IN PURSUIT OF A MORE WORKABLE EXCLUSIONARY RULE - A POLICE OFFICER'S PERSPECTIVE

• NCJ Number: 60898
• Journal: Pacific Law Journal Volume: 10 Issue: 1 Dated: (JANUARY 1979) Pages: 33-68
• Author(s): E M HYMAN
• Date Published: 1979
• Length: 36 pages
• Corporate Author: University of the Pacific
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REPRINT

Annotation

THE EXCLUSIONARY RULE IS EXAMINED CRITICALLY BY A POLICE OFFICER, AND MODIFICATIONS TO THE RULE ARE SUGGESTED, BASED ON HISTORICAL REVIEW AND A STUDY OF A CALIFORNIA COUNTY'S POLICE OFFICERS.

Abstract

UNDER THE EXCLUSIONARY RULE, WHICH DEVELOPED THROUGH COURT DECISIONS RESTRICTING AGGRESSIVE POLICE PRACTICES, EVIDENCE OBTAINED ILLEGALLY IS INADMISSIBLE IN COURT. CASE EXAMPLES ILLUSTRATE HOW THE RULE BOTH FAILS TO PREVENT POLICE MISCONDUCT AND HINDERS AND CONFUSES POLICE IN THEIR WORK. A QUESTIONNAIRE SURVEY OF 1,486 LAW ENFORCEMENT OFFICERS IN 'NARVANA COUNTY' (A PSEUDONYM) IN, CALIFORNIA, WAS DESIGNED TO DETERMINE POLICE OFFICERS' WORKING KNOWLEDGE OF PRESENT SEARCH AND SEIZURE CASE LAW. THE RESPONSE RATE WAS 30.3 PERCENT. RESULTS INDICATED THAT THE AVERAGE OFFICER DID NOT KNOW OR UNDERSTAND PROPER SEARCH AND SEIZURE RULES. MOREOVER, OFFICERS WITH GREATER EDUCATION, EXPERIENCE, AGE, RANK, AND READING HABITS DID NOT HAVE SIGNIFICANTLY HIGHER SCORES THAN OTHER OFFICERS. SUPERIORS AND SENIOR OFFICERS ACHIEVED ONLY SIGHTLY IMPROVED SCORES. THE PATROL DIVISION DID NOT DO BETTER THAN OTHER DIVISIONS. THESE FINDINGS DEMONSTRATE THE NEED FOR MODIFICAITON OF THE EXCLUSIONARY RULE. ALTERNATIVES INCLUDE (1) FOLLOWING THE AMERICAN LAW INSTITUTE'S MODEL CODE WHEREIN EVIDENCE WOULD BE ADMISSIBLE UNLESS A 'SUBSTANTIAL' CONSTITUTIONAL RIGHT WERE VIOLATED, (2) A POLICE CIVILIAN REVIEW BOARD OR AN OMBUDSMAN TO INVESTIGATE CHARGES OF ILLEGAL POLICE PRACTICES, (3) ALLOWING PRIVATE RIGHT OF ACTION IN TORT TO BE BROUGHT AGAINST POLICE, (4) PROPOSED CALIFORNIA LEGISLATION WHICH WOULD ALLOW COURTS MORE FLEXIBILITY IN DETERMINING ADMISSIBILITY, AND (5) DEVELOPING CLEAR ADMINISTRATIVE RULES FOR POLICE PROCEDURES, WHICH COULD BE CHANGED AS NEEDED. THE ADMINISTRATIVE RULEMAKING APPROACH IS RECOMMENDED. A MODEL RULE, FOOTNOTES INCLUDING REFERENCES, THE STUDY QUESTIONNAIRE, AND STATISTICAL TABLES ARE INCLUDED. (CFW)