63 U. Colo. L. Rev. 75
University of Colorado Law Review
1992
Myron W. Orfield, Jr.a1
Copyright (c) 1992 by the University of Colorado Law Review, Inc.; Myron W. Orfield, Jr.

DETERRENCE, PERJURY, AND THE HEATER FACTOR: AN EXCLUSIONARY RULE IN THE CHICAGO CRIMINAL COURTS

I. INTRODUCTION
A. Ideology and the Exclusionary Rule
From its inception, the exclusionary rule has spurred intense and often rancorous debate between liberals and conservatives.1 Both sides put forward principled legal arguments intertwined with assertions concerning the practical operation and effects of the rule. These assertions, however, are almost entirely speculative; driven by ideological commitments rather than by observation. A striking feature of the decades-long debate is that there is still very little empirically-grounded information on the rule's application and effects.
In the last twenty years, the Supreme Court has grown hostile toward the exclusionary rule. The Rehnquist Court appears determined to limit the scope of the rule, perhaps even eliminate it entirely. This study based on data compiled from structured interviews with judges, prosecutors, and public defenders in the Chicago criminal court system — and a systematic examination of court documents — demonstrates that the Court's actions are rooted in a series of assumptions *76 concerning the operation of the rule in practice that are largely isolated from reality.
While the Court expresses a growing skepticism concerning the rule's ability to deter unlawful police behavior,2 Chicago judges, public defenders, prosecutors, and police all agree that the exclusionary rule does deter.
The Supreme Court asserts that the exclusionary rule, by suppressing credible evidence and setting guilty defendants free, defeats the “truth-finding functions of judge and jury.”3 In addition, the Court discounts the existence of police perjury in suppression hearings.4 Like the Supreme Court, participants in the Chicago criminal justice system note a loss of truth in the courtroom attributable to the exclusionary rule. Ironically, they do not associate this loss with guilty defendants going free — which occurs in less than 1% of serious felonies5 — but with pervasive police perjury to avoid the requirements of the Fourth Amendment.
The Court has declared that the exclusionary rule should not be aimed at judges because they are figures of neutral authority with no interest in the outcome of criminal prosecutions.6 This study demonstrates that judges in Chicago often knowingly credit police perjury and distort the meaning of the law to prevent the suppression of evidence and assure conviction.
B. The Relevance of Empirical Information to the Legal Debate
The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Throughout most of the nation's history, no enforcement mechanism protected these rights. Hence, they were almost wholly illusory.7 The Supreme Court established the exclusionary *77 rule in 1914 in Weeks v. United States.8 The rule forbids the use of evidence obtained in, or derived from, an “unreasonable” search. The application of the rule, however, was limited to federal prosecutions. It was not until 1961, in Mapp v. Ohio,9 that the Supreme Court, in one of its most controversial decisions, imposed the exclusionary rule upon the states.
The Mapp Court identified three bases for the exclusionary rule. First, it viewed the rule as an inherent implication of the right created by the Fourth Amendment.10 Second, it found the suppression of unconstitutionally obtained evidence essential for the preservation of “judicial integrity”11 based on the notion that courts become accomplices to crime by accepting illegal evidence.12 And, third, it declared that the rule contributed to deterring constitutional violations.13 As the Court stated in Elkins v. United States:14 “The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effective available way — by removing the incentive to disregard it.”15
The debate over the rule intensified after Mapp. Suppression of evidence under the exclusionary rule is intuitively troubling. A prosecutor's case against a factually guilty defendant may be weakened or even destroyed. Cardozo's often-quoted line has it that “the criminal is to go free because the constable has blundered.”16
The exclusionary rule has always been unpopular with the general public.17 Mapp was followed by an era of social instability and a perceived growth in urban crime. The public strongly connected these events with newly expanded constitutional principles of criminal procedure. As crime appeared to increase, the public drum-beat for harsher criminal penalties and fewer criminal defendants' rights increased as well. It is also likely that perceptions have been affected by television “cop shows” and movies like Dirty Harry, where violent, often *78 psychopathic, criminals are set free when “good cops” trip over hypertechnical rules established by “liberal judges” isolated from the reality of police work. Occasional newspaper stories about criminals released because of the exclusionary rule, or because of “technicalities,” increase public hostility.
Contrary to popular impression, the available data indicates that the exclusionary rule rarely affects prosecutions of crimes, and almost never affects prosecutions in serious cases.18 In Chicago, a jurisdiction with a comparatively high rate of suppression, unconstitutionally obtained evidence is suppressed under the exclusionary rule in only 0.9% of armed robbery cases, 0.5% of residential burglary cases, and 0.5% of cases involving violent crimes. Moreover, in many of the cases where evidence was suppressed, convictions were still obtained on the basis of other evidence. (A sample of 2,759 cases revealed no convictions lost to suppression in crimes involving physical injury to a victim.) Ninety-eight percent of the cases in which evidence was suppressed involved offenses which carried a sentence between probation and six months. The vast majority were minor drug possession cases.19
Although there is no significant disagreement over the marginal effects of the rule on prosecutions,20 critics continue to offer proposals to curtail the operation of the rule, with the rhetoric of the debate focusing increasingly on claims regarding the rule's efficacy — or its asserted “failure” — as a deterrent of future police violations of Fourth Amendment rights. The focus on the rule's deterrent effects first appeared in Linkletter v. Walker.21 The “deterrence rationale” took on added importance when the Court, following a series of conservative judicial appointments by President Nixon, substantially narrowed the rule's rationale in United States v. Calandra,22 stating that an exclusionary remedy was not a feature of a defendant's Fourth Amendment rights. The Court also discounted the importance of the judicial integrity rationale and concluded that “the rule's primary purpose *79 is to deter future unlawful police conduct . . . .”23
Since Calandra, the Supreme Court has focused on a single question in evaluating the exclusionary rule: Does it deter unlawful police behavior? In Calandra, and six subsequent decisions (as of this writing), the Court placed significant restrictions on the scope of the rule's operation by invoking a purported analysis of the rule's deterrent effect in each particular procedural setting.24 The Court's deterrence analysis in those cases was not empirically-grounded. Rather, the Court simply speculated on the rule's effects on police conduct while noting that existing research does not provide convincing empirical evidence of the rule's deterrent effect.25
C. The Police Study
As a law student at the University of Chicago, I interviewed twenty-six of approximately one hundred officers in the Narcotics Section of the Organized Crime Division of the Chicago Police Department to learn how the exclusionary rule affects police behavior (the Police Study).26 Narcotics enforcement is the area of police work in which the exclusionary rule affects the greatest percentage of cases.27 I used a 26-page standardized questionnaire with multiple choice and *80 open-ended questions centering on the issue of deterrence.28
The officers of the Narcotics Section reported that the exclusionary rule has significant deterrent effects.29 They reported that suppression of evidence educates police in the substantive law of the Fourth Amendment.30 The officers noted that those lessons are reinforced by “concerned” superiors and prosecutors who review Fourth Amendment violations with them.31 The officers also indicated that they are concerned about convictions, particularly in big cases, and experience adverse personal reactions when evidence is suppressed in such cases.32 They further stated that their professional status would suffer if they lost evidence to suppression too frequently. Specifically, the officers noted that a pattern of Fourth Amendment violations could lead to a transfer to a less desirable position.33 Finally, they suggested that their reputation among peers and/or superiors would suffer if evidence was frequently suppressed in their cases.34
The Police Study also identified an “institutional deterrent effect” of the exclusionary rule. Police administrators and prosecutors respond to the loss of evidence by designing programs and procedures to ensure better compliance with the Fourth Amendment. These efforts include increased and improved Fourth Amendment training, internal review of lost cases, better administrative record-keeping to track the number of suppression cases, increased use of search warrants, and a system to “register” the anonymous informants who provide information to police.35
In addition, the exclusionary rule presses the police department and state's attorneys office into a much closer working relationship. Prosecutors review search warrants, provide advice concerning on-going investigations, supervise training programs and otherwise respond to problems as they arise.36
The Police Study also explored the incidence and effect of police perjury on the operation and effectiveness of the rule. The study reported, *81 it now appears erroneously, that police perjury at suppression hearings is a minor problem, largely controlled by various safeguards in the criminal justice system.37
Finally, many of the officers interviewed believe the exclusionary rule does little harm to police work, and instead makes them more professional. Strikingly, all of the officers wished to preserve the exclusionary rule, albeit modified by a good faith exception.38
D. The Courts Study
The Police Study presented the impressions of police officers. To test those perceptions — particularly those concerning police perjury at suppression hearings — and to learn more about the operation of the exclusionary rule in practice, the present study was undertaken based on interviews with judges, public defenders and prosecutors.
1. Methodology
The structure of the Courts Study is modeled on the Police Study, again using a structured questionnaire, this time twenty pages long, with multiple choice and open-ended questions centering on deterrence.39 Extensive preliminary interviews were conducted to help focus the issues to be covered in the questionnaire. Drafts of the questionnaire were evaluated by Albert Alschuler, Stephen Schulhofer, Thomas Davies, Peter Nardulli, and Hans Zeisel. The questionnaire was then field tested to ensure that the respondents would understand the questions. Because the officers in the Police Study were willing to address sensitive subjects, the questions in the Courts Study were far more direct — sometimes so direct the Courts respondents refused to answer them.
Of the 41 felony trial courtrooms in the Criminal Division of the Circuit Court of Cook County, I randomly selected a sample of 14. For each of these courtrooms, I attempted to interview the judge, a randomly selected assistant public defender, and an assistant state's attorney assigned to the courtroom. All the public defenders, thirteen of the fourteen judges, and eleven of the fourteen state's attorneys chosen at random agreed to participate. In place of the state's attorneys who declined to participate, I substituted other persons assigned to the *82 same courtroom. I could not substitute for the one non-participant judge. Each interview took one and a half to two hours.
In the text which follows the responses are reported as percentages of those who answered a given question. When questioned on matters that may have reflected negatively on themselves or other participants in the criminal justice system, respondents sometimes became uncharacteristically nervous, reticent, or evasive. In such instances, respondents sometimes refused to answer, or would simply state, “I don't know.” Answers of this sort were treated as not being responses at all.
When samples of less than fifty observations are involved, percentages are somewhat unstable, given that one or two changed responses can change the reported percentages a great deal. On the other hand, propositions such as “27 of 39 respondents answered . . .” are difficult to put into perspective. As a result, percentages have been used in the text to make the data more accessible, while actual response data may be found in the footnotes.
2. Summary of the Courts Study Findings
Respondents in the Courts Study report the same perceptions of the deterrent effect of the rule as the officers in the Police study. First, respondents uniformly believe that officers care about convictions and experience adverse personal reactions when they lose evidence. Respondents report that police change their behavior in response to the suppression of evidence. They also believe that suppression effectively educates officers in the law of search and seizure and that the law is not too complicated for police officers to do their jobs effectively.
The Courts Study respondents believe even more strongly than the Police Study respondents that the exclusionary rule's deterrent effect is greater when officers are working on big or important cases. They also believe the exclusionary rule has a greater deterrent effect on officers in specialized units like the Narcotics Section.
Respondents also stated that the exclusionary rule fosters a closer working relationship between prosecutors and police. They note that prosecutors help police officers conduct proper searches and understand why evidence is suppressed. The Courts respondents felt isolated from the internal operation of the police department, however, and did not exhibit substantive knowledge of internal institutional reactions to suppression or the existence of an institutional deterrent within the police force.
Significantly, the Courts respondents outlined a pattern of pervasive police perjury intended to avoid the requirements of the Fourth *83 Amendment. Dishonesty occurs in both the investigative process and the courtroom. The respondents report systematic fabrications in case reports and affidavits for search warrants, creating artificial probable cause which forms the basis of later testimony. Moreover, police keep dual sets of investigatory files; official files and “street files.” Exculpatory material in the street files may be edited from the official record. Respondents, including prosecutors, estimate that police commit perjury between 20 and 50% of the time they testify on Fourth Amendment issues. This perjury may be tolerated, or even encouraged, by prosecutors at each step in the process in both direct and indirect ways.
The Courts respondents, including judges, also believe that judges may purposefully ignore the law to prevent evidence from being suppressed, and even more often, knowingly accept police perjury as truthful. When the crime is serious, this judicial “cheating” is more likely to occur due to three primary reasons; first, the judge's sense that it is unjust to suppress the evidence under the circumstances of a particular case, second, the judge's fear of adverse publicity, and third, the fear that the suppression will hurt their chances in judicial elections. In addition, serious cases in Chicago are diverted to judges who are more likely to convict the defendant.
However, even in the face of persistent police perjury and judicial abdication of function, the Courts respondents, like the police respondents, believe that the exclusionary rule, although imperfect and often avoided, clearly leads to increased police professionalism and greater observance of the law of the Fourth Amendment. They do not believe that the rule causes significant harm to police work. Although the Courts respondents acknowledge that the rule can sometimes be unjust to crime victims, they believe that the rule's benefits to society equal or exceed its costs. Respondents report that there is no more effective remedy for Fourth Amendment violations, and that a tort remedy would be less effective. Finally, they believe the rule should be retained.
*84 II. DETERRENCE
The hope that [deterrence of unlawful police behavior] could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream . . . . [T]he history of the suppression doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective.
Chief Justice Warren Burger in Bivens v. Six Unknown Federal Narcotics Agents.40
When evidence is suppressed [in one of their cases], a great majority of the officers change their behavior and they don't just change their behavior, but they become more concerned with doing everything properly — of really covering all the bases. . . . The majority of police officers learn from what they do wrong and follow the rules.
Chicago Prosecutor, 1988.
A. Does the Exclusionary Rule Deter?
Chief Justice Burger's statement that there is no reliable evidence that the exclusionary rule deters unlawful police behavior is a common refrain in Supreme Court exclusionary rule decisions.41 Addressing this lack of evidence in Stone v. Powell, Justice Powell stated that the Court would assume that the rule might deter when evidence was suppressed at trial but that the application of the rule in other settings is ineffective.42 The respondents in the Courts study are more confident of the rule's effectiveness. When asked the central question of this study: “Does the exclusionary rule deter unlawful police behavior?”, *85 98% of all respondents — everyone except one state's attorney — answered “yes.”43
In evaluating the strength of the rule's deterrent effect, respondents divided into three groups of roughly equal size. Thirty-eight percent viewed the rule as an “effective deterrent,”44 33% believed the rule effective “to a degree,” or “sometimes,” or “to a certain extent,”45 while 30% judged the rule not generally effective.46 As a group, judges expressed the greatest faith in the rule's deterrent effect; 83% believe the rule is “effective” or “somewhat effective,” categories cited by 71% of the prosecutors and an equal percentage of public defenders.47 Many respondents thought the rule's deterrent effect related to the seriousness of the crime being investigated.
Some respondents noted difficulty in answering questions concerning the specific deterrence of individual police officers. This was particularly true of judges. The Chicago criminal justice system is so large, and suppression so infrequent, judges seldom have repeated contact with a particular officer whose evidence had been suppressed. Thus, while many believed that the exclusionary rule would cause behavior to change, they did not have the opportunity to observe whether a particular officer's conduct had changed.
B. Deterrence: The Big Case/Small Case Dichotomy
1. Natural Priorities and Institutional Incentives
Respondents believe the exclusionary rule has a stronger deterrent effect in big cases than in small ones.48 In a big case, a more serious crime has been committed, and the officer's desire to see the perpetrator convicted is greater. Hence, she is more likely to invest the time and care necessary to comply with the Fourth Amendment. A small case involves a less serious crime. There is little effort invested — frequently the officer merely happened upon the evidence in the course of routine patrol. Thus, if evidence is suppressed and the suspect goes free, the officer may often be satisfied merely having seized the contraband.49
Contradictory objectives of different police divisions reinforce the *86 varying effectiveness of the rule.50 The aim of specialized units such as homicide, burglary or narcotics is to obtain convictions. Officers are rated both formally and informally on their ability to achieve this goal.51 The officer in a special unit thus has strong incentives to stay within the bounds of the Fourth Amendment. “The ability [of officers] to carry out their job within constitutional requirements depends on their function,” explained State's Attorney 2, adding: “The detective's mission is to investigate crime. . . . The job doesn't end with arrest for detectives.”
Most police officers, however, are patrol officers. “Patrolmen keep the peace,” said State's Attorney 2. Their job is to respond to local calls, preserve basic public order, and deter criminal behavior by their conspicuous presence. Patrolmen do not frequently encounter evidence sensitive crimes such as narcotics, gambling, or weapons offenses. When they do encounter evidence sensitive offenses, the crime is often a misdemeanor or a less serious felony. Confiscation of a weapon and a mere arrest satisfies the patrol objective. While conviction of offenders is important personally to patrol officers, particularly if the crime is serious, generally conviction is a secondary objective.
Another type of patrol is conducted by the tactical (or “tac”) officers. Their objective is “aggressive crime control.” They are hardworking — “some of the most street-wise cops around.”52 Tac officers patrol their district looking for crimes being committed. They are often involved in “sweeps” of dangerous neighborhoods or housing projects.53 Their primary aim is to seize guns and drugs, and to make as many arrests as possible in order to “make police presence felt.” The goal is to generate a perception of aggressive activity, both among persons in the immediate vicinity of the activity and among the broader public. While tac officers want convictions, particularly in serious cases, like regular patrol officers, actually getting convictions is a secondary goal often conflicting with their primary objectives. “Tac officers search out crime and suppress it. Their mission is to find the *87 felony being committed and to stamp it out immediately. The tac officer . . . is a walking affront to the bill of rights,” said State's Attorney 2. He continued:
If a tac officer sees nine kids at 3 a.m., it will lead to a stop. If he finds nine guns, even if they get suppressed, he feels this is what I am supposed to do. No case that is small will affect them. Who cares about small cases? Also, once the small case is in the system, there are things that can neutralize the effect of the exclusionary rule. For example, you can plead the case out. The policeman can lie to the state's attorney. He can lie to the judge. These are things you can do to hurdle over the fact that you have violated the Fourth Amendment.
State's attorneys tended to believe in the legitimacy of tac team “crime control” methods — even when such methods came into conflict with constitutional requirements. Said State's Attorney 14:
“[Tac officers] know what they are doing is violating the Constitution. We know it. And you know, nobody cares. And if I can provide some editorial comment, I think that's fine. . . . Every police officer I've ever met believes that the Fourth Amendment is bullshit, as I do. I'm a prosecutor. I evaluate the police officer on how well he solves crime.”
2. Deterrence in Big and Small Cases
In contrast to the Supreme Court's skepticism concerning the rule's deterrent effect, 78% of those responding believe that suppression of evidence in a big case causes an officer to change his search and seizure behavior in “future big cases involving similar factual circumstances,”54 and 74% believe it causes the officer to change his behavior in “future big cases which do not involve similar factual circumstances.”55 Fifty-seven percent believe it causes an officer to be more careful generally.56
Illustrating this principle, State's Attorney 1A noted, “When evidence is suppressed, a great majority of the officers change their behavior and they don't just change their behavior, but they become more concerned with doing everything properly — of really covering all the bases.” Alexander Vroustrouris, supervisor of the narcotics unit at the State's Attorney's Office in 1988, agreed: “The vast majority of your police officers, because of the implementation of the exclusionary rule, *88 know that there has to be probable cause and without it, they know that the case will go nowhere.”
The Courts respondents, like the Police respondents,57 believe that police officers experience adverse personal reactions when evidence is suppressed. When asked to describe the officer's reaction when evidence has been suppressed in a big case, respondents believed the officers were, in declining order of significance, “angry”;58 “frustrated”;59 “disappointed”;60 and “humiliated”.61
Sometimes officers gamble on illegal searches because they believe it is the only way to “get” a defendant they think is “dirty,” i.e. either guilty of a specific crime the officer knows about or of some other illegal activity. In such circumstances, the adverse reactions are less severe. Public Defender 2 noted, “If the officer knows that the case is a dead bang loser, he doesn't feel so bad. . . . [H]e says, ‘I did my best, I lose,’ . . . . Deep down they have a feeling that [the defendant] should win.”
