a search
warrant had been issued.
The Committee has also become aware of cases where the
exclusionary rule has been used to exclude evidence that was
gathered in violation of a statute, administrative rule, or
regulation, or rule of procedure, but where no constitutional
violation of any type occurred. The Committee believes that in
light of the extreme social cost resulting from the application
of the exclusionary rule, the rule should only apply to
evidence gathered in violation of the Constitution.
Consequently, H.R. 666 will prohibit the application of the
exclusionary rule to evidence gathered in violation of a
statute, administrative rule, regulations, or rule of
procedure. This bill does, however, contain an exception to
that prohibition when a statute or rule of procedure expressly
authorizes exclusion.
The bill provides that in the event a statute or rule of
procedure authorizes exclusion, the evidence is not to be
excluded if the government actors gathering the evidence did so
in the objectively reasonable belief that they were acting
properly. In essence, the bill creates an ``objective
reasonableness'' exception to this application of the
exclusionary rule as well.
Finally, the bill specifies that evidence gathered pursuant
to and within the scope of a warrant constitutes prima facie
evidence of the existence of objective reasonableness. As the
Supreme Court stated in Leon, `` `a warrant issued by a
magistrate normally suffices to establish' that the law
enforcement officer has `acted in good faith in conducting the
search.' '' 468 U.S. at 922 (quoting United States v. Ross, 456
U.S. 789, 823, n.32 (1982). H.R. 666 codifies this presumption
and places the burden squarely upon the defendant to overcome
the presumption by proving, by a preponderance of the evidence,
that the government actors who gathered the evidence pursuant
to the warrant were not acting in an objectively reasonable
belief that their actions were constitutional.
Hearings
The Committee's Subcommittee on Crime held two days of
hearings on H.R. 3 on January 19 and 20, 1995. The text of H.R.
666 is substantially identical to Title VI of H.R. 3. Testimony
specifically related to H.R. 666 was received from two
witnesses, Paul J. Larkin, Jr., Esq., former Assistant to the
Solicitor General of the United States, on behalf of himself;
and E. Michael McCann, Esq., Chairman of the Criminal Law
Section of the American Bar Association, on behalf of the ABA,
with no addition material submitted.
Committee Consideration
On January 27, 1995, the Committee met in open session and
ordered reported the bill H.R. 666, without amendment, by a
recorded vote of 19 to 14, a quorum being present.
Vote of the Committee
The committee then considered the following amendments,
none of which was adopted.
1. An amendment by Mr. Reed to limit the scope of H.R. 666
to searches and seizures conducted pursuant to and within the
scope of a warrant. The amendment was defeated by a 13-21
rollcall vote.
roll call no. 1
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Schumer Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Boucher Mr. Gekas
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Schiff
Mr. Scott Mr. Canady
Mr. Becerra Mr. Inglis
Mr. Serrano Mr. Goodlatte
Ms. Lofgren Mr. Buyer
Ms. Jackson-Lee Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Frank
Mr. Watt
2. An amendment by Mr. Watt. The Watt amendment would have
inserted the text of the fourth amendment to the United States
Constitution as substantially all of the text of the bill. The
Watt amendment was defeated by a 12-21 rollcall vote.
roll call no. 2
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Berman Mr. Sensenbrenner
Mr. Bryant (TX) Mr. McCollum
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Mr. Serrano Mr. Goodlatte
Ms. Lofgren Mr. Buyer
Ms. Jackson-Lee Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Frank
Mr. Schumer
Mr. Boucher
3. Final passage. Mr. Hyde moved to report H.R. 666
favorably to the whole House. The resolution was adopted by a
rollcall vote of 19-14.
roll call no. 3
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Moorhead Mrs. Schroeder
Mr. Sensenbrenner Mr. Schumer
Mr. McCollum Mr. Berman
Mr. Coble Mr. Boucher
Mr. Smith (TX) Mr. Bryant (TX)
Mr. Gallegly Mr. Reed
Mr. Canady Mr. Nadler
Mr. Inglis Mr. Scott
Mr. Goodlatte Mr. Watt
Mr. Buyer Mr. Becerra
Mr. Hoke Mr. Serrano
Mr. Bono Ms. Lofgren
Mr. Heineman Ms. Jackson-Lee
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Frank
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(C)(3) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 666, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 1, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 666, the Exclusionary Rule Reform Act of 1995, as
ordered reported by the House Committee on the Judiciary on
January 27, 1995. CBO estimates that enacting H.R. 666 would
not result in any significant cost to the federal government.
