[1] . The Fourth Amendment obligates law enforcement officers to abstain from engaging in unreasonable searches and seizures. See U.S. Const. amend. IV.
[2] . The Fifth Amendment self-incrimination clause prohibits the police from compelling any person in a criminal case to incriminate herself. See U.S. Const. amend. V. The Amendment’s due process clause provides further protection against evidence gathering techniques that "shock the conscience." Rochin v. California, 342 U.S. 165, 169–74 (1952). The Fifth Amendment analysis in this Article will focus principally on exclusions of evidence for violations of the self-incrimination clause.
[3] . See Mapp v. Ohio, 367 U.S. 643, 656 (1961) (stating that the rule is designed to promote officers’ respect for the Fourth Amendment’s "constitutional guaranty ‘in the only effectively available way—by removing the incentive to disregard it’") (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)); Miranda v. Arizona, 384 U.S. 436 (1966) (applying the exclusion penalty to statements obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination).
[4] . See United States v. Calandra, 414 U.S. 338, 348 (1974) (explaining that "the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect"). See also United States v. Leon, 468 U.S. 897, 916 (1984); Stone v. Powell, 428 U.S. 465, 485 (1976); United States v. Janis, 428 U.S. 433, 446 (1976).
[5] . The rationale for the penalty has changed in important ways over time. For a discussion of the significance of the Court’s movement from a multi-rationale approach to its current focus on the singular rationale of deterrence, see infra Part II.A.
[6] . A more controversial penalty can scarcely be imagined. For views supportive of continued or expanded application of the penalty, or critical of restrictions placed upon it, see Albert W. Alschuler, Close Enough for Government Work: The Exclusionary Rule After Leon, 1984 Sup. Ct. Rev. 309; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 429 (1974); Craig M. Bradley, The "Good Faith Exception" Cases: Reasonable Exercise in Futility, 60 Ind. L.J. 287 (1985); John M. Burkoff, Bad Faith Searches, 57 N.Y.U. L. Rev. 70 (1982); Bradley C. Canon, Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for its Retention, 235 S. Tex. L.J. 559, 561–63 (1982); Donald A. Dripps, Beyond the Warren Court and Its Conservative Critics: Toward a Unified Theory of Constitutional Criminal Procedure, 23 U. Mich. J.L. Reform 591, 622–24 (1990); William C. Heffernan, On Justifying Fourth Amendment Exclusion, 1989 Wis. L. Rev. 1193, 1242–43; Yale Kamisar, A Defense of the Exclusionary Rule, 15 Crim. L. Bull. 5 (1979); Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition?", 16 Creighton L. Rev. 565, 665–67 (1983); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On "Bright Lines" and "Good Faith", 43 U. Pitt. L. Rev. 306, 340–61 (1982) [hereinafter LaFave, Fourth Amendment]; Wayne R. LaFave, "The Seductive Call of Expediency": United States v. Leon, Its Rationale and Ramifications, 1984 U. Ill. L. Rev. 895 [hereinafter LaFave, Call of Expediency]; Tracey Maclin, When the Cure for the Fourth Amendment is Worse Than the Disease, 68 S. Cal. L. Rev. 1, 49–50 (1994); William J. Mertens & Silas Wasserstrom, The Good Faith Exception to the Exclusionary Rule Reconsidered: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365 (1981); Jerry E. Norton, The Exclusionary Rule Reconsidered: Restoring the Status Quo Ante, 33 Wake Forest L. Rev. 261 (1998); Pierre J. Schlag, Assaults on the Exclusionary Rule: Good Faith Limitations, Damage Remedies and Congressional Power, 73 J. Crim. L. & Criminology 875 (1982); Thomas S. Schrock & Robert C. Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn. L. Rev. 251 (1974); William A. Schroeder, Restoring the Status Quo Ante: The Fourth Amendment Exclusionary Rule as a Compensatory Device, 51 Geo. Wash. L. Rev. 633 (1983); Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 847–52 (1994); Silas Wassertrom & William J. Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am. Crim. L. Rev. 85 (1984).
For arguments expressing criticism of the exclusion penalty, a willingness to retreat from it, or support for restrictions placed on the exclusion penalty, see Steven Schlesinger, Exclusionary Injustice (1977); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 785–800 (1994); Randy E. Barnett, Resolving the Dilemma for the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory L.J. 937 (1983); Harry M. Caldwell & Carol A. Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About its Effects in the Courtroom, 78 Marq. L. Rev. 45 (1994); Daniel M. Harris, The Return to Common Sense: A Response to "The Incredible Shrinking Fourth Amendment", 22 Am. Crim. L. Rev. 25, (1984); Eric Kades, Windfalls, 108 Yale L.J. 1489, 1564–66 (1999); Carter LaPrade, An Alternative to the Exclusionary Rule Presently Administered Under the Fourth Amendment, 48 Conn. Bar. J. 100 (1974); Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 667 (1970); Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 Wash. L. Rev. 635, 638–41 (1982) [hereinafter Posner, Excessive Sanctions]; Richard A. Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49 [hereinafter Posner, Rethinking]; Steven Schlesinger, The Exclusionary Rule: Have Proponents Proven That It Is a Deterrent to Police?, 62 Judicature 404 (1979); James T. Ranney, The Exclusionary Rule—the Illusion vs. the Reality, 46 Mont. L. Rev. 289, 289–90 (1985); Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363; Malcom R. Wilkey, A Call for Alternatives to the Exclusionary Rule, 62 Judicature 351 (1979); Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531 (1982); Malcolm R. Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 214 (1978).
[7] . Chief Judge Richard Posner and others have devoted considerable attention to this task. See Richard A. Posner, Economic Analysis of Law 681–86 (4th ed. 1992); Rethinking, supra note , at 50–71; Excessive Sanctions, supra note , at 638–41; Arval A. Morris, The Exclusionary Rule, Deterrence and Posner’s Economic Analysis of Law, 57 Wash. L. Rev. 647 (1982). See also Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw. U. L. Rev. 740, 743–44 (1974) (criticizing a 1973 study that purported to show that the penalty was an ineffective deterrent).
[8] . Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984). Professor Cooter developed price and sanction theory as an alternative to the dichotomous views of jurisprudential theorists, who see the law as a set of obligations backed by sanctions, and economics theorists, who see the law as a set of obligations enforced by prices. Rejecting the notion that the law operates under one system to the exclusion of the other, Professor Cooter proposed that it operates under both the price and sanction systems. See id.
[10] . See id. at 1537. Professor Stephen Marks uses another label—"conditionally permissible activities"—to describe the same concept. Employing Professor Marks’ terminology, "priced" behavior is that which is "permissible conditional on the payment of compensation." Stephen Marks, Utility and Community: Musings on the Tort/Crime Distinction, 76 B.U. L. Rev. 215, 216 (1996).
[11] . See Cooter, supra note , at 1537–38.
[12] . In order to deter only inefficient harms, penalties that price must be able to measure accurately the actual costs imposed by an individual actor on others, holding the actor responsible for no more and no less than the full extent of the harm she causes.
[13] . "The [liability] decision is a warning that if one behaves in a certain way and an accident results, one will have to pay a judgment . . . . By thus altering the shadow price (of risky behavior) that confronts people, the warning may affect their behavior and therefore accident costs." Posner, supra note , at 24. The rational choice theory is a central feature of law and economics. It posits that as rational self-interested actors, people will generally employ cost-benefit analysis when deciding how to behave, including when deciding whether to comply with the law. See, e.g., Thomas S. Ulen, Firmly Grounded: Economics in the Future of Law, 1997 Wis. L. Rev. 433, 442 (using the criminal sanction as an example and claiming that when expected benefits of illegal activity outweigh expected costs, "the rationally self-interested criminal commits the crime"; when the opposite is true, she refrains).
[14] . See Cooter, supra note , at 1537 ("[T]he purpose of a sanction is to deter people from wrongdoing . . . ."). I am indebted to my dear friend Professor Dean Alfange for the reminder that this view of penalties has old antecedents. See Oliver Wendell Holmes, The Common Law 118 (Mark DeWolfe Howe ed., Harvard University Press 1963) (1881) [hereinafter The Common Law] ("It cannot be inferred, from the mere circumstance that certain conduct is made actionable, that therefore the law regards it as wrong, or seeks to prevent it.").
[15] . Using sanctions for violations of the criminal law as an example, Professor Cooter notes that a person subject to "costly prosecution" and possible conviction is also subject to "loss of reputation." See Cooter, supra note , at 1549.
[16] . Sanctions thus operate unhindered by the need to make fine calculations about the actual costs imposed by individual actors.
[17] . See infra Part I.C. Professor Cynthia Williams has challenged the propriety of what she calls the "law-as-price" view in the corporate context. See Cynthia Williams, Corporate Compliance with the Law in the Era of Efficiency, 76 N.C. L. Rev. 1265, 1385 (1998) (arguing that the law-as-price view "distill[s] all that is important about law and political obligation into economic terms" and "evaporat[es] the moral component of law"). Other terms have been employed to describe the same or similar concept, with varying levels of support. Such other expressions of the concept include the theories of "efficient breach" and "law as cost." See Frank H. Easterbrook & Daniel R. Fischel, Antitrust Suits by Targets of Tender Offers, 80 Mich. L. Rev. 1155, 1156–59 (approving of the conception of the law as a pricing or taxing mechanism for all but mala in se acts); Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545, 1576–77 (1995) (concluding that most regulatory law qualifies as "law as cost").
[19] . The Supreme Court’s application of the exclusion penalty has undergone dramatic changes throughout the twentieth century, moving from a position of no exclusion, to exclusion in the federal court system only, to exclusion in both federal and state courts, and finally to exclusion in both court systems but only in certain circumstances. See infra note .
[21] . Although not originally the only rationale for the penalty, increasingly the Supreme Court has emphasized deterrence as the exclusive basis for the exclusion of probative evidence. See infra Part II.A.2.
[22] . Prosecutors seeking to avoid the exclusion of helpful evidence may now rely on several categorical exceptions to the penalty. See infra text accompanying notes –62.
[23] . As a wrong, behavior that transgresses constitutional norms is to be prohibited, rather than priced. See infra text accompanying notes –, .
[24] . This is a classic characteristic of a sanction. See infra text accompanying notes –.
[25] . See infra text accompanying notes –, .