Respondents were less inclined to see the rule as an effective deterrent in small cases. Roughly one third as many respondents believe the rule operates as a deterrent in small cases as believe it does so in big cases. When asked if suppression of evidence in a small case causes the police to change their behavior with regard to a similar searches in the future, 24% of those responding answered yes in an unqualified way.62 Forty-one percent believe the rule has “some” deterrent effect in such cases.63 Many of these respondents, however, believe suppression “rarely” deters illegal police searches in small cases . When asked whether suppression in a small case makes the officers change their behavior in all other searches generally, 23% answered yes in an unqualified way,64 while 32% believe the rule has some deterrent effect.65 Illustrating this notion of residual deterrence in small cases, State's Attorney 1A explained, “If they've got a big case on their mind, they may be apt to be more careful than in a small *89 case.” “Still,” he maintained, “they learn from Terry stops.66 They learn that they just can't go and stop anybody in the street for any old reason.”67
Twenty-four percent of respondents suggested that the officer does not care at all when evidence was suppressed in a small case.68 As State's Attorney 1 explained, “If they were disappointed by every little case they lost, they'd all be committing suicide.” Nonetheless, most respondents believe that the police do care when evidence is suppressed even in small cases. However, they perceive the police officers emotional reactions as being not as strong. The predominant reaction noted in small cases was “disappointment,”69 as contrasted with “anger” in big cases. Only 37% of respondents believed the officer was angry,70 compared with 74% in big cases.71 The officers were also less “frustrated” and “humiliated”73 in small cases than in big ones.
Contrary to former Chief Justice Burger's assertion in Bivens74 that the exclusionary rule is ineffective because suppression does not punish police officers, half of the respondents described the experience of suppression in a big case as “punitive” to the officer.75 “There is punishment when the officer has lost a case. The officer feels somehow that he has a right to convict the offender,” said Judge Richard Fitzgerald, “I have seen them react. I have seen them look distraught. Their faces indicate their expressions are troubled or sullen.” In contrast to big cases, however, only 16% of those responding also believe that suppression is “punitive” in small cases.76
It is important to note, however, that many of the respondents who deny that the exclusionary rule has a punitive effect believe that it deters unlawful police behavior (and that officers experience unpleasant personal reactions when evidence is suppressed) do not believe that suppression “punishes” police officers. State's Attorney 1 argued, “They learn from their mistakes and they dot their i's and cross their t's. They don't feel punished.” Judge 1A noted, “The exclusionary *90 rule is not meant to punish. If anybody is being punished by the exclusionary rule, it is society.”
Although state's attorneys are not formally evaluated on their ability to secure convictions, it is an extremely important informal measure of their competence among peers and superiors. State's attorneys emphatically maintain that they are punished by the exclusionary rule, not police officers. State's Attorney 2 noted: “The exclusionary rule doesn't punish the police officer, it punishes me. If he loses a motion to suppress, I have to go find the victim. Usually, the victim's family doesn't know what the police did wrong. They think the police are wonderful.”
3. The Suppression Hearing as Deterrent
The adversarial character of the suppression hearing acts as a deterrent to unconstitutional searches. The narcotics officers reported negative reactions to suppression hearings in which defense attorneys treated them in a hostile manner.77 Eighty-three percent of Courts respondents agree that suppression hearings are offensive to police officers, although the majority characterized the hearings as only “mildly offensive.”78 Several respondents suggest that younger and more inexperienced officers are more likely to find the hearings offensive. Veterans, who have spent more time in the courtroom, experience the defense tactics as “mildly offensive” and/or think the hearing is “just part of the job.”
Respondents also feel that defense attorneys frequently try to “discredit the honesty or integrity of police officers at a suppression hearing,” or “show that the officer was incompetent or sloppy” or that the officer was “power-hungry or abusive.”79 State's Attorney 2 explained:
Most [defense attorneys] will never call the defendant to the stand. . . . They call the police officer and make a fool out of him. Every police officer hates to be put on the spot. At a suppression hearing, it is the police officer who is on trial. . . . When you look *91 at a suppression hearing, you say, “Something is wrong here.” You say, “Who is guilty, the guy at the [defendant's] table or the police officer?”
C. Deterrence through Education
1. Experience is the Best Teacher
The narcotics officers interviewed in the Police Study reported that the exclusionary rule deters illegal police behavior by educating police officers in the law of search and seizure.80 The Courts Study respondents agree. Seventy-eight percent reported that “suppression of evidence is an effective way for police officers to learn about the law of search and seizure.”81 State Attorney 1A noted:
When evidence is suppressed, the police learn about the law of search and seizure, by going to court and seeing what is new . . . . Cops are like anybody else. Cops want to do their job right. Most police officers want to stay within the bounds of what is proper. Most police officers are really conscientious. They listen to the judge. Most of them learn something when evidence is suppressed. The majority of police officers learn from what they do wrong and then follow the rules.
In this light, Judge 10 recounted the following story:
I once made a ruling to suppress evidence. The officer had attended a lecture that I had given on the Fourth Amendment for police training. He recited my lecture and felt his conduct fit into an exception to the general rule. He remembered the lecture and tried to explain to me why he felt it was an exception. I was very impressed by this, but I still had to suppress the evidence.
When asked whether the suppression of evidence is an effective way to learn about the law of search and seizure, Judge 10 responded: “Absolutely, supposing [there is] the loss of a very valuable case as a consequence. It is very effective.”
Fifty-one percent of respondents believe that the experience of having evidence suppressed is as effective, or more effective, training than teaching officers the law.82 However, this statistic must be read cautiously because some respondents who believe suppression teaches officers the law also objected to the term “effective” as an attempt to legitimize suppression as a training method. “Suppression is not a socially acceptable way to learn about the law of search and seizure,” *92 Judge 9 noted, “but from a practical standpoint, experience is the best teacher.” Other participants echoed Judge 7's sentiment: “Training is necessary, but experience is very important.”
A small minority of respondents did not believe that officers learn from suppression. They tended to be cynical about police motives and behavior. Judge 11 said, “No, [suppression is not effective]. They already know the law. There are hardly any cases where if the officer is believed, [his] testimony does not meet the requirements of the Fourth Amendment. They know the law already. . . . Where suppression occurs, it is where the officer is not believable.”83
2. Police Understanding of the Law of Search and Seizure
a. Knowledge of the Law
Some commentators assert that the exclusionary rule cannot deter unlawful police behavior because the law of search and seizure is too complicated.84 Contrary to this assertion, 88% of the narcotics officers in the Police Study usually, or always, had a good or complete understanding of why evidence was suppressed.85 They maintained that the general rules of the Fourth Amendment were “common sense.” Rather, it was only the rarely encountered “technicalities” that some officers judged elusive.
Ninety percent of respondents in the present study believe that “[police officers in Chicago] understand the law [of search and seizure] well enough to do their jobs.”86 In addition, 49% of those responding believe that police officers understand more than 90% of the time why evidence is suppressed in their cases.87 Ninety-five percent believe police understand more than half of the time.88
According to virtually all Courts respondents, officers in specialized units like the Narcotics Section understand the law well enough to do their jobs. Respondents often made statements to the effect that these officers knew the law “better than most lawyers” or “better than law professors.” On the other hand, respondents believe that because patrol or “beat” officers have little contact with complicated investigations, *93 they are not well versed in “technical” areas of Fourth Amendment law. State's Attorney 1 noted:
Detectives are smarter. They have better training. Eighty to ninety percent of them understand why evidence was suppressed. Patrolmen are not used to testifying. They understand approximately fifty percent of the time. They don't do a lot of testifying in felony courts. If a little law is involved, they are hard-pressed to understand. . . . [Patrol officers] know what exigent circumstances are. They know what is involved in consent. But can they delineate the fine points? I don't think so. Even lawyers, a lot of them, can't do it. . . . [Patrol officers] are roughly able to do their jobs.
Respondents emphasized, however, that because a patrol officer's job typically involves a repetitive pattern of street stops and other simple searches, lack of knowledge in more technical areas does not interfere with general effectiveness. Further, some prosecutors maintained that officers who do not understand particular points of law could be “educated.” State's Attorney 4: “I've never had a problem that I couldn't explain to a police officer.”
Others insisted that knowledge of the law was not “the problem.” The problem was police unwillingness to comply with the law. State's Attorney 2 noted, “It is not a matter of education — they generally have sufficient knowledge of the law of search and seizure — but of effort, of going the extra mile. There is the bad apple syndrome. Some police officers are good. Some search at random.”89 He cautioned that “understanding the law” sometimes leads to perjury in court rather than proper behavior. “It is probably easier to lie than to learn the law,” he stated. “It is most likely that they will learn what the law requires and make it up [the next time].”
Some participants emphasized that ignorance of legal requirements by patrol and tac officers is fostered by official police policy. State's Attorney 2: “The training manual [given to tac and patrol officers] . . . strongly urge[s] the patrolman to conduct a pat-down where he might not have a reason to do so. . . . [T]hese manuals are not consistent with, and not connected to, the Constitution.”
b. Problem Areas of the Fourth Amendment
This study did not attempt to systematically isolate and identify problem areas of the law of search and seizure. In answer to questions, however, many respondents frequently commented that Fourth Amendment law had become arbitrary. Robert Gevirtz, Second Assistant Public Defender, explained, “The law of search and seizure . . . *94 is constantly in the process of being refined, modified, and changed. It has come to the point now where virtually any fact situation lends itself to its own new rule of law.”
Respondents noted that the law governing the search of automobiles, particularly the scope of a search incident to a traffic stop or arrest, for example, is extremely difficult for police — or lawyers — to understand. In general, respondents feel that problems related to the legal scope of a search are the most recurrent, whether the search is pursuant to a warrant, a street stop, an inventory, or the public safety exception.
Many respondents believe that the law of search and seizure could be greatly simplified if the Supreme Court would not create so many diverse rules for different factual situations. Assistant State's Attorney Vroustouris stated, “Cops understand a definite rule. A search incident to an arrest should have a definite scope. . . . You want a statutory code. You need a general rule for car cases. Every fact situation now has a different rule.”
D. The Institutional Deterrent Function of the Exclusionary Rule
The Police Study noted that the police and prosecutorial institutions responded to the exclusionary rule by designing programs and procedures to ensure compliance with the Fourth Amendment.90 Courts respondents confirmed that prosecutors maintain close working relationships with specialized units and provide advice concerning ongoing police investigations. Moreover, 76% believe that prosecutors review the facts with police when evidence is suppressed in a big case,91 and approximately half of the respondents believe this occurs in small cases.92
Most respondents, however, professed ignorance concerning the police department's internal reaction to the loss of evidence and were unaware of police institutional penalties related to suppression. When asked if they had ever known of a situation in which a police officer was in any way disciplined for conducting an improper search or seizing evidence improperly, 90% said “No.”93 State's Attorney 1A explained, “The penalties [for suppression] are personal rather than professional.”
*95 The Police Study suggested that institutional responses to the exclusionary rule form an important aspect of its deterrent effect. Hence, respondents' ignorance of these internal police mechanisms — to the extent that they in fact exist and are effective — likely dilutes their perception of the rule's effectiveness.
E. Emotional Understanding of the Law: The Acceptance of Suppression
While respondents generally agree that police have a functional intellectual understanding of Fourth Amendment law, many noted that when a serious case is involved, police do not always understand the suppression on an emotional level. This suggests that sometimes police do not accept emotionally (1) that there is a valid reason for the loss of evidence and/or (2) that they might be individually responsible for the loss.94 State's Attorney 1 noted:
[Police don't understand suppression in terms of] crimes of violence. If a gun is suppressed after a person has shot and killed someone, they don't want to make an effort to understand. . . . In a small case, they don't emotionally involve themselves. If he doesn't [get convicted] that's how it goes. They are more receptive to trying to understand. In a violent crime, nothing justifies letting them off the hook.
III. PERJURY
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state judge in every [suppression] hearing to assume arresting officers are committing perjury. “To take such a step would be quite beyond the pale of this Court's proper function in our federal system . . . .”
McCray v. Illinois95
When evidence is suppressed, ninety-five percent of the time, it is because of [lack of police] credibility. I can only think of two instances in which the officer didn't have enough law in his story. They were small-time drug cases.
Chicago Prosecutor, 1988
*96 A. Introduction
1. The Existence of Police Perjury
In the middle of an interview, Judge 14 told the following story:
I was a young man right out of law school, and I was trying my first case to a federal court for the Northern District of Illinois, Erwin Robson presiding. My client was a young black man accused of stealing a box of mink furs at O'Hare airport and trying to peddle those furs in the Loop. My client told me that he was walking into a building carrying a heavy box, and the police, I guess FBI, just grabbed him, took him into a room and started beating on the box to get it open. It took them 15 minutes to beat it open. They found furs on the inside, and then they arrested him.
Before the case was called, I wanted to talk to the officer. I asked him what happened. The officer said, “What did your client say?” I told him what my client said, and he said, “That's right. What your client said is what happened. But you tell him that we will get him right the next time.” Of course, I was excited by all of this, and I told the officer, “Yes sir, I will sir, absolutely.” I thought I had my client off.
So then I come into court, and the first thing I do is call the officer. The judge looked at me like I was crazy. The officer as my first witness? “Now officer,” I said, “will you tell the court what happened?” The officer then said, “We saw the suspect come into the building, whereupon the box he was carrying busted open and mink tails fell out all over the floor.” The officer there — right on the stand — burst out laughing. Even the judge, a somber old man, broke out laughing. The game was played. I plead my man guilty and crawled out of there.
The judge telling the story was now laughing with a deep throaty laugh, leaning back in his chair, wiping his eyes, and repeating to himself, “The mink tails fell out of the box. That sonofabitch beat on that box for fifteen minutes . . . for fifteen minutes.” As the judge quieted himself, and continued to wipe his eyes, he said, “The point of this story, young man, is that the police lie. Yes they do.”
The idea of police officers lying under oath is difficult for many people to accept, yet it unquestionably occurs in Chicago. Judge 14's story may be colorful, yet the scenario is common. All the Courts respondents, except one state's attorney, believe that police lie in court to evade the exclusionary rule.96
*97 There is a small but important body of research on the subject of police perjury and the Fourth Amendment. In the early 1960's, a group of Columbia law students examined allegations made by arresting officers in misdemeanor narcotics offenses.97 The students found that prior to Mapp's extension of the exclusionary rule to the states, police allegations frequently described suspect behavior that would not warrant a stop or search. In the year after Mapp, police suddenly began describing suspect conduct warranting a search. In particular, police started reporting suspects dropping narcotics to the ground as the police approached.98 Thus, unless suspects spontaneously decided to facilitate police efforts to convict them of drug offenses, the New York City police, in the wake of Mapp, began to perjure themselves on a large scale to avoid the requirements of the Fourth Amendment.
Similarly, in Oakland, sociologist Jerome Skolnick observed in his ground-breaking study Justice Without Trial that when police believed that search and seizure rules constituted too great a hindrance to the apprehension and conviction of criminals, police would “reconstruct a set of complex happenings” to “fabricate probable cause.”99
In the Police Study, 95% of those responding believed that police officers sometimes lie in court to avoid having evidence suppressed.100 When asked how frequently this perjury occurs, 19% reported that it was “reasonably common.” The rest said it seldom occurs.101 Police officials reported that police perjury is controlled to a large extent by three factors. First, informal court rules limit officers' testimony to information contained in case reports which must be filed within eight hours of the search — too short a time, said the officials, to develop an effective fabrication. Second, searches increasingly occur pursuant to *98 warrants subject to careful scrutiny by assistant state's attorneys, who would discourage lying.102 Third, lying would not be worth the effort and the potential abuse from a judge who detects the fabrication.
While the estimates of the narcotics officers concerning the incidence of perjury are not fundamentally inconsistent with that of respondents in the present study — particularly the state's attorneys — the notion, advanced by police officials, that perjury is a minor problem controlled by the system is contradicted by the Courts respondents.
2. The Interaction of Deterrence and Perjury
Perjury not only affects the outcome of suppression motions, it may also affect the rule's efficacy as a deterrent. Sixty-four percent of judges, 86% of public defenders — but only a single state's attorney — believe that perjury hinders the deterrent effect of the exclusionary rule.103 Judges and public defenders perceive perjury to be the major factor limiting the deterrent effect of the rule.
While the preceding section on deterrence clearly illustrates the deterrent effect of the rule in a big case, 81% of respondents also believe that the possibility of suppression in big cases sometimes causes officers to change their testimony in court rather than their behavior.104 Respondents, however, tend to believe that the dominant effect of the rule in a big case is deterrence of future illegal searches, rather than continued illegal searches substantiated by perjured testimony. Fifty-four percent report that officers are equally, or more, likely to change their behavior.105 Forty-six percent believe that the police are more likely to lie.106 Public defenders as a group believe that police are more likely to lie, while state's attorneys believe they are more likely to change their behavior. The judges were evenly divided.107
In small cases, respondents — across all groups — believe police are more likely to lie than change their behavior in response to suppression. Seventy-four percent of those responding believe that police sometimes change their testimony rather than their behavior in response *99 to suppression.108 Of these, 40% of respondents believe the police are equally or more likely to change their behavior,109 while 60% believe police are more likely to lie.110 However, they also feel the rule has less effect on either behavior or testimony in small cases. State's Attorney 1 noted:
If [the officers] handle big and small cases, in a small case, they are less likely to use the same care. They would not bother being careful and would not change their behavior [because of suppression]. In a small case, they search and get contraband. Often, they will not care enough to lie about it.111 . . . If you got a person for a murder or who sells narcotics to grade school kids, the police are more tempted to alter or fudge their testimony.
3. The Bad Officer Problem
Respondents emphasize that some officers are more likely to lie than others. State's Attorney 2: “Some officers have a lot more integrity than others.” State's Attorney 14 agreed: “Some [police officers] won't lie. You know that oath they take does mean something.” Judge 1A stated:
I have a list of officers on three by five cards, that I just won't believe unless there is corroboration. I think that there are eight to ten of these officers. I just won't believe them. They are liars.
These respondents made clear that it is the “lazy” or “stupid” officer — the “wagon man”112 who is “just putting in his time” — who will most likely lie in court.
In respondents' comments, however, it is not always entirely clear whether they believe that “bad officers” are more likely to lie, or simply more likely to be caught lying. Consider this exchange with Chief Judge Richard Fitzgerald:
Q: Do all officers fabricate evidence?
A: Mainly, it is the stumble-bums who fabricate stories. It is the incompetent, slow officers who can't think of a good story. Most *100 of the officers do it right. It is the careless or slipshod ones who fabricate.
Q: It seems like from what you are saying, it is the really dumb police officers who get caught lying. Do you think smart officers are able to think up better stories and are more likely to convince judges that there was probable cause in a case where there wasn't probable cause?
A: Yes, probably the smart officers can get away with it more often.
B. The “Process” of Police Perjury
1. Overview
In the criminal process from investigation to conviction, there are many layers of statements and hearings requiring officers to present their version of what happened prior to arrest. Each statement or hearing provides an opportunity for police to enhance the chances of conviction by warping reality. As the layers are peeled away, it becomes clear that the police to some degree take advantage of each opportunity.
2. The Case Report
Police officers spend a large part of their time completing administrative paperwork. One form which must be completed is the “case” or “arrest” report. These reports must generally be filed within an officer's eight-hour shift and describe the circumstances surrounding arrests.
Eighty-six percent of respondents believe that fabrication in case reports occurs at least “some of the time.”113 Thirty-three percent of respondents believe that police fabricate evidence to create probable cause in case reports between “half of the time” and “most of the time.”114 Only 11% believe fabrications never or, almost never, occur.115
State's Attorney 2: “In fifty percent of small drug cases [police] don't accurately state what happens.” He continued:
The police officers know that if drugs magically drop out of a person's hands on the street after they pull them over for a traffic violation, there is no problem with the law. The butt of a gun often protrudes in plain view from the front seat of a car. Everybody *101 in Chicago has a .38 caliber gun stick out in plain view in the front seat, right?
While many respondents assert that police may create evidence in case reports, several explain that more frequently police leave reports so vague that the reports can be supplemented in court with fabrications without contradiction. State's Attorney 14:
In Felony Review,116 [officers] learn [about] writing reports the right way [so that they] can't be impeached [when testifying on the basis of the report]. The report is vague. The report is written that way for a reason. A good police report is written in such a way that the officer can expand any way and anything. And it's true, we do tell them how to do that.
Case reports often provide the defense attorney with the first hint of police impropriety. Second Assistant Public Defender Bod Gevirtz noted, “[The case report] is really central. . . . The defendant doesn't necessarily know the law of search and seizure. So you're looking at the file, and you see something fishy in the case report, and that is the beginning.”
Respondents generally believe that pointing out contradictory statements in a case report is a legitimate method of impeaching police testimony. However, it was hotly disputed as to whether it is proper to discredit an officer who relates a vital fact in later testimony by pointing out that the fact is not mentioned in the case report.
