“Settled law” is a term that liberal jurists reserve mostly for their own use, a seal of finality best left for them to fix on any principle. Ages of precedents are casually disregarded to obtain precedents to their liking, but from that moment on stare decisis is everything, the new doctrine enshrined in law and never again to be doubted. Somehow, though, the doubts keep coming, and most recently centered on the Supreme Court case of Hudson v. Michigan and the settled matter of the exclusionary rule.
Acting on a warrant, Detroit police in 1998 arrived at the door of Booker Hudson, calling out “Police! Search warrant!” They knocked, waited four or five seconds, and entered to find Hudson with a loaded revolver and 23 bags of crack cocaine. The officers, defense claimed, should have waited 20 seconds — enough to satisfy “the Constitution’s knock and announce requirement.”
This requirement was found hiding in the Fourth Amendment in 1995, still panting heavily from a 206-year chase in which it had eluded legal minds before then. But already it is Settled Law, an undeniable and inflexible corollary to “the Constitution’s exclusion-of-evidence requirement” adduced by Weeks v. United States in 1914 and imposed upon states by Mapp v. Ohio in 1961.
In keeping with all these sacred precedents, Hudson’s lawyers argued that the incriminating evidence should have been “suppressed” by the trial court. Hudson would have gone free in that event. But if a man can’t sort his crack and firearms without police barging into the house on such short notice, then none of us are free.
Four justices agreed that police, in their unruly rush into the Hudson residence, rendered the whole search unconstitutional and the evidence hopelessly “tainted.” Justice Stephen Breyer, in dissent, feared for “the Constitution’s knock-and-announce protection.” Justice Anthony Kennedy voted with the majority, but wanted it known that “the exclusionary rule, as settled and defined by our precedents, is not in doubt.” Justice Antonin Scalia reminded us of the “social costs” of suppressing evidence, including in Hudson the release of a guilty man and endless appeals from other felons claiming that police at their doors, too, had shaved a few seconds off the constitutional clock.
Perhaps in deference Justice Kennedy, the majority stopped there, limiting instead of abolishing the exclusionary rule. But of course if you follow the “social costs” line of reasoning a slight step further, it leads directly through the door of coherent thought to a simple truth: It is never in the interest of society or of justice to withhold probative evidence from a judge or jury.
“A Monstrous Price”
Courts are triers of fact, not arbiters of “tainted” or “untainted” evidence. Rules of police procedure are important only to prevent the conviction of an innocent person, and infractions or abuses by police constitute separate offenses to be adjudicated separately. The great and untaintable objective is justice in the case at hand. This will always depend on convicting only the guilty and absolving only the innocent.
The theory behind the exclusionary rule — and it has always has the prissy feel of academic theory — is to deter police misconduct in some future case by imposing injustice in the case at hand. Even in the face of guilt as great as in Coolidge v. New Hampshire, a 1971 case Justice Breyer cites in Hudson as untouchable precedent, the Court’s hands are tied and the Constitution itself demands the appellant be freed. That didn’t square when the Court’s release of Edward Coolidge, the murderer of 14-year-old Pamela Mason, inspired Chief Justice Warren Burger to warn of “the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves.” It doesn’t square any better today.
The Fourth Amendment, as distinguished from contrived and entirely reversible Fourth Amendment “remedies,” says or implies nothing about excluding evidence, just as the Fifth Amendment gives no hint that confessions voluntarily made and corroborated by the facts are somehow “invalid.” The Fourth Amendment forbids only “unreasonable searches and seizures.” And the reasonable test of a reasonable search is the evidence itself, the very facts that defense attorneys seek to suppress. As Leon F. Scully Jr., my late father and an attorney and author, observed, “The guilt of the defendant and the reasonableness of the search are usually mutually supportive.”
William Rehnquist, as an associate justice in 1979, observed that “Mapp v. Ohio brought to bear in favor of accused murderers and armed robbers a rule which had previously largely had an application to bootleggers and purveyors of stolen lottery tickets.” My father wondered just how this had come to pass, and so examined the trial records of Weeks and Mapp along with other contemporaneous sources, discovering in both instances a pattern of inconsistency between the facts and the official version of events. His findings only add weight to Justice Rehnquist’s belief then — and doubtless Justice Scalia’s belief now — that “a re-evaluation of the so-called ‘exclusionary rule’ enunciated by Weeks is overdue.”
For example, in the narrative of the Weeks opinion, police in Kansas City, Missouri, acting without probable cause, showed up at the home of Freemont Weeks on December 21, 1911, arbitrarily seizing personal effects and papers including lottery tickets, the mailing of which was then a federal felony. Even in law-school textbooks to this day, no other starting point for the case has ever been given, leaving the impression of a random and unreasonable intrusion into the home of Freemont Weeks. Yet on December 22, 1911, the Kansas City Star reported that the lottery tickets were found among various stolen goods following the arrest at 1834 Penn Street of Mrs. Olla Weeks, the defendant’s wife, for shoplifting. So here you have a monumental case that turned on probable cause, and somehow the probable cause that started it all never made into the trial record that went to the Supreme Court.
