Exclusion of Evidence Obtained by Illegal Searches - A Comment On

California Law Review
Volume 43 | Issue 4
Article 1
October 1955
Exclusion of Evidence Obtained by Illegal

Searches--A Comment on People v. Cahan
Edward L. Barrett Jr.
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Recommended Citation
Edward L. Barrett Jr., Exclusion of Evidence Obtained by Illegal Searches--A Comment on People v. Cahan, 43 Cal. L. Rev. 565 (1955).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol43/iss4/1
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California Law Review

VoL. 43
OCTOBER, 1955
No. 4
Exclusion of Evidence Obtained by Illegal

Searches -A Comment on People vs. Cahan
Edward L. Barrett, Jr.*
Charles H. Cahan and fifteen others were charged with conspiring to
engage in horse-race bookmaking and related offenses. Six of the defendants pleaded guilty. At the trial of the others the prosecution relied primarily upon evidence of two types: recordings made of conversations taking
place in two houses occupied by some of the defendants (but not Cahan),
and evidence seized at various locations when the police broke in and arrested the occupants. Testimony at the trial showed that the recordings
were made after dictographs had been installed with permission of the
chief of police but without the knowledge of the occupants. There was also
testimony that the arrests and seizures were made without warrants, and in
most cases after forcible entries which were not preceded by demands for
admittance. The defense argued at the trial that all of this evidence must
be excluded because, on the authority of Rochin v. California,' admission
of evidence so obtained would be a violation of the due process clause of the
fourteenth amendment to the United States Constitution. The trial judge
rejected this contention and the case was tried on the theory that it was
irrelevant whether the police acted legally in obtaining the evidence. One
defendant was found not guilty and all the others, including Cahan, were
convicted. Cahan was granted probation for five years on the condition that
he spend the first 90 days in the county jail and pay a fine of $2,000. He
appealed from the order granting him probation and the order denying his
motion for a new trial.
On the appeal counsel for Cahan and for the state argued primarily the
question of the sufficiency of the evidence. Minor attention was given by
each side to the defense argument that the Federal Constitution compelled
rejection of the evidence. Neither side briefed or argued the question
whether (aside from constitutional compulsion) the longstanding California
*Professor of Law, University of California, Berkeley.
1342 U.S. 165 (1952). The statements made in this paragraph and the succeeding paragraph regarding the conduct of the trial and the appeal were derived from a personal inspection
of the record and briefs on file in the office of the Clerk of the Supreme Court of California.
CALIFORNIA LAW REVIEW
[Vol. 43
rule permitting the use of illegally obtained evidence should be changed.

On April 27, 1955, the California Supreme Court, by a four-to-three
vote, reversed Cahan's conviction.2 The court reviewed the evidence in the
record on the installation of the dictographs and on the forcible entries and
seizures and concluded that the evidence had been obtained "in flagrant
violation of the United States Constitution, 4th and 14th Amendment, the
California Constitution, Art. I, 19, and state and federal statutes." It
examined the constitutional provisions which it said "make it emphatically
clear that important as efficient law enforcement may be, it is more important that the right of privacy guaranteed by these constitutional provisions
be respected." 4 It concluded, however, that the constitutional provisions
do not themselves require the rejection of evidence which has been illegally
seized, and it rejected the appellant's argument that the United States Supreme Court in the Rochin case or otherwise had held that the states must
exclude evidence under the circumstances shown here. Hence, the court
said, whatever rule is adopted will be a "judicially declared rule of evidence." 5 It then examined in detail the arguments for and against the exclusionary rule and concluded that the half century of California precedents
holding the evidence admissible8 should be overruled.
We have been compelled to reach that conclusion because other remedies
have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts
under the old rule have been constantly required to participate in,
and in
7
effect condone, the lawless activities of law enforcement officers.
The dissenting justices also examined the arguments for and against the
exclusionary rule and concluded that8
2
People v. Cahan, 44 A.C. 461, 282 P.2d 905 (1955). Justice Traynor wrote the majority
opinion. Justice Spence wrote a dissenting opinion which was concurred in by Justices Shenk
and Edmonds. In a companion case, People v. Berger, 44 A.C. 485, 282 P.2d 509 (1955), the
court held the exclusionary rule applicable to photostats made by the prosecution of papers
which were seized under an invalid search warrant and returned to the defendant under a
court order. In the Berger case the court also decided that the defendant could properly raise
the issue of illegality on an objection to the introduction of the evidence, and that a motion
to suppress, in advance of trial, is not necessary.
8People v. Cahan, 44 A.C. 461, 463, 282 P.2d 905, 906 (1955).
4
.1d. at 465, 282 P.2d at 907.
5
1d. at 468, 282 P.2d at 910. Was this remark intended to forestall applications for writs
of habeas corpus by prisoners who have been convicted by the use of illegally obtained
evidence?
6 See People v. Kelley, 22 Ca.2d 169, 137 P.2d 1 (1943) ; People v. Gonzales, 20 Cal.2d
165, 124 P.2d 44 (1942); People v. Mayen, 188 Cal. 237, 205 Pac. 435 (1922); People v.
Le Doux, 155 Cal. 535, 102 Pac. 517 (1909). In the Gonzales case, Justice Traynor, who wrote
the majority opinion in Cahan, wrote the opinion of the court vigorously reaffirming the common law rule of admissibility.
7 44 A.C. 461, 471, 282 P.2d 905, 911 (1955).
8Id. at 484, 282 P.2d at 919.
195
EVIDENCE OBTAINED BY ILLEGAL SEARCHES

... the cost of adoption of the exclusionary rule is manifestly too great. It
would be far better for this state to adhere to the non-exclusionary rule, and
to re-examine its laws concerning the sanctions to be placed upon illegal
searches and seizures.
Law enforcement officers were publicly dismayed at the decision and

their reaction was immediate. The chief of police of the City of Los Angeles
stated that?
[the decision is] a terrible blow to law enforcement and has conceivably set
law enforcement back 50 years. I am only concerned with the security and
welfare of the law-abiding element of our people. With these further restrictions being placed upon us-what are we going to do?
The attorney general filed a petition urging a rehearing and reversal of the
decision and other law enforcement officers filed briefs as amici curiae in
support of his petition.
In one of these briefs the District Attorney of Alameda County concluded that'
[the] net result of the exclusionary rule is that the persons who will benefit
the most, in fact almost exclusively, are the blackmailer, the kidnapper, the
big-time narcotic peddler, the racketeer, the dishonest gambler who preys
in devious ways upon a gullible public, the panderer and procurer, the entrepreneur of syndicated prostitution, who like the pimp, lives off the earnings of prostitutes, and other types of organized syndicated crime, such as,
for example, the international conspiracy of Communism to destroy the
American way of life, and the very constitutional rights which the majority
opinion seeks to protect.
Briefs as amici curiae in opposition to the petition for hearing were filed by
the Southern California Branch of the American Civil Liberties Union, the
Marin County Bar Association, and the Criminal Courts Bar Association of
Los Angeles. These briefs characterized the decision as "wise and sound,"' 1
"bound to have a salutary effect on law enforcement,""' and as preserving
"guaranteed liberty under our system of laws."13 The rehearing was denied
without further opinion.
Why this divergence of viewpoint? Are we faced with a choice between
police lawlessness and private lawlessness? What are the issues? It will be
the purpose of this article to identify and comment on what seem to be the
major problems involved in the use of the exclusionary rule as a remedy
for illegal police searches and seizures. Attention will be directed to (1) a
910Los Angeles Times, April 28, 1955.
Brief for Rehearing of J. F. Coakley, District Attorney of Alameda County, and of
several
of his associates, as Amid Curiae, p. 34.
1
3 Brief of American Civil Liberties Union as Amicus Curiae, p. 16.
12 Ibid.
13
Brief of Main County Bar Association as Amicus Curiae, p. 9.
(Vol. 43
description of the search and seizure problem as it existed in California

prior to the Cahan decision, (2) a discussion of the arguments for and
against the exclusionary rule as a solution to that problem, and (3) a discussion of a possible alternative solution.
I
THE SEARCH AND SEIZURE PROBLEM IN CALIFORNIA
The United States and the California Constitutions guarantee the "right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures" and provide that "no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things
to be seized."' As a practical matter in California, however, these constitutional provisions have not served to place effective limits upon the discretion of law enforcement officers, nor have they given to the citizen judicially
enforceable guarantees against illegal police searches.
Primarily, this failure has resulted from the absence of effective means
of challenging the legality of police searches. Suppose the police search a

