This article has been written by Vidya Sagar Reddy Gankidi, pursuing Crack California Bar Examination – Test Prep Course and has been edited by Oishika Banerji (Team Lawsikho).
It has been published by Rachit Garg.
Table of Contents
Every progressive democracy is evaluated and judged by the fairness in its system of justice and which in turn is guided by the rights provided either expressly or impliedly to its citizens. The United States Of America stood as a model for its progressive and democratic measures, For, it is one the pioneering states that guaranteed its citizens the fundamental rights in the form of Bill of Rights in its Constitution, whose infringement would either lead to sanctions for the guilty or remedies for the victims. One such remedy and sanction in a broader sense is the exclusionary rule which prevents the admissibility of the evidence in the court of law by government and its agencies if the evidence is gained through illegal and undue means of search and seizure as it violates the right to privacy (Fourth Amendment) and Right Against Self-incrimination (Fifth amendment) which are provided in the Constitution of United States. Well let’s analyse the exclusionary rule in detail and its attribution to the state of California in particular.
What is the exclusionary rule
The exclusionary rule is a preventive rule that makes the evidence gained through unauthorised search and seizure inadmissible in the court of law ,as such unauthorised search and seizure is in contravention to the citizens right to privacy guaranteed in the fourth amendment and the right against self incrimination guaranteed in the fifth amendment of the constitution of the USA. So, a simple rationale behind this rule is just by depreciating the value of the evidence that was illegitimately acquired by making it inadmissible we can prevent the unauthorised search and seizure by the authorities , because the evidence would be of any value if unduly collected .
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The relevant portion of the Fifth Amendment provides that “no person… shall be compelled in any criminal case to be a witness against himself”. This rule endorses the right to citizens’ privacy and the governmental right to punish the criminal behaviour but at the same time it also demands to follow due process of law.
Exclusionary rule has always invited an ire of criticism leading to an opinion that everything in this rule offers a sense of protection for the guilty and there’s nothing for the innocent. But that’s not the case. The aim of this rule is not to protect the criminals/guilty or to showcase the criminals/guilty into victims, but it simply commands a due guilt determination process and rejects the undue, as every system of justice is judged by its acts of fairness and judicial integrity, and the United States is no exception.
Historical perspective of the exclusionary rule
Historically, there is always a conflict between the individual’s claim for privacy rights and their infringement by those in authority by means of justification through the legislations that are used to substantiate their interests, such as the “writs of assistance”. which were devised to curb the smuggling activities in the erstwhile British colonies where they served as an unfettered right to the British authorities to search any ship or building on the pretext of duty to curb smuggling. “writs of assistance” in a way gave absolute power to the colonial authorities who without any just and provable cause of suspicion can enter and search any property including homes in the colonies and that led to seizure and ransacking of ships and buildings by using the “Writs of Assistance” which lead to a lot of uproar from the colonies .
James Otis, a lawyer in what is known as Petition Of Lechmere in 1761 challenged the constitutionality of those writs before the Supreme Court of Massachusetts on behalf of the Boston merchants who were the group primarily responsible for the smuggling in the British colonies. Though the court decided against Boston merchants and continued the writs of assistance, the arguments by the Otis has convinced many regarding the arbitrariness of those writs and whose repercussions were usually heard during the gatherings and assemblies of the then colonies.
These acts which led to violation of privacy may either be fundamental or procedural are restricted by the fourth amendment mainly, and fifth and sixth amendment to some extent after colonisation , For a reasonable warrant is necessary to search and seizure in accordance with the Fourth amendment , since the fourth amendment had a clause of warrant , the history of Fourth amendment is that of the history of the warrant clause and it would not be out of the place to claim that the warrant clause is defined not by the right but by the wrong.
Despite of the required provision in place yet the courts never yielded to it but by means of liberal interpretation got their job done by admitting the evidence , where a long jurisprudential battle was to be fought and to conclude with a rule called exclusionary rule to exclude the evidence acquired by illegitimate means, which can be told in the following case laws broadly.
The exclusionary rule jurisprudence
In the civil case named Boyds vs. United States (1886), the US attorney had obtained a court order against E.A.Boyd and Sons to produce their invoices for the glass that they had allegedly imported without paying the customs duty according to the Customs Act 1874, for which the Boyds contended that the demand for the compulsory production of records in a case of forfeiture to establish a criminal charge against him has violated their rights under Fourth Amendment prohibiting unreasonable searches and seizure and the Fifth Amendment from compulsory self incrimination. The court agreed with Boyds contention and held that the order against Boyds to produce the invoice and the law authorising such act is null and void and reversed the decision of the lower courts.