Because enactment of H.R. 666 would not affect direct spending
or receipts, pay-as-you-go procedures would not apply to the
bill.
This bill would prohibit federal courts from excluding
certain evidence obtained in warrantless searches if the law
enforcement officials who conducted the search had an
``objectively reasonable belief'' that the search was legal
under the Fourth Amendment. Because CBO expects that this bill
could enable the Justice Department to prosecute certain
criminal cases that would otherwise be excluded from initial or
full prosecution for lack of evidence, enacting H.R. 666 could
impose additional costs on federal prosecutors and the federal
court system. On the other hand, the bill could reduce the
number of appeals that are currently filed to dispute the
exclusion of certain evidence, and thus allow cases to move
forward in a more timely fashion. Based on information from the
Administrative Office of the United States Courts, CBO does not
expect any resulting change in caseload or court costs to be
significant. Any increase in costs would be subject to the
availability of appropriated funds.
H.R. 666 would not affect the proceedings of state courts,
and thus would have no budgetary impact on state or local
governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Robert D. Reischauer, Director.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R. 666
will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis
Sec. 101. Short title
This section states the short title of the bill as the
``Exclusionary Rule Reform Act of 1995.''
Sec. 102. Admissibility of certain evidence
This section amends Title 18 of the United States Code to
add new section 3510 governing the admissibility of certain
evidence obtained by search or seizure.
Specifically, subsection (a) of new section 3510 provides
that evidence obtained as the result of a search or seizure
that allegedly violated the fourth amendment to the United
States Constitution nevertheless will be admissible in any
proceeding in a court of the United States, so long as the
government actors gathering the evidence did so in
circumstances justifying an objectively reasonably belief that
their actions were in conformity with the requirements of the
fourth amendment. This subsection, in part, codifies the
holding of the United States Supreme Court in United States v.
Leon, 468 U.S. 897 (1984).
The new subsection also extends the holding of the Leon
case to situations where law enforcement officials conduct
searches or seizures without a warrant but with the objectively
reasonable belief that their actions did not violate the fourth
amendment. Thus, regardless of the existence of a warrant,
evidence obtained in a manner that otherwise might violate the
fourth amendment will be admissible in a proceeding in a court
of the United States if the search or seizure was carried out
in circumstances justifying an objectively reasonable belief
that the search or seizure was conducted in conformity with the
fourth amendment.
The court, not the jury, is to determine whether the search
or seizure was carried out in circumstances justifying an
objectively reasonable belief that it was in conformity with
the fourth amendment. The statute provides, however, that
evidence gathered pursuant to and within the scope of a warrant
constitutes prima facie evidence of the existence of those
circumstances. In those cases, the defendant will have the
burden of proving, by a preponderance of the evidence, that the
government actors gathering the evidence could not have been
acting in the objectively reasonable belief that their actions
were consistent with the fourth amendment.
The Committee emphasizes that the ``objectively
reasonable'' test is not a subjective inquiry into the state of
mind of the government actors who carried out the search or
seizure. Although the state of mind of those persons is one
factor that the court should consider in determining objective
reasonableness, the Court will inquire of the objective facts
of the search situation to determine the reasonableness of the
officers' actions. The better view of the test is that it is an
objective examination of the facts and circumstances that were
either apparent to the government actors at the time the
evidence was gathered or which could have been ascertained by
the exercise of reasonable diligence and whether, in light of
those facts and circumstances, those persons could reasonably
have believed their conduct was consistent with the fourth
amendment. While intentional violations of the Constitution
should never be deemed objectively reasonable, it is also not
the Committee's intention that government actors, in order to
meet the objective reasonableness standard, be required to go
to extreme lengths in uncovering unknown facts or circumstances
that might have a bearing on their decision to gather the
evidence in question. On the other hand, the courts should not
allow government actors to ignore or dismiss facts and
circumstances of which they are aware or can readily observe in
deciding how, when, and where to conduct searches and seizures.