person's house illegally without finding any evidence upon which to base a
criminal prosecution. What remedies are open? Clearly a civil suit for damages is available against the officer, possibly against his superior officers,
and perhaps even against a surety.15 But except in outrageous situations
where punitive damages may be sought, the possibility of a substantial recovery is slight, and difficulties of collection will normally be present.'0 The
victim of the search may also file a complaint seeking to invoke disciplinary
14U.S. CONST. amend. IV; CAL. CoNsT. art. 1, 19. See generally LASSON, THE HISTORY
AND DEVELOP21ENT or T
MAcHEn,
FoURTH _A.ENDME'T TO THE UNITED STATES CONSTITUTION (1937);
TE LAW OP SEARCH AND SElzuRE (1950); Coanrmrs, TE LAw or SEARcu AND
SEIzuRE (1930).
15 The California cases are discussed in Note, 38 CA.. L. REv. 498, 508-14 (1950). For
a discussion of the general law, see Foote, Tort Remedies for Police Violations of Individual
Rights, 39 Min~rn. L. REv. 493 (1955). A tort action under the federal civil rights statute,
42 U.S.C. 1983 (1952), may also be possible. See the discussion in Foote, supra, at 509;
Note, 38 CAtn. L. REv., supra, at 502. If the officer made the search pursuant to a warrant
regular on its face, he probably would be relieved of liability. CAr. CODE CIV. PROC. 262.1.
16 The deterrent effect of even the unsuccessful civil suit against an officer should not be
completely discounted. That the numbers of such suits may be larger than generally estimated
is suggested by the following statement made at page 11 of the brief filed by the City Attorney
and the Chief of Police of the City of Los Angeles in support of the petition for rehearing in the
Cahan case: "Should the Court desire, petitioners can establish that since 1947 there have been
approximately 150 civil actions commenced against Los Angeles police officers arising out of
their performance of duty. Some of these actions were based upon allegedly unlawful searches.
Approximately 200 individual officers have been named as defendants. Nearly $20,000,000 has
been claimed as damages, not counting one suit which all by itself asked $60,000,000 in damages. In that time the total recoveries allowed have been less than $5,000 and more than half
of that was recovered against six officers in 1948."
195]
action against, or criminal prosecution of, the offending officer.17 Here again
relief is unlikely except in extreme cases involving violence, brutality, or
blackmail." No action can be expected if the policeman's action has been
pursuant to departmental policy.
If the illegal search does result in the seizure of evidence of a crime, the
person involved will find the possibilities of a substantial recovery in a civil
suit or of securing disciplinary action against the officer even more remote.' 9
He may, in some circumstances, be able to secure a return of the property
by an action for claim and delivery or by mandamus and hence prevent its
use against him2 He could not, however, prior to the Cahandecision, raise
the issue of the legality of the methods of obtaining the evidence in his
criminal trial. In rejecting the exclusionary rule in People v. Mayenel in
1922, the California Supreme Court had said that22
... we are not prepared to impose upon the courts of this state the duty and
burden of injecting into a criminal prosecution the collateral investigation
of every objection that may be raised as to the source from which and the
manner in which evidence in the hands of public prosecutors has been
obtained.
Hence the prosecution could not be required to justify the methods by which
it obtained its evidence, and probably could be prevented from doing so on
grounds of irrelevance, and oftentimes, prejudice to the defendant."As a result of the paucity of methods for testing the legality of searches
and seizures, the applicable law is in a vague and ill-defined state. Detailed
regulations governing the issuance and serving of search warrants are found
in California Penal Code sections 1523-42.' A warrant will issue only to
17 See Note, 38 CAT a. L. IEv. 498, 508 (1950) ; and cf. Edwards, Criminal Liability for
UnreasonableSearches and Seizures, 41 VA. L. Rav. 621 (1955). Attention also should be called
to the unusual case of Wirin v. Horall, 85 Cal. App.2d 497, 193 P.2d 470 (1948), where a tax-payer was permitted to bring a suit to enjoin city police from using city funds to conduct
illegal18 police blockades.
Compare, however, the recent experience in Oakland, California, where charges of false
arrest, beating, and extortion resulted in the indictment of four police officers, the conviction
of two (one of whom was sentenced to 1 to 10 years in San Quentin), and a complete revamping of the police force. Oakland Tribune, July 3, 1955 and July 27, 1955.
19 For a full discussion of the difficulties, see Foote, Tort Remedies for Police Violations
of Individual
Rights, 39 MmNzq. L. REv. 493, 500-08 (1955).
20
Eg., Stern v. Superior Court, 76 Cal. App.2d 772, 174 P.2d 34 (1946) (proceeding in
mandamus to compel the court to return property seized under an invalid search warrant);
Atlas Finance Corp. v. Kenny, 68 Cal. App.2d 504, 157 P.2d 401 (1945) (action to recover
possession of gambling equipment seized and held by the attorney general). For full citation
of the cases and discussion, see Note, 38 CAns'. L. Rav. 498, 507 (1950).
21188 Cal. 237, 205 Pac. 435 (1922).
22
1d. at 254, 205 Pac. at 442.
23 See People v. Glass, 127 Cal. App.2d 751, 274 P.2d 430 (1954) (juror's question; held
no prejudice under circumstances).
24 Search warrant procedure in California is discussed in Grant, Search and Seizure in
California, 15 So. CAn'. L. Rav. 139, 143 (1942); Note, 38 CAn'. L. Rzv. 498, 499 (1950).
[Vol. 43
seize property which "was stolen or embezzled," or which "was used as the
means of committing a felony," or which "is in the possession of any person with the intent to use it as a means of committing a public offense, or in
the possession of another to whom he may have delivered it for the purpose
of concealing it or preventing its being discovered." 2 5 The warrant may be
issued only upon probable cause supported by an affidavit "naming or describing the person and particularly describing the property and the place
to be searched." 2 6 When the warrant is regular on its face, the officer serving it is protected from individual liability so long as he complies with the
terms of the warrant.2 7 Such a search may be questioned by direct attack
upon the warrant or the supporting affidavit.2 8 As a matter of practice, however, search warrants are seldom used by the police. In populous Los Angeles County, for example, only 17 such warrants were issued in all of
1954.29 Several reasons are offered by police and prosecutors for their failure to use the warrant procedure. First is the limitation as to the types of
property for which a warrant may issue. Second is the requirement of "particuIarly describing" the property to be seized. Third is the time necessarily
consumed in securing the issuance of a warrant."
SCAL. PEN. CODE 1524. The section also authorizes the seizure of containers bearing
the trade-mark or name of the person seeking the warrant where the containers are held with
intent
to use them to defraud the owner.
26
CAL. PENr. CODE 1525.

27 CAL. CODE CIV. PROC. 262.1.
28 CAL. PEN. CODE 1539, 1540; Stem v. Superior Court, 76 Cal. App.2d 772, 174 P.2d
34(1946).
29
Affidavit of William H. Parker, Chief of Police of the City of Los Angeles, appearing
as Appendix "D" to the Petition to Appear as Amicus Curiae and the Brief in Support of
Respondent's Petitions for Rehearing in People v. Caban, 44 A.C. 461, 282 P.2d 905 (1955)
and People v. Berger, 44 A.C. 485, 282 P.2d 509 (1955). The affidavit is printed beginning at
p. 14 of the Appendices, and the search warrant figures appear at p. 45.
ao The Los Angeles Chief of Police has made these observations:
"Until now, in my career as a peace officer and as Chief of Police, my view of the discipline
of "searches," or of other quests for evidence, has been formulated on the basis of the following statements, which until now I have regarded as correct statements of legal principles.
"(1) Under the Constitution of California, a warrant is an aid to a very limited type of
search, and a sanction of them, so far as the searching officer is concerned. If the warrant be
regular on its face, the officer is fully protected, even though the magistrate may have erred.
The citizen is protected against an unreasonable search, warrant or no warrant, but if the
search be under a warrant, the citizen must submit and may question the search only in court,
by a direct attack upon the warrant or upon the affidavit supporting its issuance.
"(2) If the nature of a search is such that a warrant can cover it, under the Constitution
and under the statute, and if under the existent circumstances a warrant could be secured
according to the Constitution and according to existent statutory procedure without significant
hazard that the objective of the search would be lost in the meantime, then a warrant must
be secured.
"(3) If, on the other hand, there be no statutory allowance of a warrant according to the
Constitution, or if there be no time or opportunity to secure a warrant without the hazard
mentioned above, then the search or quest for evidence may nevertheless be made by a sworn
19551
Because of the limitations upon the use of search warrants, the most
important problem, both from the point of view of the adequacy of permissible law enforcement techniques and from the point of view of individual
liberty from police intrusions, is the extent to which searches without warrants are permitted. Here the authorities are almost unbelievably vague.
In a recent case the California Supreme Court said that it was proper for
officers "as an incident to a lawful arrest, to search the premises and seize
articles which they believed were being used by petitioner in the commission of the crime for which he was arrested." 31 But this case, and the one
law enforcement officer, if under the circumstances of the case such search or quest is reasonable.
"(4) Under Section 1524 of the Penal Code, a search under a warrant may not be made
for evidence as such, but only for stolen property or for tools of a crime, although these also
may incidentally be material evidence of crime. Therefore, a warrant may not issue for a kidnap victim, or for a dead body, or for a fingerprint, or for such typical evidence as handwriting
exemplars, blood, garments, other physical or chemical evidence which is not in either of the
above-mentioned categories, or for any of thousands of kinds of tangible evidence which have
supported convictions of crimes of all kinds.
"(5) For similar reasons, and additionally because the evidence could not be particularly
described, a warrant may not issue to secure intangible evidence--evidence secured through
an officer's senses of sight, hearing or smell, but which cannot be brought into court, or which
can only be brought into court, perhaps, in such forms as photographs or sound recordings.
"(6) Consequently, if evidence of the kind which cannot be sought under a warrant is to
be obtained at all, it must be obtained without a warrant, and the test of the lawfulness of a
quest for such evidence is its reasonableness. A determination of whether or not a particular
quest was reasonable, and therefore lawful, and of whether or not the evidence obtained by it
was lawfully obtained can be reached only after an examination of all of the facts of the particular case at hand. Some of the inquiries in that connection are the following:
(a) Was the quest conducted without the unnecessary use of physical force? Was it conducted without significant or unnecessary damage to property?
(b) Did the officer have reasonable cause to conclude, and did he believe, that by his
quest he would secure necessary evidence of the commission of a crime, or of the whereabouts
of a criminal, or of a victim? In this connection: (i) 'Reasonable cause' is much less than
clear and convincing proof; it is substantially less than a prina facie showing of guilt. It is not
to be judged ex post facto, but according to what is known at the time, and it is not required
to be based upon legally competent evidence: the showing to the officer may be by reputation
or hearsay, or it may be subjective in its nature, as evaluated by the officer's experience.
'Reasonableness' may relate to the seriousness of the object of the quest. A search for an
(ii)
armed madman, or for a murderer, or for a kidnap victim, must be pursued without unreasonable nicety: the price to an individual of a trampled lawn, or of a damaged rose bush, or the
price of delay to a number of motorists does not equal the value to society of a human life.
On the other hand, it is hardly reasonable to evacuate a building in a search for a petty thief,
or to search everyone at a party in a quest for a stolen compact." Id. at 18-20.
31In re Dixon, 41 Cal.2d 756, 761, 264 P.2d 513, 516 (1953). The only authority cited by
the court was Harris v. United States, 331 U.S. 145 (1947). For the most recent discussion
by the Supreme Court of the situations when search without a warrant may be had as an incident to arrest, see U.S. v. Rabinowitz, 339 U.S. 56 (1950) ; and see Note, 1 VA-D.L. Rzv. 60
(1947).
[Vol. 43
or two early cases to the same effect, 82 left unresolved many vital problems.
What is the scope of the permitted search?8" Is it limited to a search of the
person arrested, or may it extend to all or part of the premises in which he
is arrested? What type of evidence may be procured by such a search? May
evidence of crimes other than that for which the arrest is made be seized?
May evidence (such as fingerprints or clothing) for which a search warrant
would not issue be seized?
34
The federal courts have dealt with many of these problems, but in the
Cakan case the court declared that in applying the exclusionary rule in
California it was not bound to follow them." Perhaps unintentionally, the
court even cast doubt upon the proposition that searches without a warrant
are justified when incident to a valid arrest. The record showed that the
police had forced entrance into several houses, arrested the occupants, and
seized evidence of bookmaking operations. The court referred to "a mass
of evidence obtained by numerous forcible entries and seizures without
search warrants."3 It set forth testimony of the police officers relating to
the forcible entries, but did not mention the fact that arrests were made,
and it concluded that the police had been guilty of "flagrant acts" in violation of the constitutional provisions. Was the court disapproving warrantless seaiches as an incident to valid arrest? Or did it conclude without
discussion that the arrests were illegal because the officers did not have
"reasonable cause" to arrest without a warrant, or because they did not
make the prior demand for admission which, under California Penal Code
section 844, must precede a forcible entry to effect an arrest? A recent dis32
In Collins v. Lean, 68 Cal. 284, 9 Pac. 173 (1889), the court held that an officer with
a warrant to search the person of the defendant and seize lottery tickets was authorized to
seize tickets in plain view in the premises where the arrest was made. In Bruce v. Sibeck,
25 Cal.App.2d 691, 78 P.2d 741 (1938), the court upheld officers in seizing boats and their
contents upon arresting defendants without a warrant for illegally operating a set line in violation of the Fish and Game Code.
33 See the discussion in MACHnN, Tan LAW OF SEARCH
mnD
Sz zURE 68-89 (1950).
34 The federal courts hold that on a search without a warrant "merely evidentiary materials" may not be seized. See U.S. v. Rabinowitz, 339 U.S. 56, 64 n.6 (1950) ; Notes, 20 U. Cm.
L. lv. 319 (1953), 45 J. Cims. L., C. & P. S. 51 (1954). A similar limitation may have been
intended by the court in In re Dixon when it specified that the articles seized were believed
being used "in the commission of the crime for which he was arrested." Bitt cf. Bruce v. Sibeck,
25 Cal.App.2d 691, 697, 78 P.2d 741, 744 (1938): "A seizure of property found upon one
under lawful arrest is not limited to things subject to be taken under a search warrant when
there is no arrest of the possessor."
35 The court said: "In developing a rule of evidence applicable in the state courts, this
court is not bound by the decisions that have applied the federal rule, and if it appears that
those decisions have developed needless refinements and distinctions, this court need not follow
them. Similarly, if the federal cases indicate needless limitations on the right to conduct reasonable searches and seizure or to secure warrants, this court is free to reject them." 44 A.C. 461,
477, 282 P.2d 905, 915 (1955). For a recent discussion of the federal cases, see Fraenkel, Search
and Seizure Developments in FederalLaw Since 1948, 41 IowA L. REv. 67 (1955).
3044 A.C. 461, 464, 282 P.2d 905, 906 (1955).
1955]
trict court of appeal decision held that the Cahan case did not overturn the
rule permitting reasonable search incident to a valid arrest.3 7
To these problems must be added the vagueness of the rules governing
arrest, of which three examples will suffice. 8 California Penal Code section
836 permits an officer to arrest without a warrant "[f] or a public offense
committed or attempted in his presence." Does this mean that an arrest
made without "reasonable cause" becomes legal when the officer discovers
an illegally possessed gun or bindle of narcotics on the person arrested? Or
must the officer be conscious of the violation or have reasonable cause to
believe it is being committed? 9 The section also in terms permits an officer
to arrest without a warrant " [w] hen the person arrested has committed a
felony, although not in his presence." Does this means that an arrest made
without "reasonable cause" becomes legal if the person is subsequently
found guilty of a crime which may be a felony?4" If the answer to either of
these questions is yes, may the seized evidence be introduced on the theory
that it was obtained as an incident to a lawful arrest, or must it be rejected
because it is not possible to determine in advance of judgment whether the
defendant "has committed a felony?"' The third question stems from California Penal Code section 844 which permits an officer making an arrest to
break open the door or window of the house in which the person to be arrested is located "after having demanded admittance and explained the
purpose for which admittance is desired." Must the officer always demand
admittance and explain the purpose even though the result will be either
the escape of the quarry or the destruction of the relevant evidence? And
37
People v. Coleman, 134 A.CA.. 740, 286 P.2d 582 (1955).

