THE OPEN MIND
Host: Richard D. Heffner
Guest: Kenneth Conboy
Title: “The Exclusionary Rule: Consequences and Controversies”
I’m Richard Heffner, your host on THE OPEN MIND. In counting my blessings recently I realized all over again that prime among them is the ability afforded to me by WPIX freely to pick and to choose my subjects and my guests so long as I remain fair and rational and reasonable and open-minded to be sure. Well, just a week before we record this program, sometime before you will see it, of course, the Supreme Court of the United States ordered for re-argument before it a criminal case that will now enable the brethren to rule on whether or not to revise the so-called exclusionary rule the court created in 1914.
This rule requires exclusion from a criminal trial of evidence seized in contravention of our Constitution’s venerable Fourth Amendment dictum that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by oath and affirmation and particularly describing the place to be searched and the persons or things to be seized.
Now, many citizens, terrified by the prevalence of crime in America, convinced that our police and our prosecutors are hampered in their efforts to protect us by the exclusionary rule, want evidence obtained, for instance, under procedures that turn out to be unwittingly invalid, nevertheless to be admitted in court if the police had what they call a reasonable, good-faith belief in the validity of their actions.
Our subject, obviously, is a most important and a most difficult one. Our guest is brilliantly equipped to deal with it. Kenneth Conboy is a careful, highly–skilled lawyer with a meticulous concern for Constitutional imperatives and for the rights of the accused. He is also deputy police commissioner of the City of New York, responsible for its legal matters.
Commissioner Conboy, thanks for joining me again here on THE OPEN MIND. We talked about the exclusionary rule, oh, a year or so ago with Tony Louis here at this table and it seemed to me that given the Supreme Court’s willingness to re-examine the matter, we ought to talk about it again here.
I wondered whether you side with those who maintain that we must not touch the exclusionary rule at all. It protects our liberties. The New York Times said, yesterday, before we taped this program, in fact, “If those rules survive this round of Constitutional tinkering, so will the nation’s safety and liberty”. What do you think?
CONBOY: Well, Dick, I think that the notion that a rule of evidence, and that’s what the exclusionary rule is, it is not a substantive Constitutional right, the notion that a rule of evidence should be inflexible and not the subject periodically for review with respect to its effectiveness, I think is wholly alien to not only our Constitution law but all aspects of criminal practice and procedure in America. I think that there ahs been, in fact, significant reforms of the exclusionary rule over the last ten years, so it is not a rigid and formalistic doctrine that we’re dealing with.
I think that in connection with this case that the Supreme Court has called for argument, which is the Gates case, Illinois vs. Gates. This is a very instructive and illustrative problem that the case represents. I think for the sake of clarity we should just consider three categories of police behavior that typically come under the scrutiny of the exclusionary rule.
The first category is where you have a police officer who willfully and flagrantly violates the rights of an accused. The second kind of case is where the police officer makes a mistake. He blunders, in the language of Cardozo. He blunders, the constable does, and the guilty man goes free. That category of cases would embrace the whole range of Constitutional practice, for example, a failure to give Miranda warnings, a failure to interpret the kinds of containers that require a search warrant as opposed to other types of containers where the courts might find there is no reasonable expectation of privacy, misjudgments on what is articulable suspicion with respect to the presence of a gun, confusion as to probable cause. There are a host of legal constructs, hundreds of them, that have grown up under the exclusionary rule since 1914 and in this state since 1962. Judges disagree in the celebrated Ross case in the Fifth Circuit. There were 24 judges who heard the case. There were 16 who agreed that the agent in the case had probable cause to make an arrest, and eight who didn’t. There is enormous complexity in these matters. So that’s the second category, where a police officer makes an honest mistake.
The third category is where the police officer hasn’t made any mistake, where he has done exactly what is required under the statute or the cases. And in that third category is Illinois vs. Gates, the matter that the U.S. Supreme Court has called for argument. In that case the officers had information from a reliable informant – at least they asserted he was reliable – that a couple was dealing in massive shipments of cocaine and marijuana in an interstate connection between Florida and Illinois. They went to a magistrate and got a warrant. The judge based the issuance of the warrant upon a long line of cases, the primary or chief case which is a decision called Aquilar vs. Texas, which goes all the way back to 1964. In the Shepard citations what we lawyers used to check the hi8story and the impact of a case, Aquilar has hundreds and hundreds of citations. It has given life to a progeny of hopelessly complex issues as to when an informant’s information is reliable. It supposedly requires a two-pronged test. You’ve got to test the information itself and then the credibility of the information. The judge believed that the principles of Aquilar and hundreds of cases that succeeded it were met by the papers filed by the police in this case. They got a warrant when the – and by the way, there was a considerable amount of actual surveillance of these people – they confirmed many, many details in the anonymous communications and in the anonymous information gotten from the second informant. When they arrested the Gates’, they found over 350 pounds of marijuana, a quantity of weapons, and a large amount of cocaine. These individuals were indicted and convicted, and their convictions were reversed on the ground that the judge had misinterpreted the law.