Some respondents cite both circumstantial constraints and benign laziness as causing sketchy case reports. Public Defender 1A: “[Police] are sloppy making notes. It makes them look like they are lying when they are not. Sometimes they are more interested in taking care of the victim than getting the evidence. This happens not as often as they are lying, but it does happen.” Similarly, Judge 13 noted that in a serious crime, many officers contribute to the case report second, or even third, hand accounts of the incident are included, often with no coordination of the storyline. This process results in incoherent or even self-contradictory reports.
3. “Street Files”
In April 1982, during the murder prosecution case People v. George Jones,117 it was discovered that the Chicago police kept two *102 sets of reports in every criminal investigation; (1) official reports, and (2) “street files” or “running files” containing additional information the police collected concerning the crime. Information in “street files” was withheld from the defense when the arresting officer, or his superiors, deemed it not “pertinent.”118 Such discretion presents a great potential for abuse, and in several cases119 street files included exculpatory material withheld illegally from official reports.120
Jones was a particularly horrifying example of the “street files” system. There, a young black teenager, the son of a police officer and an honor student without any prior criminal record, stood trial for a grisly and highly publicized murder. The police systematically suppressed witness identifications, witness statements, and lab reports which undermined their case against Jones. Moreover, when another suspect all but confessed121 to the murder to an officer peripherally involved in the investigation, the police buried that officer's report and threatened the officer with reprisals if he came forward.122 In 1983, Judge Milton Shadur of the Federal District Court for the Northern District of Illinois issued an order directing the Chicago police department to follow new procedures for record-keeping and production of internal investigative files in an effort to eradicate street files.123 The district court's action, however, was substantially diluted by the Seventh Circuit,124 and it is now virtually impossible to know whether this dual system of files is still in existence.
4. Search Warrants125
a. Overview: Boilerplate Warrants
Based on a sample of 269 randomly selected “reliable informant” *103 warrants and accompanying affidavits issued in 1988, it appears that a large percentage of such warrants are based on highly similar “boilerplate” probable cause affidavits. Roughly three-fourths of the sample warrant affidavits include the following factors:
1) The warrant directs the officer to search the home of an unknown person or a person only known by a nickname.126
2) The anonymous informant relied upon in the warrant affidavit has provided information on two, three, or four prior occasions.127
3) The information received in the past from the informant has lead to a seizure of narcotics two, three, or four times.128
4) The substance seized was tested and found to be narcotics two, three, or four times.129
5) The information supplied by the informant lead to arrest two, three, or four times.130
6) The warrant affidavit states the length of time the officer had known the informant.131
7) The warrant affidavit states the length of time the informant *104 had been using drugs.132
8) The informant made a preliminary purchase of contraband at the place to be searched.133
9) The informant saw a greater quantity of drugs at the place to be searched.134
10) The informant used the drug and got a “high” feeling like the last time he used it.135
The warrant affidavits of one officer, “Officer Blue,” of the Narcotics Section of the Organized Crime Division of the Chicago Police Department provides a striking example of the use of boilerplate warrants. There were eight of Blue's warrants in the sample — all virtually identical. Two were executed in February, one each in August, September, and October, and three in November. Each of Blue's warrant affidavits stated that he had known the informant for 12 months.136 Each stated that the informant had provided information to Blue on two prior occasions, that this information had twice lead to the seizure of narcotics and twice to an arrest, that the substance obtained had been twice tested and found to be narcotics, and that there were two cases pending based on the information provided by the informant. In all eight warrant affidavits, the informant bought drugs there. In every affidavit, Blue stated that the informant had been using drugs for thirty-six months. Finally, all the affidavits state the informant tried the drug and got a high feeling like he had before.137
*105 b. Respondents' View of Police Perjury in the Search Warrant Process
When asked how often police use the “same warrant or set of facts improperly for different searches,” 59% of respondents said this occurred over 20% of the time.138 While public defenders were most skeptical concerning the warrant affidavits, 40% of state's attorneys also reported that warrants are improper boilerplate more than 20% of the time.139
In response to questions concerning how often police improperly use the same facts in different search warrants, Judge 9 stated:
[In] every narcotics search warrant — they are “fill in the blank” search warrant affidavits. It is beyond my comprehension how everyone is ratting on suppliers, and no one is killed in retribution. . . . I have a very jaundiced eye to search warrants — to the absolute similarity of all these warrants.
State's Attorney 2 agreed: “If you take a thousand search warrants issued by OCD [Organized Crime Division of the Chicago Police Department], nine hundred and fifty say the same thing. In terms of the scenario in them, they are the same scenario.”
When asked, “Do the officers use the same warrant because the law is too complicated or demanding,” State's Attorney 2 answered:
Laziness. The reason they use the same warrant is that it is easier to Xerox140 and “fill in the blanks” than to type out what actually happened. I think they always really do have probable cause, but they don't want to type it out. I believe that they do have a confidential informant, but I disbelieve that he bought drugs in the defendant's house. There is always probable cause. I have never gotten the impression that the police are lying about the existence of probable cause. I accept that they have, that they do know of, an ongoing type of thing in terms of the defendant selling drugs. In all cases there is probable cause. The police are lying for no reason.
Though skeptical of the similarity of search warrants, Judge 8 was not sure that they were improper: “You look at reliable informant warrants and the body is similar, but you can't answer the question of whether they are perjurious.” Judge 11 stated,
Most of the complaints for search warrants have the same language. *106 They are a litany, like a script. It is my view that what is written was not exactly the way the script has it on some occasions. Whether they had an informant or had not had an informant — there is no way of proving it. It is a hidden problem.
Some respondents argue that search warrants are made identical (and perjurious) to protect the identity of the informant. Judge 9 explained:
It all can be done out of whole cloth . . . . A lot of baggage in the search warrant is an attempt to cover the snitch. There may be a snitch out there. But instead of today, it would be a week ago. I don't really buy it [altogether], but I think . . . some of the things are done to protect the snitch.
Judge 9, among others, noted that “narcotics are unique” in terms of the heavy use of anonymous informants and boilerplate warrant affidavits. In a murder or robbery, he explained, there are more superiors and investigators. “It is not a paper trial.” Warrants to search for a murder weapon or the fruits of a robbery or burglary are likely based on information from named sources. “In narcotics,” he asserted, “the police can create everything out of whole cloth. All of the info comes out of their heads. There is nobody to come in and say that didn't happen, to refute it.”
While many judges and public defenders reported that officers often improperly use the same set of facts to justify different searches, 37% of respondents believe that this rarely or never happens.141 Judge 5 argued that similar warrants simply reflect a repetitive pattern of search activity:
Ah yes, the problem of the boilerplate affidavit in the complaint for search warrant. The criticism is unjustified because the officers have been educated to some extent. . . . [T]hey, in the wake of Spinelli142 and that series of cases, know that certain requirements must be stated in the warrant. They have credible informants, and they appear to be boilerplate affidavits. But the criticism is to a large extent unjustified because the officers, knowing the basic elements — they simply don't seek the warrant unless they have these elements.
Most officers are not college educated, they have a limited writing ability — a limited ability to express themselves. Thus they avail themselves of the repetition when they know that certain *107 facts are accepted. But I don't see anything invalid in similar warrants. The essential data [i.e. the names and addresses] is [sic] always different.143
5. Police Lying Under Oath at a Suppression Hearing
a. The Incidence of Perjury
The third phase of police aligning the “facts” to square with the law occurs when the police lie under oath at suppression hearings. On average, the judges in the Courts Study estimate that judges disbelieve police testimony 18% of the time, compared with the public defenders estimate of 21% of the time, and the state's attorneys estimate of 19%.144 While these figures alone suggest a shocking level of police perjury, the majority of judges and public defenders, and almost half of the state's attorneys, believe that police lie more often than they are disbelieved.145 When asked to estimate how often police officers lie in court to avoid suppression, 92% responded that the police lie at least “some of the time”146 and 22% reported that police lie more than half of the time they testify in relation to Fourth Amendment issues.147 Only 8% believed that police never, or almost never, lie in court.148 The average estimates of the public defenders, the group most emphatic about the pervasiveness of police perjury, was that police lie 53% of the time they testify in relation to Fourth Amendment issues. The other groups did not provide estimates in sufficient numbers to form an average group figure.149
b. The Suppression Hearing as a Test of Police Credibility
Four of nine cases of suppressed evidence reported by the respondents in the Police Study were due to a lack of police credibility.150 Similarly, the Courts Study respondents' description of defense-attorney *108 tactics, together with detailed responses to other questions, powerfully suggests that often the focus of the suppression hearing is to determine not whether the police officers conduct violated the law, but whether the officer is lying. Judge 6 notes: “There are two bases for suppression. Failure to follow the law, or the credibility of the witness. Police often testify falsely. I would say it is fifty-fifty, credibility and law.”
Judge 11:
There are hardly any cases where the officer is believed and where his testimony does not fit the requirements of the Fourth Amendment. They are mindful of the law. . . . [The suppression] occurs [if the testimony is] not believable.
In an attempt to ascertain how often motions to suppress are granted because judges disbelieve police testimony, I asked the 13 judges in the sample for a second interview. Only four judges agreed. Three were former state's attorneys, the other a “heater judge.”151 The Clerk of the Circuit Court of Cook County supplied a computer-generated list of all the cases in these courtrooms during the past two years in which motions to suppress were sustained. Working off this list with their personal courtroom log books,152 these judges were able to ascertain that of the successful motions in their respective courtrooms 60%, 50%, 30% and 0% were sustained because they did not believe police testimony. The judge reporting no cases lost to credibility was a judge in recidivist court which handled repeat offenders in significant, non-narcotics prosecutions. Because judges are less likely to disbelieve police officers in significant cases — and probably in non-narcotics cases — his perspective is likely unusual.153
C. Systemic Toleration and Encouragement of Perjury
1. The Role of Police Superiors in Police Perjury
Although respondents feel generally isolated from the internal operations of the Chicago police department (and this is borne out by the low response rate), 38% of those responding believe that police superiors “encourage” police perjury,154 and 67% believe that superiors tolerate perjury.155 Judge 6 reflected a common sentiment when he said, *109 “[Police superiors] did the same thing themselves [when they were coming up through the ranks]. They condone and respect fabrications.” Likewise, Judge 1A stated, “Police perjury is tolerated up and down the line. It is not what ought to be, no. The system suffers by toleration.”
Twenty-nine percent of respondents believe that police superiors discourage police perjury.156 Many of those in this category, however, suggested efforts that are pro forma at best. “[Police superiors] mouth [discouragement] publicly,” explained Judge 1A, “but when they tolerate it they sort of negate the effectiveness of their discouragement.” State's Attorney 5 noted with a sarcastic smile that while the police department's official position is to discourage perjury, in practice the department provides little real enforcement of this policy. “Officially they [discourage perjury]. If you asked the Superintendent, he would say the police are not to lie. There are not lectures not to lie. It doesn't go that far.”
2. The Prosecutor's Role in Police Perjury
Respondents had a far stronger sense of the prosecutor's role in the process of police perjury. The respondents — including state's attorneys — believe that prosecutors frequently either tolerate or, more rarely, encourage police perjury at all steps in the process.157
Fifty-two percent of respondents believe that at least half of the time the prosecutor “knows or has reason to know” that police witnesses actually fabricated evidence in their testimony at suppression hearings.158 Further, 93% of respondents — including 89% of state's attorneys — believe that at least some of the time the prosecutors “knew or had reason to know” that the police were lying in suppression hearings.159 Judge Richard Fitzgerald: “The prosecutor knows [when the officer is lying in court]. It is not that difficult to tell.”
One of the judges stated, “Most prosecutors in the State's Attorney's *110 office did felony review,160 so they know. If they haven't been in trial,161 it is less likely. If he has a lot of experience, he knows. [My state's attorney] knows.” The judge was correct, the state's attorney in his courtroom did “know.” The state's attorney explained, “[P]rosecutors realize police fabrications about 70% of the time when they see it.”
The situation was similar for case reports. Sixty-one percent of respondents — including 50% of state's attorneys — believed that prosecutors knew, or had reason to know, more than 50% of the time when police fabricated evidence in case reports.162
In terms of search warrants, many respondents said they “did not know” the nature of the prosecutor's role. Many respondents, particularly prosecutors, became noticeably reticent and unwilling to talk in this area. State's Attorney 6 said simply, “We don't get into it,” meaning that state's attorneys do not second-guess police warrants. Fifty percent of those responding, however, believe prosecutors know that police fabricated evidence in search warrants most, or all, of the time that such fabrications occur.163 The remainder of those responding believe that prosecutors know about fabrications at least some of the time.164 State's Attorney 9 maintained, “If there is a pattern, we know.” Given the integral role that prosecutors have in approving, and sometimes drafting, search warrants, it seems likely they are aware of boilerplate warrants.165
Fifteen percent of respondents believe that prosecutors “encourage” police perjury.166 One former state's attorney, now a defense attorney in private practice, described how prosecutors “steer” police testimony by presenting the police with alternative scenarios:
I was a state's attorney for seven years. One of the techniques commonly used was inducing police perjury. You'd say to the witness, after you'd looked at his [case report] “If this happens, we win. If this happens, we lose.” Guess what he'd say?
In the felony drug unit, we were directed to view the report of *111 the officer as honest. The chief prosecutor, Ken Waddas,167 said this. In other places, all the other places, we would prep the witnesses.
Q: Induce perjury?
A: Absolutely. But in narcotics, the officers lied so much we were directed just to put the officers on. If they wanted to hang themselves, they could. But we were told not to influence things.
According to State's Attorney 6 prosecutors “prep” officers in terms of what testimony is needed:
When you have an interview with the police officer, you say, “We need to prove this by a preponderance of the evidence. We have to show that the defendant had residence in this place.” The police officer [then] says, “He told me he lived there.”
State's Attorney 2 described a more direct role of prosecutors in encouraging police perjury:
Prosecutors encourage [perjury] sometimes. I've known of it. They tell the police to toughen up certain aspects. No question about it. [Pause] How do you think I know this?
Q: So you have encouraged police perjury?
A: Never on the issue of guilt or innocence. Those who advocate the exclusionary rule don't understand something. The reason that no one has done something about the rule, is there is a line society draws, like John Wayne Gacy.168 He won't go home and eat dinner because the police don't get a warrant. I won't ever live to see this.
Sixty-one percent of respondents believe that prosecutors “tolerate” perjury.169 State's Attorney 2:
A police officer has never told me, “I'm lying.” Sometimes you sense that you are not being told the complete truth. Probably a lot of police officers lie. . . . All this puts the prosecutor in an odd situation. He has suspicions. He may know in his heart that the officer is lying or know part of what he is saying is nonsensical. . . . In terms of prosecutors, it is not that they have winked or looked the other way. They just don't examine as closely as they could or as a prosecutor should.
State's Attorney 4 similarly reported, “We view our role as neutral. We don't try to influence perjury one way or another.” State's *112 Attorney I described the prosecutor's role in police perjury in terms that might aptly be described as “See no evil”:
I just don't want to know if the police officer is telling the truth. If it is a wild-ass story, I will say, “That's incredible.” I will not supplant my judgment about whether the officer is telling the truth for the judge's. That is the judge's job. If it is an extreme case, I will sit down and ask [the officer] what the story is. I will not put my judgment in place of the judge's.
Judge 1A noted that prosecutors tolerate perjury because they are afraid to implicate the police when there is a bad search. “They will need police testimony for another case. They do not want a hostile witness who is scared, or less likely to report.”
Forty-eight percent of respondents believe that prosecutors “discourage” police perjury.170 A few prosecutors stated that they have taken definite action to discourage police perjury. State's Attorney 1: “If it is a good cop and not a liar, that's one thing. If I don't trust the cop at all, I will S.O.L. (strike without leave to reinstate) the case right on the spot.” Many comments in this area were statements to the effect that tolerating perjury is dangerous to the state's attorney. One state's attorney explained that she would be “cutting my own throat to induce perjury. You tell a cop how to lie and you can kiss your license good-bye.” State's Attorney 1 maintained, “Twenty-sixth Street171 is a little town. If it looks like you are suborning perjury, your reputation suffers. For that more pragmatic reason, I never suborn perjury.”
3. Respondents' Impression of the “Seriousness” of Police Fabrication
When asked whether they equate police fabrications at suppression hearings with the felony crime of perjury, most of the respondents said, “Yes” — though some did so only with much hesitation. Strikingly, 29% said “No.”172 These responses, together with the pervasive nature of police perjury in the criminal courts, indicates that perjury may be such an ingrained part of the process that at least some participants in the criminal justice system do not recognize (or want to admit to themselves) that it is a serious violation of the law.173
Respondents gave several explanations why they hesitate to equate police fabrications with perjury. State's Attorney 2: “If you *113 got a person for a murder or who sells narcotics to grade school kids, the police are more tempted to alter or fudge their testimony. Lying is a strong word. Fudge it is what they do.”174
Many prosecutors believe that “real” perjury only concerns questions of guilt or innocence, not questions of probable cause. State's Attorney 2, after some thought, decided that he equates police fabrications with perjury, at least technically.
[Laughing] In my own mind, perjury is where the officer lied about guilt or innocence. They don't lie about that. As far as the problem with the exclusionary rule, I do [equate police fabrications at suppression hearings with perjury]. There is no excuse, but there is an explanation. There is a big difference. In most cases where the exclusionary rule is applied the defendant is guilty. In a rare case, the defendant is innocent.175
Some respondents do not equate the two concepts because they are not treated alike in practice. Public Defender 2: “No [I don't equate the two], because one, they never get prosecuted, and two, the system kind of adopts to it.” Some respondents take the technical view that fabrications are not perjury because are not proved beyond a reasonable doubt.
A disturbing number of respondents actually believe that police *114 lying in court is not perjury.176 A memorable example of this attitude came from a judge. When I asked whether he equated police fabrications with perjury he answered, “Of course it is not perjury. Who would ever think it was perjury? Do you know what perjury is?”
“Sure,” I responded, “perjury is any time that you lie in court under oath.”
“You're nuts,” he declared. “Perjury is when you contradict a prior sworn statement while you are under oath.”
“No judge, you're wrong,” I replied.
“Let me show you,” he said. pulling off the shelf a copy of the Illinois Criminal Code. He turned to the section that defined the substantive crime of perjury and began to read out loud in a confident manner. His voice slowed considerably and he stopped reading. “Shit,” he murmured, before looking up and shaking his head, “Then there is sure a hell of a lot of perjury going on in this courtroom.”177
D. Does the System Control Police Perjury?
When asked whether Chicago's criminal justice system effectively controls police perjury at suppression hearings, 69% of respondents responded “No.”178 Public Defender 2 stated, “It would be nice to think so. It is just too Polyannish to think that.” When asked whether the problem of perjury is becoming more or less severe, 61% of those responding feel that the incidence of perjury is relatively stable,179 21% think it is on the decline,180 and 13% think it is increasing.181
IV. THE “HEATER” FACTOR
[T]here exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment. . . . Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.
United States v. Leon
*115 “Yes”.
Nine of twelve judges, fourteen of fourteen public defenders, and nine of fourteen state's attorneys responding to the question, “Do judges ever fail to suppress evidence when they know police searches are illegal?”
A. Introduction
Consider the exclusionary rule in practice: few cases are lost to the exclusionary rule.182 Evidence is far less likely to be suppressed in big cases than in small ones and is virtually never suppressed in cases involving injury to a victim.183 On the rare occasion that evidence is lost in a serious case, it often does not result in the loss of a conviction.184
There are at least two explanations for these results. First, as noted in Part II, police care more about convictions in big cases. Such cases are more likely to involve officers in specialized units who are more likely to take the time and care necessary to comply with the Fourth Amendment. Second, although the Supreme Court may believe that judges are distant neutral figures, the interviews in the present study reveal that if the case is serious, the judge is more likely to find a way to avoid suppressing the evidence seized in an illegal search.185
*116 In local parlance, “There are your ‘nothing,’ or ‘shit,’ cases, your ‘regular’ cases, and your ‘heaters.”’ A nothing case is a street stop or traffic stop that involves a comparatively minor crime. A “heater” is a big case that has the potential to arouse public ire if the defendant goes free for procedural or technical reasons.