88 For an excellent discussion of the law of arrest in California, see Note, 39 CAL32. L.
Rv. 96 (1951). For a brief resume of unsettled problems, see Ploscowe, A Modern Law of
Arrest, 39 Mnm. L. REv. 473 (1955).
39 In Coverstone v. Davies, 38 Cal.2d 315, 320, 239 P.2d 876, 880 (1952), the court said
that a public offense is committed in the presence of the officer within the meaning of Penal
Code 836 "when 'circumstances exist that would cause a reasonable person to believe that
a crime has been committed in his presence."' But the question before the court was whether
the officers were liable in a suit for false arrest when the persons arrested were subsequently
acquitted. Query whether the court would require "conscious presence" when the crime is in
fact being committed in the presence of the officer. See also Miller v. Glass, 44 A.C. 387,
282 P.2d 501 (1955).
40 The statute has been cited as having such an effect, but no California cases have been
found even discussing the problem. See Note, 39 CAw. L. Rav. 96, 196 (1951). California cases
typically talk about the necessity for reasonable cause without differentiating between the situations where the person arrested had or had not committed the felony. See, e.g., People v.
Longo, 119 Cal. App.2d 416, 420, 259 P.2d 53, 55 (1953): "The suggestion that the officers had
no probable cause for arresting Longo is answered first by the facts, the heroin was found in
an apartment occupied by him and it cannot be said that probable cause for his arrest was
lacking." The Uniform Arrest Act expressly makes such an arrest legal. See Warner, The Uniform Arrest Act, 28 VA. L. Rxv. 315, 333 (1942).
41Compare State v. Williams, 234 Mo. 143, 14 S.W.2d 434 (1929).
[Vol. 43
even if the officer has fully complied with the section, is a search without
a warrant legal as incident to a valid arrest where there has been such a
forcible entry?
Another question on which there is even less precedent is whether a
search without a warrant may be made in any situation other than as an
incident to a valid arrest. The federal cases have clearly recognized one
such situation-police officers may search an automobile, boat, or other
moving vehicle when they have probable cause for believing the vehicle is
carrying contraband&--and have suggested that there may be other "exceptional"4 situations which will justify a warrantless search. The one California case which dealt with the moving vehicle exception held illegal wholesale police blockades in which all cars entering an area were searched, but
indicated that searches could be made when the standards of the federal
cases were met.44 No case has considered whether searches might be legal
in other emergency situations where officers have reasonable cause to believe that a crime is being committed behind locked doors and that unless
immediate action is taken all evidences of the crime will disappear.
A final group of questions concerns the definition of searches and seizures. Wiretapping is made criminal by California Penal Code section 640.
But is the police officer who taps lines engaging in an illegal search and
seizure or merely in an illegal act forbidden by the statute but not by constitutional provisions? Is the placing of a detectaphone on a wall to hear
conversations in an adjoining room an illegal search and seizure? What of
the action of a police officer who trespasses on the premises to look in or
listen at a window of a house? Suppose an undercover operator works his
way into a criminal group by subterfuge and, while in a house with them,
hears them plot the commission of a crime? Suppose he is "wired for sound"
and the conversation is recorded at a receiving point outside the premises?
Suppose, while in the house posing as a member of the group, he plants a
dictograph which is monitored outside? Suppose a police officer comes to a
house posing as a repairman and, while ostensibly going about his duties,
plants a dictograph or overhears a conversation? Suppose the officer enters
surreptitiously and plants a dictograph? The federal cases prior to Irvine
v. California4 5 in 1954 supported, generally, the notion that while many of
these acts might be both illegal and reprehensible, at least those not involving a trespass were not searches and seizures within the meaning of the Con42 Brinegar v. U.S., 338 U.S. 160 (1949). See MACrN, THz LAw or SEARCH AxD SEiZURE
48 (1950).
43
44
Johnson v. U.S., 333 U.S. 10, 14 (1948) ; U.S. v. Jeffers, 342 U.S. 48, 52 (1951).
Wirin v. Horall, 85 Cal. App.2d 497, 193 P.2d 470 (1948).

