Turning Back the Clock

The California Supreme Court, in a 4-3 decision, has turned back the clock 30 years and eliminated the state’s exclusionary rule that prohibited the use in criminal trials of evidence illegally seized by the police. Writing for the majority, Justice Joseph Grodin said that hereafter California must follow the federal rule rather than the stricter state law on the admission of evidence. Last summer the U.S. Supreme Court significantly weakened the federal standard by creating an exception for police officers who illegally seize evidence but act in “good faith.”

The California court ruling was based on the “truth in evidence” section of Proposition 8, which says that all “relevant evidence” must be admitted at trial. Exclusionary rules, both federal and state, were formulated to protect citizens against unlawful seizure of evidence by law-enforcement officers. But Grodin said, “The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights (against illegal searches), except those required by the Constitution of the United States. Whether they are wise in that decision is not for our determination; it is enough that they have made their will clear.”

Is it enough? We think not, and we agree with the strong dissent of Justice Stanley Mosk, who said, “When constitutional rights are implicated, the end cannot justify the means.” He called it “morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law.” What is at issue in California, and nationally because of a U.S. Supreme Court decision last year, is the Fourth Amendment itself. As Prof. Yale Kamisar of the University of Michigan Law School has noted, the exclusionary rule does not impose any limits on the police, but enforces the restraints written into the Fourth Amendment.

Deterrence of police misconduct was the purpose of the U.S. Supreme Court’s decision in 1914 to adopt the exclusionary rule. The Fourth Amendment, the court said at the time, “might as well be stricken from the Constitution” if the courts allowed illegal searches. In its decision 30 years ago to impose the rule, the California Supreme Court, reaching a similar conclusion, observed that “most of the incriminatory evidence introduced at the (Cahan) trial was obtained by officers of the Los Angeles Police Department in flagrant violation” of both the federal and the state constitutions. Roger J. Traynor, then California chief justice, said that illegal searches were routinely committed by the police.

William Parker, then chief of Los Angeles police, admitted as much by complaining that his officers could no longer conduct a search without “probable cause.” The situation was the same throughout the country as law-enforcement officials acted as though the Fourth Amendment did not exist.

Grodin observed that what was unlawful search and seizure in California before Proposition 8 remains unlawful today. What the proposition does, he explained, is eliminate the exclusion of evidence unless exclusion is required by the federal rule. Exactly, and that lessens the protections in California against against illegal searches.

Challenges to evidence, despite the furor over the exclusionary rule, are statistically insignificant, and yet we do pay a price when the guilty escape justice. But what price would we pay without a strictly enforced Fourth Amendment as a barrier between the people and a powerful state? In California we are beginning an experiment to find out.