In Chicago, “heater cases” are taken out of the normal random assignment system by the Chief Judge and diverted to “heater case judges” — judges statistically far more likely to convict. In February of 1987, the Special Commission on the Administration of Justice in Cook County, a group of distinguished members of the local bar, issued a report in response to complaints that heater cases were being diverted to a subset of judges who shared a pro-prosecution bias.186 *117 Often a heater case has a victim or victims, and involves physical harm. A heater may involve a pattern of crimes, a defendant with a long record of serious offenses or a large quantity of drugs. The quintessential heater is a murder case. The murder of a police officer is an even more serious heater. Finally, the “heater of all heaters” was the John Wayne Gacy case,187 in which the defendant murdered thirty-three young Chicago boys. In the criminal courts in Chicago, the general rule is, the hotter the heater, the less likely the judge will protect the defendant's constitutional rights.188
B. Heater Cases and the Sliding Scale of Procedural Justice
When asked whether evidence is more likely to be suppressed in a big or small case, 68% of respondents stated that evidence is most likely to be suppressed in a small case,189 27% thought it made no difference,190 and only one judge (3%) thought that evidence was more likely to be suppressed in a big case.191 Respondents believe that there is less risk of adverse consequences to a judge for suppressing evidence in small, rather than large, cases. “Judges can afford to have principles in a small case,” explained Public Defender 1A. Respondents *118 also maintained that the Fourth Amendment is sometimes used to eliminate smaller, unimportant cases from a grossly overburdened caseload — a practice termed the “junk rationale” by one state's attorney.
Respondents believe the relative severity of an offense has a strong effect on a judge's willingness to believe a police officer. Ironically, while respondents believe that police are more likely to lie in big cases,192 74% think that judges are most likely to disbelieve police testimony in small cases.193 Only 18% of respondents believe the size of a case has no effect on judges' assessments of credibility,194 and only one judge thinks that judges are more likely to disbelieve police in a big case.195
When asked how judges assess the veracity of police testimony in a big case, 72% of respondents — including 58% of judges — responded that judges are “biased in favor of the prosecution and less likely than they should be to disbelieve police testimony.”196
In this light, many respondents noted that police testimony that would not pass muster in a small case suddenly becomes believable in a big case.197 Respondents frequently quoted a well-known local criminal court judge as saying: “If the same facts lead an officer to find a stick of marijuana in a trunk as a body, the marijuana will be suppressed, the body will not.”
In a “swearing contest” between an officer and a defendant, many respondents believe the defendant always loses. Some argued that before a judge disbelieves an officer, the defendant must “prove beyond a reasonable doubt” that the officer is lying. Second Assistant Public Defender Bob Gevirtz noted:
[I]f the defendant's statement is more plausible, it is probably not enough. You probably need some inconsistency, such as when the officer said something inconsistent at a prior time, or if you have two officers involved and their testimony is inconsistent. Basically, you need an affirmative screw-up by the officer. Yet, even with an affirmative screw-up, most judges will not suppress.
Many respondents feel, however, that defendants have far more reason to lie than the police. Judge 9:
*119 Many times, I feel the police are lying, but I can't make a finding on a hunch. I've got to have some facts. If the defense can't show anything, that the police officer is telling a lie, then I have to find for the policeman . . . . You walk into a case and as a rule you believe the police officer — you've got to believe police more than defendant.
There was a strong consensus among respondents that judges sometimes fail to suppress evidence when they know Fourth Amendment standards require it. Eighty-two percent of respondents believe judges “fail to suppress evidence when they know police searches are illegal,”198 and 67% believe that judges “unreasonably strain interpretations of the law to prevent suppression of evidence.”199 Respondents often noted that judges are more likely to distort facts than law because factual findings are insulated by the “clearly erroneous” standard of appellate review.200
C. The Role of Judges in Deterring Illegal Searches
Theoretically, judges can facilitate the deterrent effect of the exclusionary rule by using suppressions to stress the importance of Fourth Amendment standards. However, they seldom do this. When asked how judges handle the suppression of evidence, the most common response (63% of respondents) was that judges simply suppress the evidence and go on to the next case without commenting or explaining the suppression to the officer at all.201 While 55% believe that judges sometimes try to “make sure the officer knows why the evidence was suppressed,”202 42% think that judges often “commend the officer's aggressive police work but say that their hands were tied by the law,”203 thus directly commending Fourth Amendment violations and frustrating the deterrent effect of the exclusionary rule. Only 29% of respondents reported that judges sometimes “express their disapproval of the search . . . to the officer.”204 Some judges state that while they will not directly express their disapproval of search tactics to the police officer, they will note on the record that they disbelieved *120 the officer's testimony. These judges believe this has a punitive effect on police officers, because it is a public statement that the officer lied. Only 11% think judges “attempt to change the officer's behavior in the future.”205 State's Attorney 1: “I have never seen a judge discipline a police officer for a Fourth Amendment violation.”
Fifty-six percent of those responding — including 77% of state's attorneys — believe that judicial scrutiny of police testimony does not “in any respect” reduce the incidence of police perjury.206 Some believe that lax scrutiny by judges actually encourages police to lie. State's Attorney 4: “Judicial scrutiny? What scrutiny? It teaches them to lie better the next time. If I were a liar that's what I would do.”
In sum, with the exception of “sometimes” making sure the officer understands why evidence is suppressed, judges in Chicago make little effort to further the rule's deterrent purposes. Moreover, by turning a blind eye toward, or even commending, illegal aggressive police work, they often directly frustrate observance of the Fourth Amendment.
When questioned about this passive role, many judges expressed the belief that it “was not their job” to educate police officers, that “it was the job of the state's attorney” or “the police department.” Judge 9: “This might not be the best way to do it, but we have to live with each other. Maybe he has made a mistake, but I don't have to beat him over the head with it . . . . You can't ignore individual feelings. These people put their lives on the line.”
Some respondents maintained that judges reprimand a police officer only if the officer engaged in blatantly illegal conduct, or had told an indefensible lie that forced the judge to suppress evidence. Judge 9:
One officer went home and went to sleep and never got a search warrant that he should have gotten. That is just lazy police-work. I commented on that. That got back to the policeman. Other times, I think they are attempting to do the right thing. Circumstances have put them between a rock and a hard place.
If an officer's conduct forces a judge to suppress evidence in a serious case, some respondents think the judge, who now has to bear the brunt of adverse public reaction to the suppression, will try to transfer the blame to the officer in a public excoriation. State's Attorney 2 noted, “The judge can get angry, almost contemptuous. They *121 do it in cases if they can be criticized for letting the evidence go. They put the heat on the policemen if they get heat.”
D. Why Judges Don't Suppress Evidence in Heater Cases
The three most frequent explanations for judge's failing to suppress evidence in serious case were the judge's (1) personal sense of “justice”, (2) fear of adverse publicity, and (3) fear that the suppression would lead to future difficulty in a judicial election.207
Seventy percent of respondents reported that judges sometimes fail to suppress evidence when the law requires suppression “because [the judge] believes it is unjust to suppress the evidence given the circumstances of the case before him.”208 Judges reported that their personal sense of justice is particularly affected when the crime has a victim and granting a motion to suppress puts the defendant “back on the street.” Many of the judges used a child-murderer as an example.209 Typical of human reactions to serious crimes, it is not clear whether judges' unwillingness to suppress evidence in serious cases is an entirely conscious process. As public defender Jamie Kunz explains, “The seriousness of the crime has a powerful subconscious effect on the way one evaluates testimony — it is inescapable. I can attest to this by sitting in the back of many courtrooms and watching trials, hoping that the judge would put the defendants away.”
State's Attorney 2 explained the judges discomfort in suppressing evidence this way:
When judges apply the exclusionary rule, they feel they are doing something wrong. They need some justification for what they are doing. If the trier of fact finds someone guilty, they will just say, “I find him guilty.” Often there is no explanation. When evidence is suppressed, they always say something.
Sixty percent of respondents believe that judges sometimes “[fail] to suppress because [the judge] wishes to avoid adverse publicity.”210 Judges in Chicago are conditioned to be intensely attuned to public opinion. A number of judges stated that granting motions in big cases *122 might make them appear corrupt.211
At the time of these interviews, the last of the “Greylord” trials were concluding.212 One of the most colorful and well known Greylord defendants was a judge named Wayne Olson, who presided over one of the narcotics preliminary hearing courts. Olson was convicted in a highly publicized trial for, among other things, granting motions to suppress in exchange for money from defendants or their lawyers.213 For many Chicagoans, Olson confirmed their belief that corruption underlies most judicial actions that free guilty defendants. State's Attorney 2 emphatically, if not delicately, expressed the fear of many judges, “Let me tell you, it takes big balls to throw out a major drug case after Greylord.”
Forty-eight percent of respondents believe that judges sometimes fail to suppress evidence because it might “hurt the judge's chances in a retention election.”214 As with any politician, judges avoid inflammatory actions in the short term before an election. As Public Defender 1A put it:
You bring a motion to quash in a heater case in the six months before a retention election and you should be cited for ineffective assistance of counsel. If you have your head on straight, you continue the matter until after the election.215
In contrast, respondents perceive two factors as having little effect on judges' willingness to suppress; fear of lobbying groups (20%),216 and the belief that the exclusionary rule is an unjust legal principle. *123 The respondents citing the latter factor consisted of two public defenders (14%) and one state's attorney (7%).217 No judges expressed this view.
E. Insulation from Public Pressure
Fifty-three percent of respondents — and 73% of judges — believe that if “judges were appointed for life or insulated from public pressure in some way, [they would] suppress evidence more frequently.”218 Respondents do not, however, believe that the resulting increase in suppressions would be very large. They note that federal judges, who are appointed for life, also respond to headlines and public pressure.
V. THE GENERAL EFFECT OF THE EXCLUSIONARY RULE
The evidence presented thus far involves a powerful paradox. The deterrent effect of the exclusionary rule, though real to respondents, is seriously undercut by rampant police perjury which appears to be encouraged by judges' reluctance to protect rights in serious cases.
I concluded my interviews with broad questions designed to elicit the respondents' overall assessment of exclusionary rule's effect on police work and on society. In contrast to the respondents' perceptions of the rule's deterrent effect on individual officers, their responses to these broader questions provide a strong vindication of the exclusionary rule. Fully recognizing the problems of perjury and judicial abdication, respondents nevertheless believe that the exclusionary rule makes an important difference, that it has fundamentally changed the way the police operate, and that it must be retained.
Although recognizing the rule's imperfections, respondents believe it is the only mechanism that injects any restraint in the system, or any respect for rights. Though often evaded, the respondents believe that by creating a possibility of suppression, the rule makes the Fourth Amendment a factor in police and judicial thinking. Further, they maintained that any alternative would be less effective.
Many respondents reported that police practices have dramatically changed because of the exclusionary rule. State's Attorney 2: *124 “If it weren't for the exclusionary rule, we would live in a police state. The exclusionary rule has affected the way the police think.” All respondents believe that there are improper “police practices that no longer occur as frequently as they did at one time.”219 State's Attorney 2 explained, “The exclusionary rule has had an effect on the police department as an organization — a gigantic effect.”
Among the three groups of respondents, the judges generally had the longest tenures in the Chicago criminal justice system, and all the judges willing to venture an opinion maintained that prior to the early 1960's substantive observance of the Fourth Amendment was far less significant than it is now.220
In the related area of Miranda and the Fifth Amendment exclusionary rule, 32% of respondents — mostly judges and prosecutors — made unsolicited statements that beatings or physical coercion of confessions were far less frequent because of the suppression of evidence.221 Judge 11, a former state's attorney during the 40's and 50's, stated, “[The police] don't pump stomachs anymore. We did that before. They have abandoned the crutch more.” Judge 9, a state's attorney in the 1960's explained: “The Supreme Court's decisions stopped the beatings. When I was a prosecutor before Miranda and Escobedo, police broke into these people's houses . . . . The Supreme Court stopped the beatings and made life cleaner.”
Eighty-five percent of respondents believe that search and seizure techniques are “different than they once were.”222 Judges and state's attorneys expressed the strongest sense of this change. Judge 7, a heater judge and former prosecutor, noted:
Civil rights violations are protected [against] more. The police are more cognizant of the law of search and seizure, and the Fourth, Fifth, and Sixth Amendments. They are also subject to lawsuits for civil rights violations. They are more observant now than they were in the nineteen-sixties.
One obvious effect of the exclusionary rule concerns the increased use of search warrants. Eighty-four percent of respondents believe “there was a time when police used warrants far less than they do now.”223 Judge 2, again a state's attorney during the 1960's, stated: *125 “Police as a body are much more likely to go by the numbers and get a warrant than ten years ago, especially compared to twenty years ago. . . . T here's less breaking into a guy's house without warrants.”224
Some commentators attribute improved police compliance with the law to higher levels of professionalism and education, or to growing public awareness of police abuses, rather than Supreme Court decisions.225 Likewise, all of the respondents believe that better education, training, and societal awareness made important contributions in changing police behavior.226 However, 90% of the respondents — and 100% of judges — think that the Supreme Court decisions were as important, or more important, than these other factors.227 State's Attorney 5 explained, “The Court is the centerpiece of change. The Court is all we follow.”
Virtually all of the narcotics officers interviewed in the Police Study believed that the exclusionary rule greatly professionalized police behavior. The Courts respondents agree — 95% believe that exclusionary rule causes police officers to behave more professionally.228
Judge 1A:
The Warren Court made it necessary for law enforcement agencies to be populated by knowledgeable, able individuals in reference to policing. Policemen were not aware of what the law was. They didn't care. The Warren Court decisions were the forerunners of the professionalism of the law enforcement agency. They went hand in hand with highly professional law enforcement agencies.
The exclusionary rule benefits society and the police department. The rule is an effort to upgrade the professionalism of the police. It is a patent and apparent good for all of us. Moreover, there are not as many cases lost as a result of these laws as people think. The perception was that the police department was hampered. This is not the case.
Some respondents even believe that the exclusionary rule diminished *126 the general level of corruption in the police department by giving legal standards meaning. State's Attorney 5: “Corruption and bribery do not occur as often [because of the exclusionary rule]. The more the department moves in a professional direction, in any sense, the better things become.”
Conservative commentators have persistently suggested that other remedies — notably a tort remedy — would protect Fourth Amendment rights better than the exclusionary rule.229 In response, 90% of respondents believe the exclusionary rule to be the best possible remedy, or could think of no better alternative.230 Thirteen percent, however, believe a tort remedy, or other sanction, should be added to the exclusionary rule to improve its effectiveness.231
When asked specifically if a tort remedy would function better or worse than the exclusionary rule, 93% of respondents said that it would be worse.232 In this light, most believed that the legal system would be unsympathetic to victims of unconstitutional searches and/or that such victims would not have the resources to bring actions.233 Many respondents commented that to the extent a tort remedy would actually impose damages on police officers, it would cause the police to perjure themselves even more frequently.234
In the Police Study several narcotics officers suggested the threat of suppression made officers more vigilant in securing probable cause and encouraged them to build stronger cases more likely to produce convictions.235 Fifty-nine percent of respondents here, mostly judges and public defenders, also believe “the exclusionary rule helps police officers build better cases.”236 Judge 1A, a state's attorney in the 1940's, noted:
It used to be that the officer sat on his fat butt. He waited for the case [to solve itself] or pushed to obtain a confession by unlawful means. This was not efficient. This was not right. Sometimes it didn't lead to the right result. This sloppy way of working didn't always lead to convictions. The exclusionary rule makes them do *127 the legwork and the digging the old-fashioned hard work that good police officers have always done . . . . [W]hat better evidence is around than that which is gained from a legal search warrant? A legal search warrant is only a step below a judicial confession in the quantum of evidence, particularly if it is dealing with narcotics or some contraband.237
Many narcotics officers disagreed with the perception that the exclusionary rule harms police work.238 The Courts respondents hold a similar view. Seventy-six percent of respondents — mostly judges and public defenders — believe the exclusionary rule does little or no harm to police work.239 Fourteen percent believe that the rule does an intermediate amount of harm,240 and 11% feel that the rule's harm is significant.241 Sixty-eight percent of respondents believe the law of search and seizure prevents police officers from “making the searches that they should be able to make” infrequently or never.242 Twenty-one percent said that only “sometimes” does the law prevent proper searches,243 and only 11% said this occurred “frequently.”244 In this light, State's Attorney 2, noting that the vast majority of suppressions occur in small drug cases, maintained, “If we live in a society which can tolerate people walking around with small amounts of drugs in their possession, the exclusionary rule has no effect. Otherwise it has a big effect.”245
On the other side of the equation, respondents clearly recognized the cost suppressing evidence may impose on individual victims of crime.246 Sixty-seven percent, predominantly judges and state's attorneys, believe the exclusionary rule can be unjust to the victims of crime.247 Judge 13:
[A]ll victims of crimes want to see justice done — justice to them. *128 However, by going ahead and suppressing the murder weapon, suppressing evidence found in a burglary, justice is not done. They don't think defendants have any rights at all when the defendants have perpetrated a crime against them.
The perception of the exclusionary rule's unfairness is not universal. Thirty-two percent of the respondents do not believe the exclusionary rule is unjust to crime victims.248 Judge 11 stated, “If they did not enforce certain rules, more people's rights would be violated. On balance we are better off with the exclusionary rule.” Judge 10 echoed that sentiment: “I don't think of the exclusionary rule as a negative thing. It's important in police work.” Finally State's Attorney 2 said, “I believe the rule works well. Victims do get the justice they deserve. They are protected by the exclusionary rule, too. The exclusionary rule does not do damage to the crime victims.”
None of the narcotics officers previously interviewed believed that the exclusionary rule should be abolished.249 Several officers said they appreciated the rule because it gave them a reason, within their peer group, to act properly. Some thought a “good faith exception” would be appropriate. When asked what they meant by a “good faith exception,” however, many of the officers indicated that any good faith exception should be fairly stringent.
When I asked the Courts respondents what the fate of the exclusionary rule should be, 73% believed the rule should be “kept as it is”250 or “strengthened.”251 When asked if the exclusionary rule should be abolished, there were several strong spontaneous reactions from respondents:
State's Attorney 5: “No! We do need a set of laws or rules to live by for the protection of all of us and it is like we have to insure the rights of everybody.”
Judge 10: “[T]he exclusionary rule is the] only way there's any control over seizures, over police authority to make seizures. If there is no strict enforcement of the Fourth Amendment, there's a deprivation of everyone's rights.”
Judge 7: “It would be totally unjust to abolish the exclusionary rule. If you do that, you've got Nazi Germany looking you in the face.”
Many respondents who want to preserve or strengthen the rule, *129 wish to eliminate the Leon good faith exception, or find a mechanism to limit police perjury. However, many respondents state that they do not want to change the present state of the law because they believe that when courts engage in the process of “fine-tuning” policy — even if that fine-tuning agrees with the respondents basic policy predilections — courts generally do more harm than good. Several prosecutors pointed to the cases surrounding the automobile exception.252
Twenty-seven percent of the respondents think the rule should be weakened253 or abolished.254 Most of those respondents want a broader good faith exception. Of the five respondents who would abolish the rule, two would replace it with a tort remedy, two with nothing, and one with an unspecified remedy.
Several times since Calandra, the Court, with slim empirical evidence concerning the rule's deterrent effect, used a balancing test to narrow the rule's application. Even in a world of rampant police perjury and judges unwilling to suppress unconstitutionally seized evidence, however, 76% of respondents think that the benefits of the exclusionary rule equal or exceed its costs;255 this includes 59% who believe the benefits clearly exceed the costs.256 State's Attorney 2:
The rule in the long run costs society very little. Those who say it costs society a lot have never looked at the facts. Brewer v. Williams257 does not happen that often. The benefits of the exclusionary rule? Do I live in a house as a citizen that will not be raided in the middle of the night? Yes. That is probably because of the exclusionary rule, and it is a big benefit. Have you ever been pulled over for a traffic stop? The police are searching your car all over although they don't seem to be. It's eerie. The benefit of the exclusionary rule is that they can't search your car.
State's Attorney 5 argued, “The exclusionary rule is a great asset to the American way of life. It is part of our freedoms.”
Judge 14 concluded, “The exclusionary rule is the only balance against totalitarianism. As bad as it is, it is some deterrence, it provides some deterrence to violations of the Fourth Amendment.”
Not all respondents, however, spoke as positively about the exclusionary *130 rule. Twenty-four percent of respondents believe the costs of the rule exceed its benefits.258 Judge 1 stated, “The problem with the exclusionary rule is that the impact is too severe in major cases. There has to be some way of handling the total exclusion in major cases.”