4347 U.S. 128 (1954).
195]
stitution, and hence the evidence obtained was admissible.4 6 The Irvine
case for the first time condemned as an illegal search and seizure the use of
a dictograph which had been installed as the result of an illegal trespass.4 7
Prior to the Cahan case the California decisions gave no answers to these
questions. Section 653h of the California Penal Code48 appeared to sanction the use and installation of dictographs by policemen when authorized
by the chief of police or the district attorney, and in a number of appellate
cases the courts had referred to the fact that evidence had been obtained
by the use of dictographs without making any adverse comment on the
practice.49
46
Wiretapping: Olmstead v. U.S., 277 U.S. 438, 464 (1928): "The [Fourth] Amendment
does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the
houses or offices of the defendants." Wiretapping is now banned by federal statute which has
been interpreted to ban the use of evidence so obtained in the federal courts. Nardone v. U.S.,
302 U.S. 379 (1937). See Westin, The .Wire-Tapping Problem, 52 CoLUM. L. REv. 165 (1952).
Use of detectaphone without trespass: Goldman v. U.S., 316 U.S. 129, 135 (1942): 'We
hold that the use of the detectaphone by Government agents was not a violation of the Fourth
Amendment!'
Trespass to look in or listen at window: See McDonald v. U.S., 335 U.S. 451 (1948) (suggesting that observation of crime being committed by looking over transom into tenant's
quarters cannot justify arrest and search where entry to rooming house itself illegal) ; Hester
v. U.S., 265 U.S. 57 (1924) (open fields not within protection of fourth amendment).
Informer wired for sound: On Lee v. U.S., 343 U.S. 747 (1952). The court held it not a
violation of the fourth amendment to permit the officer to testify to conversations heard on
his receiving set since no trespass was involved, and indicated that whether the result would
have been different if the informer had trespassed was an "undecided question." The court
also said: "The use of bifocals, field glasses or the telescope to magnify the object of a witness'
vision is not a forbidden search or seizure, even if they focus without his knowledge or consent
upon what one supposes to be private indiscretions." Id. at 754.
See generally 24 Ors. ATrrY. GEN. or CAnLF. 95 (1954).
4
7 All the Justices appeared to agree with the following characterization of the acts of
the officers in Justice Jackson's opinion: "That officers of the law would break and enter a
home, secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated
the fundamental principle declared by the Fourth Amendment as a restriction on the Federal
Government.. . ." 347 U.S. at 132. The majority of the Court held, however, that the fourteenth amendment did not compel the states to exclude evidence so obtained and affirmed the
conviction. Four Justices dissented.
48 "Any person who, without consent of the owner, lessee, or occupant, installs or attempts
to install or use a dictograph in any house, room, apartment, tenement, office, shop, warehouse, store, mill, barn, stable, or other building, tent, vessel, railroad car, vehicle, mine or
any underground portion thereof, is guilty of a misdemeanor; provided, that nothing herein
shall prevent the use and installation of dictographs by a regular salaried peace officer expressly
authorized thereto by the head of his office or department, or by a district attorney, when
such use and installation are necessary in the performance of their duties in detecting crime and
in the apprehension of criminals."
49 People v. Sica, 112 Cal. App.2d 574, 247 P.2d 72 (1952) (dictograph installed in service
station where bookmaking operations carried on; court referred to 653h as permitting the
use of the dictograph) ; People v. Porter, 105 Cal. App.2d 324, 233 P.2d 102 (1951) (conversa-
[Vol. 43
In Cahan the court denounced the surreptitious installation of dictographs as being in "flagrant violation" of the constitutional provisions and
said that section 653h of the Penal Code "does not and could not authorize
violations of the Constitution, and the proviso under which the officers purported to act at most prevents their conduct from constituting a violation
of that section itself."'5 0 The court did not make clear whether the illegal
search was the trespass involved in installing the dictographs or the eavesdropping. An inference that the eavesdropping most concerned the court
can be drawn from its statement that the constitutional provisions guarantee a "right of privacy,""1 from its characterization of the police conduct
as "dirty business," 5 2 and from its reliance on the opinions in which Justices
Holmes and Brandeis dissented from the determination that wiretapping
did not violate the fourth amendment.53 If the trespass is the determining
factor, it would seem that the officer who trespasses to look in the window
or listen at the door will be forbidden from testifying, but that conversations heard by placing a detectaphone on the wall of a legally entered room
in a hotel or apartment house will be admissible. If it is the eavesdropping
which offends the constitutional provisions (as it obviously does the court),
then evidence from both of these tactics will be rejected, and perhaps also
evidence of conversations overheard by an informer or other person who
achieves entrance to the defendant's premises under false pretences will be
similarly treated.54
One must conclude, then, that in broad areas involving commonly used
tactics of the best police departments, and justified by them as essential to
the control particularly of organized criminal operations, it is not possible
to know whether the police are acting legally or illegally. It is only by measurement against standards as yet unarticulated by the California courts
that an observer can reach any conclusion as to the extent of illegal police
searches and seizures in California.
tion recorded between defendants when alone in district attorney's office) ; People v. Kulwin,
102 Cal. App.2d 104, 226 P.2d 672 (1951) (dictograph in business premises); People v. King,
101 Cal. App.2d 500, 225 P.2d 950 (1950) (dictograph in jail cell).
50 44 A.C. 461, 463, 282 P.2d 905, 906 (1955).
GlId.
at 465, 282 P.2d at 907.
2
5 Id. at 472, 282 P.2d at 912.
63 Id.at 472, 473, 282 P.2d at 912.
54 See On Lee v. U.S., 343 U.S. 747, 757 (1952): "The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise
serious questions of credibility ....But to the extent that the argument for exclusion departs
from such orthodox evidentiary canons as relevancy and credibility, it rests solely on the proposition that the Government shall be arbitrarily penalized for the low morals of its informers.
However unwilling we as individuals may be to approve conduct such as that of Chin Poy
[the informer wired for sound], such disapproval must not be thought to justify a social
policy of the magnitude necessary to arbitrarily exclude otherwise relevant evidence." But
compare Gouled v. U.S., 255 U.S. 298 (1921).
1955]
Perhaps more important even than the vagueness of the rules is the fact
that prior to the Cahan decision the police were under no substantial pressure to seek clarification of those rules. The issue of legality became crucial
so seldom that the police had, in effect, broad discretion in determining the
procedures to follow, subject only to community pressures, particularly
those by the press, which rarely focused upon any but the most obvious
abuses. Some law enforcement officials took advantage of the paucity of
precedents to justify common police practices as being reasonable under
the circumstances and, hence, not within the constitutional ban of "unreasonable" searches and seizure. Thus, in a recent article, the Chief of Police
of Los Angeles concluded:5 5
It is up to the legislatures and judiciary of this nation carefully to spell out
the authority and powers and procedures to be followed by the investigatory agencies in their enforcement of the laws of this land, if there is doubt
as to the constitutionality or morality of a particular process or technique.
Until this is done, it would seem that the test of reasonableness would be
adequate as a criterion to guide the law enforcement administrator.
Others have come close to saying that admittedly illegal searches and
seizures are justified whenever (in their opinion) adequate control of particular criminal activity cannot otherwise be had. A leading district attorney, for example, in commenting on the adverse consequences he thought
would flow from the Cahandecision, said: 51
Let's take a look at narcotic enforcement. You know, because of the nature
of the narcotic traffic, you have to do things-you have to get evidenceyou have to get information froih addicts and peculiar kind of people-and
you might get your information at one o'clock in the morning, in the middle
of the night, that a deal in heroin is going to be made in fifteen minutes some
place in West Oakland ....
The vice squad hasn't time to find a deputy
district attorney and a stenographer to make out an affidavit, and then find
a judge at that time of the night to sign a search warrant. They have to
move in right now or they miss the boat, and they don't make a case. You
could multiply that in other situations many times.
Clearly it is undesirable to leave the determination of the reasonableness of police procedures within the almost unchecked discretion of law
enforcement officials who generally tend to value the necessities of law enforcement above the claims of individual liberty. It is no answer to say, as
57
does the Los Angeles chief of police:
1
55 Parker, Surveillance by Wiretap or Dktograph: Threat or Protection?A Police Chiefs

Opinion, 42 CAriF. L. REv. 727, 737 (1954).
56 J. Frank Coakley, District Attorney, Alameda County, Report, Law and Legir. Comm.,
5 CALnv. PFACE OFICER 38, 40 (1955).
57 Parker, supra note 29 at 49.
[Vol. 43
An experienced and trained officer does not waste his time with indiscriminate or random searches or other quests for evidence, nor is he eager to
incur the wrath of his superiors and of the public, or the imposition of departmental discipline, or civil liability, by searches which are irrelevant to
his duty or which have no reasonable promise of furthering the execution
of his duty.
Nor is it an answer to say more bluntly that the police "do not go about
breaking into homes of innocent persons to search them or install microphones for they have more to do than meddle in such a matter." 8s The
governing rules must be fashioned by the community generally if a fair
compromise is to be made of the claims of law enforcement and of individual liberty. And if the rules are to be effective in controlling police activity,
compliance with them must be judicially enforceable.
Hence, when the Cakan case came to the court, California was badly
in need of (1) a re-examination and definition of the rules governing police
searches and seizures, and (2) developing more effective remedies for police
violations of the rules. In the Cahian case the court had to decide whether
it should follow existing precedents and await legislative action on these
problems, or whether it should take the initiative and adopt the exclusionary rule. 0 In choosing the latter course, the court not only made a decision
in favor of the exclusionary rule as a remedy for illegal police activity, but
also took upon itself the responsibility of fashioning the rules to govern the
police in the future. Discussion in this article will be confined to an appraisal of the exclusionary rule as a means of enforcing police compliance
with the applicable rules. The court in Cahan expressly left to the future
"the development of workable rules governing searches and seizures and
the issuance of warrants that will protect both the rights guaranteed by the
constitutional provisions and the interest of society in the suppression of
crime.""0 It has recently taken over from the district courts of appeal a
group of cases for the purpose of dealing directly with some of the problems
involved in defining the applicable rules.0 1 Comment can await the outcome
of those cases since they will be fully argued, and the various law enforcement agencies can be expected to bring to the attention of the court the
practical problems which they face.
58 Coakley, supra note 10 at 33.
59 A principal argument made in the briefs in support of the petition for rehearing in the
Cahan case was that for the court to adopt the exclusionary rule would be a violation of the
separation of powers doctrine. To the extent that this argument poses a real question of power
separate from questions relating to the relative desirability of legislative and judicial solutions,
it is not considered in this article.

6044 A.C. 461, 477, 282 P.2d 905, 915 (1955).
61 Supreme Court Clerk William I. Sullivan, as reported in Oakland Tribune, Aug. 10, 1955.
19551

il
THE EXCLUSIONARY RULE62
A. The Theory
In order to make an intelligent appraisal of the rule requiring the exclusion of illegally obtained evidence, it is first necessary to ascertain its
fundamental justification. Do we want to exclude illegally obtained evidence because the defendant is being deprived of a fair trial-because he
has a right to have all evidence excluded which has not been properly gathered? Is it because the courts cannot, consistently with their duties to
enforce the constitutions and laws, sanction and participate in the illegal
action by receiving the fruits thereof? Or is it because it is felt that exclusion of the evidence is the only realistic method of enforcing the limitations
upon the police?
There is much in opinions of justices of the Supreme Court of the United
States that would suggest that, at least in extreme cases, the defendant has
a right to exclusion as a part of his general right to a fair trial. In Rochin
v. California5 the Court suggested that a defendant's constitutional rights
went beyond the requirement of a fair trial in the conventional sense to
include the right to have his conviction reversed if any of the evidence used,
however reliable and relevant, was obtained by methods which offend the
"decencies of civilized conduct." In Irvine v. California,Mr. Justice Frankfurter, with the concurrence of Mr. Justice Burton, made it explicit that he
was dealing with the right of the defendant: 6
62 The literature relating to the exclusionary rule is extensive. A list of the principal articles and books, classified in terms of support or rejection of the rule, follows.
Supporting Exclusionary Rule: MACHEN, THm LAw oP SEARcH AD SEIZURE (1950);
McCoasrcx, HADBoox Oi? THE LAW o EVIDENCE 291 (1954); CoRNrLrus, THE LAw or
SEARCR mm SaszuRE (1930); Atkinson, Admissibility of Evidence Obtained Through UnreasonableSearches and Seizures, 25 CoLum. L. Rnv. 11 (1925); Allen, The Wolf Case; Search
and Seizure, Federalism, and the Civil Liberties, 45 ILL. L. Rav. 1 (1950); Fraenkel, Recent
Developments in the Federal Law of Search and Seizure, 33 IowA L. REv. 472 (1948); Hall,
Police and Law in a Democratic Society, 28 ImN.L.J. 133, 173 (1953); Paulsen, The Fourteenth Amendment and the Third Degree, 6 STAN. L. REv. 411 (1954) ; Farrelly, Searches and
Seizures During the Truman Era, 25 So. CAIIP. L. Rav. 1 (1951) ; Beisel, Control Over Illegal
Enforcement of the Criminal Law: Role of the Supreme Court, 34 B.U.L. Rav. 413 (1954);
Cowen, The Admissibility of Evidence Procured Through Illegal Searches and Seizures in British Commonwealth Jurisdictions, 5 Vmm.L. PEv. 523 (1952); Notes, 47 Nw. U. L. REv. 493
(1952), 58 YA=ELJ. 144 (1948).
Opposing Exclusionary Rule: 8 WiGOmoR, EVDE cE 2183-84b (1940); Waite, Police
Regulation by Rules of Evidence, 42 MCh. L. REv. 679 (1944); Plumb, Illegal Enforcement
of the Law, 24 ComErL L.Q. 337 (1939); Grant, Search and Seizure in California, 15 So.
CALrt. L. REv. 139 (1942) ; Grant, Circumventing the Fourth Amendment, 14 So. CALM. L.
Rav. 359 (1941) ; Harno, Evidence Obtained by Illegal Search and Seizure, 19 Ir.. L. REv. 303
(1925).
63 342 U.S. 165, 173 (1952).
64 347 U.S. 128, 148 (1954).
[Vol, 43
Observance of due process has to do not with questions of guilt or innocence

