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94

Court's docket this Term in United States v. Jacobs. The issue presented

by the pretitioner was:

"Whether a court of appeals possesses and should exercise
supervisory power to suppress a defendant's allegedly
perjurious grand jury testimony for the sole reason that
the prosecutor neglected to follow the usual practice of
other federal prosecutors in the circuit of giving target
warnings to grand jury witnesses against whom the govern-
ment has incrimination evidence." 95/

In terms of the remedy, the question was whether the court of appeals may
extend it to cover such a purely supervisory setting, if the court has au-
thority to rule in the first place. The Supreme Court's action in taking
the case and then dismissing it after argument marks a significant ap-

96/

proval of the remedy under the court's supervision. The reversal of the

court of appeal's decision would have marked further erosion of the Court's

faith in the exclusionary remedies, or merely limits on the incidence of 97/

its use.

Such speculation would appear to rest on the perceived deterrent

value of the case and the availability of alternatives

in this case, the

98/

Government's institutionalization of the practice.

94/ 531 F.2d 87 (9th cir., 1976), 547 F.2d 772 (9th Cir., 1977), cert. granted, No. 76-1193, May 31, 1977, argued. Nov. 7, 1977, March 20, 1978, cert, dismissed as improvidently granted 46 U.S.L.W. 4406 (May 1, 1970).

U.S.

95/ Petition for Certiorari, p. 2; Brief for Petitioner, p.2, Respondents view of the question is responsive.

96/ I.e. Jacobs would extend McNabb-type supervisorry authority.

97/ See, e.g., United States v. Janis, supra, note 40.

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v. Ohio

99/

D. Limiting the Suppression Doctrine

The expansion of the exclusionary remedy was amplified by Mapp

and reached its zenith between Mapp in 1961 and 1969. Since the

inception of the Burger court, the suppression doctrine has continually been limited

100/

the boundaries of growth clearly defined.

Not only has the Court whittled away the periphery of the suppression doctrine but specific commentary on the continuing efficacy of the rule has become more evident.

Initially Justice Harlan called for the court to overrule Mapp so 101/ that the entire area of search and seizure could be re-evaluated. Justice

Black had only recently reiterated the idea that the suppression doctrine was 102/

not part-and-parcel to the Fourth Amendment." In Bivens v. Six Unknown Named

99/ Supra, note 22.

100/ E.g. Schneckloth v. Bustamonte, 412 U.S. 218 (19783 (consent search without warning of alternations); Cady v. Dombrowski, 413 U.S. 433 (1973) (lack of warrant not per se unreasonable); Cupp v. Murphy, 412 U.S. 291 (1973) (fingernail scrapings "highly evanescent"); United States v. Robinson, 414 U.S. 218 (1973) (search incident to arrest not confined to weapons); United States v. Calandra, 414 U.S. 338 (1974) (grand jury witness can't refuse to testify about illegally seized material); United States v. Peltier, 422 U.S. 531 (1974) (Almeida-Sanche v. United States, 413 U.S. 255 (1973), limited and not retroactive); United States v. Janis, supra, note 40; Stone v. Powell, 428 U.S. 465 (1976) (habeas corpus not available if suppression in state court only); United States v. Martinez-Tuerte, 428 U.S. 543 (1976) (fixed checkpoint border searches outside Fourth Amendment); South Dakota v. Opperman, 428 U.S. 364 (1976) (search of impounded vehicle reasonable); United States v. Donovan 429 U.S. 413 (1977) (suppression improper for failure to name of defendants in application for wiretap warrant).

101/ Coolidge v. New Hampshire, 403 U.S. 443, 490-491 (1971) (Harlan, J., concurring).

102/ Whiteley v. Warden, 401 U.S. 560, 572, (1971) (Black, J., dissenting, joined by Burger, C.J. and Blackmun, J., dissenting).

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Agents of Federal Bureau of Narcotics the court created a tort remedy within the Fourth Amendment for unconstitutional searches and seizures.