As stated, new subsection (a) applies to all situations
where government officials gather evidence, whether pursuant to
a warrant or not. The Committee is quick to note, however, that
situations where a warrantless search should be deemed to be
reasonable will seldom, if ever, include those situations where
the Supreme Court has expressly held that a warrant is
required. Nothing in this bill is intended to overturn existing
Supreme Court decisions that interpret the fourth amendment.
Government officials are charged with understanding the
holdings in these cases and acting in conformity with them. The
Committee doubts that any failure to act in accordance with the
prior decisions of the Supreme Court on fourth amendment issues
could be deemed to be objectively reasonable.
Section 102 of the bill also adds new subsection (b)(1) of
section 3510 in order to make it clear that the exclusionary
rule is applicable only to evidence gathered in violation of
the fourth amendment, and then only if it was gathered in a
manner that was not objectively reasonable under the
circumstances. This portion of section 102 thus precludes use
of the exclusionary rule with respect to evidence gathered in
violation of a statute, administrative rule or regulation, or
rule of procedure unless a statute or rule of procedure
specifically authorizes exclusion of the evidence. The statute
or rule of procedure authorizing exclusion of the evidence need
not be the statute or rule violated; it may be a separate
statute or rule of procedure. Exclusion may not be authorized
by an administrative rule or regulation.
The bill also adds new subsection (b)(2) of section 3510
which provides that the fact that a statute or rule of
procedure authorizes application of the exclusionary rule does
not end the inquiry. Even if exclusion if authorized, the court
is nevertheless prohibited from excluding the evidence if the
government actors who gathered the evidence did so in
circumstances justifying the objectively reasonable belief that
their actions did not violate the statute, administrative rule
or regulation, or rule of procedure in question. In essence,
this section applies a ``good faith'' or ``objective
reasonableness'' exception to the use of the exclusionary rule
with respect to this type of evidence as well.
Finally, section 102 adds new subsection (c) to section
3510 in order to emphasize the fact that section 3510 is not to
be construed to require or authorize the exclusion of evidence
in any proceeding.
Agency Views
The committee received a letter from the U.S. Department of
Justice providing Administration views on H.R. 3, the ``Taking
Back Our Streets Act of 1995.'' This letter addressed the
issues presented in H.R. 666 in pertinent part as follows:
vi. exclusionary rule reform
Title VI creates an exception to the search-and-seizure
exclusionary rule by providing that evidence is not subject to
suppression on fourth amendment grounds if it was obtained in
circumstances justifying an objectively reasonable belief that
the search or seizure was in conformity with the fourth
amendment. The title also prohibits the creation of
exclusionary rules based on non-constitutional violations,
except by statute or by rules promulgated by the Supreme Court.
The House of Representatives has previously passed the same
or similar reforms on a number of occasions, most recently in
section 1720 of H.R. 3371 of the 102d Congress, and the Senate
passed a similar provision in S. 1764 of the 98th Congress. In
United States v. Leon, 468 U.S. 897 (1984), the Supreme Court
held that evidence is not subject to suppression of obtained in
objectively reasonable reliance on a warrant, and the
``objective reasonableness'' standard is applied in determining
the personal liability of officers in Bivens actions and
section 1983 suits, in both warrant and non-warrant cases.
The federal courts in the Fifth and Eleventh Circuits have
gone further, and have applied a ``reasonableness'' standard in
ruling on the suppression of evidence, in both warrant and non-
warrant cases, following the decision in United States v.
Williams, 622 F. 2d 830 (5th Cir. 1980). However, this is a
minority position, which has not been adopted by most courts or
state legislatures.
The caselaw in the Fifth and Eleventh Circuits does not
show a large number of reported decisions applying the broader
``reasonableness'' exception for non-warrant cases, which
suggests that proponents of this type of legislative reform
overestimate its value to law enforcement. In most cases in
which a court could find officers' conduct to be objectively
reasonable, the court would find in any event that there was no
fourth amendment violation.