[26] . In the Miranda context, for instance, decisions upholding the admission of Miranda-defective statement evidence have led some police forces to conclude that compliance with Miranda is entirely discretionary. See California Attorneys for Criminal Justice v. Butts, 195 F.3d 1089 (9th Cir. 1999) (involving civil rights action against two California cities and individual police officers who intentionally obtained statements from suspects who had invoked their Miranda rights). The controversial practice of going "outside Miranda" illustrates the confusion that is generated by case law that so dilutes the penalty for errant police behavior that it leaves the impression that the conduct is no longer considered wrongful. See infra text accompanying notes –67. Additional confusion has resulted from the Court’s holdings that the scope of the exclusion penalty required for violations of constitutional requirements is different from the scope of the exclusion penalty that is required for violations of "prophylactic" court-created rules designed to safeguard those constitutional requirements. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306 (1985); Michigan v. Tucker, 417 U.S. 433, 461 (1974).
[27] . While the exclusion penalty is triggered by the presence of a mental state of negligence or higher, see infra Part II.C., the penalty itself does not fluctuate with the seriousness of the mental state of the offending police actor. To the extent that exclusionary orders vary in severity at all, they do so only by numerical accident—courts suppress, however, many items the police happen to gather lawlessly. This means that evidence secured as a result of a negligent violation of constitutional rights is just as likely to be suppressed as evidence secured as a result of a willful violation. Moreover, this also means that evidence secured through willfully wrongful police conduct is just as likely to avoid exclusion under one of the Court’s categorical exceptions as evidence secured negligently. See infra Part III.B.
[28] . The valuation of an errant actor’s gain in a cost-benefit penalty assessment may be appropriate when a police officer has engaged in non-criminal (but sanctionable) conduct, but it is inappropriate when the officer has engaged in criminal conduct. This Article urges that the current practice of evaluating willful constitutional deprivations (largely criminal acts) and non-willful constitutional deprivations (largely non-criminal acts) in precisely the same way merits rethinking. See infra Part III.B.
[29] . See Cooter, supra note , at 1524–25. On the other hand, in the much larger group of cases involving unintentional but constitutionally defective police behavior, price and sanction theory supports the contemporary practice of considering the "cost" of exclusion, provided the courts are careful to admonish the police about their continuing obligation to respect constitutional boundaries. The calculation of this cost may quite properly lead the court to apply the exclusion penalty in some settings, but not others, or to the benefit of some persons (e.g., a victim whose expectation of privacy was infringed by the police) but not others (e.g., a person who lacks standing).
[30] . There are many critics of the good faith exception. For a selection of some of them, see authorities cited infra notes –39.
[31] . Conversely, critics of the Court’s failure to develop a symbiotic "bad faith" rule are precisely right. See, e.g., Burkoff, supra note .
[32] . "The virtuous prefer good, villains prefer bad, and rational actors in economics prefer themselves." Robert Cooter, Models of Morality in Law and Economics: Self-Control and Self-Improvement for the "Bad Man" of Holmes, 78 B.U. L. Rev. 903, 903–04 (1998).
[33] . See, e.g., Easterbrook & Fischel, supra note , at 1177 n.57. But see Cooter, supra note , at 1523 (criticizing those holding this purely economic perspective as being "blind to the distinctively normative aspect of law").
[34] . See generally Williams, supra note .
[38] . In other words, the law "prices" conduct (permits it to occur, and reoccur) when it is concerned only with efficiency, and "sanctions" conduct (forbids its occurrence) when it is concerned with values extending beyond efficiency. See id. at 1545.
[39] . Id. at 1537 (acknowledging that obligations can "appear opaque upon first examination") (emphasis added).
[40] . For example, do environmental laws that regulate a company’s emission of pollutants into the air identify a forbidden wrong or a permissible, compensable, injurious act?
[41] . See Cooter, supra note , at 1524, 1537.
[43] . An actor who moves across the line between "permitted" (priced) and "forbidden" (sanctioned) conduct will face an immediate "discontinuity" or severe jump in liability at the point that her conduct dips below the legal standard of care. See id. at 1523–24. This line characteristically tracks society’s judgment of particular mental states. When such a sharp discontinuity is observed in a system of penalties, it is safe to characterize the penalty for the behavior as a sanction. Tort law, which penalizes actors who harm others negligently, provides a useful example of such a sanction. The line separating sanctions from prices in tort law is the line between negligent conduct (forbidden and sanctioned) and conduct for which an actor is held strictly liable for damages (permitted but priced). See id. at 1538. Although often mistaken for "prices," damages in negligence actions are actually sanctions. See id. at 1543 (pointing out the common confusion in tort law of sanctions for prices). In the absence of a strict liability regime, an actor who causes harm negligently faces a sharp discontinuity in the applicable penalty as she moves from the realm of non-negligent conduct (where her potential liability is zero) into the realm of negligent conduct (where her potential liability increases by one hundred percent).
[44] . Moreover, in the normal case, sanctioning penalties themselves become increasingly more severe with the seriousness of the actor’s culpability. Thus, the sanction for an actor who proceeds purposively is typically steeper than the sanction for an actor who behaves recklessly; the sanction for reckless conduct is harsher than the sanction for negligent conduct, and so on. From an economist’s viewpoint, this variance is not retributive. It is based on the belief that actors with more culpable mental states are more "resistant" to deterrence, and thus, must be threatened with increasingly harsher penalties to achieve the desired deterrent effect. As put by Professor Cooter: "Since the purpose of a sanction is to deter people from wrongdoing, the sanction will be adjusted to achieve this goal. Deterring actors whose fault is intentional, deliberate, or repeated requires a more severe sanction than deterring actors whose fault is unintentional, spontaneous, or committed for the first time." Id. at 1537. For an excellent discussion of this point see Alan C. Michaels, Acceptance: The Missing Mental State, 71 S. Cal. L. Rev. 953, 970–76 (1998) (collecting and discussing authorities reflecting this utilitarian view).
[45] . Professor Cooter explains why not:
The efficient price depends upon the extent of the external harm, not the actor’s state of mind. If, contrary to fact, prices varied with the actor’s state of mind—making the price higher if the act were done intentionally—then people would be deterred from doing the very acts that are permitted. Since a typical purpose of prices is to internalize costs, and since the external cost of an act is unrelated to the actor’s state of mind, a price should not increase just because the activity is intentional, willful, or repeated.
Cooter, supra note , at 1537.
[46] . A natural question at this point might be: Why would there be any penalty for harmful conduct that is "permitted"? The answer is that the word "permitted" in this context is essentially a term of art. It applies to harms that are in fact redressed by the law—i.e., harms for which actors are required by law to compensate their victims. In other words, the law is not indifferent to such injurious behavior. Rather, when such behavior occurs, a legal penalty that prices responds to the breach by requiring the actor to internalize the costs of that conduct, but without signaling ex ante that the harm-causing behavior is wrongful.
An illustration of a simple pricing penalty involving a classic contract dispute may help to clarify this point. The law of contracts imposes obligations on those who enter into lawfully binding agreements. In essence, each party is obligated to perform her part of the negotiated bargain. It sometimes occurs, however, that a party fails to satisfy her part of the bargain, and breach results. It would be a mistake to conclude that the law is indifferent to such a breach simply because it does not always (nor even usually) intervene to force the breaching party to perform. Rather, in the run-of-the-mill case, recognizing that legally binding, contractual obligations are sometimes breached, the law of contracts imposes a "price" for non-performance, typically expectation damages, which attempt to put the victim of breach in the position he would have been in had the breach not occurred. See E. Allan Farnsworth, Contracts § 12.1 (1982). It is in this sense that the law "permits" a party to choose not to comply with her contractual obligations, for a price.
[47] . See Cooter, supra note , at 1537–38.
[48] . Potential injurers can reduce or eliminate externalities by taking precautionary measures designed to prevent harms from occurring. Rules and penalties exist to encourage them to do just that. For example, a rule limiting the amount of toxins a polluter may emit into the atmosphere, enforced by a penalty provision that sets a fine for polluters who surpass the limitation, can be expected to reduce the externalities that polluters would otherwise impose on society. In the criminal context, a provision that outlaws killing and publicizes the penalty that will be imposed on those who kill hopes to deter the extreme and irreversible externalities imposed by killers. Viewed in economic terms, the goal of both of these and other penalties is the reduction of unwanted external costs. Penalties achieve this goal by threatening to impose costs on those actors who would impose externalities on others.
[49] . Criminal and tort law scholars have explored a similar concept in articles which discuss the so-called "tort/crime distinction." Frequently observed in criminal punishment literature is the notion that where a rule seeks to deter behavior that constitutes a crime, "complete deterrence" is the goal. By contrast, where a rule seeks to deter behavior that constitutes a tort, "optimal deterrence" is commonly said to be the appropriate goal. See, e.g., Keith N. Hylton, Punitive Damages and the Economic Theory of Penalties, 87 Geo. L.J. 421, 421 (1998). The complete-versus-optimal distinction is explained by the strength of the community’s resolve in not allowing the behavior in question to occur. When society prescribes a criminal penalty, it seeks to send the message that its resolve is firm, and that the conduct may not occur. When it prescribes a non-criminal penalty, its message is decidedly more ambivalent: It seeks to deter the behavior, but only to a point—essentially, the point of inefficiency. As stated by Professor Keith Hylton, optimal deterrence "implies deterring offensive conduct only up to the point at which society begins to lose more from deterrence efforts than from the offenses it deters." Id. Hence, optimal deterrence is achieved by forcing the non-criminal actor to internalize the costs her behavior has imposed on others.
[50] . Cooter, supra note , at 1537–38 (emphasis omitted). Professor Stephen Marks has expressed a similar idea in writing that we might choose to "‘price’ conditionally permissible activities" where the utility of the activity to the individual actor is sufficiently high. Marks, supra note , at 225.
[51] . In our hypothetical, therefore, the expectation damages for all three victims would be identical.
[52] . The mental state of the breaching party is normally irrelevant to the calculation of damages in such a dispute. See Cooter, supra note , at 1545 ("Facts about the promise breaker’s state of mind do not usually influence the court’s assessment of expectation damages.").
[53] . See, e.g., Patton v. Mid-Continent Sys., Inc., 841 F.2d 742, 750 (7th Cir. 1988) (Posner, J.) ("Even if the breach is deliberate, it is not necessarily blameworthy. The promisor may simply have discovered that his performance is worth more to someone else. If so, efficiency is promoted by allowing him to break his promise, provided that he makes good the promisee’s actual losses.").
[54] . See Cooter, supra note , at 1545. Not all scholars like this answer for it implies that decisions to breach may be based purely on the basis of efficiency. For a view critical of the theory of "efficient breach" of contract, see Williams, supra note , at 1285. For a defense of the theory, see Posner, supra note , at 118–20.