Unwise and Unjust
Odd, too, was the decision to refuse Weeks’s initial plea of nolo contendere by the U.S. Attorney for the district, a man named Leslie Lyons who at the very moment was facing a federal investigation and disbarment proceedings on charges of splitting fees with defense lawyers in his own courtroom. That decision allowed the case to go directly to the Supreme Court on a writ of error — an institution that has since been abolished, but which at the time obliged the high court to hear an appeal if certain conditions were met. Why would a prosecutor do this, my father wondered — permitting such a minor case, involving a first-time offender, to go before the Supreme Court instead of disposing of it as quickly and efficiently as possible by accepting the nolo contendere plea?
Among those involved in guiding the investigation of Leslie Lyons was Assistant Attorney General Winfred T. Denison, the very man who argued for the government in Weeks. Denison was a protégé of Louis D. Brandeis, whose hand can be observed at work both in Weeks and in the favorable disposition of Lyons’s troubles by the department of Justice. In the short version, my father concluded that Brandeis and Denison, among others, colluded with Lyons — a man in need of a favor — in a manufactured test case, with Brandeis himself orchestrating events.
The idea was to secure a timely precedent to exclude evidence and overturn the conviction of militant union leaders in a labor-violence case then making its way to the Court, Ryan v. United States — known as the “Dynamiters Case” and at the time a subject of fierce debate among Progressives. Weeks replicates the facts and issues of Ryan, but — in the art of all manipulated test cases — presents them in far more innocuous form, so that excluding evidence meant only that a harmless clerk with his lottery tickets would walk free. Ryan is now long forgotten while Weeks lives on, but on the day after Freemont Weeks’s conviction was overturned the New York Times instantly made the connection: “May Not Seize Papers: Supreme Court Makes Ruling That May Affect Dynamiters Case.”
Such conduct would hardly be out of character for “The People’s Lawyer.” Brandeis’s papers have yielded evidence of many similar dealings even after he had joined the Court in 1916, and he was from time to time admonished during his tenure for exceeding the bounds of judicial propriety. The theory would also explain Denison’s perfunctory brief of 200 or so words, as compared with the 67-page brief submitted to the Court by Weeks’s attorney, and why when Weeks was heard Denison did not even show up for oral argument.
Likewise, in the mythology of Mapp v. Ohio, Cleveland police acted without a warrant or probable cause. “Frustrated in their attempt to find any individual involved in an extortion bombing,” as the appellant’s Statement of the Case put it, officers harassed Dollree Mapp and merely pretended to have a warrant. In reality, newspaper and police archives reveal that police Lt. Thomas White not only had a warrant, but with fellow officers executed it with the arrest and seizure of evidence against the suspected bomber, one Virgil Ogletree, which is how they chanced upon the illicit materials in Miss Mapp’s possession.
Exactly how, moreover, did a petty case of possession of lewd materials — a case at first disposed of with a guilty plea and referred to the probation department — become a federal First Amendment case and then, at the last hour, a vehicle for applying the exclusionary rule to the states? Enough to say that between Miss Mapp’s pleas of guilty and innocent the ACLU took an interest in the case. How defense and ACLU attorneys carefully purged the record of probable cause, how they at first conceded the existence of a warrant and then pretended that none ever existed, and how the whole story was tailored and exaggerated to present a worst-case scenario of police bullying, is laid out in Bombers, Bootleggers, and Bolsheviks: A Study in Constitutional Subversion. My Dad left behind a compelling case that Mapp, too, was a suborned precedent, gained by collusion and a suppression of evidence from the Supreme Court itself.
All of which should be of interest to the Court of our own day next time it hears a case involving the exclusionary rule. It is well known that other precedents on other points of law came about by means of contrived test cases, a practice which — however successful it has proved — the Court itself memorably described in Little v. Bowers as “an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.” The whole idea of stare decisis, after all, rests on the assumption of true cases in controversy argued in good faith before the Court and decided with all the relevant facts at hand. If Weeks and Mapp were bogus cases, involving collusion and concealment of evidence, then the deference accorded them today is even more misplaced, and the exclusionary rule warrants a serious second look on that account alone.
Fraud and intrigue by lawyers before the Court would also provide a charitable explanation for how a majority of justices were ever sold on as unwise and unjust an idea as releasing the guilty on procedural errors. This “settled law” came to us in Mapp by a 5-4 decision, however. And that is all it would take to be rid of it.