The prevailing approach of recognizing a ``reasonableness''
exception for warrant cases only provides the strongest
incentive for officers to obtain warrants before carrying out
searches and seizures. We support an exclusionary rule
exception in such cases because it insures that guilty
criminals do not escape punishment--without undermining the
goal of encouraging police officers to obtain search warrants
before abridging personal freedoms. By contrast, a
``reasonableness'' exception for non-warrant cases would reduce
the relative advantage of the practice of seeking a warrant
whenever it is feasible to do so.
Hence, we believe that it would be unwarranted to attempt
to resolve this issue legislatively, in the direction of
narrowing the exclusionary rule's application. We believe that
ensuring the permanence of the Leon exception for warrant cases
through a statutory codification is a preferable alternative,
if Congress believes that legislation in this area is
desirable.
We do support the feature of this proposal that limits the
creation of exclusionary rules based on non-constitutional
violations. Because of the importance of the truth-finding
functions in litigation, and particularly in criminal
proceedings, it is reasonable to require Congress (or the
Supreme Court) to indicate affirmatively when it wishes courts
to apply an exclusionary rule sanction for statutory or rule
violations that do not infringe upon the constitutional rights
of the defendant.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
Sec.
3481. Competency of accused.
3482. Evidence and witnesses--Rule.
* * * * * * *
3510. Admissibility of evidence obtained by search or seizure.
* * * * * * *
Sec. 3510. Admissibility of evidence obtained by search or seizure
(a) Evidence Obtained by Objectively Reasonable Search or
Seizure.--Evidence which is obtained as a result of a search or
seizure shall not be excluded in a proceeding in a court of the
United States on the ground that the search or seizure was in
violation of the fourth amendment to the Constitution of the
United States, if the search or seizure was carried out in
circumstances justifying an objectively reasonable belief that
it was in conformity with the fourth amendment. The fact that
evidence was obtained pursuant to and within the scope of a
warrant constitutes prima facie evidence of the existence of
such circumstances.
(b) Evidence Not Excludable by Statute or Rule.--
(1) Generally.--Evidence shall not be excluded in a
proceeding in a court of the United States on the
ground that it was obtained in violation of a statute,
an administrative rule or regulation, or a rule of
procedure unless exclusion is expressly authorized by
statute or by a rule prescribed by the Supreme Court
pursuant to statutory authority.
(2) Special rule relating to objectively reasonable
searches and seizures.--Evidence which is otherwise
excludable under paragraph (1) shall not be excluded if
the search or seizure was carried out in circumstances
justifying an objectively reasonable belief that the
search or seizure was in conformity with the statute,
administrative rule or regulation, or rule of
procedure, the violation of which occasioned its being
excludable.
(c) Rule of Construction.--This section shall not be
construed to require or authorize the exclusion of evidence in
any proceeding.
* * * * * * *
DISSENTING VIEWS
We strongly dissent from the majority's opinion. In their
zeal to rush through their ``Contract with America'', the
Republican majority has embraced a number of provisions that
may benignly be called either wrongheaded or simplistic. But
finally, in its embrace of H.R. 666, the so-called
``Exclusionary Rule Reform Act of 1995'', they have now
succeeded in committing affirmative harm to the Constitution.
And in keeping this provision of the ``Contract with America'',
they have broken our Constitution's higher covenant with the
people maintained for over 200 years.
Simply stated, H.R. 666 ends the Fourth Amendment as we
know it by eviscerating the warrant requirement that the
American colonists demanded from the Framers following their
experience with British occupation. That starting point may
seem like a quaint vestige from a far-away past, but when that
vestige is retranslated into recently documented abuses of
enforcement officers--whether the FBI, the BATF, or local
police, occurring not just in our large urban centers but in
rural communities in Idaho and Texas--then the right of all
Americans to be protected from arbitrary and unfounded
invasions of their homes becomes much more than a historical
remembrance.
Plainly stated, what the framers of the Fourth Amendment
attempted to do was to place a check on the unfettered
authority of the state from having the authority without
probable cause to invade people's homes on a pretext of
searching for property or papers that had not been tied to the
likely commission of a crime. Without the requirement that a
search of private property have a nexus to both criminal
conduct and to an external authority (judge or magistrate), a
soldier, a federal agent, or a policeman, could take unto
himself the right to execute what was called in the colonies a
``general warrant'', which permitted a search of a home for
``whatever'' evidence that might be found.