[55] . Of course, there are exceptions. Punitive damages are sometimes awarded in contract disputes if the contract concerns parties involved in a fiduciary relationship, and by reason of that relationship the breaching party has violated an additional obligation to the victim. See Farnsworth, supra note , at § 12.8; Timothy J. Sullivan, Punitive Damages in the Law of Contract: The Reality and the Illusion of Legal Change, 61 Minn. L. Rev. 207, 241–44 (1977); Laura Lee, Comment, Punitive Damages on Ordinary Contracts, 42 Mont. L. Rev. 93, 100 (1981). In such a case, the punitive damages would rightly be considered a sanction under Professor Cooter’s test, though perhaps a sanction imposed for violations of fiduciary rather than contractual responsibilities. See Cooter, supra note , at 1545–46.
[56] . Although rejected by the Model Penal Code, many criminal codes retain "premeditation" formulas for distinguishing between and grading intentional homicides. See, e.g., Kan. Stat. Ann. § 21-3401(a) (1999) (defining first degree murder as "the killing of a human being committed . . . intentionally and with premeditation").
[57] . The criminal law is especially attentive to the grading of actors’ mental states. Usually, the criminal law demands proof that the accused committed a voluntary criminal act (actus reus) while possessing a sufficiently guilty mind (mens rea). See Morrisette v. United States, 342 U.S. 246, 250–51 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion."). The centrality of a guilty mental state to criminal liability has been emphasized by many legal writers. See, e.g., John C. Coffee, Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 210 ("American criminal law scholarship has always placed the issue of mens rea at center stage.").
[58] . Abundant examples are provided by penalties for criminally harmful conduct. Utilitarians would offer as an example homicide statutes which uniformly reflect such a grading system. Using the Model Penal Code (MPC) as an example, the most serious homicide charge recognized by the MPC (murder) requires proof of some of the most culpable mental states recognized by the MPC (purposive or knowing conduct or conduct manifesting an extreme indifference to the value of human life) and is punished more severely than any other homicidal act. See Model Penal Code §§ 210.2, 210.6. The least serious homicide charge (negligent homicide) can be established with proof of the least culpable mental state recognized by the MPC (negligence) and employs a much lighter sanction (one- to five-year term of imprisonment). See Model Penal Code §§ 210.4, 6.06(3).
A utilitarian would defend these differing penalties in part by arguing that the law can, on average, hope to deter knowing violations only by resorting to the threat of heftier penalties because knowing actors are simply, on average, tougher to deter than reckless actors. See Robin Charlow, Willful Ignorance and Criminal Culpability, 70 Tex. L. Rev. 1351, 1395 (1992); Michaels, supra note , at 972; Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1221–23 (1985); Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 505 (1992). The utilitarian’s explanation for the employment of differing penalties by this and other criminal statutes would rankle retributivists who contend that punishment is valid only if commensurate with individual desert. See, e.g., Michael S. Moore, The Moral Worth of Retribution, in Responsibility, Character and the Emotions 179 (Ferdinand Schoeman ed., 1987).
[59] . See Cooter, supra note , at 1537.
[62] . For helpful discussions on the increasing use of the criminal sanction to enforce environmental laws, see Gerhard O.W. Mueller, An Essay on Environmental Criminality, in Environmental Crime and Criminality: Theoretical and Practical Issues 3 (Sally M. Edwards et al. eds., 1996); Susan Hedman, Expressive Functions of Criminal Sanctions in Environmental Law, 59 Geo. Wash. L. Rev. 889 (1991); Joe Scott Morris, Environmental Problems and the Use of Criminal Sanctions, 7 Land & Water L. Rev. 421 (1972).
[63] . See Cooter, supra note , at 1550–51.
[64] . The scale is not necessarily exclusively financial. We may consider some level of pollution too high, whatever the financial benefits to some, because it interferes too greatly with the property or bodily integrity of others.
[65] . Professor Cooter explains:
In the usual case, where a reasonable obligation is backed by a reasonable sanction, most people will find conforming strongly advantageous . . . and a few people will find noncomformity advantageous . . . . Very few people will find themselves on the margin between compliance and noncompliance, where conforming to the legal standard costs the same as not conforming.
. . . .
. . . In contrast, pricing the behavior causes most people to balance benefits and costs at the margin. Since many people would then be on the margin, a small change in a price will cause many people to change their behavior a little. In aggregate, then, behavior is more elastic with respect to prices than sanctions.
Cooter, supra note , at 1531 (emphasis and footnotes omitted). The "elastic" behavior is, of course, the willing infliction of penalty-inducing harms on others.
[66] . Because sanctions seek to convince actors to shun prohibited conduct, they are characterized by a sharp increase in the costs that they threaten to impose on actors who choose to engage in injurious behavior. As explained by Professor Cooter: "A sanction typically creates an abrupt jump in an individual’s costs when he passes from the permitted zone into the forbidden zone where behavior is sanctioned. This abrupt jump in costs disappears if the sanction is replaced by a price." Id. at 1523–24. The "discontinuity" or "abrupt jump" in liability observed under sanctioning devices motivates law-abiding behavior in a way that pricing devices do not. This is because the discontinuity disappears when a pricing penalty is in place. Unlike sanctions, under a pricing strategy all harm-inflicting conduct is subject to penalty, even conduct that is both unintentional and reasonable. In other words, when the law prices conduct, it does so mindless of variations in individual culpability and in alignment with the extent of the harm caused. See id. at 1526–28.
[70] . The cost of a sanction may be very large because sanctions need not approximate the cost of the prohibited harm. See id. at 1527 ("It is not essential that the sanction equal the harm caused by the act to induce the self-interested actor to take precaution . . . . It is only essential that the sanction be large enough so that his private costs are minimized by conforming to the legal standard . . . .").
[72] . This prompts the question: How are lawmakers to know when the community prefers the use of a sanction (with its greater compliance-inducing properties) rather than a price (which grants individuals greater freedom to conduct their own cost-benefit analysis)? Community consensus, Professor Cooter posits, is the key here. See Cooter, supra note , at 1533.
[73] . In 1914, the Supreme Court announced that the Fourth Amendment forbade the use of evidence obtained by federal agents during an unreasonable search or seizure in a federal trial. See Weeks v. United States, 232 U.S. 383 (1914). Some years later, the substantive obligations imposed by the Fourth Amendment were found to govern the conduct of state officers as well, via the due process clause of the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961). Unlike their federal counterparts, state courts were not immediately required to adopt the federal remedy of exclusion for Fourth Amendment violations committed by official state actors. See Wolf, 338 U.S. at 28 (holding the Fourth and Fourteenth Amendments did not compel states to exclude "logically relevant evidence" even if it was obtained during an unreasonable search or seizure). An exception was made in cases that "shocked the conscience." Rochin v. California, 342 U.S. 165, 172 (1952). This special dispensation of state home-brewed remedies for unreasonable state searches and seizures continued until the Supreme Court determined, in its landmark decision in Mapp v. Ohio, that exclusion had to be the remedy for both federal and state Fourth Amendment violations. Mapp, 367 U.S. at 643. Shortly after Mapp, the Court expanded the scope of the evidence subject to exclusion for police violations by ruling that the "fruit of official illegality" must be excluded as well. See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (holding that evidence derivatively obtained by exploitation of an initial illegality is subject to exclusion). Cf. Nardone v. United States, 308 U.S. 338, 340–41 (1939) (holding that the exclusionary rule bans both the "direct" and "indirect" use of illegally obtained evidence).
[76] . See, e.g., United States v. Leon, 468 U.S. 897, 906 (1984) (describing Fourth Amendment provisions as "commands" while noting that the Amendment’s text does not expressly dictate exclusion as the penalty for a violation of those commands).
[77] . See Weeks v. United States, in which Justice Day wrote emphatically:
The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority . . . . This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.
232 U.S. 383, 391–92 (1914) (emphasis added).
The Court held that the same obligation applied to state law enforcement officers nearly 50 years later. See Mapp, 367 U.S at 655 ("We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.").
[78] . Weeks, 232 U.S. at 394.
[79] . Olmstead v. United States, 277 U.S. 438, 461 (1928) (referring to an earlier holding as finding the government had engaged in a seizure of an "illegal character" in violation of the Fourth Amendment).
[80] . See Leon, 468 U.S. at 906 (noting the "wrong condemned by the Amendment is ‘fully accomplished’ by [an] unlawful search or seizure") (emphasis added); United States v. Calandra, 414 U.S. 338, 354 (1974) (noting that use of fruits of an unlawful search or seizure "work[s] no new Fourth Amendment wrong," suggesting by implication that a wrong occurs when the unlawful search or seizure occurs) (emphasis added).
[84] . Wolf v. Colorado, 338 U.S. 25, 28 (1949).
[85] . Indeed, quite to the contrary. For example, the fact that evidence of criminal activity is found by the police who have conducted a search without probable cause will not cleanse the constitutional wrong committed by the searching officers. See, e.g., Johnson v. United States, 333 U.S. 10 (1948) (suppressing drug and drug paraphernalia evidence due to wrongful decision to enter premises without a warrant). Nevertheless, the Court has at times emphasized the difference between the rights secured by the Fourth Amendment and the remedy for violations of those rights. This point was the source of great dissension in the Wolf decision, in which the Court held that while a State could not "affirmatively . . . sanction [a] police incursion into privacy" without running afoul of the "guaranty of the Fourteenth Amendment . . . the ways of enforcing such a basic right raise[d] questions of a different order." Wolf, 338 U.S. at 28. Although the Court eventually retreated from this position and extended the exclusion remedy to the right in Mapp, its more recent development of the categorical exceptions to the exclusion penalty suggests that it continues to second-guess its choice of penalties more than its perception of the Amendment as "rights-conferring."
[86] . Compare United States v. Calandra, 414 U.S. 338, 352 (1974) (holding that the imposition of exclusion penalty in grand jury context would achieve only marginal deterrence), with id. at 355 (dissenting view); Stone v. Powell, 428 U.S. 465, 489–94 (1976) (holding that application of exclusion penalty in habeas proceedings would achieve only minimal benefits when weighed against substantial societal costs), with id. at 502 (dissenting view); United States v. Havens, 446 U.S. 620, 626–29 (1980) (holding that prosecutor could properly use items seized in violation of the Fourth Amendment to impeach), with id. at 629 (dissenting view); United States v. Leon, 468 U.S. 897, 926–26 (1984) (holding evidence seized unlawfully under defective search warrant admissible under good faith exception), with id at 928 (dissenting view); Rakas v. Illinois, 439 U.S. 128, 137–39 (1978) (holding only person whose rights were violated had standing to assert Fourth Amendment claim), with id. at 156 (dissenting view); Murray v. United States, 487 U.S. 533, 541–44 (1988) (approving admission of evidence seized pursuant to valid warrant where that was obtained independent of an earlier, unlawful search for same evidence), with id. at 544 (dissenting view). Compare also Wolf, 338 U.S. at 25 (holding evidence seized by state officers in violation of the dictates of the Fourth and Fourteenth Amendments, while prohibited, need not be suppressed) with Mapp, 367 U.S. at 655 (holding "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court").