but the mode by which guilt is ascertained. Mere errors of law in the conduct of State trials afford no basis for relief under the Fourteenth Amendment .... But when a conviction is secured by methods which offend elementary standards of justice, the victim of such methods may invoke the
protection of the Fourteenth Amendment because that Amendment guarantees him a trial fundamentally fair in the sense in which that idea is
incorporated in due process. If, as in Rochin, "[o]n the facts of this case
the conviction of the petitioner has been obtained by methods that offend
the Due Process Clause," ... it is no answer to say that the offending
policemen and prosecutors who utilize outrageous methods should be punished for their misconduct.
Mr. Justice Douglas suggested the same idea:6"
I protest against this use of unconstitutionalevidence. It is no answer that
the man is doubtless guilty. The Bill of Rights was designed to protect
every accused against practices of the police which history showed were
oppressive of liberty.
This concern with the rights of the defendant, it is submitted, will not
withstand closer analysis. The constitutional provisions do not guarantee
a right to commit crime within the four walls of one's abode secure from
police intrusion.66 Rather, the import of the constitutional provisions is that
the police shall not engage in indiscriminate searches where probable cause
has not been clearly demonstrated. Hence they expressly recognize that
pursuant to a search warrant properly obtained and sufficiently precise in
its definition of the scope of the search, the police may search a person's
dwelling, and even if he has not committed a crime and no evidence is found
he cannot complain of violation of his priVacy. Where the police have
reasonable grounds for believing that an individual's right to be secure in
his person, house, papers, and effects is being abused for the purpose of
committing a crime, they may search him or his premises by following the
proper procedure.
Consider, for example, the situations involved in the Irvine and Cahan
cases. The defendants in those cases were using the privacy of their homes
65
Irvine v. California, 347 U.S. 128, 151 (1954).

66 Cf. People v. Mayen, 188 Cal. 237, 251, 205 Pac. 435, 440 (1922): "The Constitution
and the laws of the land are not solicitous to aid persons charged with crime in their efforts
to conceal or sequester evidence of their iniquity. From the necessities of the case the law
countenances many devious methods of procuring evidence in criminal cases. The whole system
of espionage rests largely upon deceiving and trapping the wrongdoer into some involuntary
disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and
peers through the transom-light. It is not nice, but it is necessary in ferreting out the crimes
against society which are always done in darkness and concealment." Cf. the following quotation attributed to Justice Carter by the San Francisco Examiner, May 4, 1955: "But the indi-
vidual should have liberties and know that as long as he does not openly violate the law he is
safe."
1965]
for the purpose of violating the laws against bookmaking. The police, instead of following the prescribed procedures and getting search warrants,
made surreptitious entries and installed dictographs for the purpose of
overhearing conversations. The police acted illegally in entering the defendants' homes. The defendants acted illegally in engaging in bookmaking in
their homes. Why should they have any personal right to be freed from the
consequences of their own illegal acts because of illegal police intrusions
upon a privacy which they were abusing? In fact, if one were to look only
to the rights of the defendants, why would it not be reasonable to take the
position that by engaging in bookmaking within their houses they had
waived their constitutional right to privacy and could in no event complain
of the police entries-reserving, of course, a civil action for damages to recover for any unnecessary damages to property or violence to the person?
Is it not relevant here that the innocent person whose rights are invaded
gets no such bonanza as a result? He has not abused his privacy. He has a
clear constitutional right to keep the police out of his house except where
they have established probable cause and secured a warrant, or in the limited cases where search without a warrant is held to be reasonable. Yet he
is limited to complaints seeking to induce disciplinary or criminal actions
and to a civil suit for damages. Should the guilty person get more? Is it in
any sense unfair to use clearly reliable evidence to convict a man for a
crime which he has committed? However much we may be revolted by the
methods used by the police to obtain the evidence, we cannot rationally say
that the defendant whose crime may be at least equally revolting should
have a personal right to go free as a result.
Even though we reject any personal right of the defendant to be acquitted because of police illegality, we may still decide that the duty of the
courts to comply with the constitution forbids them to receive illegally
obtained evidence. In Rochin v. Californiathe Court said that "to sanction
the brutal conduct which naturally enough was condemned by the court
whose judgment is before us, would be to afford brutality the cloak of
law.16 7 Justice Holmes took a similar position in Olmstead v. U.S.6 when
he said that the same law which makes the police action illegal "does not
permit the judge to allow such iniquities to succeed." The California court
relied strongly on this reason in the Cahan case. Under the rule admitting
illegally obtained evidence, the court said:6
The courts have been constantly required to participate in, and in effect
condone, the lawless activities of law enforcement officers. [The success of
the lawless venture of the police depends] entirely on the court's lending its
67342 U.S. 165, 173 (1952).
08 277 U.S. 438, 470 (1928).
69 44 A.C. 461, 472, 282 P.2d 905, 912 (1955).

aid by allowing the evidence to be introduced ....
[Vol. 43
Out of regard for its
own dignity as an agency of justice and custodian of liberty the court should
not have a hand in such "dirty business".... Courts refuse their aid in civil
cases to prevent the consummation of illegal schemes of private litigants;
. .. a fortiori, they should not extend that aid and thereby permit the consummation of illegal schemes by the state itself.
These moralistic notions, however, would seem to add little weight to
the exclusionary rule. Is not the court which excludes illegally obtained evidence in order to avoid condoning the acts of the officer by the same token
condoning the illegal acts of the defendant? Suppose a policeman by an
illegal search has obtained evidence which establishes the defendant as a
peddler of narcotics to juveniles. Where lies the duty of the judge? Can
we assume from any general social point of view that the policeman's conduct is so much more reprehensible than the defendant's, that the duty of
the judge is to reject the evidence and free the defendant?
Law enforcement is not a game in which liberty triumphs whenever the
policeman is defeated. Liberty demands that both official and private lawlessness shall be curbed. And in any specific instance it is hard to say that,
put to the choice between permitting the consummation of the defendant's
illegal scheme and the policeman's illegal scheme, the court must of necessity favor the defendant. So to say is to abandon any presumption of official
regularity and to assume that the policeman's action always involves a
greater social evil than the defendant's. It should be noted that the exclusion of the evidence usually results in the defendant's completely escaping
punishment for his act, while the admission of the evidence does not constitute a judicial approval of the officer's conduct, and that officer is still, at
least in theory, subject to some form of civil or criminal liability.
We may reject any right of the defendant to have the evidence excluded.
We may decide that the issue cannot be decided in terms of a moral duty
of the court to avoid condoning the lawless activities of the policeman. But
still the exclusionary rule may be justified on the ground that it is the only
effective method of curbing police illegality in its impact on citizens generally, the innocent as well as the guilty. The theory here is that the inherent
limitations on the direct remedies are so great that they will never act as a
sufficient deterrent to police illegality. Hence, the only way that the police
can be forced to act more generally in conformity with the law is to permit
defendants, however reprehensible and undeserving they may be in their
own right, to raise the issue on behalf of all. They have a strong motive to
challenge the police. If police illegality will result in failures of conviction,
allowing them to make the challenge will affect police activities in a manner, and on a scale, that the direct remedies can never hope to do. This
reason is the primary one articulated by the courts and was expressly made
195]
the principal basis for the decision in the Cahan case. Thus, the court said
that it reached its conclusion in favor of the exclusionary rule "because
other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers .... ,,1 Further the court
said: "Granted that the adoption of the exclusionary rule will not prevent
all illegal searches and seizures, it will discourage them.'
In deciding whether the exclusionary rule is justified as a means for
indirectly inducing the police to refrain from illegal searches, one must look
beyond the law library since the questions involved are primarily factual.
As Justice Cardozo observed when presented with the same problem in
1926:72
The question is whether protection for the individual would not be gained
at a disproportionate loss of protection for society. On the one side is the
social need that crime shall be repressed. On the other, the social need that
law shall not be flouted by the insolence of office.
Among the questions to be decided are: (1) How effective, as a practical
matter, will the exclusionary rule be in curbing illegal police searches? and
(2) To what extent will the rule reduce the effectiveness of law enforcement agencies in controlling crime?
B. The Effectiveness of the ExclusionaryRule
As Professor Paulsen recently observed, "whether rules which prevent
the prosecution from using evidence in court effectively deter police lawlessness is one of the most enduring controversies about law. The controversy is fed by many opinions and few facts. '73 In Irvine v. California,
Justice Jackson (in an opinion signed by Chief Justice Warren and Justices
Reed and Minton) said: "
What actual experience teaches we really do not know. Our cases evidence
the fact that the federal rule of exclusion and our reversal of conviction for
its violation are not sanctions which put an end to illegal search and seizure
by federal officers. The rule was announced in 1914 in Weeks v. United
States .... The extent to which the practice was curtailed, if at all, is
doubtful. The lower federal courts, and even this court, have repeatedly
been constrained to enforce the rule after its violation. There is no reliable
evidence known to us that inhabitants of those states which exclude the
evidence suffer less from lawless searches and seizures than those of states
7044 A.C. 461, 472, 282 P.2d 905, 911 (1955).
71Id.at 475, 282 P.2d at 913.
72
People v. Defore, 242 N.Y. 13, 24, 150 N.E. 585, 589 (1926) (rejecting the exclusionary
rule).
78 Paulsen, The Fourteenth Amendment and the Third Degree, 6 STrx. L. Rxv. 411, 435
(1954); see also Foote, Tort Remedies for Police Violations of Individual Rights, 39 Almr.
L. Pv.493, 495 (1955).
74347 U.S. 128, 135-36; but cf. the opinion of justice Murphy in Wolf v. Colorado, 338
U.S. 25, 41 (1949).
[Vol. 43
that admit it ....That the rule of exclusion and reversal results in the
escape of guilty persons is more capable of demonstration than that it deters
invasions of rights by the police. The case is made, so far as the police are
concerned, when they announce that they have arrested their man. Rejection of the evidence does nothing to punish the wrong-doing official ....
The disciplinary or education effect of the court's releasing the defendant
for police misbehavior is so indirect as to be no more than a mild deterrent
at best.
The majority of the California court was more optimistic in the Cahan
case: 75
Granted that the adoption of the exclusionary rule will not prevent all
illegal searches and seizures, it will discourage them. Police officers and
prosecuting officials are primarily interested in convicting criminals. Given
the exclusionary rule and a choice between securing evidence by legal
rather than illegal means, officers will be impelled to obey the law themselves since not to do so will -jeopardize their objectives.
Also the court stated that by enforcing the exclusionary rule courts will
"arouse public opinion as a deterrent to lawless enforcement of the law by
bringing just criticism to bear on law enforcement officers who allow criminals to escape by pursuing them in lawless ways."1 6 Implicit also in the
opinion is the conclusion that no other remedies are effective and, hence,
the exclusionary rule can be justified on the ground that even a poor sanction is better than none at all.
The factual question regarding the effectiveness of the rule cannot be
answered in any satisfactory fashion without detailed field studies of the
actual operations of law enforcement officials and the effect upon them of
the exclusionary rule.77 The forthcoming survey of the administration of
criminal justice in the United States under the auspices of the American
Bar Association may, for the first time, give some reliable evidence upon
which to base conclusions.71 But even without adequate factual data, some
tentative conclusions can be reached.
In the first place it should be emphasized that excluding evidence and
freeing criminals does not punish, "evil" policemen. The exclusionary rule
cannot be expected to improve a police force which is generally corrupt,
inefficient and lawless. It is not a magic wand which will solve the complex
problems which constitute the "police problem" in so many of our communities. The police problem is far broader than the question of illegal searches
75 44 A.C. 461, 475, 282 P.2d 905, 913 (1955).
76
Ibid.
7 But cf. Note, 58 YAi LJ.144, 162 (1948).

