|United States v. Calandra
[ Powell ]
[ Brennan ]
United States v. Calandra
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
The Court holds that the exclusionary rule in search and seizure cases does not apply to grand jury proceedings because the principal objective of the rule is "to deter future unlawful police conduct," ante at 347, and "it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal." [p356] Ante at 351. This downgrading of the exclusionary rule to a determination whether its application in a particular type of proceeding furthers deterrence of future police misconduct reflects a startling misconception, unless it is a purposeful rejection, of the historical objective and purpose of the rule.
The commands of the Fourth Amendment are, of course, directed solely to public officials. Necessarily, therefore, only official violations of those commands could have created the evil that threatened to make the Amendment a dead letter. But curtailment of the evil, if a consideration at all, was at best only a hoped-for effect of the exclusionary rule, not its ultimate objective. Indeed, there is no evidence that the possible deterrent effect of the rule was given any attention by the judges chiefly responsible for its formulation. Their concern as guardians of the Bill of Rights was to fashion an enforcement tool to give content and meaning to the Fourth Amendment's guarantees. They thus bore out James Madison's prediction in his address to the First Congress on June 8, 1789:
If they [the rights] are incorporated into the Constitution, independent tribunals of justice will [p357] consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
1 Annals of Cong. 439 (1789). Since, however, those judges were without power to direct or control the conduct of law enforcement officers, the enforcement tool had necessarily to be one capable of administration by judges. The exclusionary rule, if not perfect, accomplished the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people -- all potential victims of unlawful government conduct -- that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.
That these considerations, not the rule's possible deterrent effect, were uppermost in the minds of the framers of the rule clearly emerges from the decision which fashioned it:
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, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. . . . The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions [p358] have a right to appeal for the maintenance of such fundamental rights. . . .
* * * *
This protection is equally extended to the action of the Government and officers of the law acting under it. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.
Weeks v. United States, 232 U.S. 383, 391-392, 394 (1914) (emphasis added).
Mr. Justice Brandeis and Mr. Justice Holmes added their enormous influence to these precepts in their notable dissents in Olmstead v. United States, 277 U.S. 438 (1928). Mr. Justice Brandeis said:
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
Id. at 485. And Mr. Justice Holmes said:
[W]e must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes when they are the means by which the evidence is to be obtained. . . . We have to [p359] choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part.
. . . If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.
Id. at 470. The same principles were reiterated less than six years ago. In Terry v. Ohio, 392 U.S. 1, 12-13 (1968), Mr. Chief Justice Warren said for the Court:
The rule also serves another vital function -- "the imperative of judicial integrity." Elkins v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.
It is true that deterrence was a prominent consideration in the determination whether Mapp v. Ohio, 367 U.S. 643 (1961), which applied the exclusionary rule to the States, should be given retrospective effect. Linkletter v. Walker, 381 U.S. 618 (1965). But that lends no support to today's holding that the application of the exclusionary rule depends solely upon whether its invocation in a particular type of proceeding will significantly further the goal of deterrence. The emphasis upon deterrence in Linkletter must be understood in the light of the crucial fact that the States had justifiably relied from 1949 to 1961 upon Wolf v. Colorado, 338 U.S. 25 (1949), and consequently, that application of Mapp would have required the wholesale release of innumerable convicted prisoners, few of whom could have been successfully retried. In that circumstance, Linkletter held not only that retrospective application of Mapp would not further the goal of deterrence, but [p360] that it would not further "the administration of justice and the integrity of the judicial process." 381 U.S. at 637. Cf. Kaufman v. United States, 394 U.S. 217, 229 (1969).
Thus, the Court seriously errs in describing the exclusionary rule as merely "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. . . ." Ante at 348. Rather, the exclusionary rule is "part and parcel of the Fourth Amendment's limitation upon [governmental] encroachment of individual privacy," Mapp v. Ohio, supra, at 651, and "an essential part of both the Fourth and Fourteenth Amendments," id. at 657, that
gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
Id. at 660.