[87] . Even former Chief Justice Burger, no friend to the exclusion penalty, acknowledged that the penalty possessed constitutional stature. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 415 (1971) (Burger, J., dissenting).
[88] . See Miranda v. Arizona, 384 U.S. 436 (1966) (excluding statement made during incommunicado interrogation of suspect as violative of the Fifth Amendment); Edwards v. Arizona, 451 U.S. 477 (1981) (holding that once an accused has invoked Miranda right to counsel, further questioning at initiation of police violates the accused’s Fifth Amendment privilege, and any statements obtained must be excluded from evidence). The Supreme Court recently reaffirmed the constitutional nature of the Miranda warnings. See Dickerson v. United States, 120 S. Ct. 2326 (2000) (holding Miranda announced a constitutional rule).
[89] . See Miranda, 384 U.S. at 478–79.
[91] . Id. at 479. See also id. at 476–77 (drawing no distinction between incriminating statements offered as substantive evidence and incriminating statements used to impeach).
[93] . United States v. Grunewald, 233 F.2d 556, 579 (1956) (Frank, J., dissenting), rev’d, 353 U.S. 391 (1957); Miranda, 384 U.S. at 460.
[94] . Miranda, 384 U.S. at 360 (quoting Grunewald, 233 F.2d at 581–82 (Frank, J., dissenting)).
[95] . Ullmann v. United States, 350 U.S. 422, 500 (1956).
[96] . Id. at 428 (noting that the privilege against compelled self-incrimination "was aimed at a . . . far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality"); Michigan v. Tucker, 417 U.S. 433, 439–40 (1974); Miranda, 384 U.S. at 459. See also Leonard W. Levy, Origins of the Fifth Amendment 32–35(1968); E.M. Morgan, The Privilege of Self-Incrimination, 34 Minn. L. Rev. 1, 9–11 (1949).
[97] . Johnson v. New Jersey, 384 U.S. 719, 729 (1966). See also Miranda, 384 U.S. at 460.
[98] . Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).
[99] . Tucker, 417 U.S. at 439; Ullmann, 350 U.S. at 428.
[100] . The roots of the constitutional guarantee run deep, extending to "ancient," even "biblical" times. See Miranda, 384 U.S. at 458–59 & n.27 (citing thirteenth century commentator Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, ¶ 6, III Yale Judaica Series 52–53 ("To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.") and Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956)).
[101] . See McCarthy v. Arndstein, 266 U.S. 34 (1924).
[102] . See Hitchcock, 142 U.S. at 562.
[103] . See In re Gault, 387 U.S. 1, 49–50 (1967) (holding juvenile proceedings must be regarded as criminal for purposes of the privilege against self-incrimination).
[104] . See Miranda, 384 U.S. at 467 ("[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.").
[105] . Spano v. New York, 360 U.S. 315, 345 (1959). See also Malinsky v. New York, 324 U.S. 401, 418 (1945).
[106] . Miranda, 384 U.S. at 458.
[107] . Id. at 445. See also Paul G. Kauper, Judicial Examination of the Accused—A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932); Charles S. Potts, The Preliminary Examination and ‘The Third Degree’, 2 Baylor L. Rev. 131 (1950).
[108] . Miranda, 384 U.S. at 447.
[109] . Id. at 448. See also Blackburn v. Alabama, 361 U.S. 199, 206 (1960) (holding that coercion can be mental as well as physical).
[110] . Miranda, 384 U.S. at 457.
[116] . Id. at 457–58. The Court reiterated its enduring view that the Miranda warnings are constitutionally grounded in Dickerson v. United States, 120 S. Ct. 2326 (2000).
[117] . For authority asserting that the "prime purpose" of the exclusionary rule is to deter police violations of individual rights, see United States v. Leon, 468 U.S. 897, 916 (1984); Stone v. Powell, 428 U.S. 465, 485 (1976); United States v. Janis, 428 U.S. 433, 446 (1976); United States v. Calandra, 414 U.S. 338, 347 (1974); Harris v. New York, 401 U.S. 222, 225 (1971). See also Michigan v. Tucker, 417 U.S. 433, 451 n.25 (1974) (noting that in the Fifth Amendment context, the imperative of judicial integrity does not supply an independent basis for exclusion); Joshua Dressler, Understanding Criminal Procedure § 21.02 (1997) (observing that, today, deterrence is the prime if not sole purpose of the rule); Charles H. Whitebread & Christopher Slobogin, Criminal Procedure: An Analysis of Cases and Concepts, § 2.01, at 18 (4th ed. 2000) (stating "[t]oday . . . the only purpose for the rule . . . is as a method of deterring the police from engaging in unconstitutional searches and seizures"); Charles F. Campbell, Jr., An Economic View of Developments in the Harmless Error and Exclusionary Rules, 42 Baylor L. Rev. 499, 525–26 (1990) ("[O]nly deterrence remains as the principal factor in deciding whether to apply the rule in a particular context."); Oaks, supra note , at 669–70 (1970).
[118] . Under the poetically labeled "fruit-of-the-poisonous-tree" doctrine, this would include all tainted evidence whether obtained directly or indirectly from police illegality. See Wong Sun v. United States, 371 U.S. 471 (1963). The poisonous tree doctrine thus expands the universe of proof subject to the exclusion penalty. The doctrine’s poetic label is creditable to Justice Frankfurter, see Nardone v. United States, 308 U.S. 338, 341 (1939), though its roots are thought to extend back to Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). See Whitebread & Slobogin, supra note , § 2.04, at 37. However, the Court has developed three doctrines which are frequently used to avoid exclusions of the fruit of unlawful police conduct: the attenuation doctrine, see infra note and accompanying text; the independent source doctrine, see infra note and accompanying text; and the inevitable discovery doctrine, see infra note and accompanying text. Pursuant to these categorical qualifications placed upon the poisonous tree doctrine, physical evidence that has been attained at the expense of constitutional rights has been admitted in numerous cases notwithstanding its fruit-like character. See, e.g., Murray v. United States, 487 U.S. 533, 537 (1988) (approving admission of evidence under independent source doctrine); Nix v. Williams, 467 U.S. 431, 444 (1984) (approving admission of evidence under inevitable discovery doctrine); Nardone, 308 U.S. at 341 (approving admission of evidence under attenuation analysis).
[119] . Mapp, 367 U.S. at 656 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).
[120] . Legal scholars have emphasized several non-instrumentalist reasons for adopting exclusion as the remedy for constitutionally defective evidence-gathering practices, and criticized the Court’s increasingly myopic focus on deterrence as the rationale for the exclusionary rule. See, e.g., Schrock & Welsch, supra note , at 257–60; Wasserstrom & Mertens, supra note , at 87–88, 151–52; James Boyd White, Forgotten Points in the Exclusionary Rule Debate, 81 Mich. L. Rev. 1273, 1283–84 (1983); Fred Gilbert Bennett, Note, Judicial Integrity and Judicial Review: An Argument for Expanding the Scope of the Exclusionary Rule, 20 UCLA L. Rev. 1129, 1147–54 (1973).
[121] . Weeks v. United States, 232 U.S. 383, 394 (1914). The Court’s phraseology here is important. As argued above, this passage reflects that the restrictions on governmental action in the Fourth Amendment constitute "prohibitions" rather than a set of guidelines which the police may choose to abide by or violate. See supra Part II.A.1.
[122] . See Terry v. Ohio, 392 U.S. 1, 13 (1968) (declaring that courts would not "be made parties to lawless invasions of constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions"); Elkins, 364 U.S. at 223 (1960) (stating that use of such evidence would make judges "accomplices in the willful disobedience of a Constitution they are sworn to uphold"); Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting) (arguing that the use of illegally acquired evidence would judicially sanction lawless governmental action and thereby undermine the rule of law).
[123] . This was demonstrated earlier in the example comparing the contract-breaching conduct of three parties. See supra Part II.C.
[124] . As put by one prominent legal scholar: "The concept of judicial integrity potentially functions as a moral imperative—‘thou shalt not be an accessory to an illegal act’—and, as such, does not seem to allow for cost-benefit analysis of the exclusionary rule." Dressler, supra note , § 21.02 at 324.
[125] . See, e.g., Massachusetts v. Sheppard, 468 U.S. 981 (1984); United States v. Leon, 468 U.S. 897 (1984).
[126] . Although the lesser yield of the deterrence rationale may cause us to question whether the exclusionary rule is truly being applied as a sanction, one characteristic of the judicial integrity approach is much more in keeping with pricing than is the deterrence approach. The automatic approach of judicial integrity would not take into account the officer’s state of mind. As explained in Part I, this is one of the three central features of a price.
[127] . United States v. Calandra, 414 U.S. 338, 348 (1974).
[128] . The classic "costs" of excluding evidence include the fact that probative evidence is not considered by the trier of fact, the guilty go free, community safety is not enhanced, and innocents receive no protection from it. See Dressler, supra note , § 21.04[2] at 333–38. Of course, not all agree that the exclusionary rule imposes costs. See, e.g., Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 Am. B. Found. Res. J. 611 (1983). However, the Supreme Court has held that the costs of the penalty are "well known," see Stone v. Powell, 428 U.S. 465, 489–90 (1976), and has repeatedly employed cost-benefit analysis to determine when it should or should not apply. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (including as a "cost" of exclusion of unlawfully seized evidence from a deportation proceeding the fact that a person who was committing a crime at the time of the proceeding could go free). In short, the Court’s practice implicitly accepts the view that the exclusionary rule imposes costs, that the costs can be identified, and that the weight of the costs can be properly assessed.
[129] . Defenders of the penalty argue among other things that the rule encourages greater law-abiding behavior by the police, fewer violations of constitutional rights, and an enhanced respect for the law. See generally Dressler, supra note , § 21.04[2] at 333–38.
[130] . See Calandra, 414 U.S. at 338. The Court shunned the exclusion penalty, reasoning that the marginal deterrent value obtained from allowing a grand jury witness to invoke the exclusionary rule as the ground for refusing to answer questions related to illegally seized documents was outweighed by the disruption of the grand jury’s investigative function. Exclusion of the evidence at trial provided sufficient deterrence. See id. at 351.
[131] . See United States v. Janis, 428 U.S. 433, 458 (1976) (reasoning deterrence of official wrongdoing is too "attenuated when the punishment imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign"). Post-Janis decisions have concluded that exclusion is not required even where the unlawful search and the civil tax proceeding are conducted by the same sovereign. See, e.g., Tirado v. Commissioner, 689 F.2d 307, 311 (2d Cir. 1982) (holding that federal tax proceedings are outside the "zone of primary interest" of federal narcotics agents who conduct an unlawful search, and thus, application of the exclusionary rule would have only a marginal deterrent effect).
