UNIVERSITY OF THE DISTRICT OF - UDC Law Review

forcefully suggest that the exclusionary rule be more
generally modified to permit the introduction of evidence
obtained in the reasonable good-faith belief that a search
or seizure was in accord with the Fourth Amendment.
This evolvement in the understanding of the proper scope
of the exclusionary rule embraces several lines of cases.
First, standing to invoke the exclusionary rule has been
limited to situations where the Government seeks to use
such evidence against the victim of the unlawful search.
Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36
L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S.
165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v.
United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 419-
420, 9 L.Ed.2d 441 (1963); Rakas v. Illinois, 439 U.S.
128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
Second, the rule has not been applied in proceedings other
than the trial itself. In United States v. Calandra, 414 U.S.
338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the Court
refused to extend the rule to grand jury proceedings. “Any
incremental deterrent effect which might be achieved by
extending the rule to grand jury proceedings is uncertain
at best.... We therefore decline to embrace a view that
would achieve a speculative and undoubtedly minimal
advance in the deterrence of police misconduct at the
expense of substantially impeding the role of the grand
jury.” Id., at 348, 94 S.Ct., at 620. Similarly, in United
States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d
1046 (1976), the exclusionary rule was not extended to
forbid the use in the federal civil proceedings of evidence
illegally seized by state officials, since the likelihood of
deterring unlawful police conduct was not sufficient to
outweigh the social costs imposed by the exclusion.
*256 Third, even at a criminal trial, the same analysis has
led us to conclude that the costs of excluding probative
evidence outweighed the deterrence benefits in several
circumstances. We have refused to prohibit the use of
illegally seized evidence for the purpose of impeaching a
defendant who testifies in his own behalf. United States v.
Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559
(1980); Walder v. United States, 347 U.S. 62, 74 S.Ct.
354, 98 L.Ed. 503 (1954). We have also declined to adopt
a “per se or ‘but for’ rule” that would make inadmissible
any evidence which comes to light through a chain of
causation that began with an illegal arrest. Brown v.
Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, ----, 45
L.Ed.2d 416 (1975). And we have held that testimony of a
live witness may be admitted, notwithstanding that the
testimony was derived from a concededly unconstitutional
search. United States v. Ceccolini, 435 U.S. 268, 98 S.Ct.
1054, 55 L.Ed.2d 268 (1978). Nor is exclusion required
**2342 when law enforcement agents act in good-faith
reliance upon a statute or ordinance that is subsequently
held to be unconstitutional. United States v. Peltier, 422
U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1977),
Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61
L.Ed.2d 343 (1979).12 Cf. United States v. Caceres, 440
U.S. 741, 754-757, 99 S.Ct. 1465, 1472-1474, 59 L.Ed.2d
733 (1979) (exclusion not *257 required of evidence
tainted by violation of an executive department’s rules
concerning electronic eavesdropping).
A similar balancing approach is employed in our
decisions limiting the scope of the exclusionary remedy
for Fifth Amendment violations, Oregon v. Hass, 420
U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v.
New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1
(1971); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357,
41 L.Ed.2d 182 (1974), and our cases considering
whether Fourth Amendment decisions should be applied
retroactively, United States v. Peltier, supra, 422 U.S., at
538-539, 95 S.Ct., at 2318; Williams v. United States, 401
U.S. 646, 654-655, 91 S.Ct. 1148, 1153-1154, 28 L.Ed.2d
388 (1971) (plurality opinion); Desist v. United States,
394 U.S., at 244, 249-250, 89 S.Ct., at 1030, 1033-1034,
22 L.Ed.2d 248; Linkletter v. Walker, 381 U.S. 618, 636-
639, 85 S.Ct. 1731, 1741-1743, 14 L.Ed.2d 601. But see
United States v. Johnson, --- U.S. ----, 102 S.Ct. 2579, 73
L.Ed.2d 202 (1982).
These cases reflect that the exclusion of evidence is not a
personal constitutional right but a remedy, which, like all
remedies, must be sensitive to the costs and benefits of its
imposition. The trend and direction of our exclusionary
rule decisions indicate not a lesser concern with
safeguarding the Fourth Amendment but a fuller
appreciation of the high costs incurred when probative,
reliable evidence is barred because of investigative error.
The primary cost, of course, is that the exclusionary rule
interferes with the truthseeking function of a criminal trial
by barring relevant and trustworthy evidence.13 We will
never know how many guilty defendants go free as a
result of the rule’s operation. But any rule of evidence
that denies the jury access to clearly probative and
reliable evidence must bear a heavy burden of
justification, *258 and must be carefully limited to the
circumstances in which it will pay its way by deterring
official lawlessness. I do not presume that modification of
the exclusionary rule will, by itself, significantly reduce
the crime rate-but that **2343 is no excuse for
indiscriminate application of the rule.
The suppression doctrine entails other costs as well. It
would be surprising if the suppression of evidence
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