Now, the purpose of the exclusionary rule, going back to 1914, and re-emphasized in Mapp in 1961, which applied the exclusionary rule to state courts, the purpose is to deter improper police conduct. That is really the fundamental justification for depriving courts of trustworthy evidence, for releasing guilty people, for in effect defeating justice. The theory is that this is the only way you can get police to conform to Constitutional standards.
Clearly, in this case, the process of suppressing the gun, the marijuana, and the cocaine cannot serve that purpose, because the police complied with the law.
HEFFNER: Are you suggesting then, Commissioner Conboy, that had it been a case in which the constable had blundered, that you would uphold the notion of excluding such evidence obtained by that blunder?
CONBOY: No. That would be, of course, the second category of cases I referred to. I think that those cases also present an extraordinary price for society to pay for a honest mistake. This is particularly true where you have large numbers of judges constantly dividing on issues of great subtlety and complexity.
Let me give you an example of a case in New York. This came down last week – the Quarles case.
A police officer was approached by a woman who indicated who had just been raped. She gave a very precise description of the person who did it, and said that he had a gun, and also indicated that he had gone into a supermarket. This officer entered the supermarket and saw the individual at the checkout counter. When the individual noticed the policeman he retreated to a back area of the store. A number of additional police officers arrived at the scene. They cornered the suspect in the rear of the store – the supermarket. They drew their weapons, immediately handcuffed him, and in the process noticed that his holster was empty and they said, “Where’s the gun?” And he said it was in an aisle around the corner in a carton of paper products. They retrieved the gun. This was introduced against him at the trial. It was received in evidence and the court of Appeals in a 5-4 decision – I’m sorry – in a 4-3 decision reversed the conviction and said that in fact this was improper police conduct. Why? Because they had not given him the Miranda warnings. Now there is a doctrine called exigent circumstances. This is another one of those extraordinarily complex, esoteric legal constructs that have been born as a result of Constitutional decision-making by the courts. The Court of Appeals decided and in effect reversed the conviction and released a rapist. They decided that, in their view – and this is, by the way, four saying this; the other three disagree. They agreed the policeman had, in fact, acted properly – they said a prudent and responsible policeman would have immediately sought to get custody and possession of that weapon. Now, the majority said that he was in fact under police control and there was no emergency. They should have given him his Miranda warnings.
Now, the minority points out that the Miranda warnings were designed essentially to protect the individual against self-incrimination and not to impede police in media res, in the res gesteii of the event. And surprisingly, they cited a case called Chestnut in which the police officers – this is another New York case – the Court of Appeals did not reverse Chestnut; they merely distinguished it. In Chestnut they had a suspect on the ground on all fours, spread-eagled, with their weapons trained on him. Now, how a distinction can be drawn between Chestnut and this case, Quarles, escapes me.
HEFFNER: You know, I’m a little puzzled though by your reference to the 4-3 decision as if somehow or other that made it less binding, or as if somehow or other you, as a historian, and I know you are, have not embraced yourself may decisions in the past that favored your point of view, but that were decisions by 4-3. Why do you single this out? This 4-3?
CONBOY: Well, I don’t mean to suggest that a division in a court on a complex issue necessarily suggests that chaos reigns. I think the more appropriate citation – the one I gave earlier – where you have 24 judges reviewing a matter over almost three years and there is a host of different opinions – and by the way, I don’t have trouble with a 4-3 division. What I have trouble with is the reasoning in those decisions because I am the general counsel to the largest police force in the country, and I have to translate that reasoning to in excess of 20,000 people.
Now, if it becomes difficult to develop a coherent policy for police in the future, then the deterrence factor in the rule becomes less binding, and the rationale for the rule then becomes less persuasive.
HEFFNER: But, Commissioner, haven’t judges said, “Well, that’s just too bad if it’s difficult for you to interpret this doctrine to the police.”? That’s your problem, isn’t it? It’s a burden you have to bear.
CONBOY: Well, Dick, I think that there is, as in most areas of the government, and judicial policy is part of governing, I think that there is a constant tension and balance between social values to be perceived and honored. And the rationale for the exclusionary rule – we have to bring ourselves back to that rationale, because this is not a mode of approach that is duplicated in any other civilized country in the world. We deprive juries of trustworthy evidence; we release guilty individuals, we embolden criminals, we discourage law enforcement officers by the application of this rule.