[132] . See Lopez-Mendoza, 468 U.S. at 1050–51.
[133] . See, e.g., In re Diane P., 110 A.D.2d 354, 494 N.Y.S.2d 881 (1985).
[134] . See, e.g., Garrett v. Lehman, 751 F.2d 997 (9th Cir. 1985).
[135] . See, e.g., Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998); United States v. Finney, 897 F.2d 1047 (10th Cir. 1990); United States v. Rea, 678 F.2d 382 (2d Cir. 1982); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970).
[136] . See, e.g., United States v. Montez, 952 F.2d 854 (5th Cir. 1992).
[137] . See Stone v. Powell, 428 U.S. 465, 494–95 (1976) (holding that the exclusionary penalty is not available to penalize Fourth Amendment violations in habeas proceedings because "the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force").
[138] . See, e.g., United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992) (holding that "the benefits of providing sentencing judges with reliable information about the defendant outweigh the likelihood that allowing consideration of illegally seized evidence will encourage unlawful police conduct" unless there is proof that the police obtained the evidence expressly to enhance the defendant’s sentence); United States v. McCrory, 930 F.2d 63 (D.C. Cir. 1991); United States v. Schipani, 315 F. Supp. 253 (E.D.N.Y. 1970), aff’d 435 F.2d 26 (2d Cir. 1970).
[139] . This also applies to any other procedural setting that falls within the searching officer’s "zone of primary interest." See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–53 (1984).
[140] . Even where proof of "good faith" conduct on the part of the police is missing, under the so-called "impeachment exception," unlawfully secured physical and statement evidence becomes available to the prosecutor should the defendant choose to testify at trial. See United States v. Havens, 446 U.S. 620 (1980) (permitting the prosecutor to use items seized in violation of the Fourth Amendment to contradict the defendant’s trial testimony); Harris v. New York, 401 U.S. 222 (1971) (authorizing the use of statements obtained in violation of the Fifth Amendment to impeach the testimony of a defendant who chose to testify at trial). Again, the Court has concluded that sufficient deterrence is achieved by banning use of the evidence in the prosecutor’s case-in-chief, and any marginal deterrent effect that might be gained from a more wholesale application of the exclusion penalty is outweighed by the social costs suffered whenever probative evidence is excluded. However, prosecutors may not use illegally obtained evidence to contradict the testimony of non-defendant witnesses. See James v. Illinois, 493 U.S. 307 (1990).
[141] . See United States v. Leon, 468 U.S. 897, 908 (1984). See also Massachusetts v. Shepard, 468 U.S. 981, 920 (1984). Under the "good faith exception," if a prosecutor is able to establish that the searching or seizing officer was "reasonably" unaware that she was violating the Fourth Amendment, the evidence may be used at trial. As with the other exceptions to the exclusionary penalty, the good faith exception finds its moorings in the Court’s economically-based cost-benefit analysis. Weighing the social costs of exclusion (guilty go free, etc.) in such a case against the benefits of exclusion (deterrence), illegally-gathered evidence is often admitted on the theory that the potential deterrent effect of an exclusion order is negligible—the police cannot be deterred from engaging in prohibited conduct that they reasonably fail to realize is prohibited.
[142] . Only one whose legitimate expectation of privacy has been violated is entitled to seek exclusion of such evidence. Thus, the state may use unreasonably secured evidence against a party who lacks such a privacy expectation without concern for the fact that another person’s rights were indisputably violated in the process of obtaining the proof. For example, passengers in a car may lack standing to challenge an unreasonable search of the car if they lack a sufficient possessory or privacy interest in the car. See Rakas v. Illinois, 439 U.S. 128 (1978) (holding that only a person whose legitimate expectation of privacy has been violated by the police action may challenge its constitutionality). Further, a simple possessory interest in an item seized will not confer standing on a person who has no legitimate expectation of privacy in the place subjected to a lawless search. See Rawlings v. Kentucky, 448 U.S. 98 (1980) (holding defendant’s possessory interest in drugs found in his girlfriend’s purse did not provide him a legitimate expectation of privacy in the purse upon which he could base a constitutional challenge). Several factors are relevant to legitimate expectation-of-privacy determinations, including whether the person bringing the challenge retained a right to exclude others from the place subjected to search. See Rakas, 439 U.S. at 154–55 (holding that, in a car subjected to a search, passengers who had no right to exclude others from the car lacked standing); Alderman v. United States, 394 U.S. 165, 175–80 (1969) (holding homeowner retained standing to contest statements obtained lawlessly in his home despite his physical absence at the time of the police action) (cited approvingly in Rakas, 439 U.S. at 143). Another factor is whether the person exercised dominion over or continuing access to the place searched as well as a possessory interest in the item seized. See Minnesota v. Olsen, 495 U.S. 91 (1990) (holding overnight guest in another’s home which is subject to search may have legitimate expectation of privacy sufficient to assert Fourth Amendment claim); United States v. Jeffers, 342 U.S. 48, 50–51 (1951) (holding non-owner could contest search of an apartment in light of his unrestricted access to and use of the premises despite his absence at the time the search occurred).
[143] . Like the good faith and impeachment exceptions, the attenuation doctrine is premised on the belief that, after a point, exclusion of probative evidence becomes too costly relative to its deterrence returns. See Leon, 468 U.S. at 911 (holding that "the dissipation of taint concept . . . attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies the cost") (quoting Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J., concurring)). Thus, evidence obtained derivatively from unlawful police conduct is admissible under the attenuation doctrine if the links between the illegality and the proffered evidence have "become so attenuated as to dissipate the taint" of the police misconduct. Nardone v. United States, 308 U.S. 338, 341 (1939). The fact that the police would not have acquired the derivative evidence "but for" an initial illegality is not dispositive of the exclusion question. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963) (holding that not all proof "is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police"). Rather, the attenuation doctrine instructs courts to inquire whether the police obtained the evidence being offered "by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. at 488 (emphasis omitted). Several factors are found to promote or hinder dissipation, including (on the promote side) the passage of time, the increasing number of links in the chain between the initial illegality and the acquisition of the challenged evidence, the intervention of acts of free will, and (on the hinder side) the flagrancy of the initial illegality. See id. at 484–87. See also Dressler, supra note , § 21.08, at 358–59 (discussing attenuation factors).
[144] . Rather than providing an exception to the rule that poisonous-fruit evidence is excludable, the independent source doctrine reaffirms that rule, but clarifies that not all evidence obtained subsequent to an unlawful act by the police will be considered the fruit of that act. See Murray v. United States, 487 U.S. 533, 541–43 (1988) (approving admission of evidence seized pursuant to a lawfully issued search warrant, because it was "independent" of an earlier warrantless, and thus unlawful, search for the same evidence); Segura v. United States, 468 U.S. 796, 815–16 (1984) (approving admission of evidence found in an apartment pursuant to valid warrant, though the police had unlawfully entered the apartment before obtaining the warrant, because the warrant was based on information wholly unconnected with the lawless entry). See also William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev 881, 933–34 (1991) (criticizing Murray for its encouragement of confirmatory warrantless searches). The converse situation may also trigger the doctrine. Where evidence is seized lawfully by the police, but that seizure is followed by conduct that violates the Fourth Amendment, the initial seizure will be considered independent of the unlawful police conduct, and exclusion deemed unnecessary. See Dressler, supra note , § 21.08 at 354.
[145] . A close cousin of the independent source doctrine, the inevitable discovery doctrine shields from exclusion all evidence discovered unlawfully, but which would "inevitably" have been discovered lawfully had the illegality not occurred. See Nix v. Williams, 467 U.S. 431, 444 (1984). The threshold for establishing such an inevitability is steep. See Whitebread & slobogin, supra note , § 2.04, at 45 (noting that "courts have required a fairly high degree of proof" in this regard). For some, however, it is not steep enough. See id. at 46 (arguing that the Williams standard which requires proof of inevitability by a preponderance of the evidence, places insufficient burden on the state to prove that "the discovery of the evidence through legal means was truly inevitable"). See also Williams, 467 U.S. at 459–60 (Brennan, J., dissenting) (agreeing that evidence that would "inevitably" have been found lawfully should be admissible, but only where the prosecutor establishes such inevitability by clear and convincing proof).
[146] . Professor Steiker has referred to these categorical exceptions as "inclusionary rules." See Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2469 (1996). Professor Slobogin has described them collectively as comprising "today’s swiss cheese exclusionary rule." See Slobogin, supra note , at 375.
[147] . See Whitebread & Slobogin, supra note , § 2.03, at 24–25 (observing that in good faith exception cases, courts have "either ignored the precept that the judicial system should not be a party to police illegality, or argued that judicial integrity is not implicated because the violation has already occurred by the time the evidence is used in court").
[148] . 434 F. Supp. 113, 131 & n.69 (N.D. Ohio 1977), aff’d per curiam, 590 F.2d 206 (6th Cir. 1979), rev’d, 447 U.S. 727 (1980).
[149] . Payner, 434 F. Supp. at 119–20, 122.
[150] . See id. at 132–33 (finding of fact by the District Court that "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion"). The government later denied before the Supreme Court that its agents had encouraged the informant’s illegal behavior, but the Court held that it "need not question the District Court’s contrary findings." Payner, 447 U.S. at 731 n.3.
[151] . See Payner, 434 F. Supp. at 133–34. Even if Fourth Amendment rights are not violated, where federal or state officials execute a search in a manner so outrageous that it "shocks the conscience" of the court, the evidence may be excluded under the Due Process clauses of the Fifth and Fourteenth Amendments. Rochin v. California, 342 U.S. 165, 169–74 (1952). See also Lego v. Twomey, 404 U.S. 477, 485–86 (1972).
[152] . See Payner, 434 F. Supp. at 135.
[153] . See Payner, 590 F.2d at 206.
[154] . See Payner, 447 U.S. at 734. The Court noted in dicta that it would have reached the same conclusion with respect to the defendant’s due process challenge. See id. at 737 n.9.
[155] . See id. at 748 (Marshall, J., dissenting) (remarking that the majority’s holding permitted the government to wield the standing rules as a "sword . . . to permit it deliberately to invade one person’s Fourth Amendment rights in order to obtain evidence against another").
