California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
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The exclusionary rule is a judge-made rule, adopted by the courts to stop the police from conducting illegal searches and seizures. The constitution merely says the people shall be free from unreasonable searches. It doesn't say what the courts should do once an unreasonable search and seizure has taken place. The courts finally decided on the exclusionary rule, the rule that says that evidence illegally seized may not be used as evidence, as a means of enforcement. "We're sorry" doesn't quite cut it. The courts gave as their rationale for the rule the concept of "unclean hands." If the courts, the symbol of our highest justice, use evidence they know to be illegally obtained, they condone through their use of the evidence the illegal action and they then find themselves with "unclean hands."
The judiciary has never been fully at peace with the exclusionary rule. It has been debated since its inception and throughout its development whether the courts had the right to "create" this remedy, whether it really serves the intended purpose of protecting our constitutional right to privacy, and whether it has any actual deterrence effect with the police. As crime rates and organized crime have been on the upswing, the efficacy and legitimacy of the rule continues to be called into question. In recent years it has been eroded by such policies as the "good faith" exception, which says that even if a warrant is invalid, more than six months old, if the police believe it in "good faith" to be valid, the exclusionary rule will not apply.
The exclusionary rule is a judicial remedy imposed by the courts to deter violations of constitutional rights. "To enforce the Fourth Amendment we rely on the exclusionary rule, first adopted by the Supreme court in 1914 in Weeks v. United States, and applied to the states in 1961 in Mapp v. Ohio. " Peltason, Understanding the Constitution, p.149. The exclusionary rule does not apply to violations by purely private individuals, as established by Burdeau v. McDowell (1921) 256 U.S.465, 41 S.Ct. 574, 65 L.Ed. 1048 and followed ever since. However the ruling does apply to private citizens acting under color of law, as established in United States v. Price (1965) 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267. [California interpretation of Price: Stapleton v. Superior Court, (1968) 70 Cal.2d 97, 101, 73 Cal.Rptr. 575, 447 P.2d 967.]
Case authority on purpose of the exclusionary rule:
Dyas v. Superior (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674. Opinion by Justice Stanley Mosk. Justice Clark wrote a dissenting opinion in Dyas. Source of arguments against exclusion. You can find them on '87 Moot Court Boilerplate Disk.
From Justice Mosk's opinion:
"The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct. [Citation to Cahan omitted.] Although the latter purpose might to some extent be served by excluding evidence derived from an unlawful search by a private citizen, the former would not. As the court explained in Botts (250 Cal.App.2d at pp. 482-483, 58 Cal.rptr. at p.450), 'Where an exclusionary rule is directed to the police, we may assume that they will have knowledge of it, that there will result directives from the higher echelons designed to secure compliance and to institute acceptable alternative practices, and that both the discipline of an organized police force and the desire to secure convictions will produce compliance with those directives. But, except in unusual cases, we cannot assume that private citizens will be aware of an exclusionary rule, that they will be under any disciplinary compulsion to obey such a rule, nor that they will not be motivated in their conduct by reasons apart from, or in addition to, a desire to assist in securing a criminal conviction. The result of applying an exclusionary to [such cases] ... would be to free a guilty man without any assurance that there would result any counterbalancing restraint of similar conduct in the future.'"
Case authority on California application of rule to private citizens acting in concert with government officials:
Retired Presiding Justice Bernard Jefferson wrote a dissenting opinion to Bryan S. The following excerpts are taken from that dissent:
"But it is also abundantly clear that a person being searched by a private individual is entitled to the protection of the constitutional provisions against unreasonable searches and seizures if the private individual doing the search has certain connections or a nexus with governmental personnel. This is the substance of the holding of People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000.
"The Zelinski Court upheld the right of a defendant to be free from a search by privately employed security personnel. In Zelinski, the search of defendant was performed by security personnel of a department store. In holding that the search violated defendant's constitutional rights against unreasonable search and seizure, the Zelinski court emphasized that the store's security forces were not acting in a purely private capacity "but rather were fulfilling a public function in bringing violators of the law to public justice." (Zelinski, supra, 24 Cal.3d 357, 366, 155 Cal.Rptr. 575, 580, 594 P.2d 1000, 1005.) One of the reasons which the Zelinski Court set forth for its decision was "that in our state today illegal conduct of privately employed security personnel poses a threat to privacy rights of Californians that is comparable to that which may be posed by the unlawful conduct of police officers." (Id. at p. 366, 155 Cal.Rptr. at p. 580, 594 P.2d at p. 1005.) (Emphasis added.) I agree with the majority that the Zelinski case cannot be construed as a holding that a defendant has a constitutional right to be free from a search by a private individual under any and all circumstances. The essential rationale of Zelinski is that the department store security personnel, although private individuals, were acting in the interests of the state in conducting a search of the defendant in that case. It was this action by private citizens in the interests of the state that brought into play the constitutional provisions against unreasonable search and seizure.