In discussing the benefits of the rule, a number respondents, notably judges and state's attorneys, considered the rule's affect on values, as well as the outcome of case. They harkened back to a theme generally abandoned by the Supreme Court — “the imperative of judicial integrity.” State's Attorney 1 concluded:
The exclusionary rule is there to maintain the integrity of the court system. A tort system would screw this up — tainted evidence in court yet the officer is paying a fine. Doesn't that make the court dirty? After Greylord, the integrity of the court system is of paramount importance. [The exclusionary rule] is not there to control police behavior. It is there for the integrity of the courts.
Inasmuch as I maintain that the integrity of the judicial system is important, you want any citizen to feel that the court is fair, even to the point where it will hurt. The exclusionary rule gives the impression that the court system is as clean as clean can be. The court system is there not only to mete out justice but to maintain an ideal. The ideal is very important, not just for a jaded old man like me, but for the young people. The exclusionary rule goes a long way in giving that presumption . . . to maintain the integrity of the Constitution. To idealize the Constitution is a goal in itself. The Constitution is not a pragmatic road map but an ideal that has to be maintained. One of the ways to maintain that ideal is through the exclusionary rule.
VI. CONCLUSION
The Supreme Court appears determined to substantially limit the force of the exclusionary rule — perhaps even eliminate the rule entirely. The motivation behind the Court's action is based on a series of assumptions isolated from reality. Should the Court succeed, it will eliminate important, hard-won accomplishments in the protection of constitutional rights.
The Court doubts the ability of the rule to deter unlawful police behavior. Judges, public defenders, prosecutors — and police — in Chicago believe that the exclusionary rule does deter. They reported that the rule educates officers in the law and causes them to change *131 their conduct. This deterrence is strongest in big cases involving specialized officers and ranges downward to a marginal effect in small cases involving patrol officers.
More importantly, despite barriers to the rule's effectiveness as a deterrent, respondents report that over the last 30 years, it has made the Fourth Amendment — for the first time — a real force in society, and has profoundly, albeit imperfectly, professionalized police behavior. Strikingly, respondents could not point to a more effective alternative remedy and judged that a tort remedy would be less effective, even disastrous.
The Court declares that our cities are filled with police officers acting in good faith consistently tripping over hyper-technical rules administered by neutral judges. Just as respondents believe the rule deters, they report that Chicago police pervasively lie in court and throughout the investigative process to avoid the rule. Their perjury is nurtured by prosecutors and tolerated by judges without the will to enforce the commands of the Fourth Amendment to the Constitution. Ironically, while the Court seeks to engraft a good faith exception to a bad faith world, it misses the greater responsibility of finding a method to lessen perjury and stiffen the backbones of some of its brethren in the lower courts.
Critics of the exclusionary rule may assert that the shocking level of perjury and judicial abdication in Chicago demonstrates that the exclusionary rule is too restrictive. If the police did not lie, and the judges did not wink, the argument might go, an enormous amount of evidence would be suppressed. The police and judges are “cheating” simply to preserve necessary public order.
There is no evidence, however, produced by this study — or any other — to support this hypothesis. While the police often lie in court and judges often tolerate it, we simply do not know what would happen if the police were forced to testify truthfully. Contrary to the critical hypothesis, in both the Police and Courts studies, a majority of respondents maintained that the Fourth Amendment was not too complicated for police officers to understand and did not pose a significant harm to police work. Virtually all the Courts respondents believe that police perjury is fostered by the unwillingness of the criminal justice system to even formally acknowledge its existence, much less realistically attempt to respond to the problem. Some respondents argued that perjury is caused by laziness on the part of police who were not subject to significant behavioral restraints. The numbing, almost comical, similarity of Chicago reliable informant warrants provides some *132 support for this latter view.259
Critics might also argue that pervasive perjury is a cost of the exclusionary rule, and as such, outweighs any incremental benefit gained by the rule's uneven deterrent effect. Respondents, however, fully recognizing the rule's imperfections, nevertheless believe that the exclusionary rule has dramatically improved police behavior and should be retained. Prior to the exclusionary rule, there was virtually no observance of the Fourth Amendment. Today, while police often perjure themselves, they also, because of the exclusionary rule, often obey the Fourth Amendment. By any measure, this is an improvement.
One last word on the rule's deterrent effect. Legislatures, judges, and quasi-judicial bodies have long used deterrence as a rationale for increasing the severity of criminal sanctions — the death penalty being the most notable example. Yet, social scientists, with few and insignificant exceptions, have been unable to establish any correlation between increased penalties and a change in the behavior of individuals known to violate the law — or even in the crime rate as a whole.260 In comparison, the deterrent effect of the exclusionary rule in Chicago appears exemplary.
In the end, any substantial social reform movement such as embodied by the exclusionary rule, even if accompanied by public support not present here, is generally slow moving and subject to constant reformulation. Few such movements achieve complete success. The challenge of protecting the rights of the accused in a society deeply troubled by crime has proven so difficult that, with the exception of the courts, all political decision-makers have abjured responsibility. When viewed in this light, the exclusionary rule — though far from perfect — must be judged a substantial success.

Footnotes

Representative, Minnesota House of Representatives and Special Assistant Attorney General of Minnesota (on leave of absence ). J.D., University of Chicago, B.A., University of Minnesota. I would like to thank Stephen J. Schulhofer for making the decision to support this project and for his unflagging assistance and insightful comments throughout the drafting of the questionnaire, the interviews, and the writing process. The entire project was strengthened immeasurably from his input. I would also like to express special thanks to my friend, Albert Alschuler for interesting me in the criminal law as a student and supporting and guiding all of my scholarly efforts. This article also benefitted greatly from the comments of Thomas Y. Davies, Yale Kamisar, Hans Ziesel, and Richard Frase.
During the research and much of the writing of this article I was a Research Associate at the Center for Studies in Criminal Justice at the University of Chicago Law School. I was later awarded a Bradley Fellowship from the Center to complete the project and received additional support from the Friends of Tony Patino Fellowship. Invaluable typing and clerical support was provided by the law firm of Faegre & Benson in Minneapolis.
I am enormously grateful to the State's Attorney, the Public Defender and the Criminal Division of the Circuit Court and the Clerk of the Circuit Court of Cook County. Without their endless help and patience, this project would not have been possible. I would also like to thank the individual prosecutors, public defenders, and judges who agreed to be interviewed. Their patience, insight, and candor was deeply appreciated.
See generally Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964) (discussing how crime control conflicts with the interests of due process).
See Peter F. Nardulli, The Societal Costs of the Exclusionary Rule Revisited, 1987 U. ILL. L. REV. 223, 234.
Comment, The Effect of Mapp v. Ohio on Police Search and Seizure Practices in Narcotics Cases, 4 COLUM. J.L. & SOC. PROB. 87 (1968); M. Ban, Local Compliance with Mapp v. Ohio; The Power of the Supreme Court (Ph.D. dissert, Harvard 1972, unpublished, on file with the University of Colorado Law Review); Yale Kamisar, Wolf and Lustig Ten Years Later: Illegal State Evidence in State and Federal Courts, 43 MINN. L. REV. 1083 (1959); Myron W. Orfield Jr., Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016 (1987).
In Mapp, the Supreme Court stated that without the “sanction of exclusion” the Fourth Amendment would be merely “a form of words.” Id. at 655.
Id. at 659.
Id. at 217. Elkins was decided one term prior to Mapp under the federal exclusionary rule.
See Opinion Roundup, Pub. Opinion, Aug./Sept. 1982, at 26, cited in Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rules: The NIJ Study and Other Studies of Lost Arrests, 1983 AM. B. FOUND. RES. J. 611, 612 n.2 (Lou Harris and Associates opinion polls found the percentage of respondents claiming that courts are “too easy” on criminals increased from 52% to 83% between 1967 and 1981).
For studies of the effects of the exclusionary rule in a variety of jurisdictions which show that the rule affects the disposition of only a very small proportion of all prosecutions, see Thomas Y. Davies, supra note 17; Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND RES. J. 585; KATHLEEN B. BROSI, A CROSS-CITY COMPARISON OF FELONY CASE PROCESSING (1979).
See Nardulli, supra note 5; Joseph R. Tybor & Mark Eissman, Illegal Evidence Destroys Few Cases, CHI. TRIB., Jan. 5, 1986, § I at 1, 13.
The only study to claim otherwise was the NIJ, which was criticized in Davies, supra note 17. Subsequently, in Leon the Court discussed the estimates of the rule's effects offered by Davies and Nardulli.
381 U.S. 618 (1965). Linkletter held that the rule's application to the states should generally not apply retroactively to cases decided prior to Mapp.
414 U.S. 338 (1974) (declining to apply the exclusionary rule in grand jury proceedings).
Calandra, 414 U.S. 338, 348 (1974) (exclusionary rule does not apply to grand jury proceedings); United States v. Janis, 428 U.S. 433, 454 (1976) (exclusionary rule not extended to “federal civil proceedings”); Stone v. Powell, 428 U.S. 465, 494 (1976) (refusing to grant federal habeas corpus relief on the ground that illegally obtained evidence was admitted at trial); United States v. Havens, 446 U.S. 620 (1980) (exclusionary rule not applied to bar use of illegally obtained evidence for impeachment purposes); United States v. Leon, 468 U.S. 897, 920 (1984) (suppression not required when officer relies in good faith on facially valid warrant); INS v Lopez-Mendoza, 468 U.S. 1032 (1984) (holding the exclusionary rule inapplicable in deportation proceedings); Illinois v. Krull, 480 U.S. 340 (1987) (suppression not required when evidence is seized under a statute subsequently declared unconstitutional).
Although several empirical studies have addressed the deterrence issue, none has provided persuasive statistical evidence that the rule deters unlawful searches and seizures. See Oaks, infra note 185; James E. Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. LEGAL STUD. 243 (1973); Bradley C. Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion, 62 KY. L. J. 681 (1973-74); Critique, On the Limitations of Empirical Evaluators of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 NW. U. L. REV. 740 (1974-75). For a summary of empirical research, see Orfield, supra note 7, at 1019-22.
The Court's most extensive review of the empirical evidence on deterrence appears in Justice Blackmun's opinion in Janis, 428 U.S. at 449-454, and concludes that no persuasive empirical answer to the rule's deterrent efficacy was available.
The Court had previously noted the dearth of empirical evidence regarding the exclusionary rule's deterrent effect on police behavior in Elkins v. United States, 364 U.S. 206, 218 (1960). Individual members of the Court have made similar observations regarding the deterrent effect of the rule in Leon, 468 U.S. at 918; Stone, 428 U.S. at 492; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Burger, C.J., dissenting); and Coolidge v. New Hampshire, 403 U.S. 443, 491 (1971).
Orfield, supra note 7.
See Nardulli, supra note 5.
For further information on the Police Study methodology, see Orfield, supra note 7, at 1024-26.
The Police Study began by noting there were two types of illegal police searches: “inadvertently illegal searches, in which the officer does not know she is violating the Fourth Amendment, and knowing illegal searches.” Id. at 1023-24. The officers believed that the rule deterred in both situations.
Id. at 1036-41.
Id. at 1046-47.
Id. at 1042-46.
Id. at 1046.
Id. at 1048.
Id. 1026-30.
Id.
Id. at 1049-51.
Id. at 1051-54. Strikingly, the good faith exception described by the officers was more strict in terms of police conduct than the one outlined by the Supreme Court in Leon.
The questionnaire was field tested on public defenders, judges, and prosecutors before it was completed. Some of the open-ended responses in the field test are included as illustrative quotations with an “A” after the respondent's number.
403 U.S. 388, 415 (1971) (Burger, C.J., dissenting).
Although the Supreme Court has used the “absence of empirical proof of deterrence” to consistently narrow the application of the exclusionary rule, it has never defined the term “deter” with any precision.
In Elkins v. United States, 364 U.S. 206 (1960), the Court suggested that deterrence amounted to removing the affirmative incentive to act unlawfully. In his well-known dissent in Bivens, former Chief Justice Burger implied that deterrence, in the context of the exclusionary rule, must include some sort of “direct sanction” or “punishment” “to the individual officer.” Neither opinion however can be fairly characterized as a serious attempt to define the term.
In common usage, the word “deter” has been defined as “to turn aside, discourage, or prevent from acting by fear or consideration of dangerous, difficult, or unpleasant attendant circumstances or consequences,” or alternatively “to discourage or restrain from acting or proceeding . . . to prevent; check; or arrest.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 616 (Philip B. Grove ed., 1976).
Some social scientists view deterrence as a communication process in which the communication of a behavior's adverse consequences has the effect of inhibiting that behavior. See Michael Geerkin & Walter Gove, Deterrence: Some Theoretical Considerations, 9 Law & Society L. Rev. 497 (1975).
See App., question 80 (40/41 respondents).
Id. (15/40 respondents).
Id. (13/40 respondents).
Id. (12/40 respondents).
Id. (10/12 judges, 10/14 public defenders, 10/14 state's attorneys).
The terms “big” and “small” cases are defined in the questionnaire in the Appendix. See also SKOLNICK, infra note 185, at 228.
Orfield, supra note 7, at 1043; SKOLNICK, infra note 185.
Data collected by Columbia law students directly after the Court decided Mapp demonstrates that different police units have different objectives and that specialized units handling serious cases are more directly deterred by the exclusionary rule. Specifically, the data demonstrate that after Mapp, the number of specialized narcotics and gambling arrests, where the unit mission was conviction, was cut in half, while patrol arrests, where the mission was crime control, increased at a steady pace. See Comment, supra note 7, at 91, 93.
See Orfield, supra note 7, at 1046-49; see also SKOLNICK, infra note 185.
JAMES TUOHY & ROB WARDEN, GREYLORD: JUSTICE CHICAGO STYLE 100 (1989).
“Sweeps” of high crime areas produce the public perception that “something is being done” about crime and drugs. However, these sweeps are effective only so long as the police can sustain a large commitment of manpower to a given area, thereby depriving other areas of normal police protection. As soon as the police leave, crime patterns return to normal. See, e.g., Crack Dealers Returning to Streets That Narcotic Units Swept Clean, N.Y. TIMES, December 5, 1988, at A1.
See App., question 15 (5/32 respondents: 5/7 judges, 10/13 public defenders, 10/12 state's attorneys).
Id. (23/31 respondents: 5/7 judges, 10/13 public defenders, 8/11 state's attorneys).
Id. (17/30 respondents: 3/7 judges, 9/13 public defenders, 5/10 state's attorneys).
Orfield, supra note 7, at 1044-45.
See App., question 21 (29/39 respondents (74 percent)). Respondents could choose more than one answer.
Id. (27/39 respondents (69 percent)).
Id. (25/39 respondents (64 percent)).
Id. (13/39 respondents (33 percent)).
See App., question 16 (8/34 respondents: 1/7 judges, 4/14 public defenders, 3/13 state's attorneys).
Id. (14/34 respondents: 2/7 judges, 4/14 public defenders, 8/13 state's attorneys).
Id. (7/31 respondents: 1/6 judges, 4/14 public defenders, 2/11 state's attorneys).
Id. (10/31 respondents: 1/6, judges, 4/14 public defenders, 5/11 state's attorneys).
See Terry v. Ohio, 392 U.S. 1 (1968) (defining constitutional requirements for a police “stop and frisk”).
Many of the officers of the Narcotics Section had made similar comments concerning the effect of suppression in small cases. See Orfield, supra note 7, at 1043.
See App., question 22 (9/38 respondents).
See App., question 22 (22/38 respondents (58 percent)).
Id. (14/38 respondents).
See App., question 21 (27/38 respondents).
72
See App., question 22 (13/38 respondents (34 percent)).
Id. (7/38 respondents (18 percent)).
See App., question 23 (16/32 respondents: 5/11 judges, 8/9 public defenders, 3/12 state's attorneys. These divergent responses appear driven by group bias).
Id (5/32 respondents: 1/11 judges, 4/11 public defenders, 0/10 state's attorneys).
Orfield, supra note 7, at 1042-44.
See App., question 26 (34/41 respondents: 11/13 judges, 12/14 public defenders, 11/14 state's attorneys). In this light, 37 percent of respondents believed that the suppression hearing, in and of itself, apart from the loss of evidence, (i.e., the treatment by defense attorneys or judges) deterred unlawful police behavior. The majority however, while viewing the hearings as unpleasant, did not believe they were a deterrent. See App., question 29.
See App., question 25. When asked how frequently defense attorneys do these things, 73 percent of respondents believed they attacked the officer's integrity or honesty, 59 percent believed they tried to make the officer appear incompetent, and 16 percent believed they tried to make the officer appear power-hungry or abusive more than half of the time. Respondents could choose more than one answer.
Orfield, supra note 7, at 1033-42.
See App., question 20 (32/41 respondents: 9/13 judges, 14/14 public defenders, 9/14 state's attorneys).
Id. (20/39 respondents: 6/12 judges, 11/14 public defenders, 3/13 state's attorneys).
See infra at section IIIB5b.
Orfield, supra note 7, at 1035 n.85.
See App., question 14c (36/40 respondents: 11/12 judges, 12/14 public defenders, 13/14 state's attorneys).
See App., question 14 (18/37 respondents: 5/9 judges, 7/14 public defenders, 6/14 state's attorneys).
Id. (35/37 respondents: 9/9 judges, 14/14 public defenders, 12/14 state's attorneys).
See infra section IIIA3.
Orfield, supra note 7, at 1026-30.
See App., question 33a (25/33 respondents: 7/10 judges, 8/10 public defenders, 10/13 state's attorneys).
Id. (14/27 respondents: 3/6 judges, 4/8 public defenders, 7/13 state's attorneys).
See App., question 32 (35/39 respondents: 12/12 judges, 12/14 public defenders, 11/13 state's attorneys).
Public Defender 2 noted that police have trouble accepting the suppression of a warrant signed by a judge. He stated, “They figure that there was nothing wrong with it because [the judge] signed it.”
See App., questions 37 & 38. In response to question thirty-seven, all the respondents said that judges disbelieve police testimony, and in response to question thirty-eight, all but one believed that judges were accurate in their disbelief, indicating that the respondents, like the judges, believed that police perjure themselves.
See Comment, supra note 7.
Justice Irving Younger was to write that police perjury in so-called “dropsy cases” was almost routine in his courtroom. See People v. McMurty, 314 N.Y.S.2d 194 (N.Y. Crim. Ct. 1970); see also Irving Younger, The Perjury Routine, THE NATION, May 8, 1967, at 596; Irving Younger, Constitutional Protection on Search and Seizure Dead, 3 TRIAL 41 (Aug.-Sept. 1967). Two noted New York City defense attorneys also reported widespread police perjury in the wake of Mapp. See PAUL CHEVIGNY, POLICE POWER: POLICE ABUSES IN NEW YORK CITY 180-218 (1968); Martin Garbus, Police Perjury, 8 CRIM. L. BULL. 363, 368 (1972). For further discussion of police perjury in New York City, see Richard H. Kuh, The Mapp Case One Year After: An Appraisal of its Impact in New York, 148 N.Y.L.J. 4 n.2 (1962); H. RICHARD UVILLER, TEMPERED ZEAL: A COLUMBIA LAW PROFESSOR'S YEAR ON THE STREETS WITH THE NEW YORK CITY POLICE DEPARTMENT 111-118 (1988).
SKOLNICK, infra note 185, at 228. See also Oaks, infra note 185, at 39-42 (noting a highranking police official from a large metropolitan police force's admission that police twist the facts in court to avoid the requirements of the Fourth Amendment in a significant percentage of cases); Spiotto, supra note 25, at 275-76. The Kerner Commission report noted that police perjury was one of the primary causes of resentment and lack of respect toward police in the 1960's. See Report of the National Advisory Comm'n on Civil Disorders 159-61 (1968).
Orfield, supra note 7, at 1049 n.130.
Id. at 1050.
Id. at 1050-51.
See App., question 19 (20/38 respondents: 7/11 judges, 12/14 public defenders, 1/13 state's attorneys). Respondents could choose more than one.
See App., question 17 (30/37 respondents: 10/10 judges, (100%) 14/14 public defenders, (100%) 6/13 state's attorneys (46%)).
See App., question 17a (19/35 respondents: 4/8 judges, 3/14 public defenders, 12/13 state's attorneys).
Id. (16/35 respondents: 4/8 judges, 11/14 public defenders, 1/13 state's attorneys).
Id.
See App., question 18 (25/34 respondents: 8/9 judges, 14/14 public defenders, 3/11 state's attorneys).
Id. (14/35 respondents: 2/8 judges, 2/14 public defenders, 10/13 state's attorneys).