[156] . See Harris v. New York, 401 U.S. 222, 226 (1971) (approving the use of a statement obtained without warnings to impeach defendant’s credibility). In a later case, the Court acknowledged but dismissed as "speculative" the possibility that this limitation on the exclusion penalty would encourage the police to continue to interrogate in violation of Miranda in order to collect impeachment evidence. See Oregon v. Hass, 420 U.S. 714, 723 (1975). More recently the Court stated that even if the impeachment exception created such an incentive, the possibility would be outweighed by the social interest in the search for truth. See Michigan v. Harvey, 494 U.S. 344, 351–52 (1990).
[157] . See Oregon v. Elstad, 470 U.S. 298, 309 (1985) (holding that Miranda-compliant statement need not be suppressed simply because it was obtained as result of a Miranda-defective statement); Michigan v. Tucker, 417 U.S. 433, 450 (1974) (holding prosecutor could properly offer the testimony of a witness whose identity was discovered as a result of Miranda violation).
[158] . See New York v. Quarles, 467 U.S. 649, 656–57 (1984).
[159] . See, e.g., Tucker, 417 U.S. at 446.
[160] . See, e.g., Elstad, 470 U.S. at 306. "[E]qually . . . effective" prophalaxis must be provided, however, if the four warnings are abandoned. Dickerson v. United States, 120 S. Ct. 2326, 2335 (2000).
[161] . See Miranda, 384 U.S. at 479.
[162] . See Elstad, 470 U.S. at 306; Tucker, 417 U.S. at 450.
[163] . Charles Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 111 (1998). Professor Weisselberg reaches this conclusion only by way of observation, not by way of endorsement.
[167] . Professor Weisselberg presents an impressive array of evidence that some police forces have internalized the message that compliance with Miranda is discretionary and have modified their interrogation practices accordingly. See id. at 132–140. In a controversial interrogation practice employed by some California police departments, for example, police officers are instructed via police manuals and training sessions that the law permits them to go "outside Miranda," i.e., that it is lawful to continue to question a suspect who has invoked her right to remain silent or her right to counsel for the purpose of collecting impeachment evidence or evidence that might convince the defendant not to testify at trial. See id. Particularly telling is the transcript of a videotaped training session during which a local prosecutor counseled police officers that it was lawful to go "outside Miranda" and explained the reasons they might decide to do so:
What if you’ve got a guy [in custody] that you’ve only got one shot at? This is it, it’s now or never because you’re gonna lose him—he’s gonna bail out or a lawyer’s on the way down there, or you’re gonna have to take him over and give him over to some other officials—you’re never gonna have another chance at this guy, this is it. And you Mirandize him and he invokes. What you can do—legally do—in that instance is go outside Miranda and continue to talk to him because you’ve got other legitimate purposes in talking to him other than obtaining an admission of guilt that can be used in his trial . . . .
. . . [Y]ou may want to go outside Miranda and get information to help you clear cases. . . .
Or maybe it will help you recover a dead body or a missing person. . . .
You may be able to recover stolen property. . . .
Maybe his statement "outside Miranda" will reveal methods—his methods of operation. . . .
Maybe his statement will identify other criminals that are capering in your community. . . .
Or, his statements might reveal the existence and location of physical evidence. You’ve got him, but you’d kinda like to have the gun that he used or the knife that he used . . . . [Y]ou go "outside Miranda" and take a statement and then he tells you where the stuff is, we can go and get all of that evidence.
And it forces the defendant to commit to a statement that will prevent him from pulling out some defense and using it at trial—that he’s cooked up with some defense lawyer—that wasn’t true. So if you get a statement "outside Miranda" and he tells you that he did it and how he did it or if he gives you a denial of some sort, he’s tied to that, he is married to that. . . . [P]erfectly legitimate said both the California and U.S. Supreme Courts [sic] to use non-Mirandized statement[s] if they’re otherwise voluntary. I mean we can’t use them for any purpose if you beat them out of him, but if they’re voluntary statements, . . . [we can] use them to impeach or rebut. So you see you’ve got all those legitimate purposes that could be served by statements taken "outside Miranda."
Id. at 135–36 (quoting Videotape: Questioning: "Outside Miranda" (Greg Gulen Productions 1990) (on file with Professor Weisselberg) (alterations in original).
[168] . See Commonwealth v. Woodward, 427 Mass. 659, 694 N.E.2d 1277 (1998). While it is true that the court did impose other conditions for Woodward’s release which might also be characterized as sanctions, the court’s decision not to impose a prison sentence for the defendant’s homicide was an extraordinary act of judicial lenience.
[169] . The sheer difficulty of calculating such a cost may be, at least in part, what drives the law to approach the penalties for homicidal crimes as sanctions (prohibited wrongs to be completely deterred) rather than prices (permissive harmful acts for a fee). See Cooter, supra note , at 1537–38.
[171] . Leon, 468 U.S. at 928.
[173] . Id. at 923 (citations omitted).
[174] . 468 U.S. 796, 814 (1984) (approving the introduction of evidence found in an apartment pursuant to a valid warrant, though the police had unlawfully entered the apartment before obtaining the warrant, because the warrant was based on information "wholly unconnected" to the earlier lawless entry).
[175] . 487 U.S. 533, 541–43 (1988) (approving admission of evidence seized pursuant to a lawfully issued search warrant because it was "independent" of an earlier unlawful search for the same evidence).
[176] . See id. Although formally announced in Murray, the independent source doctrine can lay claim to much older roots. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
[177] . See Segura, 468 U.S. at 796.
[178] . Some danger may persist that the police will intentionally violate the constitutional provision when they know they have sufficient independent evidence to obtain a warrant. See Stuntz, supra note , at 933–34 (criticizing Murray for its encouragement of confirmatory warrantless searches). However, the Murray majority found this possibility insufficiently meritorious to outweigh the creation of the independent source exception. See Murray, 487 U.S. at 533.
[179] . Payner, 447 U.S. at 733–34 (citing Jackson v. Denno, 378 U.S. 368, 386 (1964); Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting)). See also INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (holding that evidence obtained unconstitutionally need not be suppressed in a civil deportation hearing, but emphasizing that the Court did "not condone any violations of the Fourth Amendment that may have occurred during the arrests of the [defendants]").
[180] . In Part III, I argue that the Court’s creation of the categorical exceptions to exclusions in the absence of sufficient accompanying messages of wrongfulness has undermined the effectiveness of the exclusion penalty as a sanctioning device. In cases involving governmental criminality, the penalty of exclusion should be applied without exception.
[181] . In a lengthy footnote the Court expanded on its dislike of the government’s conduct. See Payner, 447 U.S. at 734 n.5. The footnote reported that the conduct was considered so egregious that it provoked congressional oversight hearings into the case, and a termination of the IRS’s investigation. See id. The Commissioner of the IRS subsequently adopted guidelines which required its agents and operatives to report known illegalities to state authorities. See id. (citing Internal Revenue Manual §§ 9373.3(3), 9373.4 (Manual Transmittal 9-21, Dec. 27, 1977)). The Court wrote that "these measures . . . indicate disapproval of the practices found to have been implemented in this case." Payner, 447 U.S. at 734 n.5 (emphasis added).
[182] . See authorities cited supra note .
[183] . See Donald Dripps, Living with Leon, 95 Yale L.J. 906, 908 (1986) ("Little dispute surrounds the purposes of the Fourth Amendment: the Framers intended to prohibit general searches unsupported by probable cause. But little agreement exists respecting the purposes of the exclusionary rule . . . ." (emphasis added)).
[184] . As noted above, careful reading of the Court’s decisions reveals wide agreement among the Justices across a broad selection of cases that the restrictions placed by the Fourth Amendment on the search and seizure authority of the Constitution are prohibitory, not permissive. Some members of the Court have expressed concerns from time to time that particular aspects of the Court’s decisions might perversely create incentives for the police to employ constitutionally defective evidence-gathering tactics. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 187 (1991) (Stevens, J., dissenting) (worrying that police might "file charges selectively in order to preserve opportunities for custodial interrogation . . ."). Certainly, the Court has never held that compliance with the Fourth Amendment’s ban against unreasonable searches and seizures or the mandates of Miranda is discretionary. To the contrary, admonitions abound that compliance is mandatory. See supra Part II.A.1. Though considerable disagreements have occurred among the Justices in Fourth Amendment cases, those disagreements have centered on the question of how properly to interpret the Amendment’s commands. For example, there has been considerable disagreement over what constitutes an "unreasonable" search or seizure and how severe the penalty should be when constitutional error occurs. See supra note . Serious as these disagreements are, they do not support a conclusion that the exclusion penalty is a price.
[185] . Professor Steiker made a similar argument in an article focused on the difference between the Court’s "conduct" rules and its "decision" rules. See Steiker, supra note , at 2469–70. Building on the earlier work of Professor Meir Dan-Cohen, see Meir Dan-Cohen, Decision Rule and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984), Professor Steiker explained that in the context of constitutional criminal procedure, conduct rules are rules "addressed to law enforcement agents regarding the constitutional legitimacy of their investigative practices." Steiker, supra note , at 2470. Decisions rules are rules which are addressed to courts to guide their decision-making about "the consequences of unconstitutional conduct" by the police. Id. Professor Steiker pointed out that shifts in the Court’s decision rules (by creating a proliferation of "inclusionary rules") have greatly outpaced changes in its conduct rules. As put by Professor Steiker: "[T]he Burger and Rehnquist Courts have accepted to a significant extent the Warren Court’s definitions of constitutional ‘rights’ while waging counter-revolutionary war against the Warren Court’s constitutional ‘remedies’ of evidentiary exclusion . . . ." Id.
[186] . See Cooter, supra note , at 1532.
[187] . However, as will be seen below, by elevating the deterrence over the judicial-integrity rationale while simultaneously declining to apply the sanction in a wide range of cases, the Court may well have diminished the power of the exclusion penalty as a sanctioning device and curbed its ability to deter constitutionally defective police conduct at the margins. See infra Part III.A. If this trend continues, and it is unaccompanied by counterbalancing reminders from the Court that the constitutional requirements are mandatory, the sanction of exclusion could eventually come to be seen as no more than the price incurred for zealous police work. See Keith A. Fabi, Comment, The Exclusionary Rule: Not the "Expressed Juice of the Woolly-Headed Thistle", 35 Buff. L. Rev. 937, 951–52 (1986) (worrying that "[a]pplication of the rule in fewer and fewer circumstances" would "lessen[] police perception of exclusion as a serious sanction").
[188] . See Milton A. Loewenthal, Evaluating the Exclusionary Rule in Search and Seizure, 49 UMKC L. Rev. 24, 30 (1980) ("The notion that the fruits of illegal official action may not be used against an individual is so deeply imbedded in American constitutional law that it is often assumed as a given.").
[189] . This is particularly true of sanctioning penalties for criminal harms. See supra notes – and accompanying text.