"In Zelinski, the Court observed that, "(a)lthough past cases have not applied the constitutional restrictions to purely private searches, we have recognized that some minimal official participation or encouragement may bring private action within the constitutional constraints on state action." (Zelinski, supra, 24 Cal.3d 357, 367, 155 Cal.Rptr. 575, 581, 594 P.2d 1000, 1006.) In buttressing its holding, the Zelinski Court pointed out that in United States v. Price (1965) 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267, our nation's high court had made it clear that a private citizen may act under "color of law" without being an officer of the state and, by so doing, may be held accountable along with officers of the state for acts which state officials are not legally entitled to commit.
"The majority in today's decision emphasizes that the Zelinski Court made a clear-cut differentiation between a private citizen performing a search of another in vindication of self-interest or the interest of another citizen as contrasted with a search by a private citizen of another citizen that is designed to further a state interest. Thus, the search of the defendant in Zelinski by the department store security guards came under the search and seizure proscriptions of the federal and state constitutions because the security guards sought more than the simple vindication of the merchant's private interest and the exercise of self-help to obtain a return of the stolen merchandise they sought to further the state interest of bringing to account alleged violators of the law.
"In seeking to distinguish the case at bench from the factual situation presented in Zelinski, the majority concludes but erroneously so in my opinion that private citizen Alig was acting in a purely private capacity and was not utilizing the coercive power of the state to further a state interest. The majority also concludes erroneously that, while the store detectives in Zelinski were fulfilling a public function in bringing violators of the law to justice, private citizen Alig in the instant case was acting solely to protect his neighbor's home and not to fulfill any public function. These distinctions which the majority makes I consider to be unfounded and lacking in support from the record or any reasonable inferences therefrom.
"I do not consider it reasonable to interpret private citizen Alig's actions as designed only to protect his neighbor's home and thus to bring about the vindication of another citizen's private interest. In my view, private citizen Alig was fulfilling a public function to the same extent as the store detectives in Zelinski were fulfilling a public function. Alig was not seeking merely to protect his neighbor's home but to have the minor Bryan apprehended as a law violator. It is of significance that Alig stated, in his testimony without equivocation, that he asked the minor Bryan to wait for the police. Apparently Bryan obeyed this request up to a point, since Alig also testified that, "(b)y the time the sheriffs pulled up, he took off on his bike and they stopped him just across the street."
"In my view, private citizen Alig was unquestionably acting "under color of law" and was seeking to further a significant state interest by trying to have the minor Bryan detained until the police could arrive and place him under arrest. It is to be noted that the Zelinski court made the observation that, "(b)y holding defendant for criminal process and searching her, they (the store's security personnel) went beyond their employer's private interests." (Zelinski, supra, 24 Cal.3d 357, 367, 155 Cal.Rptr. 575, 581, 594 P.2d 1000, 1006.) Likewise, it can be concluded, with equal justification and validity, that in the case at bench, private citizen Alig went beyond his neighbor's private interest by directing Bryan, the minor, to remain for the police to arrive and place him under arrest.
"The majority suggests that it is desirable for ordinary private citizens to be alert to public criminal activities in their own neighborhoods. I agree that such alertness is desirable, but I do not agree that such alertness can validly encompass the vigilante-type activity of private citizens who seek to take the law into their own hands and hold and search suspected law violators. Such vigilante-type activity of private citizens must necessarily activate the doctrine of "private action within the constitutional constraints on state action." (Zelinski, supra, 24 Cal.3d 357, 367, 155 Cal.Rptr. 575, 581, 594 P.2d 1000, 1006.)
"When a private citizen seeks to restrain and search an alleged law violator for the purpose of bringing the violator to justice through an arrest by police to follow, he should be held to be engaged in illegal conduct which violates the constitutional proscriptions against unreasonable search and seizure. Such illegal conduct of ordinary private citizens should be held to pose "a threat to privacy rights of Californians that is comparable to that which may be posed by the unlawful conduct of police officers" (Zelinski, supra, 24 Cal.3d 357, 366, 155 Cal.Rptr. 575, 580, 594 P.2d 1000, 1005), to the same extent that the conduct of privately employed security personnel in Zelinski was held to pose such a threat.
"Far from contravening public policy as the majority suggests, the application of the exclusionary rule to the factual situation of the instant case would promote the public interest by precluding the threat to privacy rights of all Californians and restrain abuses by law enforcement personnel and by private vigilante citizens acting as law enforcement personnel and with the same purpose in mind as that of true law enforcement personnel. Although not mandated by California's Zelinski case and the United States Supreme Court Price case, the view I espouse in this dissent is not precluded by either the holdings or the rationale of Zelinski or Price. On the contrary, it represents a reasonable and logical application of the legal principles which produced the actual holdings of Price and Zelinski."