Now, if it has a positive consequence – the deterrence of improper police conduct – that I think may well be an appropriate price to pay. And in fact I think in that first category that I alluded to where you have a flagrant violation, I think absolutely the exclusionary rule should be applied. And by the way, I nor my colleagues at the New York Police do not believe for one moment that the exclusionary rule per se should be repealed, even though there is a great social cost in applying it. I ma merely suggesting that we ought to ask in the area where the cop makes a mistake, where many judges make mistakes, as the judge in Gates made a mistake apparently, he made a mistake in the issuance of a warrant – we don’t punish the judge, per se.
But somehow there’s this notion in law that we should punish a policeman. We’re not punishing a policeman…
HEFFNER: Now, wait a minute…
CONBOY: …we’re punishing a society.
HEFFNER: You say punish a policeman, but just the opposite seems to me to be true. I have often wondered why we don’t punish the policeman, but in a sense we seem to punish society. The constable blunders. We don’t punish the constable. We punish society by excluding the evidence the constable has inappropriately gathered and let the criminal free. We don’t punish the constable, do we?
CONBOY: No, but the rationale of the…is…I agree with you, we don’t. I have very, very strong agreement with you. I think that that is, in fact, another reason why the exclusionary rule does not in fact work, at least in the area of a good faith mistake.
Here’s the reason, Dick. A police officer who believes he had legal authority to act, as those police officers did in that supermarket in connection with the armed rapist – Once they believe they have an obligation to act…Let’s assume it was a mistake. Let’s assume that the state of the law was as ultimately asserted, even thought there was a prior decision on the books – the Chestnut case I told you about, which could very possibly, reasonably have given officers a contrary view. The basic fact is that once an officer is satisfied he had legal authority, he must, under his oath of office, he is legally and ethically obligated to act. That’s the factor to bear in mind here. So, when we talk in terms of blundering, I’m not suggesting some one who is willfully ignorant or who is indifferent to being well-informed, that that officer should get the benefit of this good-faith exception. No, no, no. I’m talking about a case like the one that I’ve described to you.
I’ll give you another example: The Elwell case, which is…
HEFFNER: Wait a minute, wait a minute. Before you give me another example, because our time is limited and I really want to ask you some of these basic questions…You said before that this aspect of the exclusionary rule is sustained at great social cost. When we did a program with Tony Louis here before, in my introduction I said innocently that there seemed to be at large in this country no great feeling that there was police brutality or that there was police negligence in terms of the rights of the accused. There seemed to be no great upsurge of feeling in this country. Received a lot of letters saying, “Don’t be ridiculous. The cops always do these things”. No one cited evidence.
I want to question you, too. At great social cost, what, indeed, aside from the particulars that you can mention, what social costs have we had to bear because of this aspect of the exclusionary rule?
CONBOY: I don’t think that there has been any demonstration that there is a widespread releasing of criminals because of the exclusionary rule, and I don’t accept that.
HEFFNER: Then why do you feel so strongly?
CONBOY: Well, because I think that in a significant number of cases, and I don’t, again for a moment suggest that these decisively create conditions of rampant crime in the country…I think that’s nonsense. But in significant numbers of case justice is defeated, and I think this ought to be a cause for great concern. I think that, for example, in the case I’ve just described, where the armed rapist is released, this is a cause for very, very grave concern. It ought to be. It ought to be for judges and prosecutors and police and certainly for the public at large. I think that the social cost is manifest in the individual result. Now, the great majority of cases of course, are disposed of in plea bargaining. They do not reach the point of a searching inquiry as to what the police practices were, whether they did in fact meet Constitutional standards or not. I think that, indeed, the deterrent factor itself cannot be established, and the Supreme Court has found that – that no one has demonstrated that improper police conduct is in fact deterred by the exclusionary rule. Oh, there are impressionistic feelings that, as you have indicated, you might have received from letter-writers, but I think you cannot gainsay the mischief that the rule has done in individual concrete cases in significant numbers. But again I don’t want to suggest that this is a…
HEFFNER: But you say two things. You talk about individual cases and you talk about significant number. And, in a sense, we do have to balance these concerns. Talk about tension before. I read the Times, the last paragraph of the Times editorial. “If those rules, the exclusionary rules, survive this round of Constitutional tinkering, so will the nation’s safety and liberty”, and it seemed to me as though that was an overstatement and a very strange statement indeed. And I wondered…It said “so will the nation’s safety and liberty”. Now, if one were to say the exclusionary rule points to a tension between safety and liberty, I’d understand that. It seems to me they are arguing way off on one side, and, if you forgive me, it seems to me that you may be arguing way off on the other.