[190] . Leon, 468 U.S. at 919 (quoting United States v. Peltier, 422 U.S. 531, 539 (1975)). See also Michigan v. Tucker, 417 U.S. 433, 447 (1974).
[191] . The reader might reasonably wonder how that could be when under the good faith exception official constitutional errors go unpunished. How can a doctrine that does not penalize official harms support the conclusion that the Court has adopted a "sanctioning" approach to official harms? The answer lies in the basic definition of a sanction provided by Professor Cooter. Recall that one of the central defining characteristics of a sanction is that it is triggered by the possession of a wrongful mental state. If an actor possesses no culpable mental state, a sanctioning system of penalties would impose no punishment, even if the actor’s conduct imposed a harm on another. Suppose, for example, that a motorist was driving in a perfectly safe and reasonable manner, and was abiding by all traffic regulations when a young man on a skateboard suddenly veered into the driver’s path. The young man was hit and killed. Suppose further that no driver acting reasonably would have been able to avoid hitting and killing the young man under the circumstances. If the motorist did not act negligently, she would be unpunished under a sanctioning system.
[192] . See supra notes – and accompanying text.
[193] . See supra notes – and accompanying text.
[194] . Certainly we could punish harms imposed by the police on a strict liability basis. Indeed, before the Court’s decision in Leon, the federal courts disagreed about whether reasonable police harms justified exclusion. See, e.g., United States v. Williams, 622 F.2d 830, 846–47 (5th Cir. 1980) (en banc) (pre-Leon decision adopting a form of good faith exception). Even today, some legal commentators advocate the abolition of the "good faith exception." See, e.g., Burkoff, supra note .
[195] . Cooter, supra note , at 1527.
[196] . See supra text accompanying notes –.
[197] . Cooter, supra note , at 1531.
[198] . See Cooter, supra note , at 1531 ("Although few people tip, those who do will probably change their behavior a lot, rather than a little. The change in behavior will be substantial because the choice is between taking enough precaution to avoid the sanction entirely, or paying the sanction and taking little or no precaution.").
[199] . Applying the theory of "acoustic separation" to the Court’s exclusion decision, Professor Steiker expressed this same concern:
Where the police ‘hear’ the Court’s decision rules and thus are able to predict the likely legal consequences of their unconstitutional behavior, they may see little reason to continue to obey conduct rules that are consistently unenforced in criminal prosecutions. If the consequences imposed by the Court’s decision rules play a significant role in motivating compliance with conduct rules, then changes in decision rules will necessarily change compliance with conduct rules.
Steiker, supra note , at 2543 (emphasis added). Professor LaFave made the point this way:
[M]y credo is: If you want the police to go seven miles, then what must be done is to erect an unmistakable signpost at the seven-mile limit, and what must not be done is to tell the police that we will look the other way provided they go no farther than eight miles.
LaFave, Fourth Amendment, supra note , at 359–60.
[200] . Under this practice some police departments actively encourage police officers to ignore unambiguous invocations of the right to silence or counsel in order to secure confessional evidence. See supra text accompanying notes –67.
[201] . As once put by Professor LaFave, "The notion . . . is not that the police are inherently evil, but rather that . . . they are no less likely than the rest of us to equate admissibility with legality." LaFave, Fourth Amendment, supra note , at 353.
[202] . Indeed, this seems to be the lesson of the defenses of contemporary actions challenging the practice of going "outside Miranda." Far from concealment, the police departments that have adopted this interrogation practice have done so quite openly, actively training new recruits on how best to secure a confession after a valid invocation of Miranda rights or in the absence of an effective waiver. See supra note and accompanying text.
[204] . See Loewenthal, supra note , at 29.
[205] . The rule of Wolf was subsequently overruled by Mapp v. Ohio, 367 U.S. 643 (1961). However, at the time of the Wolf case, the majority was persuaded that the exclusion penalty applicable in federal trials for Fourth Amendment violations was not required in state criminal proceedings. See Wolf, 338 U.S. at 28–29 (noting that "most of the English-speaking world" did not regard the penalty as vital to the protection of the guarantee against unreasonable searches and seizures, and of the 47 States that had considered the exclusion doctrine after it was adopted as the federal remedy, most (by a margin of 30 to 17) had rejected it).
[207] . Loewenthal, supra note , at 29 ("Prior to Mapp v. Ohio, the police were not aware that constitutional standards for search and seizure had been applied to them in Wolf v. Colorado; no sanctions had been imposed in Wolf, and the police continued to search with impunity.").
[209] . See supra discussion accompanying notes –54.
[210] . See Payner, 434 F. Supp. at 121–22.
[211] . Cooter, supra note , at 1531. Far from culpably careless behavior, the decision to search in Payner constituted both an intentional violation of the bank officer’s constitutional rights and a criminal act.
[212] . Critics of the view that the exclusionary rule serves as an effective deterrent of police violations of constitutional rights have emphasized the fact that the penalty does not directly penalize individual police offenders but instead relies on the assumption that a police officer will learn sometime (well) after the violation that the evidence she collected has been suppressed. See Barnett, supra note at 955–56. Even supporters of the exclusion penalty have acknowledged that more direct sanctions imposed on police violators would result in greater deterrence. See Loewenthal, supra note , at 31–32. In Loewenthal’s study of the New York City police, many officers stated that while they were deterred "to some extent by the exclusionary rule," they characterized the exclusionary rule "as a moderate deterrent" when compared to more direct sanctions. Id. at 31. The police advised that "sanctions which would threaten police with substantial financial losses or even criminal penalties would . . . deter them from taking even the slightest chance of searching or arresting in relatively marginal situations . . . ." Id at 31–32.
[213] . See, e.g., James Q. Wilson, Thinking About Crime 117–21 (rev. ed. 1983).
[214] . The diminished ability of a prosecutor to secure the conviction of a person whom the evidence (though tainted) powerfully suggests is guilty is widely considered to be the principal "cost" of exclusion. The promotion of official adherence to constitutional norms is considered the principal benefit. The converse works similarly. The cost of non-exclusion is the fear that the police will trammel upon constitutional rights without concern for penalty; the benefit is the enhanced chance of securing conviction of the guilty and ascertaining the "truth." See Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring); United States v. Calandra, 414 U.S. 338, 348 (1974); Michigan v. Tucker, 417 U.S. 433, 451 (1974).
[215] . As seen in Part II, by using this cost-benefit approach, the Court has frequently concluded that if lawless official behavior is permitted to go unsanctioned by exclusion, society will reap the benefits of the use of that loot (evidence of the accused’s criminality). Such is the case because the benefits gained sometimes outweigh the losses suffered from the occurrence of lawless police conduct. See supra text accompanying notes –62.
[216] . This may be confusing to those who understand sanctions (as opposed to prices) to be tools used to deter those who would engage in acts which are forbidden. If the law forbids these acts from occurring, what explains the courts’ willingness to seek only optimal rather than complete enforcement of these rules? The answer is simply that enforcement itself is costly. See George J. Stigler, The Optimum Enforcement of Laws, 78 J. Pol. Econ. 526, 526–27 (1970). Although we could devote exorbitant resources to ferreting and penalizing all official actors who tread consciously or unconsciously on the constitutional rights of others, to do so would be expensive. Thus "only in crimes of enormous importance will such expenditures be approached." Id. at 527.
[217] . See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 173 (1968). Professor Stephen Marks explains the alternatives of inclusion and exclusion of criminal utility:
If we count utility we would set the damage amount to D = L/p where "L" symbolizes the loss to society and "p" symbolizes the probability of detection. . . . If we do not credit utility then we would set the penalty at D > B/p where ["B"] symbolizes the benefit to the criminal of the act. In the former case, the criminal activity occurs if benefit to the criminal exceeds the loss to the rest of society. In the latter case, we set the penalty so as to minimize criminal activity.
Marks, supra note , at 220 n.21 (citation omitted).
[218] . See Becker, supra note , at 170.
[220] . See Hylton, supra note , at 427 & n.25 (observing that Becker’s article "touched off a large literature on the economics of crime" and citing examples).
[221] . See, e.g., Steven E. Rhoads, The Economist’s View of the World: Government, Markets, and Public Policy 143–78 (1985) (arguing that criminal gains should not be counted); Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as Preference Shaping Policy, 1990 Duke L.J. 1, 11–13 (urging that the inclusion of "criminal benefits in the concept of social welfare seems to defy common sense"); Kenneth G. Dau-Schmidt, Sentencing Antitrust Offenders: Reconciling Economic Legal Theory, 9 Wm. Mitchell L. Rev. 75, 90 (1984); Jeff L. Lewin and William N. Trumbull, The Social Value of Crime?, 10 Int’l Rev. L. & Econ. 271, 278 (1990) (arguing that criminal gains should be excluded from the social welfare equation out of respect for "the constraints imposed by political and social institutions"); Stigler, supra note , at 527 (questioning the inclusion of the gain to the offender as a social value in light of the fact that "society has branded the utility derived from such activities as illicit"). Cf. Coffee, supra note , at 193–94 (commenting that "the criminal law often and necessarily displays a deliberate disdain for the utility of the criminalized conduct to the defendant"). Not all economists agree that it is inappropriate to consider criminal utility in the social welfare equation. See Alvin K. Klevorick, On the Economic Theory of Crime, in Nomos xxvii: Criminal Justice 289, 292–94 (J. Roland Pennock & John W. Chapman eds., 1985) (listing optimal enforcement models in which criminal utility is counted).
[222] . Lewin & Trumbull, supra note , at 273 n.13.
[223] . Marks, supra note , at 215 (emphasis omitted).
[224] . See Coffee, supra note , at 225 (using price and sanction theory to explain the criminal sanction as a system of moral education whose "natural style is to prohibit rather than to price" and whose voice "prefers to deal in moral absolutes").
[225] . See Stigler, supra note , at 528 ("The state will pursue more tenaciously the offender who commits a larger crime (or repetitive crimes) and thus increase also the probability of apprehending him.").
[226] . Coffee, supra note , at 195.
[227] . Professor Coffee has made a similar argument in a non-exclusion context. See id. at 194 (arguing that "the criminal law should generally not be used when society is unprepared to disregard the social utility of the defendant’s behavior").