Id. (21/35 respondents: 6/8 judges, 12/14 public defenders, 3/13 state's attorneys).
In Branch 28, the gun court, attorneys told me that a certain officer often seized weapons based on his “instinct” that the suspect had a gun. Because instinct is not yet a valid legal reason for a search, the weapons were frequently suppressed. This, however, did not deter the officer who believed that by illegally seizing evidence he had fulfilled his function of removing guns from the street. The officer believed his action saved lives and prevented crime. He would not lie, however, because he believed lying to be wrong.
An individual who has no ambition to advance from the position of a patrol officer in a squad car.
See App., question 43(31/36 respondents: 7/9 judges, 14/14 public defenders, 10/13 state's attorneys).
Id. (12/36 respondents: 1/9 judges, 9/14 public defenders, 2/13 state's attorneys).
Id. (5/36 respondents: 2/9 judges, 0/14 public defenders, 3/13 state's attorneys).
In “Felony Review,” assistant state's attorneys screen police arrests and make the decision whether the case should be prosecuted.
The facts of this case are recounted in Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988) where the court, per Judge Posner, affirmed a district court decision awarding the defendant, George Jones, $801,000.00 in damages under 42 U.S.C. § 1983 (1988).
Id. at 1072 (listing cases in which abuse of the street files system had occurred).
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecutor must generally disclose to the defense materially important exculpatory matter within her possession.
Id. After the officer talked to the defense, he became the subject of an internal police investigation and was demoted to a position watching police recruits urinate for drug tests. None of the police officers who suppressed the street files in the Jones case were disciplined in any way. Such behavior by the police department tends to undercut the likelihood of an effective institutional response to the exclusionary rule. But see Orfield, supra note 7, at 1026-30.
In Cook County, the State's Attorney regulates the search warrant process and keeps detailed search warrant records. In most jurisdictions, the court clerk, rather than the prosecutor, regulates the search warrant process. See RICHARD VAN DUIZEND ET AL., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, PRACTICES (1985). The State's Attorney's office refused to respond to all of my inquiries regarding search warrants. See letter from Myron Orfield, Research Associate of the Center for Studies in Criminal Justice, to Alexander Vroustrouris, Supervisor of Narcotics Unit at Office of the State's Attorney of Cook County (Jan. 24, 1989) (on file with the University of Colorado Law Review).
Although warrants are occasionally drafted by state's attorneys, they are generally written by police officers. Chicago police policy then requires officers to take the warrants to an assistant state's attorney who reviews them for legal sufficiency. If the assistant approves the warrant, she assigns it a number in the chronological order in which it is approved. The numbers are coordinated by a central source in the State's Attorney's office. Blocks of these numbers may be assigned to different groups of state's attorneys at separate locations. Some judges in the Criminal Division told me that they will not sign warrants not previously approved by assistant state's attorneys.
Because the State's Attorney and the police both refused to respond to my inquires regarding search warrants, my sample is based on all the warrants entered on the data base of the Clerk of the Circuit Court for Cook County. I copied all 800 of the warrants on the Clerk's list. Approximately 600 were reliable informant narcotics warrants. I selected in alphabetical order the first 269 of these reliable informant warrants.
The printout I received from the Clerk indicates that warrants with numbers between 0 and 2000, and 4000 and 8000 were entered on the data base. The highest number listed in 1987 is 7956. And the highest number listed in 1988 is 7644. (Although there is one isolated warrant in 1988 which bears the number 36,119.) Assuming no warrants were issued with numbers between 2000 and 4000, it is conceivable that between 4000 and 6000 warrants were drafted and approved in 1988.
A more extensive statistical study of 600 reliable informant warrants and accompanying affidavits is in progress.
227/269 (84%).
190/269 (70%). In addition, 204 affidavits (70 percent) noted how many times the informant had informed in the past.
208/269 (77%). 219 affidavits (81 percent) noted how many times the information had lead to a seizure of narcotics.
148/269 (55%). 215 affidavits (80 percent) noted how many times the substance had tested positive in the past.
169/269 (63%). 196 affidavits (73 percent) noted how many times the information lead to arrest.
202/269 (75%).
215/269 (80%).
221/269 (82%).
214/269 (80%).
227/269 (84%).
All warrants authorized the search of a person known only by a nickname.
Another officer, “Officer Black,” was quite similar. Black had ten 1988 warrants in the sample. Three were issued in June 1988, two in October, three in November, and two in December. Like Blue's, all of Black's warrants stated that he knew his informant for twelve months. In nine of ten warrants, the informant had informed on four prior occasions, the information provided led to the seizure of narcotics and arrest four times, the substances obtained tested positive for narcotics four times, and four cases were pending based on the information. In each of the warrants, the informant had purchased drugs in the place to be searched and saw a larger quantity of drugs at that address. In each of the warrants, the informant had tried the drug and got a high feeling like the last time he used the drug.
Yet another officer, “Officer Yellow,” had four warrants in the sample. All of his warrants were issued in January 1988. In each of his warrants, Yellow swore he knew the informant for thirty-six months. Each of the warrants stated that the informant had supplied information three times in the past, the information supplied resulted in the seizure of narcotics three times, the seized material had tested positive as narcotics three times, and three times the information provided led to an arrest. In each warrant, the defendants bought drugs in the place that was to be searched and saw a larger quantity of drugs at that place. In each case, the informant tried the drug and got a high feeling like the last time he used the drug.
See App., question 45 (17/27 respondents: 5/9 judges, 8/9 public defenders, 4/10 state's attorneys).
Id.
I think there is some discussion of an officer xeroxing search warrants in the Police Study, see also Orfield, supra note 7 at 1048.
See App., question 45 (10/27 respondents: 4/9 judges, 1/9 public defenders, 5/10 state's attorneys).
The judge is referring to Spinelli v. United States, 393 U.S. 410 (1969), which together with Aguilar v. Texas, 378 U.S. 108 (1964), set forth the former two-prong standard required for reliable informant search warrants: reliability and basis of knowledge.
The police reported that they have a system of registering anonymous informants in which they record the informant's “track record.” See Orfield, supra note 7, at 1029. This information is available to judges at in camera hearings. Although I did not systematically ask respondents about this system, it was my impression that respondents had no knowledge of it.
See App., question 37. Nine judges, thirteen public defenders, and eleven state's attorneys gave rough numerical estimates of how frequently they perceived that judges disbelieve police officers in relation to Fourth Amendment issues. The others were asked but declined to estimate.
See App., questions 38, 39.
See App., question 46 (33/37 respondents: 10/11 judges, 14/14 public defenders, 9/12 state's attorneys).
Id. (8/37 respondents: 1/11 judges, 7/14 public defenders 0/12 state's attorneys).
Id. (4/37 respondents: 1/11 judges, 0/14 public defenders, 3/12 state's attorneys).
Id.
Orfield, supra note 7, at 1031.
A “heater judge” is a member of a subset of Cook County criminal court judges assigned serious or high profile cases. A heater judge is statistically more prone to convict. See infra section IV.
Two of the judges worked with their logbooks, while one could remember why evidence was suppressed in each case without the benefit of notes.
See infra section IVB.
See App., question 47 (9/24 respondents: 1/6 judges, 6/11 public defenders, 2/7 state's attorneys).
Id. (16/24 respondents: 4/6 judges, 9/11 public defenders, 3/7 state's attorneys).
Id. (7/24 respondents: 1/6 judges, 1/11 public defenders, 5/7 state's attorneys).
The Cook County State's Attorneys Office, under Richard M. Daley, had a questionable record. Between 1978-88, there were over 165 appellate cases raising the issue of prosecutorial misconduct. Rob Warden & Patrick Haller, Daley Assistants Called Overzealous, Counterproductive, THE CHICAGO LAWYER, August 1987, at 1. These cases demonstrate a clear pattern of overreaching and disregard for normal rules of court conduct — particularly in serious crimes. The cited misconduct generally involved making prejudicial statements to a jury, frequently in a trial where the death penalty had been demanded. There was also a recurrent pattern of distorting the burden of proof to juries, defaming witnesses, impugning the honesty and integrity of defense attorneys, and simply “creating evidence.” Id. See e.g., People v. Linscott, 511 N.E.2d 1303 (Ill. App. Ct. 1987).
See App., question 46c (14/27 respondents: 3/7 judges, 8/11 public defenders, 3/9 state's attorneys).
Id. (25/27 respondents: 7/7 judges, 11/11 public defenders, 7/9 state's attorneys).
See supra note 116 for an explanation of felony review.
As used here, “in trial” means experience in the courtroom as an attorney.
See App., question 43c (17/28 respondents: 5/7 judges, 7/11 public defenders, 5/10 state's attorneys).
See App., question 44 (9/18 respondents: 2/6 judges, 5/6 public defenders, 2/6 state's attorneys).
Id.
See supra, section IIIB4a, note 125.
See App., question 49 (5/33 respondents: 1/8 judges, 3/13 public defenders, 1/12 state's attorneys).
Ken Waddas, a former high ranking attorney in the State's Attorneys office, has been cited repeatedly for prosecutorial misconduct. See Warden & Haller, supra note 157, at 12.
A celebrated mass murderer of young boys in Chicago.
See App., question 49 (20/33 respondents: 3/8 judges, 12/13 public defenders, 5/12 state's attorneys).
Id. (16/33 respondents: 5/8 judges, 2/13 public defenders, 9/12 state's attorneys).
The central criminal courts building in Chicago is at 2600 California.
See App., question 53 (11/38 respondents: 2/10 judges, 6/14 public defenders, 3/14 state's attorneys).
Perjury is a class 3 felony which carries a sentence of 2 to 5 years. ILL. ANN. STAT. ch. 38, para. 32-2, 1005-8-1(6) (Smith-Hurd 1977 & Supp. 1991).
See supra section IIE on emotional acceptance of suppression.
Several state's attorneys and judges maintained that police perjury did not extend to issues of guilt or innocence. See also UVILLER, supra note 98, at 116. While respondents frequently described to me incidents where police officers lied about the guilt of a defendant, I am not convinced this distinction is always valid.
Judge 7, a middle-aged white ethnic judge, who had been prosecutor told me this story:
A burglary occurred at a residence between 2:00 to 3:00 a.m. The police claimed that they chased two kids through a field nearby and then the kids dropped the bags of stuff and ran the other way. This squared with the scene. The police returned to the scene of the crime and saw two young men walking down the street toward the house. The police said these were the people that they had seen before at a distance and they stopped them. They said that these were the same people who ran through the field. They arrested them . These kids testified they were at a party a block and a half away. The police said that they checked this out and that at the address they were given, there were never any people that lived there. . . . The police testified that they went to the location and there was an empty lot. I felt something was wrong, and I took a recess. Why would these people be walking back toward the scene of the crime? I called the commander and told him to check this out. He did and said it was an empty lot. I still was uneasy about this. I sent out the State's Attorney's investigator. He said there was a building there. It was owned by the people the defendants said gave the party. I tossed the case and reported the incident. I filed my complaint with the [police] department. I never heard back about it. These officers just grabbed two kids and they could have put them in the penitentiary.
During the trial, I went back into the courtroom and took the case from the jury. I put them in the jury room and I reprimanded the police. Then I called the jury back in and explained what had happened. I told them that the police had given false testimony and that I was dismissing the case.
See App., question 53 (11/38 respondents: 2/10 judges, 6/14 public defenders, 3/14 state's attorneys).
This view was shared by Chief Judge Richard Fitzgerald, the Chief Judge of the Criminal Division of the Circuit Court of Cook County at the time of the interviews.
See App., question 59 (22/36 respondents: 3/10 judges, 14/14 public defenders, 5/12 state's attorneys).
See App., question 60 (23/38 respondents: 7/12 judges, 8/14 public defenders, 8/12 state's attorneys).
Id. (8/38 respondents: 4/12 judges, 2/14 public defenders, 2/12 state's attorneys).
Id. (5/38 respondents: 1/12 judges, 4/14 public defenders, 0/12 state's attorneys).
See supra section IB.
See Nardulli, supra note 5.
Id.
JEROME SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN A DEMOCRATIC SOCIETY 221 (2d ed. 1975) (“The illegality of the search is likely to be tempered — even in the eyes of the judiciary — by the discovery of incriminating evidence.”) LYNN M. MATHER, PLEA BARGAINING OR TRIAL? THE PROCESS OF CRIMINAL CASE DISPOSITION 73, 146-47 (1979) (trial judges routinely accept police testimony in disputes about circumstances of searches). For more general treatments of the effects of substantive justice in criminal cases, see Francis Allen, A Serendipitous Trek Through the Advance-Sheet Jungle: Criminal Justice in Courts of Review, 70 IOWA L. REV. 311, 316-17 (1984). (appellate decisions in criminal cases reflect popular pressure to be “tough on crime”); Thomas Y. Davies, Affirmed: A Study of Criminal Appeals and Decision Making Norms in a California Court of Appeals, 1982 AM. B. FOUND. RES. J. 543, 625-632 (substantive justice affects appellate review of legal issues). See also, Thomas Y. Davies, Do Criminal Due Process Principles Make a Difference?, 1982 AM. B. FOUND. RES. J. 247 (reviewing DOREEN MCBARNET, CONVICTION: LAW THE STATES AND THE CONSTRUCTION OF JUSTICE 158, (1981)).
There are numerous expressions of concern regarding the enforcement of Fourth Amendment standards by courts in the exclusionary rule literature. See, e.g., Anthony G. Amsterdam, The Supreme Court and the Right of Suspects in Criminal Cases, 45 N.Y.U.L. REV. 785, 785-93 (1970) (trial judges' tendency to accept police version of facts); John Kaplan, The limits of the Exclusionary Rule, 26 STAN. L. REV. 1027, 1045 (1974) (lower court judiciary has not been trustworthy in applying search law standards); Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution Oriented?) and Police Investigatory Practices, in V. BLASI, THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN'T 82 n.122 (1983) (“Most front-line courts limit application of the exclusionary rule to willful police illegality; official adoption of good-faith exception would reduce the actual operation of the rule to the vanishing point).
Numerous critics of the exclusionary rule have also contended that trial judges tend to bend search rules to admit incriminating evidence. See, e.g., Gerald G.Ashdown, Good Faith, the Exclusionary Remedy, and Rule-Oriented Adjudication in the Criminal Process, 24 WM. & MARY L. REV. 335, 383-84 (1983) (Judges would take a “more expansive view of Fourth Amendment rights” if there was a good-faith exception because suppression could still “be avoided”); William A. Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 GEO L. J. 1361, 1412 (1981); Fredrick A. Bernardi, The Exclusionary Rule: Is a Good Faith Standard Needed to Preserve a Liberal Interpretation of the Fourth Amendment?, 30 DEPAUL L. REV. 51 (1981); Wilkey, A Call for Alternatives to the Exclusionary Rule: Let Congress and the Trial Courts Speak, 62 JUDICATURE 351, 356 (1979) (“Time and time again, . . . trial judges are blatantly hypocritical in construing [search standards] because . . . the illogical penalty of exclusion is damaging to the cause of justice.”); Philip S. Coe, The ALI Substantiality Test: A Flexible Approach to the Exclusionary Sanction, 10 GA. L. REV. 1, 30 n.190 (1975); Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 747 (1970). See also Amicus Brief of the United States in Illinois v. Gates at 55 (There is an “obvious reluctance of judges to condemn questionable practices under the Fourth Amendment when they know that the result of their decision will be the freeing of a guilty defendant”); Brief of the United States in United States v. Leon at 76 (same).
See also Leon, 468 U.S. 897, 925 n.26 (1984) (arguing that a good-faith exception “will make it less tempting for judges to bend Fourth Amendment standards”); Allen v. McCurry, 449 U.S. 90, 115 (1980) (Blackmun, J., dissenting) (“A trial court faced with the decision whether to exclude relevant evidence, confronts institutional pressures that may cause it to give a different shape to the Fourth Amendment right from what would result in civil litigation of a damages claim [because] a trial court, at least subconsciously, must weigh the potential damages to the truth-seeking process caused by excluding relevant evidence.”).
See Rob Warden, The Heater Case Judges, THE CHI. LAWYER, Mar. 1987, at 1, 22-26. There is evidence that the State's Attorneys office decides which cases are designated heaters. Id.
Defenders of the system argue that the heater judges are designated, not upon the willingness to convict but rather “on the basis of their special skills and temperament.” Id. However, as of March 1987, three of the ten heater case judges were found to be not qualified by the Chicago Council of Lawyers. One of the heater case judges was the only judge in Cook County found not qualified by the Chicago Bar Association. Id. Further, the heater judges categorically sentence more harshly than other judges, with two of the heater case judges responsible for imposing more death sentences than the next eight “runners up” combined. Id.
In the end, when cases are assigned to judges more willing to convict, it is likely that the procedural rights of a defendant charged with a serious crime — already diluted by public pressure — are placed in even greater jeopardy.
The case of People v. Wilson, 506 N.E.2d 571 (Ill. 1987), provides an example of what can happen to a defendant's procedural rights in a particularly “hot” heater case. In Wilson, the defendant was accused of killing a police officer. At the time of arrest, 5:15 a.m., February 14, 1982, the defendant was wearing only trousers. With the exception of an injury to his eye that occurred during the arrest, arresting officers observed no physical injuries.
At 10:50 p.m., after signing a confession, Wilson was transported to a local hospital for treatment. The examining doctor made note of 15 separate, recent injuries to the defendant's head, chest, and right leg, two cuts on the defendant's forehead and one cut on the back of his head which required stitches. The defendant's right eye had been blackened and there was bleeding on the surface of the eye. The doctor also observed bruises on the defendant's chest and several linear abrasions or burns on his chest, shoulder and chin, which were later found to be consistent with the pattern of the radiator in the police interrogation room. Id. at 573-74. The defendant testified that he had been “punched, kicked, smothered with a plastic bag, electrically shocked and forced against a hot radiator throughout the day until he gave a confession.” There was testimony from other prisoners who heard defendant's screams during the interrogation. The examining doctor further testified that police accompanying Wilson forced him to refuse treatment.
Wilson's lawyers brought a motion to suppress arguing that his confession was coerced. The trial judge, John J. Crowley, concluded that the defendant's statement was voluntary, essentially adopting the state's position.
Following the court's denial of Wilson's motion to suppress, Wilson was tried, found guilty, and sentenced to death. The Illinois Supreme Court reversed, declaring that the state had not met its burden of demonstrating that the defendant's physical injuries were not inflicted as a means of coercing his confession. Upon retrial, Wilson was sentenced to life imprisonment without possibility of parole. People v. Wilson, 515 N.E.2d 812 (Ill. Ct. App. 1987), cert denied, 522 N.E.2d 1255 (Ill. 1988).
See App., question 10 (28/41 respondents: 6/13 judges, 13/14 public defenders, 9/14 state' attorneys).
Id. (11/41 respondents: 6/13 judges, 1/14 public defenders, 4/14 state's attorneys).
Id. (1/13 judges).
See supra section IIIA2.
See App., question 40 (29/39 respondents: 8/12 judges, 12/13 public defenders, 9/14 state's attorneys).
Id. (7/39 respondents: 3/12 judges, 4/14 state's attorneys).
Id. (1/12 judges).
See App., question 54 (25/40 respondents: 6/12 judges, 13/14 public defenders, 6/14 state's attorneys).
Id.
See App., question 55(32/39 respondents: 9/11 judges, 14/14 public defenders, 9/14 states's attorneys). One state's attorney looked at me, smiled sarcastically and said, “no I don't believe it happens, but I'm idealistic.”
See App., question 56 (24/36 respondents: 6/9 judges, 11/13 public defenders, 7/14 state's attorneys).
See Davies, supra note 185.
See App., question 27 (24/38 respondents: 7/10 judges, 8/14 public defenders, 9/14 state's attorneys). Respondents could choose more than one response.
Id. (21/38 respondents: 4/10 judges, 10/14 public defenders, 7/14 state's attorneys).
Id. (16/38 respondents: 4/10 judges, 8/14 public defenders, 4/14 state's attorneys).
Id. (11/38 respondents: 1/10 judges, 6/14 public defenders, 4/14 state's attorneys).
Id. (4/38 respondents: 0/10 judges, 2/14 public defenders, 2/14 state's attorneys).
See App., question 52 (18/32 respondents: 1/5 judges, 7/14 public defenders, 10/13 state's attorneys).
See App., question 55a.