Lost in the Judiciary Committee's adoption of this bill is
the basic axiom of the Fourth Amendment: that it serves to
protect citizens against unreasonable governmental searches and
seizures. The Fourth Amendment of the Constitution reads
simply:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures, shall not be violated and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
Since United States v. Weeks, 232 U.S. 384 (1914), the
mandates of the Fourth Amendment have been enforced through the
application of an exclusionary rule. That rule forbids the
introduction into evidence at a criminal trial of items found
as a result of an illegal search or seizure. Since 1961, the
exclusionary rule has applied not only in the Federal courts
but also in every state or local court in which defendants
stand accused of crime. During all those years, Congress has
never spoken on the wisdom of the exclusionary rule but instead
allowed the judiciary to develop its standards to judge the
rule--as well as its very visible exceptions--as procedural
safeguards for the Fourth Amendment. Such procedural safeguards
are indeed necessary because the constitutional protections are
never self-enforcing. In numerous cases, the Supreme Court, the
ultimate arbiter of our constitutional rights, has held
precisely that: that the exclusionary rule is required to
enforce the protections of the Fourth Amendment. To do
otherwise, as the Court observed in the seminal case of Mapp v.
Ohio would be ``to permit that right [ensured in the Fourth
Amendment] to remain an empty promise.''
Comes now the Contract with America with its own promise to
make the Fourth Amendment an empty promise. We do not find that
to be a reasonable tradeoff. Moreover, lost on the majority in
its passage of H.R. 666 is the fundamental issue of whether
Congress even has the power to lessen the requirements of the
exclusionary rule as mandated by the Constitution. While the
majority evidently does not wish to address the question
directly, it would be difficult for anyone but the purest
polemicist to contend that if, in fact, the exclusionary rule
is a constitutional requirement, then Congress has the power to
change it by simple legislation rather than by a constitutional
amendment. Even though the Contract with America offers up a
panoply of other constitutional amendments, for some reason in
lacerating the Fourth Amendment the Contract proposes a
statutory change and frames the issue around whether the
exclusionary rule serves or does not serve other interests.
What is inescapable is that the decision in Mapp v. Ohio
clearly applied the exclusionary rule to the States. Prior to
Mapp, it might have been argued that the Supreme Court in
requiring the exclusion of illegally seized evidence in Federal
courts was simply exercising its supervisory powers over the
inferior Article III tribunals. But that argument evaporated
with the Mapp decision; for the Supreme Court has no
supervisory power over state courts. The power to extend the
exclusionary rule to state courts could have only derived from
the due process clause of the Fourteenth Amendment, and as
such, the exclusionary rule must be viewed as a constitutional
requirement.
Let us be clear: the majority refuses to acknowledge that
the exclusionary rule has undergone continuing scrutiny and
refinement in the federal judiciary. If the problem being
identified by the proponents of this legislation is whether our
policemen are being hamstrung in discharging their duties, then
the majority should acknowledge that this concern has been well
attended to by the Supreme Court--the Burger and Rehnquist
Courts--as a viable factor in making the exclusionary rule
work. But where H.R. 666 strays beyond concern for effective
law enforcement to seeking the dangerous goal of eradicating
the warrant requirement entirely is by permitting law
enforcement officers to exercise his or her own judgment about
``probable cause'' being found for a search without first
consulting an external source of authority to validate or
invalidate that impulse.\1\
\1\ It should be noted that the need for a warrant is already
dispensed with in other law enforcement exigencies where because of
direct observation, law enforcement officials believe the commission of
criminal conduct is likely and imminent. The so-called plain-view
doctrine is accepted law and a valuable tool to law enforcement
officials everywhere.
---------------------------------------------------------------------------
Beginning with United States v. Leon, 468 U.S. 897 (1984),
the Supreme Court formally adopted a ``good faith'' exception
to the Fourth Amendment exclusionary rule. In Leon, the Court
ruled that evidence seized in reasonable ``good faith''
reliance on a search warrant subsequently found to be defective
would be admissible provided that the officer's reliance is
objectively reasonable. The key phrase here is, of course, the
officer's ``reliance'' on the judgment of an external authority
(a member of another branch of government)--namely, the
``judiciary'', which has always been presumed to be a ``neutral
and detached'' party. Id at 914. Leon thus gave police officers
needed latitude to discharge their duties in a good faith
manner--without severing all ties to a ``reality check'' in the
form of a judge or magistrate.