78
AmERCicA BAa FouNmATio, THE ADm-nsTRAaro or CnmanAL JusTic nsT
THE UmTED
STATES, PLAN FOR SuRvE 74 (1955). The survey will take particular note of the areas of police
activity where civil liberties may be jeopardized. Id. at 124.
19551
and seizures; problems of police lawlessness are inextricably bound up with

the more general problems of police organization, governmental corruption
and modern crime. 79 The fundamental problem, of course, is the general
public morality of the community in which the police serve. If the public
tolerates a graft-ridden political administration, if the public really does
not want adequate law enforcement but prefers to keep the lid off (or even
tilted) for gambling, prostitution, liquor violations, and the like, then the
police department will reflect this attitude. Characteristically the corrupt
police department is the lawless police department. The deterioration of
morality which results from the acceptance of pay-offs and the preferment
of officers who "play the game" results in police brutality, petty graft and
blackmail, and intolerance of citizens' rights generally. Such police abuses
which are unrelated to conscientious efforts to curb crime cannot be controlled by judicial decision. The threat of excluding evidence illegally obtained has no impact upon the officer who is planning blackmail rather than
prosecution, nor upon the police administrator who is seeking to "regulate"
vice rather than suppress it. In fact, there is some evidence that the rule
assists a corrupt police department in making a false public impression of
its attempts to enforce the law.80 One way to extend protection to favored
criminals is to make periodic raids and arrests, knowing that the prosecution will be quashed after a successful motion to exclude the evidence thus
obtained.
The failure of the exclusionary rule as a means of coping with the lawless activities of the corrupt police department is best demonstrated by the
situation in Illinois. Despite the fact that the exclusionary rule has long
been enforced in a most rigorous fashion in that state,81 a journalistic surveyor of the police problem reported recently that he was "prepared to
accept the widely held opinion that the Chicago police force is by far the
79 See generally: Id. at 74; DEUTscir, Tam TROUBLE WrrH Cops (1955) ; BARNES & TaiERS, NEW HORizoNS IN CRMoIooY 239 (1951); TAFT, CP=OLOGY 349 (1950); SMITH,
POLICE SYSTEMS n THE UNITED STATES (rev. ed. 1949); Hopms, OuR LAWLESS POLICE
(1931); LEONARD, POLICE ORGANIZATION AND MANAGEMENT (1951); RECKLESS, THE CRIE
PROBLEM (1950); AmEymcAN BAR ASSOCIATION COMMISSION ON ORGANIZED CRIME, ORGANIZED
CRME AND LAW ENEORCEMENT -(1952) ; ADLow, POLI-CEMEN AND PEOPLE (1947) ; DiENsTENr,
ARE You GunLTY? (1954) ; PUTTKAMMER, ADMNSTRATION or CRIMINAL LAW (1953) ; Ernst,
The Policeman and Due Process, 2 J.PuB.L. 250 (1953); Symposium, New Goals in Police
Management, 291 ANNALS 1-158 (1954).
80 See Dash, Cracks in the Foundation of CriminalJustice, 46 ILL. L. REv. 385, 391 (1951),
in which it is reported that in one branch of the municipal court in Chicago 70% of the
gambling cases were dismissed on a motion to suppress evidence because of an illegal search
and seizure. The author concludes: "An examination of the records and a period of observation
of this practice in the court is fairly convincing that the raids are made to immunize the
gamblers while at the same time satisfying the public that gamblers are being harassed by the
police.' Id. at 392.
81See Note, 47 Nw.U. L. REv. 493 (1952).
[Vol. 43
most demoralized, graft-ridden and inefficient among our larger cities."8 2"
He also referred to a 1953 report by the Chicago City Council's Emergency
Crime Committee which he said attributed the following practices to local
police:as
Framing businessmen and other citizens for the purpose of extorting bribes;
shaking down gamblers, prostitutes, lawbreaking tavern keepers, narcotics
peddlers and traffic violators; extorting money from ex-convicts under
threat of arrest; indiscriminately harrassing slum-area residents; beating
up and blackjacking suspects; harrassing private citizens on behalf of
favored politicians or hoodlums.
Of course, Chicago's troubles are no argument against the adoption of the
exclusionary rule in California-especially in view of the recent statement
by the state attorney general that the standard of the law enforcement profession in California "has risen almost phenomenally in the past five years.
. . . California has the best law enforcement record in the country. "' 84 But
the Chicago experience should serve to dampen the enthusiasm of those who
hail the adoption of the exclusionary rule as a well-deserved chastisement
of police forces for which they have no respect.85
The main thrust of the exclusionary rule is against the police department which is trying to do its job of crime control but is overzealous in its
methods. The principal long-run benefit to be expected from the rule is that
it will force the administrators of such departments to discipline their forces
to be more careful to abide by the rules. It is reasonable to assume that a
police chief may forbid the use of dictographs if the evidence so secured
cannot be used in court; that he may try to make the search warrant procedure work in narcotics and gambling cases if the result of just breaking in
and seizing evidence will be the acquittal of the suspects. The conscientious
police chief will no longer be able to rely on his own judgment as to the
necessities of law enforcement; he will be forced to consider carefully judicial interpretations of the rules governing searches and seizures, and to do
his best to secure compliance with those rules by the individual policemen
under his command. For the first time in California, the rules governing
82
DfUTscir, THE TRouBLE WnHu Cops 14 (1955).
83 Id. at 15.
84
Remarks of Attorney General Brown reprinted in 6 CAIFr. PEACE OMCER 57 (1955).
85
In fact the Cahancase itself is probably most resented by those law enforcement officials
who are making the most conscientious attempts to control crime without unduly interfering
with individual privacy. See, e.g., the statement of the Los Angeles Chief of Police: "The officers
who broke the case, in my opinion, showed an unusual amount of ingenuity, industry and intelligence in penetrating and breaking up this organization. The fact that their work should be
labelled by this Court as criminal and unconstitutional without their even being permitted to
defend themselves is, in my opinion, a serious miscarriage of justice and as damaging a blow
as could possibly be struck at a police department, which, more than any other in this country,
is endeavoring to raise the standards of law enforcement personnel and to give them at least
semi-professional status." Parker, supra note 29 at 43.
19551
search and seizure will be crucial to those police administrators whose goal
is to produce "conviction hazards" so great that criminal operations become
unprofitable.
In the short run there is even more to be said for the Cahan decision.
As has been pointed out above, the California situation was most unsatisfactory. The rules were ill-defined. There was little direct pressure upon
the police to conform to the rules. In practice, police discretion in determining the reasonableness of searches was rarely subject to check. The possibilities of the situation improving appeared slight. Law enforcement groups
preferred the ambiguity of seldom-litigated rules and had no real incentive
to take the risks involved in seeking legislative action. And there was little
evidence that other groups would take the initiative to force the police to
come before the legislature."6 Hence, the record in California could fairly
be read as suggesting that only the adoption of the exclusionary rule by the
court would force a clarification, judicially or legislatively, of the applicable rules, and provide a mechanism for their enforcement. That the majority of the court in the Cahan case so read the record is shown by the
assertion that experience had shown the ineffectiveness of direct remedies
in suppressing illegal searches and seizures, by the reference to the difficulty of arousing public opinion in opposition to illegal activities of this
type, and by the conclusion that, as a result, there is "all the more necessity
for courts to be vigilant in protecting these constitutional rights if they are
to be protected at all."187 It should be noted, however, that this argument
for judicial adoption of the exclusionary rule as the only means of bringing
public attention to focus upon the illegal search problem is not necessarily
an argument for the desirability of the rule as a permanent matter-a full
scale legislative consideration of the problem might end up with the elimination of the exclusionary rule. But even should this happen, the decision
would have served a useful purpose.
The experience of the first few months after the Cahan decision indicates that many of the beneficial results suggested above will occur. Law
enforcement personnel have been forced into public discussion of the problems of illegal searches. The California Attorney General has prepared and
distributed a pamphlet designed for peace officers as a "practical guide to
8
6The first steps in that direction were taken in 1954 when the California State Bar Committee on Criminal Law and Procedure recommended "that the question be further studied,
that law enforcement administrators be contacted concerning their views on any handicaps
which the exclusionary rule might produce, that they also be approached on further professionalizing their organization toward the end that abuses be eliminated, and that municipalities be contacted concerning their views on civil penalties for the violation of constitution guaranties!' 29 CALIF. S.B.J. 263, 265 (1954).
87 44 A.C. 461, 474, 282 P.2d 905, 913 (1955).
[Vol. 43
the law of arrest, concerning searches and seizures." ' He has also appointed a committee to draft proposed legislation covering arrest, search
and seizure. 9 Newspaper reports of dismissals of prosecutions suggest that
the legality of police action has become an issue of major concern for the
courts. And, as noted above, the supreme court has recently taken over a
large group of cases for the purpose of giving an early clarification of some
of the applicable rules.
C. The Impact of the ExclusionaryRule on Law Enforcement
In the Cahancase the court gave little consideration to the possible adverse effects of the exclusionary rule upon law enforcement. It assumed that
in most situations the police can gain evidence necessary for conviction by
legal means. If in a few cases the criminals escape because evidence cannot
be obtained legally, this is, the court said, because the constitutional provisions themselves contemplate "that it is preferable that some criminals
go free than that the right of privacy of all the people be set at naught. 00
Arguments against the wisdom of these constitutional provisions "may not
be invoked to justify a failure to enforce them while they remain the law
of the land."'"
In essence, the argument is: There is no excuse for police lawlessness.
The exclusionary rule will come into operation only if the police have engaged in illegal searches and seizures. Hence, there can be no rational
objection to the introduction of the rule.
Is the problem as simple as this argument suggests? Or are there special
costs inherent in the exclusionary rule which must be considered in determining its desirability? ,
Against the short-run advantage of the exclusionary rule as a means of
forcing public consideration of the issues of police searches and seizures
must be balanced a short-run cost. As pointed out above, the rules governing the legality of police action are ill-defined. The majority in Cahan
said that the decision "opens the door to the development of workable
rules." Obviously, it will take considerable time for these "workable
rules" to develop. The court may be able to spell out many of the rules in
the cases now before it. Future appeals, however, will be limited in number
by the fact that trial court decisions to exclude evidence as illegally ob88 BaowN, ATTIY. GEi. oF CAmiF., LAw oF ARREST, SEARCH, AND SEIZURE (unpublished
memorandum 1951). The District Attorney of Los Angeles County has also prepared a manual.
RoL. & ALARcoN, A SuirsiARy oF Tnz LAW oF SEARCHES AND SEURs AND THE EXox-usIozARY RuIE (1955).
89
Oakland Tribune, June 3, 1955.
90 44 A.C. 461, 476, 282 P.2d 905, 914 (1955).
91 Ibid.
Id.at 477, 282 P.2d at 915.
92
19591
tained will usually result in unreviewable dismissals or acquittals 3 Unless