Id. (28/40 respondents: 6/12 judges, 13/14 public defenders, 9/14 state's attorneys). Alternatively, the respondents may be pointing to the institutional focus on the defendant's guilt. See Packer, supra note 1.
Suppression motions in such cases are very rarely made or granted. See Nardulli, supra note 5.
See App., question 55a (24/40 respondents: 6/12 judges, 12/14 public defenders, 6/14 state's attorneys).
See United States v. Leon, 468 U.S. 897, 908 (1984) ( “Indiscriminate application of the exclusionary rule . . . may well ‘generat[e] disrespect for the law and the administration of justice.”’).
“Greylord” was the code-name of a massive FBI investigation of corruption in the Cook County courts.
One of the Narcotics Section officers had termed this a “motion to fix.” See Orfield, supra note 7, at 1045.
See App., question 55a (19/40 respondents: 5/12 judges, 9/14 public defenders, 5/14 state's attorneys).
Many respondents noted the public ire directed toward former Judge Passarella, who was not retained after he dismissed charges against a professional wrestler who had beaten up a female police officer.
See App., question 55a (8/40 respondents: 1/12 judges, 5/14 public defenders, 2/14 state's attorneys). On the contrary, State's Attorney 2 noted that the lobby of the defense bar was more powerful than any group supporting the prosecution. He stated, “Prosecutors quit over the years and become defense attorneys. If a judge really wants to remain popular with this group, he should be sure to grant motions to suppress in small cases.” State's Attorney 2, however, carefully noted that the defense bar did not complain if judges failed to suppress evidence in serious cases involving illegal searches. “They understand the judge can't do that,” he explained. Others noted that a judge could also remain popular with the defense bar by giving “sweetheart deals” when the defendant plead guilty.
Many of the judges did note that their willingness to grant continuances was affected by a local lobbying group, called the Chicago Crime Commission, which sent “court watchers” into court to keep track of the number of continuances that judges granted in criminal trials.
Id. (3/40 respondents: 0/12 judges, 2/14 public defenders, 1/14 state's attorneys).
See App., question 57 (20/38 respondents: 8/11 judges, 10/14 public defenders, 2/13 state's attorneys). A great number of respondents expressed horror at the idea of the present judges of the Criminal Division of the Circuit Court being appointed for life. They asserted that they could only endorse the idea of insulation and/or longer terms if the quality of the local judiciary substantially improved.
See App., question 73.
See App., question 76 (5/13 responding).
6/13 judges, 2/14 public defenders, 5/14 state's attorneys. Many believed that actions under 42 U.S.C. § 1983 (1988) were instrumental in this change as well.
See App., question 74 in App., (23/27 respondents: 9/10 judges, 6/9 public defenders, 8/8 state's attorneys).
See App., question 75 (21/25 respondents: 10/10 judges, 7/9 public defenders, 4/6 state's attorneys).
While boiler-plate reliable informant warrants are problematic in terms of Fourth Amendment progress, there are other types of warrants which do not have these problems. Moreover, the time and effort involved in securing even a boiler-plate warrant may arguably deter some unconstitutional searches.
See DONALD HOROWITZ, THE COURTS AND SOCIAL POLICY (1977); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
See App., questions 77, 78.
See App., question 78b (28/31 respondents: 13/13 judges, 7/8 public defenders, 8/10 state's attorneys).
See App., question 79 (39/41 respondents: 13/13 judges, 12/14 public defenders, 14/14 state's attorneys).
See Oaks, supra note 185; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Burger, C.J., dissenting).
See App., question 80c (27/40 respondents: 7/13 judges, 11/14 public defenders, 9/13 state's attorneys).
Id. (5/39 respondents: 3/13 judges, 1/14 public defenders, 1/13 state's attorneys). One judge thought there should be additional training. One judge stated that “better judges might help.”
See App., question 67 (38/41 respondents: 12/13 judges, 14/14 public defenders, 12/14 state's attorneys). Most respondents also believed that a tort system would be a less effective deterrent.
See App., question 64.
See also Orfield, supra note 7, at 1055.
Id. at 1053.
See App., question 82 (22/37 respondents: 10/12 judges, 7/12 public defenders, 5/13 state's attorneys).
On the other hand, 39 percent of respondents did not believe the exclusionary rule helped build better cases. Many noted that while the rule might cause better preparation, without it, any evidence would be admissible, making convictions easier to obtain. Id.
Orfield, supra note 7, at 1053.
See App., question 84 (28/37 respondents: 9/10 judges, 12/14 public defenders, 7/13 state's attorneys).
Id. (5/37 respondents: 0/10 judges, 1/14 public defenders, 4/13 state's attorneys).
Id. (4/37 respondents: 1/10 judges, 1/14 public defenders, 2/13 state's attorneys).
See App., question 83 (26/38 respondents: 7/10 judges, 11/14 public defenders, 8/14 state's attorneys).
Id. (8/38 respondents: 2/10 judges, 3/14 public defenders, 3/14 state's attorneys).
Id. (4/38 respondents: 1/10 judges, 0/14 public defenders, 3/14 state's attorneys).
See also Nardulli, supra note 5.
But see id. (noting that most cases involving a victim are not affected by the exclusionary rule).
See App., question 86 (26/39 respondents: 9/11 judges, 5/14 public defenders, 12/14 state's attorneys.
Id. (12/38 respondents: 2/11 judges, 8/13 public defenders, 2/14 state's attorneys).
Orfield, supra note 7, at 1051.
46 percent. See App., question 85 (19/41 respondents: 6/13 judges, 5/14 public defenders, 8/14 state's attorneys).
27 percent. Id. (11/41 respondents: 2/13 judges, 9/14 public defenders, 0/14 state's attorneys).
See supra section IIC2a.
15 percent. See App., question 85 (6/41 respondents: 4/13 judges, 0/14 public defenders, 2/14 state's attorneys).
12 percent. Id. (5/41 respondents: 1/13 judges, 0/14 public defenders, 4/14 state's attorneys).
See App., question 87 (30/41 respondents: 8/13 judges, 14/14 public defenders, 8/14 state's attorneys).
Id. (24/41 respondents: 7/13 judges, 13/14 public defenders, 4/14 state's attorneys).
430 U.S. 387 (1977) (case in which the Sixth Amendment exclusionary rule protected the rights of an admitted child murderer who was nevertheless subsequently convicted).
See App., question 87 (10/41 respondents: 4/13 judges, 0/14 public defenders, 6/14 state's attorneys).
Even if the critics of the exclusionary rule could produce some evidence that the law is too restrictive of police activity, the logical response would be to loosen the judicially interpreted requirements of the Fourth Amendment itself, not to weaken or eliminate the exclusionary remedy.
See generally, ALFRED BLUMSTEIN ET AL., NATIONAL RESOURCE COUNCIL, DETERRENCE AND INCAPACITATION: ESTIMATING THE EFFECTS OF CRIMINAL SENTENCES ON CRIME RATES (1978); FRANKLIN ZIMRING & GORDON HAWKINS, DETERRENCE; THE LEGAL THREAT IN CRIME CONTROL (1973).
*133 APPENDIX
ORFIELD EXCLUSIONARY RULE STUDY QUESTIONNAIRE
(and tabulated results)
THE UNIVERSITY OF CHICAGO LAW SCHOOL
The Center for Studies in Criminal Justice
Subject: Search and Seizure
Fall 1988
DATE: ___________
TIME: ___________
LOCATION: ___________
QUESTIONNAIRE NUMBER ___________
I. Introduction
My name is Myron Orfield. I am a researcher from the University of Chicago Law School.
I would like to ask you some questions about the law of search and seizure both in terms of its effect on your work as a ___________ and in terms of its effect on police work.
These interviews have been arranged through the assistance and cooperation of ___________.
Every ___________ interviewed will be given complete anonymity. The answers given will not be linked in any way to the ____ and no one in ___________ office will have access to your responses. I very much appreciate your willingness to talk to me.
II. Terms
1. The Small Case — The small case category includes relatively minor crimes. The small case generally involves a street stop or other unplanned search. In these cases, the objective of the search may be to obtain a criminal conviction, or, alternatively, simply to deprive the suspect of contraband in her possession.
2. The Big Case — The big case category includes more serious crimes. In a big case, the search has generally been planned in advance by the officer, sometimes in consultation with his peers and/or superiors. In these cases, the objective of the search is to obtain a criminal conviction.
III. Personal History
1. Sex
Judges - 100% Male
Public Defenders - 21% Female
State's Attorneys - 28% Female (Original sample 34%)
2. Age
Judges - 56
Public Defenders - 37
State's Attorneys - 34
3. What year did you graduate from law school?
Judges - 1957
Public Defenders - 1978
State's Attorneys - 1975
*134 4. How long have you been a ___________?
Judges - 10.7 years
Public Defenders - 8.5 years
State's Attorneys - 5.5 years
5. What assignments have you had while working as a ___________?
6. What is your present assignment?
7. What did you do before you were a ________, i.e. since law school.
Judges
8 (62%) Some experience as a prosecutor.
5 (38%) Assistant State's Attorney.
1 (8%) Assistant U.S. Attorney.
1 (8%) Town Attorney.
1 (8%) County Attorney.
2 (15%) Exclusive criminal defense practice.
9 (70%) Some experience in private criminal defense.
8 (62%) Some experience in civil private practice.
Public Defenders
2 (14%) Some experience in private criminal defense.
1 (8%) Some experience in civil private practice.
1 (8%) Prior experience as police officer.
State's Attorney
1 (8%) Some experience in civil private practice.
1 (8%) Previously public defender.
1 (8%) Prior experience as a police officer.
IV. Personal Experience with the Exclusionary Rule
8. Could you estimate the number of motions to suppress you have made, defended against, or decided in the last 12 months?
Judges 54 (Strong groupings around 75-100 and 12-20).
Public Defenders 14 (Strong grouping 15-25).
State's Attorneys 56 (Groupings 50-70-100, 2-25).
8a. What percentage of these motions to suppress were successful?
Judges 24%; Public Defenders 19%; State's Attorneys 16%
9. Could you describe the last three motions to suppress?
9a. The last three successful motions?
10. In what type of case is evidence most likely to be suppressed?
a. A big case
Judges 1 (8%) Public Defenders 0 State's Attorneys 0
b. A small case
J 6 (46%) PD 13 (93%) SA 9 (64%)
c. No difference or same
J 6 (46%) PD 1 (7%) SA 4 (29%)
d. Other
J 0 PD 0 SA 1 (7%)
11. Is evidence recovered pursuant to a warrant less likely to be suppressed than evidence recovered in a warrantless search?
Judges - 10 Yes (83%); 1 Probably (8%); 1 No (8%); 1 No answer
Public Defenders - 13 Yes (93%); 1 No (7%)
State's Attorneys - 12 Yes (86%); 1 Probably (8%); 1 Yes/No (8%)
11a. Explain.
12. If evidence in small cases is more likely to be suppressed, why?
*135 V. Deterrence and the Exclusionary Rule
13. When evidence is suppressed in one of their cases, how often do police officers find out about it?
a. Every time that it is suppressed
Judges 8 (72%/k) Public Defenders 7 (54%/k) State's Attorneys 7 (50%)
b. Almost every time (90% plus)
J 3 (27%/k) PD 5 (38%/k) SA 6 (43%)
c. Most of the time (between 65%-90%)
PD 1 (8%/k) SA 1(7%)
d. More than half the time (50%-65%)
e. Something less than half of the time (35%-20%)
f. In some of the cases (10%-35%)
g. Almost never (10% or below)
h. Never
i. Don't know
J 2 (15%) PD 1 (7%)
13a. In what sort of cases do police officers not find out that evidence was suppressed?
14. How often do police officers understand the legal reasons why evidence was suppressed in one of their cases?
a. Every time that it is suppressed
Judges 3 (30%/k) Public Defenders 1 (7%) State's Attorneys 1 (7%)
b. Almost every time (90% plus)
J 2 (20%/k) PD 6 (43%) SA 5 (36%)
c. Most of the time (between 65%-90%)
J 3 (30%) PD 5 (36%) SA 5 (36%)
d. More than half the time (50%-65%)
J 1 (10%/k) PD 2 (14%) SA 1 (7%)
e. Something less than half of the time (35%-20%)
f. In some of the cases (10%-35%)
g. Almost never (10% or below)
h. Never
i. Other SA 2 (14%) Dectectives can, patrol officers can't.
j. Don't know J-4 (31%)
14a. In what sort of cases do police officers not understand why evidence was suppressed?
14b. How well do police officers understand the law of search and seizure in general?
14c. Do they understand the law well enough to do their jobs?
Judges - 11 Yes (91%); 1 No (9%); 1 No answer
Public Defenders - 12 Yes (86%); 1 Yes/specialized officers (7%); 1 No/beat (7%) (90%) of officers)
State's Attorneys - 13 Yes (93%); 1 Yes/specialized (7%); 0 No/beat; 0 tact
15. If a police officer has evidence suppressed in a big case, does the suppression of evidence cause the officer to change his search and seizure behavior in terms of
a. future big cases involving similar factual circumstances?
Judges - 5 Yes (71%/k); 2 No (29%/k); 5 Don't know (42%); 1 No answer
*136 Public Defenders - 9 Yes (69%/k); 1 Thinks yes (8%/k) ___ (77%/k); 2 No (15%/k); 1 Thinks no (8%/k) ___ (23%/k); 1 Don't Know (7%)
State's Attorneys - 9 Yes (75%/k); 1 Thinks yes (8%/k) ___ (83%/k); 2 No (17%/k); 2 Don't Know (14%)
b. future big cases which do not necessarily involve similar factual circumstances?
Judges - 5 Yes (71%/k); 2 No (29%/k); 5 Don't know (42%); 1 No answer
Public Defender - 8 Yes (62%/k); 2 Think yes (15%/k) ___ (77%/k); 2 No (15%/k); 1 Thinks no (8%/k) ___ (23%/k); 1 Don't Know (7%)
State's Attorneys - 8 Yes (73%/k); 3 No (27%/k); 2 Don't know (21%); 1 No answer
c. all other searches, generally?
Judges - 3 Yes (42%/k); 4 No (57%/k); 5 Don't Know (42%); 1 No answer
Public Defenders - 7 Yes (54%/k); 2 Think yes (15%/k) ___ (70%/k); 3 No (23%/k); 1 Thinks no (8%/k)—(31%/k); 1 Don't know (7%)
State's Attorney's - 5 Yes (50%/k); 5 No (50%/k); 2 Don't know (21%); 2 No answer
15a. Explain.
16. In a small case, how often does the suppression of evidence cause police officers to change their search and seizure behavior with regard to
a. similar searches in the future?
Judges - 1 Yes; 1 Yes (50% of time) (29%/k); 5 No (71%/k); 5 Don't know (42%); 1 No answer
Public Defenders - 4 Yes (29%); 8 No (57%); 2 Think no (14%) ___ (71%)
State's Attorneys - 3 Yes (23%/k); 5 Rarely (38%/k); 4 No (31%/k); 1 Thinks no (8%/k)—(38%/k); 1 Don't know (7)
b. all other searches, generally?
Judges - 1 Yes (17%/k); 5 No (83%/k); 5 Don't know (42%) 2 No answer
Public Defenders - 4 Yes (29%); 8 No (57%); 2 Think no (14%)—(71%)
State's Attorneys - 2 Yes (18%/k); 1 Probably (9%/k); 1 Thinks yes (9%/k)—(36%/k); 1 Not much effect (9%/k); 6 No (55%/k)—(64%/k); 2 No answer; 1 Don't know (8%)
16a. Explain.
17. When evidence is suppressed in a big case, is the experience of suppression likely to cause police officers in the future to change their testimony in court rather than their search and seizure behavior?
Judges - 9 Yes (90%/k); 1 Thinks yes (10%/k); 3 Don't know (23%)
Public Defenders - 14 Yes (100%)
State's Attorneys - 6 Yes (46%/k); 6 No (46%/k); 1 Not that I know of (8%/k); 1 Don't know (7%)
*137 17a. Are police officers
a. far more likely to change their testimony rather than their behavior?
J 2 (25%/k); PD 4 (29%); SA 1 (8%/k)
a2. (between a and b)
PD 1 (7%)
b. slightly more likely to change their testimony?
J 2 (25%/k) PD 6 (43%)
c. about equally likely to change their testimony or their behavior?
PD 1 (7%) SA 1 (8%/k)
d. slightly more likely to change their behavior?
J 3 (38%/k) PD 1 (7%) SA 3 (43%/k)
e. far more likely to change their behavior?
J 1 (13%/k) PD 1 (7%) SA 2 (15%)
f. Don't know
J 3 (23%) SA 1 (7%)
g. No answer
J 2 SA 6
In terms of big cases,
50% of J's who can answer believe that the police are more likely to lie than change their behavior;
86% of PD's believe the police are equally likely or more likely to lie than change their behavior;
15% of SA's believe the police are equally likely or more likely to lie than change their behavior.
17b. Explain.
18. When evidence is suppressed in a small case, is the experience of suppression likely to cause police officers in the future to change their testimony in court rather than their search and seizure behavior?
Judges - 8 Yes (89%/k); 1 No (11%/k); 3 Don't know (23%); 1 No answer
Public Defenders - 14 Yes (100%)
States Attorneys - 3 Yes (23%/k); 7 No (54%/k); 1 Not that I know of (8%/k); 2 Neither (15%/k); 1 Don't know (7%)
18a. Are police officers
a. far more likely to change their testimony rather than their behavior?
J 3 (38%/k) PD 6 (43%) SA 2 (15%/k)
b. slightly more likely to change their testimony?
J 3 (38%/k) PD 6 (43%) SA 1 (7%/k)
c. about equally likely to change their testimony or their behavior?
PD 1 (8%)
d. slightly more likely to change their behavior?
e. far more likely to change their behavior?
J 1 (13%/k) PD 1 (7%) SA 1 (8%/k)
f. Don't know
J 3 (23%) SA 1 (7%)
g. No answer
J 2
h. Can't answer
J 1 SA 9
18b. Explain.
*138 19. If the suppression of evidence does not cause the police to change their search and seizure behavior, it is because:
a. Police officers do not understand the law of search and seizure.
Judges 1 (9%/k) Public Defenders 4 (29%) State's Attorneys 3 (23%/k)
b. Police officers understand the law of search and seizure, but generally choose not to observe it.
J 2 (18%/k) PD 5 (36%) SA 2 (15%/k)
c. Police officers can fabricate evidence in terms of the probable cause underlying the search and thus avoid observing the requirements of the Fourth Amendment.
J 7 (64%/k) PD 12 (86%) SA 1 (8%/k)
d. The search involves a small case, and the officer believes that depriving the suspect of the evidence is worth the risk of having the evidence suppressed.
J 6 (54%/k) PD 10 (71%) SA 7 (54%/k)
e. The search is unplanned, and the officer simply acts rather than thinking about the law of search and seizure.
J 6 (54%/k) PD 7 (50%) SA 12 (92%/k)
f. Officers understand that in most cases they can disobey the law and that judges will find a way to avoid suppressing the evidence.
J 2 (18%/k) PD 6 (43%)
g. Officers understand that in most cases they can make illegal searches and will not be subject to disciplinary action by the police department or the courts.
J 4 (36%/k) PD 11 (79%) SA 2 (15%/k)
h. Other (explain)
SA - 1 Changes behavior (8%/k)
i. Don't know
J 1 (8%) SA 1 (7%)
j. No answer
J 1 (8%)
19a. Explain.
20. Is the suppression of evidence an effective way for police officers to learn about the law of search and seizure?
Judges - 9 Yes (70%); 4 No (30%)
Public Defenders - 14 Yes (100%)
State's Attorneys - 8 Yes (57%); 1 Can be (7%)—(64%); 5 No (36%)
20a. Explain.
20b. Is it a more or less effective way to learn about the law of search and seizure than training?
Judges - 5 More (42%/k); 1 Same (8%/k); 4 Less (33%/k); 1 Know already (8%/k); 1 Important part of the process (8%/k); 1 No answer (8%)
Public Defenders - 11 More (79%); 2 Less (14%); 1 Different (7%)
State's Attorneys - 1 More (7%/k); 2 Same (15%/k); 2 Important part of the process (15%/k); 7 Less, 1 Hope less (62%/k); 1 Don't know (7%)
20c. What type of lessons do they learn?
*139 VI. Punishment and the Suppression of Evidence
A. The Loss of a Case
21. In a big case, when evidence has been suppressed and the case is lost for this reason, is the police officer who made the allegedly improper search likely to be
a. angry?