In Weeks vs. United States (1914), Fremont Weeks approached the court for action against police for returning of his private possessions which was refused by the police earlier for the police had entered and seized the papers which were later used to convict him of transporting lottery tickets through mail from Fremont weeks home, without any search warrant. The court in a unanimous decision agreed with the weeks argument and held that unauthorised search and seizure of weeks residence and refusal by the police authorities to return of the weeks possessions directly violated weeks constitutional rights guaranteed under Fourth Amendment and held that admitting such evidence will be a direct violation of Fourth amendment. The judgement delivered in the Boyds vs. United States (1886). which is applied for the first time in this case which in the course of time became the “Exclusionary Rule”.
In Wolf v Colorado (1949), the defendant was a convict for the state offence and the state court used the evidence gained through unreasonable search and seizure . The defendant argued that the evidence which was violating his rights guaranteed under constitutional Fourth Amendment is inadmissible and it also violated the Constitutional Fourteenth Amendment as due process is not followed while carrying out seizure. The Supreme Court of Colorado withheld the defendants arguments and sustained the conviction and held that in there is no bar in the Fourteenth Amendment with regard to the inadmissibility of the evidence gained through unreasonable search and seizure in a state court prosecution for state crimes, and turned down the imposition of the exclusionary rule as there is no valid legislation .
Finally, in Mapp v.Ohio 567 U.S. 643 (1961), where Dollree Mapps house was searched and obscene material possessed by Mapps were seized, the entire act of the police although unauthorised, she was convicted. The defendant appealed against her conviction under Freedom of Expression guaranteed under the First Amendment. But the court didn’t take the First Amendment into consideration and imposed the exclusionary rule on the states. It held that the admissibility of the evidence obtained through unreasonable search and seizure would violate rights guaranteed under Fourth Amendment and also the due process clause of the Fourteenth Amendment.
Exclusionary rule in California
The California Supreme Court in People v. Cahan (1955) adhered to the exclusionary rule thus making the evidence illegally acquired against sixteen individuals who were charged with a conspiracy of Horse-race book making inadmissible. Thus placing California among those jurisdictions who adhere to Federal exclusionary rule, prior to which many cases of similar nature were not decided by the exclusionary rule but by the non-exclusionary rule. Despite criticism surrounding the exclusionary rule, California was criticised for invoking non-statutory independent state grounds to exclude the relevant evidence.
The Development of Nonstatutory Independent State Grounds in California
Exclusion based on the California Constitution when the evidence Is admissible under the United States Constitution
The California Supreme Court had decided many cases with the help of the California constitution and substantiated its position by interpreting the state Constitution on the pretext of requiring higher standards of police conduct, thereby, excluding the evidence which can be admissible under the United states constitution.
In People v. Brisendine (1975) , the deputy sheriffs who were patrolling the area arrested the defendant campers who were having an open campfire , violating the county laws by an open campfire , the officials also conducted a weapons search which incidentally led to discovery of marijuana in a plastic bottle and illegal drugs in the campers knapsack . The California Supreme Court held that the search was unauthorised and unlawful as the officers failed to support their cause of intrusion into the campers privacy subsequent to their arrest , such a search would have been lawful under the united states constitution.where the cases of similar nature like United States vs. Robinson (1973) and Gustafson vs. Florida (1973) where the United States Supreme Court held that the police may incidentally conduct a full search of the person who was arrested for traffic violation.
Exclusion based on non constitutional grounds when the evidence Is admissible under Federal law
The California Supreme Court, in an attempt to formalise the individual majoritarian preferences exercised its independence on state grounds and formulated an exclusionary rule which is a “judicially declared rule of evidence” and is inconsistent under Federal law. which was adopted in People vs. Martin (1973) and reaffirmed in Kaplan vs. Superior Court (1971). In the latter it was held that exclusionary rule will apply where the defendant can raise an objection regarding the unauthorised evidence acquired from the third person even though it has not violated the defendant’s constitutional rights which would otherwise be admitted in the federal law. Further where there is no immunity under the federal law, exclusionary rule will not apply unless the seizure violates one’s own fundamental rights.