The same type of ``good faith'' reliance by an officer on
external authority for permission to search or seize was
further developed in the subsequent cases of Illinois v. Krull,
480 U.S. 340 (1987); and Illinois v. Rodriguez, 497 U.S. 177
(1990). That the good faith exception is alive and well can be
observed in the wide parameters most recently established in
Krull. There, the question the Supreme Court faced was whether
the good faith exception could even extend to a situation where
an officer's reliance on the constitutionality of a statute
appears objectively reasonable but that the statute is
subsequently declared unconstitutional. The Supreme Court ruled
that such evidence was permissible.
In Krull, Justice O'Connor, among others, began to warn
that the court may have begun to reach the outer limits of the
good-faith exception. Perceptively, she warned that
legislators--not wanting to be perceived ``as soft on crime''--
might well pass a statute that went well beyond permissible
police search and seizure powers. In that case, the statute
would be the sole guidepost for permissible police conduct
until a case could challenge such an unconstitutional grant of
authority.
But even as recently as seven years ago, Justice O'Connor
underestimated the fierce forces driving certain legislators
not to be perceived as ``soft on crime.'' For in H.R. 666,
Krull is left far behind. In H.R. 666, there is found no
requirement of reliance by an enforcement official on some
warrant issued by a judge, or even by some impermissibly broad
statute passed by a legislature. There is only the officer's
own determination that ``probable cause'' exists to invade a
person's home or property.
The proponents of H.R. 666 have never revealed why the
Supreme Court jurisprudence on the good-faith exception is
unacceptable. They merely claim that police are being
hamstrung; that criminals are being released in droves because
of ``technical'' violations of evidentiary rules. No empirical
evidence is cited in support of such inflammatory and graphic
rhetoric. But in the single hearing held debating the warrant
requirement from the Constitution, contrary evidence was
offered by criminal justice officials--and not by prison
inmates convicted of repeat, violent offenses, as the
proponents would have one believe. For example, a General
Accounting Office report of 38 U.S. Attorney's offices which
found that defendants raise the exclusionary rule in only 1.3%
of the cases and, even here, more than 50% of the defendants
were convicted anyway.\2\
\2\ General Accounting Office, ``Impact of the Exclusionary Rule on
Federal Criminal prosecutions,'' Report No. CDG-79-45 (Apr. 19, 1979).
See also, Thomas Y. Davies, ``A Hard Look at What We Know (and still
need to learn) About the `Costs' of the Exclusionary Rule,'' American
Bar Association (1983) (non-prosecution or non-conviction resulting
from illegal searches is in the range of 0.6% to 2.35% of all adult
felony arrests.)
---------------------------------------------------------------------------
E. Michael McCann, the District Attorney for Milwaukee
County, who said he has prosecuted and ``put tens of thousands
of persons behind bars'' testified at a hearing of the
Subcommittee on Crime that:
* * * if I felt the exclusionary rule was impairing
[or] impacting negatively on my prosecutions, I would
not be here supporting the exclusionary rule. * * * If
I felt I had been handcuffed, which is an expression
you will occasionally hear, or deterred from
enforcement, I would be candid about it.\3\
\3\ Testimony of E. Michael McCann, before the Subcommittee on
Crime, January 20, 1995, at page 12-13.
District Attorney McCann then described how he believed
police officers would interpret the change in the exclusionary
---------------------------------------------------------------------------
rule:
If I was educating police officers, if this rule is
adopted, I would say to them * * *, here is the
constitutional law. You shouldn't go beyond this but I
will tell you what the courts are doing. They are
permitting evidence that goes beyond the Constitution.
They are permitting evidence if you are acting on
objectively reasonable belief.
And an officer, then, saying, should I go into that
house, do I have the grounds, would think, what does
the Constitution say and then what goes beyond the
Constitution? * * *
And he [the police officer] says, I know this is
unconstitutional. I [also] know from prior experience
in the narcotics courts, the judges have said this
constitutes reasonable belief. I am going to act on it
even though I know it is unconstitutional.\4\
\4\ McCann at page 27.