[228] . Using the federal civil rights criminal statute, 18 U.S.C. § 242, as the premier example, criminal conviction of a police officer for deprivation of rights under the color of law requires proof of "willfulness," a level of intentionality not apparent in most search and seizure or interrogation episodes. The statute provides in pertinent part that it is a crime for any person "under color of any law" to "willfully subject[] any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution." 18 U.S.C. § 242 (1994). Under this section, the purpose of an officer to deprive another of the constitutional right must be plain and willful. See Williams v. United States, 341 U.S. 97, 101 (1951). Although the courts have increasingly defined criminal willfulness to require evidence that the actor violated a legal duty or obligation known to her, see Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance, 48 Duke L.J. 341 (1998), in this context the term would require proof that the officer acted with a "bad purpose." See id. at 381–87. See also Bryan v. United States, 524 U.S. 184, 191 (1998); United States v. Murdock, 290 U.S. 389, 397 (1933). Although present in some cases, see Williams, 341 U.S. at 102 (finding defendant who obtained confessions through the use of physical force "aimed to deny the protection that the Constitution affords" and thereby satisfied the willfulness requirement); Screws v. United States, 325 U.S. 91, 92–93 (1945) (holding sheriff and deputy violated willfulness requirement of predecessor to § 242 by beating handcuffed arrestee with fists and a blackjack until unconscious, causing his death), it is surely not present in most. Indeed, supporters of the exclusion penalty have stressed this fact when refuting the argument that remedies alternative to exclusion (like criminal prosecution of police offenders) would provide a better deterrent for police violations. See, e.g., Steiker, supra note , at 848. Put bluntly, relative to the run-of-the-mill exclusion challenge, cases with facts like those in Payner are happily rare.
[229] . See, e.g., Marks, supra note , at 229 ("In moving to practical problems of enforcement, the society takes the definition of the community as given. Decision makers strip the social utility function of utility gained from prohibited acts and commit resources to enforcement commensurate with minimizing losses to law abiding citizens."). Professor Coffee has made a similar point:
[T]he factor that most distinguishes the criminal law is its operation as a system of moral education and socialization. The criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance. Far more than tort law, the criminal law is a system for public communication of values. As a result, the criminal law often and necessarily displays a disdain for the utility of the criminalized conduct to the defendant.
Coffee, supra note , at 193–94 (footnote omitted).
[230] . Support for differing levels of aggressiveness when applying the exclusion sanction in these two settings is found in Professor Cooter’s argument that it is sometimes appropriate to adjust sanctions to deter wrongdoing. Cooter argues: "Deterring actors whose fault is intentional, deliberate, or repeated requires a more severe sanction than deterring actors whose fault is unintentional, spontaneous, or committed for the first time." Cooter, supra note , at 1537.
[231] . For an excellent exposition of the classic windfall argument, see Kades, supra note , at 1564–66.
[232] . Payner, 447 U.S. at 733.
[233] . Even if such willful violations are more common than the cases suggest, this would only provide further support for diligent application of the exclusion penalty, for in this event the need to ratchet up the sanction would become even greater.
[234] . See United States v. Leon, 468 U.S. 897, 918–21 (1984).
[235] . See Stone v. Powell, 428 U.S. 465, 540 (1976) (White, J., dissenting).
When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their duty, will act in similar fashion in similar circumstances in the future . . . .
Id.
[236] . This assumes of course that none of the other categorical exceptions apply. See supra text accompanying notes –62.
[237] . Burkoff, supra note , at 121 (urging the adoption of a bad faith exception and the rejection of a good faith exception) (emphasis omitted).
[238] . Id. Professor LaFave has made the point in the following way: "[A]dmission of illegally seized evidence under a ‘good faith’ exception would be perceived or treated by the police as a license to engage in the same conduct in the future." LaFave, Fourth Amendment, supra note , at 358.
[239] . Meredith B. Brinegar, Recent Development, Limiting the Application of the Exclusionary Rule: The Good Faith Exception, 34 Vand. L. Rev. 213, 228 (1981). See also Bradley, supra note , at 295–96, 299 (arguing police "carelessness certainly can be deterred by appropriate sanctions" and even in cases where the police "try their best" but "still make a ‘good faith’ mistake" they should be "admonished to try harder"); Burkoff, supra note , at 121–22 (arguing "there is no reason to suppose . . . that a police officer . . . cannot learn that particular conduct is improper whether that lesson is derived from intended or unintended improper action"). For other work critical of the good faith exception, see Dripps, supra note , at 907 (defending the Leon result, but condemning the Court’s reasoning); Michael Hunter, Is the Exclusionary Rule a Relic of the Past? Leon, Sheppard and ‘Beyond’, 12 Ohio N.U. L. Rev. 165 (1985); Yale Kamisar, Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond, 69 Iowa L. Rev. 551 (1984); Robert L. Misner, Limiting Leon: A Mistake of Law Analogy, 77 J. Crim. L. & Criminology 507 (1986); Wasserstrom & Mertens, supra note ; David Clark Esseks, Note, Errors in Good Faith: The Leon Exception Six Years Later, 89 Mich. L. Rev. 625 (1990).
[240] . See Burkoff, supra note , at 121. Cf. William H. Theis, "Good Faith" as a Defense to Suits for Police Deprivations of Individual Rights, 59 Minn. L. Rev. 991, 1022 (1975) (arguing that the notion that an officer’s good faith could "mitigate the wrong inflicted by his violation of the guidelines on arrest, search, and seizure implies that these rights are not really important").
[241] . Prices and sanctions are used in tort law, for example. See Cooter, supra note , at 1538–44.
[242] . I recognize that many criminal procedure commentators reject the proposition that the exclusionary rule itself imposes costs. See, e.g., Yale Kamisar, ‘Comparative Reprehensibility’ and the Fourth Amendment Exclusionary Rule, 86 Mich. L. Rev. 1, 36 n.151, 47–48 (1987) (arguing that any costs associated with the exclusionary rule are costs imposed by the Fourth Amendment). The argument is essentially that police adherence to the commands of the Fourth and Fifth Amendments would have the same effect as application of the exclusionary rule, no more and no less. Both situations would result in no useable evidence. In the former, evidence would not be useable because the police complied with the Amendments and obtained no evidence, in the latter, because whatever they obtained was suppressed via application of the rule. Thus the "cost" of the exclusion penalty is in truth a cost of the Amendments themselves which forbid the errant police conduct to begin with. Compare Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532, 1563 (1972) (stating that "under the exclusionary rule a court attempts to maintain the status quo that would have prevailed if the constitutional requirement had been obeyed"), with Amar, supra note , at 793–94 (criticizing this argument as "too quick" and arguing that in many situations exclusion confers a huge benefit on criminal actors). I find it unnecessary to enter this interesting but well-canvassed debate here.
[243] . The recent experience of United States District Court Judge Baer in New York provides some evidence that the public’s support for the penalty is precarious. See United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y. 1996) (ordering the suppression of drug evidence), vacated, 921 F. Supp. 211 (S.D.N.Y. 1996). Judge Baer’s unilateral decision to reverse his own exclusion decision followed heavy criticism of the exclusion decision. For a thoughtful analysis of the Bayless decisions, see L. Timothy Perrin, H. Mitchell Caldwell, & Carol A. Chase, with Ronald W. Fagan, If It’s Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 Iowa L. Rev. 669, 671–72 (1998).
[244] . A study conducted by Myron Orfield suggests that we must retain the good faith exception if we hope to promote official respect for and submission to the exclusionary rule. See Myron W. Orfield, Jr., Note, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016 (1987). Orfield surveyed the views of members of the Chicago police force toward the penalty and found that whatever support existed for the penalty was inextricably tied to the existence of a good faith exception. See id. at 1051 ("all of the officers responded that the rule should be preserved with a good faith exception"). See also Perrin et al., supra note , at 732 & n.453 (reporting similar police sentiments).
[245] . As put by Professor Slobogin, exclusion causes resentment on police forces and "[d]isregarding the degree of officer culpability is likely to exacerbate that sense of unfairness." Slobogin, supra note , at 383.
[246] . See, e.g., Whitebread & Slobogin, supra note , § 2.03, at 26–30; Alschuler, supra note ; Bradley, supra note , at 287–304; LaFave, Call of Expediency, supra note ; Wasserstrom & Mertens, supra note .
[247] . On the other hand, cases involving constitutionally careless behavior by the police will support exclusion.
[248] . Many feared that the Court would extend the exception to allow the introduction of evidence gathered by officers acting without a warrant on the objectively reasonable belief that their actions were constitutionally sound. See, e.g., Fabi, supra note , at 951 (fearing that the good faith exception would "serve[] as a springboard for further limits and exceptions to the rule"); James P. Fleissner, Glide Path to an "Inclusionary Rule": How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule, 48 Mercer L. Rev. 1023, 1033 (1997) (fearing that the good faith exception would be extended to warrantless searches and seizures); Richard E. Hillary, Note, Arizona v. Evans and the Good Faith Exception to the Exclusionary Rule: The Exception is Swallowing the Rule, 27 U. Tol. L. Rev. 473, 503 (1996) (arguing a post-Leon decision extending the good faith exception to errors made by court clerical personnel represented a "further deterioration of Fourth Amendment rights" and predicting that the exception would eventually "swallow the rule"). However, the Supreme Court has now had 15 years to take this step and has not done so. Thus it is reasonable to conclude that the predictions that the exception would "swallow the rule" were overblown.
[249] . For a classic explanation of the retributivist viewpoint, see Immanuel Kant, Metaphysical Elements of Justice: Part One of the Metaphysics of Morals (John Ladd trans., Hackett Publ’g Co. 2d ed. 1999) (1797).
[250] . There are other conceivable penalties for the violation of Fourth Amendment rights, including (primarily in this context) civil damages.
[251] . See supra text accompanying notes –.
[252] . "For efficiency, the price must fully reflect the external harm caused by the behavior. . . . [A]ccuracy is crucial to induce behavior that is efficient or otherwise desirable." Cooter, supra note , at 1532.
[253] . On the other hand, the same analysis that supports the Court’s adoption of the good faith exception adds strength to my earlier call for the creation of a complimentary "bad faith" doctrine under which all evidence obtained in willful violation of another’s constitutional rights would be excluded regardless of the applicability of any of the categorical exceptions discussed in Part II. One possible argument against the development of a bad faith doctrine is that it will send the courts "on an expedition into the minds of police officers" and "produce a grave and fruitless misallocation of judicial resources." Massaschusetts v. Painten, 389 U.S. 560, 565 (1968) (per curiam) (White, J., dissenting). I find this argument unpersuasive. Subjective intentions and motives are frequently the subject of judicial inquiry and legal standards. See Paul Brest, Reflections on Motive Review, 15 San Diego L. Rev. 1141, 1142 (1978) (arguing that many laws make an actor’s motive a determinative issue to liability). Moreover, as perhaps put best by Justice Holmes: "If justice requires [a] fact to be ascertained, the difficulty of doing so is no ground for refusing to try." The Common Law, supra note , at 41.
[254] . Cooter, supra note , at 1548.
[256]. Cooter, supra note , at 1551.