the governor makes a special call for the purpose, legislative action cannot
come before 1957. In the interim, the bad guesses of the police as to the
applicable rules will result in the freeing of guilty defendants. The administrative burden alone will be enormous for a time and may even be greater
than in the federal system, since the court in Cakan, contrary to federal
practice,94 allowed the defendant to complain of illegal searches not only
of his own home but also of the homes of his co-defendants. 5 Hence, in
every case where the evidence used has resulted from a search of private
premises, a motion to exclude will be a standard defense tactic. In each such
case the courts will be forced first to try the policeman and make a record
concerning his activities, even though they are entirely irrelevant to the
issue of guilt or innocence of the accused. The problems will be most acute
with reference to gambling, prostitution, and narcotics. These are the areas
where large, organized, criminal organizations operate with money to procure competent counsel, procure bail, and finance appeals. Crime of this
type inevitably will be made more profitable during this short-run period
-with the attendant risks of increased corruption. Hence, it is important
to realize that the cost of using the exclusionary rule as a means of spelling
out the rules to govern the police is to permit substantial numbers of narcotics peddlers, bookmakers, prostitutes, and so forth, to escape punishment. The spectacle of such criminals being freed because of "legal technicalities" may itself be a substantial breeder of public disrespect for law.
The experience of the first few months since the Cahan decision shows
that a temporarily chaotic situation has in fact resulted. Newspaper reports
of dismissals of prosecutions, particularly in narcotics cases, have been frequent. The chief of the State Bureau of Narcotics Enforcement reported in
early June that the decision had cut arrests of dope addicts and peddlers
93 CAL.PEN. CODE 1238. If the question of illegally obtained evidence is raised on a mo-
tion to set aside the indictment or information, CAL. PEN. CODE 995, the people will be able
to appeal. CAL. PEN. CODE 1238(1).
94 The court of appeals cases generally support the holding that where a defendant does
not object to the invasion of his privacy, a co-defendant has no standing to raise the issue.
See, e.g., Ingram v. U.S., 113 F.2d 966 (9th Cir. 1940). Apparently the same rule is applied
where the defendant whose privacy is invaded objects. The evidence is still admissible against
his co-defendants. See Remus v. U.S., 291 Fed. 501, 511 (6th Cir. 1923), cert. denied, 263 U.S.
717 (1923) ; Lagow v. U.S., 159 F.2d 245, 246 (2d Cir. 1946), cert. denied, 331 U.S. 858 (1947),
rehearing denied, 332 U.S. 785 (1947) ; cf. U.S. v. Jeffers, 342 U.S. 48 (1951) (permitting the
owner of narcotics to object to its seizure from premises occupied by his aunts but to which
HANDBOOK
he had a key and permission to enter). The cases are discussed in McCo MC=,
ON EViDENcE 154, 296 (1954); MACHEN, THE LAW or SAcsIC AND SEIZURE 127 (1950). For
a vigorous criticism of the cases, see Note, 58 Y~rE L.J. 144, 154 (1948).
95 The court in the Cahan opinion made no reference to this problem, yet it was clear from
the record that Cahan did not personally occupy either of the houses in which dictographs
were installed, nor any of the other houses except one from which evidence was seized.
[Vol. 43
by state agents by nearly two-thirds." 6 The United States Attorney in San

Francisco was quoted as saying that the decision would have a serious impact upon federal law enforcement, particularly federal narcotics enforcement, since the federal officials had been avoding the impact of the exclusionary rule in the federal courts by turning over offenders for trial under
state criminal law whenever there was doubt as to the legality of the
search."
Even in the long run there are bound to be substantial social costs involved in the exclusionary rule. The rules governing police searches can
never be precise. The constitutional provisions speak of "unreasonable"
searches; the statutes on arrest speak of "reasonable cause for believing."
The question frequently is whether, under the precise facts of the particular
case, the policeman had reasonable cause for believing that the defendant
was guilty of a felony and, hence, subject to arrest, and whether the search
accompanying the arrest was reasonable in its scope. But policemen are not
lawyers. In the best police departments they will make mistakes-a fullytrained police officer is a product of years of experience. We must not forget
that the policeman is performing his duties under emergency situations
where rapid judgments must be made. As a Boston judge has observed: 8
Police critics overlook one very important fact,-his job requires immediate
action. There is little time in which to reflect and decide. A judge can reserve a case; a businessman can suspend judgment; but a policeman can't
wait. He has to act and act fast. He cannot talk things over with his superiors or associates. What is more, he must make a multitude of decisions.
Something is always turning up.
Hence, under even the most ideal situation, where the rules are as well defined as possible and the police are trying to comply with rather than to
evade the rules, there is bound to be a substantial number of cases in which
the trial judge, considering the matter after the event, will find that the
policeman guessed wrong. This conclusion is amply supported by the federal experience where, after applying the exclusionary rule for over 40
years, the courts are constantly forced to consider its application and have
not even been able to arrive at a reasonably clear definition of the rules
96 Oakland Tribune, June 12, 1955.
9"7U. S. Attorney Burke was quoted as saying, inter alla: "In the past, criminal cases originating with federal agencies have been diverted into State courts when technical difficulties
under the Federal exclusionary rule were anticipated. Such action is no longer possible, and
successful prosecution of these cases is unlikely in either State or Federal courts. As a result,
a certain percentage of criminal defendants will of necessity avoid apprehension ....I share
the views ... that the exclusionary rule will be regarded by organized crime as a haven for
the criminal element. Arrest and conviction are regarded by these persons as occupational
hazards, and any change in the law which reduces the probabilities of apprehension can be
nothing less than attractive." San Francisco Examiner, June 27, 1955.
98ADLow, PoLicE=eN hwD PoPrx 2 (1947).
195]
which are to guide federal police agencies. Thus, the United States Supreme
Court recently said in United States v. Rabinowitz:99
What is a reasonable search is not to be determined by any fixed formula.
The Constitution does not define what are "unreasonable" searches and,
regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the
facts and circumstances of each case.
The Court did not add that whenever the courts disagree with the officer's
determination of reasonableness, the defendant generally goes free.
Thus, it can be expected that there will always be large numbers of criminal prosecutions in which the defense will be reasonably justified in moving
for the exclusion of evidence as illegally obtained. This procedure, as has
been observed by an American Bar Association Committee in a related connection, "warps the conduct of a criminal trial because it turns the attention
of judge and prosecutor and defense lawyer away from the main issues
which determine guilt or innocence; the trial becomes largely an inquiry
into the misconduct of the police ... after the crime itself was committed."' 00 Not only may this add substantially to the time and costs involved
in criminal trials and appeals, but also it may serve to solidify and perpetuate a common public impression of the police as the "enemies" rather than
the "servants" of the public.
Furthermore, under this procedure there will always be a substantial
number of cases in which the defendant will go free, however clear his guilt
may be, and however much more serious his crime may be than the policeman's error. Should trial courts be given practically unreviewable discretion to free defendants whenever they think the police acted unreasonably?
Is it desirable to add to the presumption of innocence and the privilege
against self-incrimination the right of a defendant to escape trial and punishment whenever he can convince the court that the policeman acted hastfly in obtaining the relevant evidence? The federal courts have done so.
But it should be noted that, in general, the federal investigating agencies,
such as the F.B.I., Treasury and Internal Revenue, operate with comparatively large budgets and highly selected personnel and do not face the
same types of problems as do the local police. The federal agencies are not
charged with maintaining law and order in large cities, nor are they faced
with the necessity of dealing constantly with emergency situations and with
09 339 U.S. 66, 63 (1950) ; and see Fraenkel, Search and Seizure Developments in Federal
Law Since 1948, 41 IowA L. Rv. 67 (1955).
100 Committee on Bill of Rights of the American Bar Association, Memorandum on the
Detention of Arrested Persons and Their Production Before a Committing Magistrate, as
reprinted in Cmkm, DoCeNXurNs ox FuNDAzmNTA. Hu'ma RIOHTs 483, 535 (1954).
[Vol. 43
the problem of the criminal easily fleeing their jurisdiction to avoid apprehension. A large portion of the federal police work is of the type which
permits long investigations and careful development of cases before arrest
is made. Where this is not the case (such as in narcotics law enforcement),
they have, to a considerable degree, evaded the whole problem by shifting
prosecutions to state courts which will accept illegally obtained evidence. 1' 1
The United States Supreme Court has also been moving in the direction of
compelling state courts to exclude evidence obtained by illegal police practices in the confessions and police brutality cases. But in these cases, by and
large, the Court has been dealing with police procedures which find little
justification as a part of normal law enforcement technique. It may be that
the general social policy against police brutality is strong enough to justify
letting the defendant go free in these cases - especially since the police
probably can avoid the forbidden practices and still do an effective job of
law enforcement.
m
AN ALTERNATIVE SOLUTION
Is the exclusionary rule the only answer to controlling police illegality?