104/

103/

While

the action constitutionalized the common law, Bivens did not present the issue in a posture of choice between the exclusionary rule and a tort remedy, and no such choice was made. In Chief Justice Burger's dissent to judicially creating a remedy, which he felt more appropriately the province of Congress, his understanding of the need for the rule becomes clear:

"I do not question the need for some remedy and teeth
to the constitutional guarantees against unlawful con-
duct by government officials. Without some effective
sanction, these protections would constitute little
more than rhetoric. Beyond doubt the conduct of some
officials requires sanctions....But the hope that the
objective could be accomplished by the exclusion of
reliable evidence from criminal trials was hardly more
than a wishful dream. Although I would hesitate to
abandon it until some meaningful substitute is developed,
the history of the suppression doctrine demonstrates
that it is both conceptually sterile and practically
ineffective in accomplishing its stated objective. 105/

The Chief Justice's disenchantment with the Rule does not appear to be a 106/

minority view.

Whether the suppression doctrine should be discarded is

not a question which is likely to be answered in simple terms or soon by the Court. Whatever the Court does will eventually effect both State and Federal jurisdictions; so long as the doctrine is founded in constitutional principles the alterations would appear to require slow, incisive actions. Congress, however is not so limited.

103/ 403 U.S. 388 (1971).

104/ See, Adams v. New York, supra, note 17.

105/ Bivens, supra, note 103 at 415.

106/ See, e.g. Janis, supra, note 40; Stone v. Powell, supra, note 99, at 538 White, J., dissenting).

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E. Contemporary Legislative Proposals

Congress currently is considering a few measures which will either mitigate the need for the suppression doctrine or curtial its use through

resort to methods not supportive of its use.

of bills, addresses the problem directly.

However, no single bill, or group

The major relevant considerations propose amendments to the

107/

Federal Tort Claims Act which governs liabilities for torts by United States employees in the course of their duties. H.R. 9219 would amend the FTCA by including causes of action arising under the constitution and by removing the exception from assault, battery, false imprisonment, false arrest, 108/ Other bills have taken a more

malicious prosecution, or abuse of process.

restrictive view and expanded the FTCA only to include constitutional torts

and torts committed by employees who routinely perform investigative, inspection, 109/ or other law enforcement and prosecution functions.

Both bills follow the

line begun by Bivens and interpose the United States as the defendant waiving 110/

sovereign immunity.

A version of the same idea is represented in the Senate 111/

by S.2117 repeating many of the provisions of H.R. 9219.

107/ 28 U.S.C. $52671-2680 (1970). 62 Stat. 984, June 25, 1948, as amended. 108/ H.R. 9219, introduced September 20, 1977, by Mr. Rodino (by request). 109/ H.R. 9437, introduced October 4, 1977, by Mr. Zeferetti (for himself, Mr. Carter, Mr. Devine, Mr. Goldwater, Mr. Gilman, Mr. Kemp, Mr. Long of Louisiana, and Mr. Murphy of New York); H.R. 9191, introduced September 19, 1977, by Mr. Waggoner.

110/ Supra, note 163.

111/ S. 2117, introduced September 21, 1977, by Mr. Eastland.

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These alterations of the FTCA provide a relatively narrow view

of the spectrum of potential alternatives or supplements to the suppression 112/

doctrine. Accordingly a broad based discussion of alternative and supple

mental considerations based on external research is provided in the next

section.

The most recent bill, S. 3014, provides for the specific abolition of the Exclusionary Rule in Federal criminal cases, but does not extend 113/ to statutory or supervisory exclusions. The bill provides a civil tort cause of action in the District courts for victims of illegal searches and seizures with awards up to $25,000 for actual personal and property harm or damages as well as punitive damages; the latter are restricted to instances where criminal conviction of the defendant-now-plaintiff have not 114/ been obtained. The bill further provides for appropriate agency discipline, after notice and hearing, including suspension without pay and out115/ right dismissal and allows good faith as a defense.

112/ Contrust this limited amount of activity with the previous sessions more complex bills: H.R. 5628, 94th Congress, by Mr. Steiger, H.R. 10275, 93rd Congress, by Mr. Steiger; H.R. 9623, 93rd Congress, by Mr. Podell; S. 801, 94th Congress, by Mr. Bentsen; S. 2657, 92d Congress, by Mr. Bentsen. But, see, Pub. L. 95-78, 91 Stat. 314, July 30, 1977. (permitting acquisition of search warrants by telephone).

113/ S. 3014, introduced April 27, 1978, by Mr. Griffin.

114/ S. 3014, §§2-4.

115/ S. 3014, $2: "2693".