This Mapp summation crystallizes the series of decisions that developed the rule and with which today's holding is plainly at war. For the first time, the Court today discounts to the point of extinction the vital function of the rule to insure that the judiciary avoid even the slightest appearance of sanctioning illegal government conduct. This rejection of "the imperative of judicial integrity," Elkins v. United States, 364 U.S. 206, 222 (1960), openly invites "[t]he conviction that all government is staffed by . . . hypocrites[, a conviction] easy to instill and difficult to erase." Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 258 (1961). When judges appear to become "accomplices in the willful disobedience of a Constitution they are sworn to uphold," Elkins v. United States, supra at 223, we imperil the very foundation of our people's trust in their Government on which our democracy rests. See On Lee v. United [p361] States, 343 U.S. 747, 758-759 (1952) (Frankfurter, J., dissenting). The exclusionary rule is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera. Moreover,
[I]nsistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.
Miller v. United States, 357 U.S. 301,313 (1958).
The judges who developed the exclusionary rule were well aware that it embodied a judgment that it is better for some guilty persons to go free than for the police to behave in forbidden fashion. A similar judgment led the Court to decide in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), that a grand jury must be denied access to plainly relevant but illegally seized papers. In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and their corporation, and presented the documents to a grand jury which had previously indicted the Silverthornes, a district court ordered the documents returned and copies that had been prepared in the interim impounded. After returning the originals, the grand jury attempted to recoup them by issuance of a subpoena duces tecum. Compliance with the subpoena was refused, and contempt convictions followed. In reversing the judgment of convictions, the Court, speaking through Mr. Justice Holmes, held that the Government was barred from utilizing any fruits of its forbidden act, [p362] stating that
[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all.
Id. at 392.
Silverthorne plainly controls this case. Respondent, like plaintiffs in error in Silverthorne, [n1] seeks to avoid furnishing the grand jury with evidence that he would not have been called upon to supply but for the unlawful search and seizure. The Court would distinguish Silverthorne on the ground that there, the plaintiffs in error had been indicted, and could invoke the exclusionary rule "on the basis of their status as criminal defendants," since the Government's effort to obtain the documents was "founded on a belief that they might be useful in the criminal prosecution already authorized by the grand jury." Ante at 352 n. 8. The effort was clearly not founded on any such belief. Overlooked is the fact that the grand jury's interest in again obtaining the documents in Silverthorne may well have been to secure information leading to further criminal charges, especially since indictments of three other individuals, as well as additional indictments of the Silverthornes, had been the consequence of initial submission of the documents to the grand jury. See Brief on Behalf of Plaintiffs in Error in No. 358, O.T. 1919, pp. 4, 119. [n2] [p363] Only if Silverthorne is overruled can its precedential force to compel affirmance here be denied.
Congressional concern with the Silverthorne holding was clearly evidenced in enactment of 18 U.S.C. § 2515 providing that
[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . . if the disclosure of that information would be in violation of this chapter.
(Emphasis added.) In Gelbard v. United States, 408 U.S. 41 (1972), we set aside the adjudication in criminal contempt of a grand jury witness who refused to comply with a court order to testify on the ground that interrogation was to be based upon information obtained from the witness' communications allegedly intercepted by federal agents by means of illegal wiretapping and electronic surveillance. Our reasons track the grounds advanced in Silverthorne.
The purposes of § 2515 and Title III as a whole would be subverted were the plain command of § 2515 ignored when the victim of an illegal interception is called as a witness before a grand jury and asked questions based upon that interception. Moreover, § 2515 serves not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct; the evidentiary prohibition was enacted also "to protect the integrity of court and administrative proceedings." Consequently, to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both [p364] to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents.
408 U.S. at 51 (footnotes omitted).
Similarly, to allow Calandra to be subjected to questions derived from the illegal search of his office and seizure of his files is
to thwart the [Fourth and Fourteenth Amendments' protection] of . . . individual privacy . . . and to entangle the courts in the illegal acts of Government agents.
And for a court, on petition of the executive department, to sentence a witness, who is [himself] the victim of the illegal [search and seizure], to jail for refusal to participate in the exploitation of that [conduct in violation of the explicit command of the Fourth Amendment] is to stand our whole system of criminal justice on its head.