CONBOY: Dick, what I’m suggesting to you is that there is now in a variety of cases, many of them very serious cases involving murder, rape, possession of guns, there is a windfall to a defendant in the criminal courtroom for no good reason. Now, the…
HEFFNER: Like the pornographer has a windfall because of our First Amendment?
CONBOY: Well, I think that there is a manifest distinction go be drawn between those classes of cases that the rule initially and I think fairly regularly was applied to gambling, pornography, the marginal misdemeanor category; and the kind of cases in later years that the rule was fairly systematically applied to. And by the way, I don’t quarrel with that. I think that you’ve got to be consistent. If you had a judicial norm, you’ve got to apply it across the board. You don’t draw fine distinctions, although frankly the straining of some judges not to have to release murderers and rapists very often causes very mischievous ambiguities which of course have to be dealt with at the local level.
HEFFNER: Ken, let me ask you something: If there were less plea bargaining, and there were more cases that went to trial where the Constitutional actions, or the Constitutionality of the actions of the police were to become a factor, do you think we would at that point find…and It’s a very serious question, do you think we’d find considerable numbers of inappropriate actions on the part of the police where the exclusionary rule would have to be applied?
CONBOY: Dick, I would be speculating if I gave you an answer. I think that the fundamental problem with the exclusionary rule is that there ahs been an enormous amount of subjective impressionistic speculation and precious little empirical data.
HEFFNER: You’re the deputy commissioner of the largest police force, major police force in this country. You must have an impression as to whether if you went to trial you’d have a number of them tossed out because of the exclusionary rule.
CONBOY: We did an experiment with the Manhattan District Attorney’s Office last year in which we found, and we were very pleased with this, that on a close analysis of 3,000 felonies, only, I believe, three percent of those cases were found by the prosecutor on close analysis to have a Constitutional procedural defect.
HEFFNER: So why be concerned?
CONBOY: Well because of that individual case, it offends me that murderer or a rapist should be freed without reason. There is no social benefit to be derived when a policeman makes a judgment which is either founded on a perfectly valid case or statute at the time he acted, but which is later found to be invalid or imprecise. I do not understand what social benefit accrues to society by having that kind of result.
HEFFNER: Can I be real mean, and I’m accustomed to being…If you are arguing the other side, how would you answer Conboy’s question now?
CONBOY: I think essentially the major argument that is made is the argument that Justice Brennan has made repeatedly, and that the purpose of the rule, in addition to deterring police misconduct is to obviate the need or the role for the government stooping to conquer. In other words, there is a judicial integrity argument that suggests that the courts ought not to either explicitly or implicitly sanction behavior, well intentioned or not, which is objectively deficient and not up to Constitutional standards.
HEFFNER: Not a bad argument if you are concerned overall with the maintenance of our Constitutional system.
CONBOY: I think that the problem with that argument is that it is essentially general, and it really ignores the fact that the courts constantly draw reasonable distinctions, and that’s what we think the Supreme Court should do here. We think that the good faith exception is exactly the kind of variation on a theme of modifications that will better serve our judicial body and the public at large.
HEFFNER: Certainly there’s not question but that the public at large is on your side in this dispute.
CONBOY: I think so, yes.
HEFFNER: Do you think that will result in a shift in time not to save nine but to make some changes?
CONBOY: Well, I think that there is a trend in federal Constitutional law to narrowing the extraordinarily broad scope of the exclusionary rule, and I would think that if that trend continues, it will be significantly as a result of the decision in Illinois vs. Gates.
HEFFNER: You don’t think that will impact negatively upon our liberties?
CONBOY: How could it? All it is saying basically is if a policeman acted in good faith and not bad faith, then we’ll admit the evidence. If a policeman believes he’s acting in good faith, as I indicated, he has a legal and ethical duty to take action.
HEFFNER: I’d bet as a historian you would not want to put too much weight on anyone else’s interpretation of what was good faith and what was bad faith.
CONBOY: Well, Dick, I think that most historians appreciate that the institutional values that shape individual officers in police departments or teachers a professors in great universities or officials in government, like, for example, the FBI or the National Institute of Health or whatever institution you wish to talk about, that the values that are in those institutions are essentially the decisive factor. I think the exclusionary rule in 20 years of application has had very positive effects on police behavior and police responsibility. I think that that is one reason why the exclusionary rule broadly conceived is extraordinarily valuable and must be retained and applied with vigor. This modification will not injure that. It will in fact make it a fairer and more sensible legal construct.
HEFFNER: Unless, Commissioner Conboy, it takes us down or starts us down a slippery slope.
Thanks so much for joining me today on THE OPEN MIND. Thanks, too, to you in the audience. I hope that you will join us again here on THE OPEN MIND, and meanwhile, as an old friend used to say, “Good night, and good luck”.