Or may other remedies be devised to achieve the same end at less social
cost? The majority in Cahan concluded, in the words of Justice Murphy:
"For there is but one alternative to the rule of exclusion. That is no sanction at all."" 2 The dissenters contended that the cost of the exclusionary
rule is too great and that legislation imposing civil liability on the governmental units employing policemen, and fixing a minimum recovery in such
suits, "would be far more effective in discouraging illegal activities on the
2,111
part of enforcement officers ....
In considering this problem it is crucial to differentiate between the
problem of controlling the corrupt or brutal policeman and that of controlling the conscientious but overzealous policeman. The officer who takes
bribes, or shakes down prisoners, or extorts money on threat of arrest, or
101 See Report of California State Bar Committee on Criminal Law and Procedure,
29 CALw. S.B.J. 263, 264 (1954): "Although the exclusionary rule appears to be workable in
federal cases, the nature of the investigation in a federal criminal case, as well as the quality
of the investigating personnel, often is quite different from state cases. In a great number of
F.B.I., Treasury and Internal Revenue cases the investigation can safely and properly be made
over a period of time, with the arrest being the final step. The local officer, on the other hand,
often has to work swiftly. To get results he makes his arrest with little intellectual consideration of reasonable and probable cause, and without time to prepare and obtain the issuance
of a search warrant. A parallel to this situation is found in federal narcotics cases in California,
where the great majority of investigations are turned over to local officers because the federal
rule makes the swift type of arrest and seizure a practical impossibility."
102 Wolf v. Colorado, 338 U.S. 25, 41 (1949).
103 44 A.C. 461, 484, 282 P.2d 905, 919 (1955).
1955]
brutally mistreats prisoners, or otherwise consciously abuses his authority

can be controlled only by the imposition of direct penalties. As suggested
above, the exclusionary rule has no impact in such a situation. In communities where the pressures for an honest and effective police force are strong,
internal disciplinary action and often criminal punishment can be made
available to curb the worst excesses among the police. 4 Even where police
administrators and district attorneys do not take effective action to control
such abuses, the civil suit for damages against the individual policeman
could be developed into a more effective deterrent with modifications in the
law to make easier a substantial recovery for the plaintiff."0 5
Imposition of increased personal liability is not, however, the most satisfactory method of controlling the overzealous policeman who overreaches
his authority in making arrests or searches in the course of conscientious
efforts to control criminal activity. Effective law enforcement would be impossible if the policeman were made to feel that each arrest and search was
made at the peril of civil or criminal penalties if a judge later took a different
view as to the "reasonable cause" for the arrest. The California Supreme
Court has recognized the problem here in the course of holding officers immune from civil liability for malicious prosecution:'
When the duty to investigate crime and to institute criminal proceedings
is lodged with any public officer it is for the best interest of the community
as a whole that he be protected from harassment in the performance of that
duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders
by properly trained officers. A breakdown of this system at the investigative
or accusatory level would wreak untold harm. "Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials
to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution."... To rule otherwise would place every honest law
enforcement officer under an unbearable handicap and would redound to
the detriment of the body politic.
Although the court has refused to extend this reasoning to immunize officers
from suits for false arrest and imprisonment, 1 7 it would seem that if such
suits were brought frequently, and with reasonable success, the same unfortunate results in discouraging effective investigation of crime would
ensue. The imposition of heavy personal liability in the course of the day
to day operations of law enforcement would seriously inhibit effective
police action.
104 See supra note 18.
105 See Foote, Tort Remedies for Police Violations of Individual Rights, 39 Mnm. L.
Rv. 493 (1955).
106 White v. Towers, 37 Cal.2d 727, 729, 235 P.2d 209, 211 (1951).
107 Miller v. Glass, 44 A.C. 387, 292 P.2d 501 (1955).
[Vol. 43
What, then, is the answer? Partly, of course, it lies in the direction of

making more definite the rules governing police action. A clear legislative
prohibition of the use of dictographs, for example, could be implemented
by the imposition of personal penalties upon offending officers without interfering with effective police action in other ways. But it is impossible to
foresee and provide rules for most of the infinitely varying situations the
police face. Statutes will, in the main, have to be drawn with language little
more precise than our present rule permitting arrest without a warrant
when the officer has "reasonable cause for believing" the person arrested
has committed a felony. 08 The legislature will never be able to give the
policeman a legal litmus paper capable of determining the legality of all
proposed arrests and searches.
The problem of placing legal limitations upon police discretion without
destroying effective law enforcement is a complicated one. Opportunities
must be provided for the courts to examine police arrests and searches and
seizures if the governing law is to be developed and called to the attention
of the police and the public. Pressures must be placed upon law enforcement agencies to carry on their, day-to-day activities with the fullest regard
for individual privacy which is consistent with reasonably adequate law
enforcement. The exclusionary rule is a partial solution. In those cases
where the police have engaged in successful searches and seek to use the
evidence so obtained, the courts are given an opportunity to rule on the
legality of the searches. No such opportunity is afforded to test the legality
of arrests apart from searches, or even of those searches which are unsuccessful in turning up evidence of crime. Furthermore, as elaborated in
part II of this article, the rule operates only at the substantial social cost
of freeing criminals whenever it can be shown that the police have erred.
Are there other means of placing effective pressures upon the police
without adding to the personal burdens of the officer and to the social cost
to the community? The Committee on Criminal Law and Procedure of the
State Bar of California recently suggested that 19
...the answer might lie in a new kind of civil action, or better, a summary
type of proceeding, for a substantial money judgment in favor of the
wronged individual, whether innocent or guilty, and against the political
subdivision whose enforcement officers violated that person's rights. After
not very many outlays of public funds the taxpayers and administrative
heads would insist upon curbing unlawful police action.
The dissenting justices in Caian made a similar suggestion. Professor
Foote 0 has concluded after a careful study that "the tort remedies offer
109CAL. PEN.
CODE 836.
10929 CALi. S.B.J. 263, 264 (1954).
11o Foote, Tort Remedies for Police Violations of Individual Rights, 39

493, 516 (1955).
Min. L. REv.
19553
what is perhaps the best hope of achieving increased control over police
illegality" if developed to impose governmental liability, to guarantee to the
successful plaintiff "at least some recovery" and reasonable attorney's fees,
and to restrict the "clean hands" defenses so as to make irrelevant the
moral worth of the plaintiff.
Legislative action along these general lines gives promise of providing
a more adequate solution than the exclusionary rule at a smaller social cost.
In determining the size of the minimum recovery, and in fixing the presumptions and burden of proof, it will be necessary to balance against the
desire to make the remedy attractive the dangers of unjustified raids upon
local treasuries. But with a minimum recovery high enough to make the filing of such actions economically feasible and, if possible, with a relatively
expeditious and inexpensive summary proceding, a substantial number of
suits testing the legality of police action could be expected. The remedy
would be available to the innocent as well as the guilty, for the illegal arrest
as well as the illegal search. The courts would have frequent opportunities
for ruling on the legality of police action, for enunciating and developing
the governing law. If in any community a substantial number of such actions become successful, the financial pressure would be felt at the administrative levels where policy is made, and pressure on the police to conform
more closely to judicial standards would doubtless follow. Finally, if a careful line is drawn between those situations where increased personal liability
should be placed upon the individual policeman (basically those involving
serious and intentional violations of law) and those where he should be immunized and sole liability placed upon the governmental agency, interference with the efficient functioning of law enforcement would be minimized.

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The vice squad hasn't time to find a deputy

55 Parker, Surveillance by Wiretap or Dktograph: Threat or Protection?A Police Chiefs

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it is not considered in this article.

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Observance of due process has to do not with questions of guilt or innocence

Irvine v. California, 347 U.S. 128, 151 (1954).

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69 44 A.C. 461, 472, 282 P.2d 905, 912 (1955).

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Out of regard for its

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7 But cf. Note, 58 YAi LJ.144, 162 (1948).

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and seizures; problems of police lawlessness are inextricably bound up with

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DfUTscir, THE TRouBLE WnHu Cops 14 (1955).

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Oakland Tribune, June 3, 1955.

90 44 A.C. 461, 476, 282 P.2d 905, 914 (1955).

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tained will usually result in unreviewable dismissals or acquittals 3 Unless

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by state agents by nearly two-thirds." 6 The United States Attorney in San

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Is the exclusionary rule the only answer to controlling police illegality?

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brutally mistreats prisoners, or otherwise consciously abuses his authority

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What, then, is the answer? Partly, of course, it lies in the direction of