In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239, 1252 (1971) (Wright, J., concurring).
It is no answer to suggest, as the Court does, that the grand jury witnesses' Fourth Amendment rights will be sufficiently protected "by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim." Ante at 351. This, of course, is no alternative for Calandra, since he was granted transactional immunity, and cannot be criminally prosecuted. But the fundamental flaw of the alternative is that to compel Calandra to testify in the first place under penalty of contempt necessarily "thwarts" his Fourth Amendment protection and "entangle[s] the courts in the illegal acts of Government agents" -- consequences that Silverthorne condemned as intolerable.
To be sure, the exclusionary rule does not "provide that illegally seized evidence is inadmissible against anyone for any purpose." Alderman v. United States, 394 U.S. 165, 175 (1969). But clearly there is a crucial [p365] distinction between withholding its cover from individuals whose Fourth Amendment rights have not been violated -- as has been done in the "standing" cases, Alderman v. United States, supra; Jones v. United States, 362 U.S. 257 (1!60) -- and withdrawing its cover from persons whose Fourth Amendment rights have, in fact, been abridged.
Respondent does not seek vicariously to assert another's Fourth Amendment rights. He himself has been the victim of an illegal search and desires "to mend no one's privacy [but his] own." Gelbard v. United States, supra, at 63 (DOUGLAS, J., concurring). Respondent is told that he must look to damages to redress the concededly unconstitutional invasion of his privacy. In other words, officialdom may profit from its lawlessness if it is willing to pay a price.
In Mapp, the Court thought it had "close[d] the only courtroom door remaining open to evidence secured by official lawlessness" in violation of Fourth Amendment rights. 367 U.S. at 654-655. The door is again ajar. As a consequence, I am left with the uneasy feeling that today's decision may signal that a majority of my colleagues have positioned themselves to reopen the door still further and abandon altogether the exclusionary rule in search and seizure cases, for surely they cannot believe that application of the exclusionary rule at trial furthers the goal of deterrence, but that its application in grand jury proceedings will not "significantly" do so. Unless we are to shut our eyes to the evidence that crosses our desks every day, we must concede that official lawlessness has not abated, and that no empirical data distinguishes trials from grand jury proceedings. I thus fear that, when next we confront a case of a conviction rested on illegally seized evidence, today's decision will be invoked to sustain the conclusion in that case [p366] also, that "it is unrealistic to assume" that application of the rule at trial would "significantly further" the goal of deterrence -- though, if the police are presently undeterred, it is difficult to see how removal of the sanction of exclusion will induce more lawful official conduct.
The exclusionary rule gave life to Madison's prediction that
independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
1 Annals of Cong. 439 (1789). We betray the trust upon which that prediction rested by today's long step toward abandonment of the exclusionary rule. The observations of a recent commentator highlight the grievous error of the majority's retreat:
If constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and articulate the meaning of those rights. The advantage of the exclusionary rule -- entirely apart from any direct deterrent effect -- -is that it provides an occasion for judicial review, and it gives credibility to the constitutional guarantees. By demonstrating that society will attach serious consequences to the violation of constitutional rights, the exclusionary rule invokes and magnifies the moral and educative force of the law. Over the long term, this may integrate some fourth amendment ideals into the value system or norms of behavior of law enforcement agencies.
Oaks, Studying the [p367] Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 756 (1970). See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1562-1563 (1972).
I dissent and would affirm the judgment of the Court of Appeals.
1. Neither the Silverthorne Lumber Co., because it was a corporation, see Hale v. Henkel, 201 U.S. 43 (106), nor respondent, because he was granted transactional immunity, could invoke the privilege against self-incrimination. The situations are therefore completely comparable.
2. The Court also argues that "[t]he [Silverthornes' claim] was not raised for the first time in a pre-indictment motion to suppress requiring interruption of grand jury proceedings," ante at 352 n. 8, and therefore, presumably, its assertion occasioned no delay. However, the District Court in Silverthorne had granted an earlier application for return of the seized documents from the grand jury after determining that they had been obtained in violation of the Fourth Amendment. This Court made no intimation that the District Court acted improperly in considering the initial application.