Exclusion in reliance on both the California and United States Constitutions
In People v. Krivda (1973), the Court ruled against the unwarranted search of the trash barrel which was conducted by the police that was placed adjacent to the street for pickup by the rubbish collector and held it to be illegal. The Supreme Court of California relied on both the state and federal Constitutions, thereby restricting the review by the Supreme Court of the United states .
Exclusion without determining admissibility under the Federal Constitution
It would not be out of place to say that the Supreme Court of California has decided certain cases solely only on the basis of the California Constitution without considering the supremacy clause of the United States Constitution and without giving due regards to the admissibility under the United States Constitution.
For example, in People v. Zelinski (1979), the Court decided by excluding unauthorised evidence seized by the private security guards in light of Article 1, Section 13 of the California Constitution. The same was reiterated in Burrows v. Superior Court (1974) where it was held that without due process of law or without the customer consent the police could not obtain the customer’s bank statements.
Measures to reform the exclusionary rule by California
Measures to reform the Exclusionary rule were introduced during the 1981-82 regular session of the California Legislature in the form of the Senate Constitutional Amendment 7 (SCA7) which though aims to retain the exclusionary rule but would restrict the nonstatutory independent state grounds while enforcing the exclusionary rule . and the second reform is the Assembly Constitutional Amendment (ACA 31) which would establish a “Commission on Law Enforcement.” and would abolish the exclusionary rule as a remedy for the violation of constitutional rights by a certified police agency.
Finally, on June 8, 1982, California voters with a power of referendum and initiative granted to them by the california 1911 amendment adopted Proposition 8, “The Victims’ Bill of Rights,” which is codified as Article I, Section 28 of the California Constitution, which ordains for protection of victim rights and even allows for procedural amendments for the same.
Justification of the exclusionary rule
The exclusionary rule is justified by mainly two justifications, namely, one normative and one factual. The normative justification is the prevention of the illegality of conduct by the governmental authorities. The factual justification lies in the assertion that excluding evidence will act as a deterrence and thereby minimising or prohibiting the violations of the search and seizure rules.
Criticism of the exclusionary rule
The exclusionary rule is criticised for the following.
A. Nothing for the Innocent, but Freedom for the Guilty
It’s widely criticised that the exclusionary rule only benefits a guilty person who is arrested by the unauthorised evidence.and there’s nothing for the innocent victim of an illegal search for, it doesn’t compensate for his self-incrimination.
B. Fostering False Testimony by the police
In many instances the police authorities to evade the suppression of evidence may resort to unprecedented moves by twisting of the facts , may yet time release the criminals and may even legalise the illegal arrest.
C. Delay and Diversion from the Question of Guilt or Innocence
The fear of impropriety by the authorities would negatively lead to an unprecedented procedural delays in the administration of criminal justice which would lead to a Delay and Diversion from the question of Guilt or Innocence.
D. Problems in Interpretation of the law
Criminology and the criminal justice system is a vast area which can not be interpreted by a single rule, that is to say a single rule cant practically cover or address every situation accurately .
Exceptions to the Exclusionary Rule:
Despite many possible judicial interpretations to invoke the exclusionary rule ,yet there are exclusions against the Exclusionary Rule , which are as follows.
A .The Good Faith Exception: This is an exception which says that if a police officer conducts a search in a reasonably good faith even without a warrant then there is no deterrence against the evidence and the evidence can still be used .
B. The Independent Source Exception : If the evidence is obtained by some independent source is similar to the evidence obtained to the previously obtained illegal source then the evidence obtained by the independent source can be admissible in the court.
C. Inevitable Discovery : If by any chance under lawful means an evidence is inevitably discovered then that evidence can be admissible .
D. The Principle of Attenuation: It is an exception where the unauthorised evidence is admitted provided it is difficult to prove the connection between the illegitimate search and evidence discovery.
E. Impeachment : Here the illegally gained evidence can be used against the defendant for Impeachment to prevent perjury on defendants behalf.
Finally, it can be concluded that the Exclusionary Rule which was conceptualised with an intention to protect the rights conferred by the Fourth Amendment of the US Constitution had to fight a lengthy battle to mutate itself to the present stage, Though ignored in the initial stages by the Federal Courts but the state of california is had shown its commitment in invoking the Exclusionary Rule ahead of all other state constitutions , inviting a criticism as to ignoring the supremacy of the United States constitution but has stretched all its available wings of jurisprudence and stood up to itself in enforcing what it aimed for .
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