Thus, the exclusionary rule protects the very integrity of
the criminal justice system by requiring law enforcement to
articulate to the judiciary the factors indicating the
existence of probable cause. By so doing, the rule encourages
careful police work that will help build the prosecution case
at trial.
The Republican majority must be given great credit for one
thing: succeeding, temporarily, in eclipsing the debate in the
judiciary over whether the Leon-Krull-Rodriguez line of cases
has taken the ``good faith'' exception beyond the outer bounds
of permissible constitutional requirements. By leaping to
another constitutional solar system entirely where there is no
judiciary but only FBI and BATF agents breaking into homes of
private citizens, the legislation has attempted to denigrate
the real and continuing legal debate over the exclusionary rule
to an arcane dialogue among constitutional scholars, federal
judges, law professors and the defense bar while Congress takes
decisive action. But that debate is precisely what is needed to
shape well-reasoned and sound constitutional requirements, as
adopted to life in the 21st Century, and not just in the 18th
Century.
There is another area obscured by the arguments presented
by the majority: that the exclusionary rule was not put in
place as a procedural safeguard to select which class of guilty
defendants should go free; rather, it was instituted to protect
the innocent who were subjected to illegal search and
seizures.\5\
\5\ Congressman Scott pursued this important line of inquiry when
he asked District Attorney McCann (transcript at pp. 31-32) if there
was any remedy other than the exclusionary rule for people whose Fourth
Amendment rights may have been violated:
``Mr. Scott. Could you say a little bit more about how this rule
affects innocent people? Is there any other way of keeping officers out
of illegal searches of innocent people other than the exclusionary
rule? Mr. Larkin has suggested suing the officer. Have you seen any
success in that area?
``Mr. McCann. No, there is not. And, by the way, you asked--
civilly, no. They are not going to get much in damages if they bothered
to sue.
``Mr. Scott. If I drive a Florida rental car up [Interstate] 95 and
get stopped because I am black, there is just no remedy.
``Mr. McCann. No remedy, sir. Realistically, none.
``Mr. Scott. And the exclusionary rule is the only thing that
prevents the police officers from doing that because if they found
cocaine in my car, they couldn't use it anyway?
``Mr. McCann. That is basically the rule.
``Mr. Scott. That is what keeps them out of my car as an innocent
person going up 95 driving a Florida rental car.
``Mr. McCann. That is right, sir. I do want to say, about ten years
ago * * * I did an exhaustive search to see if there was anywhere I
could find an officer criminally prosecuted for maliciously,
deliberately, unconstitutionally searching a citizen. I could find no
criminal prosecution in the United States for that. Not one in the
United States.''
---------------------------------------------------------------------------
The Constitution is inherently a ``conservative'' document
by safeguard unto individuals rights and liberties that cannot
be taken away by the State without due process of law. In that
light, H.R. 666 is not a ``conservative'' effort to refine the
exclusionary rule within constitutional bounds. It is a
cartoon-like enterprise, aimed at eliciting instant visceral
responses, and all the while promoting a disturbing subtextual
current of race and big-city crime underneath its surface.
Submerged in this effort for now is how average Americans
all across this country would be affected if H.R. 666 were to
become law even for a short period before being struck down as
unconstitutional. There is a strong reason why the Constitution
sets up high barriers to the government breaking into private
citizens' homes, or capriciously seeking to exercise its
``taking power'' of private property without adequate
compensation. It should be remembered: the life of the
``Contract with America'' expired in a hundred days. It is now
up to the full House, the Senate, the President and the federal
judiciary to ensure that this 100 days is not permitted to do
lasting damage to the Fourth Amendment of the Constitution,
which has lasted a good bit longer than 100 days.
For all these reasons, I [we] strongly dissent.
John Conyers, Jr.
Howard L. Berman.
Pat Schroeder.
Jack Reed.
Jerrold Nadler.
Sheila Jackson-Lee.
Bobby Scott.
Jose E. Serrano.
Melvin L. Watt.
Zoe Lofgren.