Judges 9 (75%/k) Public Defenders 11 (79%) State's Attorneys 9 (70%/k)
b. frustrated?
J 6 (50%/k) PD 11 (79%) SA 10 (77%/k)
c. humiliated?
J 5 (42%/k) PD 3 (21%) SA 5 (38%/k)
d. disappointed?
J 8 (67%/k) PD 9 (64%) SA 8 (62%/k)
e. Other?
PD - 1 “rueful” (8%/k)
f. Don't know
J 1 SA 1
21a. Explain.
21b. What if the case is not lost, but only weakened?
Judges - 2 Same responses but “less;” 2 Same responses; 1 “Too rare an occurrence;” 2 - a; 1 - b; 5 No answer.
Public Defenders - 7 Same; 1 Nothing; 2 - b; 1 - c; 1 -d; 2 No answer.
State's Attorneys - 5 Same; 2 Same/less; 1 Not so bad if guilty; 1 - a; 1 - b; 1 - d; 1 Bewildered; 1 Don't know; 1 No answer.
22. In a small case, when evidence has been suppressed and the case is lost for this reason, is the police officer who made the allegedly improper search
a. angry?
Judges 6 (55%/k) Public Defenders 4 (29%) State's Attorneys 4 (31%/k)
b. frustrated?
J 5 (45%/k) PD 3 (21%) SA 5 (38%/k)
c. humiliated?
J 4 (36%/k) PD 1 (7%) SA 2 (15%/k)
d. disappointed?
J 7 (64%/k) PD 9 (64%/k) SA 6 (46%/k)
e. Other?
“not care” J 2 (18%/k) PD 2 (14%) SA 5 (38%/k)
f. Don't know
J 2 SA 1
22a. Explain.
23. Is the experience of suppression in a big case punitive to the officer in any respect?
Judges - 3 Yes (27%/k); 2 Can be (18%/k) — (45%/k); 6 No (55%/k); 1 Don't know; 1 No answer.
Public Defenders - 6 Yes (67%/k); 2 Can be (22%/k) — (89%/k); 1 No (11%/k); 5 Don't know.
State's Attorneys - 1 Yes, if specialized units (8%/k); 2 Yes, sometimes (17%/k) — (25%/k); 9 No (75%/k); 2 Don't know.
*140 23a. What about in a small case?
Judges - 1 Can be (9%/k); 9 No (82%/k); 1 They know more in a small case (9%/k); 1 Don't know; 1 No answer.
Public Defenders - 3 Yes (27%/k); 1 Can be (9%/k) — (36%/k); 6 No (55%/ k); 1 Thinks no (9%/k) — (64%/k); 3 Don't know.
State's Attorneys - 10 No (100%); 2 Don't know; 2 No answer
B. Defense Attorneys, Judges and the Suppression Hearing
24. Would you characterize the examination of police officers by defense attorneys at a suppression hearing as more likely to be
a. business-like and professional?
Judges 9 (70%) Public Defenders 8 (57%) State's Attorneys 6 (43%)
b. hostile?
J 2 (15%) PD 1 (7%) SA 4 (29%)
c. Both
J 2 (15%) — (31%)
PD 5 (36%) — (43%)
SA 4 (29%) — (57%) hostility important
24a. How would you characterize your cross-examination of police officers?
25. At a suppression hearing do defense attorneys sometimes attempt
a. to discredit the honesty and/or the integrity of the police officer?
Judges 12 (92%) Public Defenders 12 (86%) State's Attorneys 14 (100%)
b. to show that the police officer was incompetent or sloppy?
J 9 (70%) PD 13 (93%) SA 13 (93%)
c. to show that the officer was “power-hungry” and abusive?
J 5 (38%) PD 9 (64%) SA 7 (50%)
d. Other?
25a. How frequently do defense attorneys do these things?
Judges - 2 a, b, c every time; 4 a, b every time — b every time (55%/k); 2 a every time — a every time (73%/k); 1 a most times; 1 a frequently — a frequently (90%/k); 1 a, b, c Depends; 2 No answer
Public Defenders - 4 a, b every time — b every time (55%/k); 2 a every time — a every time (73%/k); 1 a most times; 1 a frequently —a frequently (90%/k); 1 a, b, c Depends; 2 No answer
Public Defender - 1 a, b, c every time 1c/every time (8%/k); 1 a every time 2a/every time (17%/k) b, c sometimes; 1 b every time 2b/every time (17%/k); 3 a, b, c most times 2c/most times (17%/k)—(90%); 1 a, b most times; 1 a most times 5a/ most times (42%/k); 4 b/most times (33%/k); 1 a, b, c often; 1 b frequently 5b/frequently (42%/k); 1 a, b, c sometimes 6a/ sometimes (50%/k); 5b/sometimes (42%/k)) 3c/sometimes (25%/k); 1 a, b, c infrequently 7a/infrequently (58%/k) 6b/sometimes (50%/k); 4c/sometimes (33%/k); 2 No answer
State's Attorneys - 1 a, b, c every time; 2 a, b every time; 2 a, b every time c sometimes; 1 a every time b infrequently; 1 a, b, c most times; 1 a, b most times; 1 a or b most times; 1 a, b, c regularly; 1 a quite often; 1 a, b, c sometimes; 1 a, b sometimes; 1 a sometimes, b most times
State's Attorneys - a/every time 6 (43%); a/quite often 11 (79%); a/most times 9 (64%); a/sometimes 14 (100%); b/every time 5 (36%); b/most times 9 (64%); b/regularly 10 (71%); b/sometimes 12 (86%); c/every time 1 (7%); c/most times 2 (14%); c/regularly 3 (21%); c/sometimes 5 (36%)
*141 25b. What about you?
26. In these cases, would you characterize the examination of police officers by defense attorneys at a suppression hearing as
a. unoffensive to the police officer?
Judges 2 (15%) Public Defenders 2 (14%) State's Attorneys 3 (21%)
a2. between a and b
SA 1 (7%) PD 1 (7%)
b. mildly offensive to the police officer?
J 5 (38%) PD 9 (64%) SA 7 (50%)
b2. between b and c
SA 1 (7%)
c. offensive to the police officer?
J 3 (23%) PD 1 (7%)
d. extremely offensive to the police officer?
SA 1 (7%)
e. Other?
J 1 a, b, c, d; 1 depends; 1 a, d
PD 1 depends
SA 1 a, d
26a. Explain.
27. How does a judge treat an officer when he suppresses evidence in a big case?
27a. Does he
a. commend the officer's aggressive police work, but say his hands were tied by the law?
Judges 4 (40%/k) Public Defenders 8 (62%) State's Attorneys 4 (29%)
b. make sure that the officer knows why the evidence was suppressed?
J 4 (40%/k) PD 10 (71%) SA 7 (50%)
c. attempt to change the officer's behavior in the future?
J 0 PD 2 (14%) SA 2 (14%)
d. express his disapproval of the search in any sense to the officer?
J 1 (10%) PD 6 (43%) SA 4 (29%)
e. simply suppress the evidence and go on to the next case?
J 7 (70%) PD 8 (57%) SA 9 (64%)
f. Other (explain)
(SA 1 (7%)
g. Don't know
J 3
27b. Which of the above is most likely?
Judges - 2 b; 4 e; 7 No answer
Public Defenders - 1 a; 2 a,b; 1 b; 3 e; 7 No answer
States Attorneys - 1 a; 1 b; 1 b,c; 4 e; 7 No answer
27c. How does he treat the officer in a small case?
Judges - 6 Same; 2 e; 4 No answer; 1 Don't know
Public Defenders - 8 Same; 1 a; 1 a, b: 1 d; 1 Never happens; 1 e; 1 No answer
State's Attorneys - 10 Same; 1 e; 3 No answer
*142 27d. What about you (or your judge)?
a. commend the officer's aggressive police work, but say his hands were tied by the law?
J 4 (31%)
b. make sure that the officer knows why the evidence was suppressed?
J 4 (31%)
c. attempt to change the officer's behavior in the future?
J 1 (8%)
d. express his disapproval of the search in any sense to the officer?
J 2 (15%)
e. simply suppress the evidence and go on to the next case?
J 7 (54%)
f. Other (explain)
28. Is the treatment by judges of police officers when they suppress evidence in a big case punitive to the officer in any respect?
Judges - 2 Yes (17%/k); 1 Sometimes (8%/k); 1 If blatant (8%/k); 7 No (58%/k); 1 Not here (8%/k); 1 Don't know (8%)
Public Defenders - 3 Yes (27%/k); 1 Rarely (9%/k); 6 No (55%/k); 1 Think no (9%/k); 3 Don't know (21%)
State's Attorney - 1 Yes (8%/k); 1 Sometimes (8%/k); 11 No (85%/k); 1 Don't know (7%)
28a. How?
28b. What about in a small case?
Judges - 1 Yes (9%/k); 1 If blatant (9%/k); 7 No (64%/k); 1 Probably no (9%/k); 1 Not here (9%/k); Don't know (8%); 1 No answer
Public Defenders - 1 Less so (13%/k); 4 No (50%/k); 1 Think not (13%/k); 2 Probably no (25%/k); 3 Don't know (30%/a); 3 No answer (21%)
State's Attorneys - 1 Yes (less) (8%/k); 10 No (83%/k); 1 Probably no (8%/k); 1 Don't know (8%); 1 No answer (7%)
29. Apart from the loss of evidence, is there anything about the suppression hearing (i.e., the cross-examination by the defense attorney, and/or the treatment the officer receives from the judge, etc.), which would, by itself, in any sense, discourage police from conducting unlawful searches and seizures?
Judges - 5 Yes; 1 Could be; 4 No; 2 Think no; 1 No answer
Public Defenders - 3 Yes; 1 Yes/sometimes; 10 No
State's Attorney's - 3 Yes; 1 Maybe; 9 No; 1 Don't know
29a. Explain.
C. Institutional Punishment
30. Are the superiors of police officers likely to know when evidence has been suppressed in a big case?
Judges - 6 Yes (86%/k); 1 Think no (14%/k); 5 Don't Know (50%); 1 No answer
Public Defenders - 5 Yes (83%/k); 1 Think yes (17%/k); 8 Don't Know (57%)
State's Attorneys - 6 Yes (86%/k); 1 Possibly (14%/k); 7 Don't know (50%)
30a. How frequently?
30b. What about in a small case?
Judges - 1 Yes (20%/k); 1 Less than big case (20%/k); 2 No (40%/k); 1 Think no (20%/k); 7 Don't know (54%); 1 No answer
*143 Public Defenders - 1 Yes (14%/k); 1 Less (14%/k); 3 No (43%/k); 2 Think no (28%/k); 7 Don't know (50%)
State's Attorneys - 1 Yes (14%/k); 1 Less likely than in big cases (14%/k); 3 No (43%/k); 2 Think no (29%/k); 7 Don't know (50%)
31. When a police officer loses evidence in a series of big cases, are the superiors of police officers likely to punish or discipline the officer (formally or informally) in any respect?
Judges - 2 Yes (40%/k); 2 No (40%/k); 1 Think no (20%/k); 7 Don't know (54%); 1 No answer
Public Defenders - 3 Yes (60%/k); 1 Maybe (20%/k); 1 Think no (20%/K); 9 Don't Know (64%)
State's Attorneys - 3 Yes (38%/k); 1 Depends on why it is lost (13%/k); 3 No (38%/k); 1 Thinks no (13%/k); 6 Don't know (43%)
31a. How many cases would have to be lost?
31b. What form would the punishment or discipline take?
31c. What about in a small case?
Judges - 1 Yes, in the suburbs, no in Chicago because of the volume of cases (14%/k); 2 Less than big case (29%/k); 1 If guns or important evidence (14%/k); 2 No (29%/k); 1 Think no (14%/k); 5 Don't know (38%); 1 No answer
Public Defenders - 1 Yes (20%/k); 1 Sometimes (20%/k); 1 Less (20%/k); 1 Depends (20%/k); 1 No (20%/k); 9 Don't know (64%)
State's Attorneys - 2 Yes (25%/k); 1 Depends (13%/k); 5 No (63%/k); 6 Don't know (57%)
32. Have you ever known of a situation in which a police officer was disciplined by the police department in any way (formally or informally) for conducting an improper search or seizing evidence improperly?
Judges - 12 No (100%/k); 1 No answer
Public Defenders - 2 Yes (14%); 12 No (86%)
State's Attorneys - 2 Yes (15%/k); 11 No (85%/k); 1 No answer
32a. Explain.
33. When evidence is suppressed in a big case, are the superiors of police officers likely to review the case with the officer in order to assure that such a mistake will not recur?
Judges - 3 Yes (60%/k); 1 Probably (20%/k); 1 Sometimes (20%/k); 7 Don't know (58%); 1 No answer
Public Defenders - 2 Yes (67%/k); 1 No (33%/k); 11 Don't know (79%)
State's Attorney - 1 Yes (25%/k); 3 No (75%/k); 10 Don't know (71%)
33a. What about prosecutors?
Judges - 6 Yes (60%/k); 1 Sometimes (10%/k); 3 No (30%/n); 2 Don't know (16.6/a); 1 No answer
Public Defenders - 5 Yes (50%/k); 3 Probably (30%/k); 2 Thinks no (20%/k); 4 Don't know
State's Attorney - 8 Yes (62%/k); 1 If good State's Attorney (7%/k); 1 If asked by police. (75%/k); 2 No (15%/k); 1 Don't know (7%)
33b. What about in a small case?
Judges - 1 Yes, state's attorney would (17%/k); 1 Yes (17%/n); 1 Yes, state's attorney would, don't know about police, but probably (17%/k) — (50%/k); 2 No (33%/k); 1 No, neither (17%/k); 2 Don't know; 5 No answer
*144 Public Defenders - 1 Yes, sometimes state's attorney would; 1 Yes, state's attorney would, 1 Yes, 1 Yes, both — (50%/k); 1 No, neither, 1 No, 1 Thinks no, 1 n/ Thinks no — (50%/k); 5 Don't know (42%/a); 1 No answer
State's Attorneys - 2 Yes, state's attorney would, don't know about police, 3 Yes state's attorney would, 1 Yes, 1 Yes-sa/no-p — (54%/k); 1 Sometimes, state's attorney would, don't know about police, 1 Less good sa — (15%/k); 1 Not necessary, 1 No, neither, 2 No — (31%/k); 1 Don't know
33c. What about you?
34. Could a pattern of repeatedly having evidence suppressed in big cases cause an officer to be transferred from his present position?
Judges - 2 Yes (33%/k); 3 Think yes (50%/k); 1 Thinks no (17%/k); 5 Don't know (64%/a); 2 No answer
Public Defenders - 5 Yes (71%/k); 1 Thinks yes (14%/k); 1 Thinks no (14%/k); 7 Don't know (50%)
State's Attorneys - 4 Yes (67%/k); 1 No (17%/k); 1 Thinks no; 7 Don't know (62%/a); 1 No answer
34a. What about in small cases?
Judges - 1 Yes; 1 Thinks yes — (33%/k); 2 No; 2 Think no — (67%/k); 3 Don't know (33%/a); 4 No answer
Public Defenders - 1 Yes; 1 Thinks yes — (29%/k); 1 Could; 2 Less likely — (43%/k); 2 Think no — (29%/k); 6 Don't know; 1 No answer
State's Attorneys - 1 Yes (25%/k); 1 Less likely (25%/k); 2 No (50%/k); 6 Don't know; 4 No answer
35. Could a pattern of repeatedly having evidence suppressed in big cases affect an officer's reputation among his peers and/or superiors by making him appear
a. sloppy?
Judges 5 (71%/k) Public Defenders 5 (63%/k) State's Attorneys 3 (38%/k)
b. stupid?
J 5 (71%/k) PD 6 (75%/k) SA 3 (38%/k)
c. dishonest?
J 3 (43%/k) PD 3 (38%/k) SA 1 (13%/k)
d. other (explain)
J 1 lazy (14%/k); 1 Would tarnish the reputation (14%/k)
PD 1 Can't close a case (13%/k)
SA 1 Incompetent (13%/k); 1 Overly aggressive without regard to the law (13%/k) rouster
e. none of the above
J 1 Think none of these apply (14%/k)
PD 1 It doesn't happen (i.e., evidence is not suppressed) (13%/k)
SA 1 (13%/k)
f. don't know
J 5 (42%/a) PD 6 (43%) SA 6 (43%)
g. no answer
J 1
35a. What about in small cases?
a. sloppy
J 1 SA 1
*145 b. stupid
J 1 SA 1
c. dishonest
J 1 SA 1
d. other
PD 1 a, b, c less
e. none of the above
J 1 (think no) SA 1
f. don't know
J 6 PD 5 SA 6
g. no answer
J 5 (11) PD 8 (13) SA 7 (12)
36. How else could a pattern of having evidence suppressed in big cases affect the reputation of an officer among his peers and/or his superiors?
36a. What about in small cases?
VII. Police Perjury
37. Do judges ever disbelieve police testimony?
Judges 13 Yes (100%) Public Defenders 14 Yes (100%) State's Attorneys 14 Yes (100%)
37a. How frequently?
1 0-5%: 1 Judge (8%), 2 Public Defenders (14%), 1 State's Attorney (8%); 4(10)
2 6-10%: 2 Judges (15%), 3 Public Defenders (21%), 4 State's Attorneys (31%); 9(23)
3 11-15%: 2 Judges (15%); 2(5)
4 16-20%: 2 Judges (15%), 3 Public Defenders 21%), 2 State's Attorneys (15%); 6(15)
5 21-25%: 1 Judge (8%), 2 Public Defenders (14%), 2 State's Attorneys (15%) 5(13)
6 26-30%: 1 Public Defender (7%), 1 State's Attorney (8%) 2(5)
7 31-35%:
8 36-40%:
9 41-45%:
10 46-50%: 1 Judge (8%), 2 Public Defenders (14%), 1 State's Attorney (8%) 4(10)
11 51-55%
12 56-60%
13 61-65%
14 66-70%
15 71-75%
16 76-80%
17 81-85%
18 86-90%
19 91-95%
20 96-100%
Other Responses:
Infrequently
3 Judges (23%)
1 Public Defender (7%)
*146 Not infrequently
1 Judge (8%)
Simple grinning response
1 State's Attorney (8%)
My judge does not, other do a lot
1 State's Attorney (7%)
No answer
State's Attorney
Average Numerical Response
Judges - 18%
Public Defenders - 21%
State's Attorneys - 19%
Across groups - 19%
37b. What about you?
38. How frequently are judges correct in disbelieving police testimony?
Judges - 3 100% of the time (50%/k); 2 Most of the time (83%/k); 1 50% of the time (100%/k); 4 Don't know; 3 No answer
Public Defenders - 7 100% of the time (58%/k); 1 80% (67%/k); 3 Most of the time (92%/k); 1 50% (100%.k); 2 No answer
State's Attorneys - 2 90-100% of the time, 2 Most of the time, 2 50% of the time — (50%/k); 2 25-50% of the time — (17%/k); 1 A minority of the time, 2 20% of the time — (25%/k); 1 Never — (8%/k); 2 No answer
1 0-5%: 1 State's Attorney
2 6-10%:
3 11-15%:
4 16-20%: 1 State's Attorney
5 21-25%:
6 26-30%: 1 State's Attorney
7 31-35%:
8 36-40%: 1 State's Attorney
9 41-45%:
10 46-50%: 1 Judge, 1 Public Defender, 2 State's Attorneys
11 51-55%:
12 56-60%:
13 61-65%:
14 66-70%:
15 71-75%:
16 76-80%: 1 Public Defender
17 81-85%:
18 86-90%: 1 State's Attorney
19 91-95%:
20 96-100%: 2 Judges, 7 Public Defenders, 1 State's Attorney
A minority of the time
SA 1
Most of the time
PD 3 SA 1
Pretty frequently
SA 1
No answer
SA 3 PD 2
*147 39. If judges suppressed evidence every time police officers actually fabricated evidence to save improper searches from suppression, what percentage of total searches would they suppress?
39a. Specify a percentage.
1 0-5%: 2 State's Attorneys
2 6-10%: 1 State's Attorney
3 11-15%: 1 State's Attorney
4 16-20%:
5 21-25%: 1 Public Defender, 2 State's Attorneys
6 26-30%: 1 Public Defender
7 31-35%:
8 36-40%: 1 Judge, 1 Public Defender, 2 State's Attorneys
9 41-45%:
10 46-50%: 2 Judges, 4 Public Defenders
11 51-55%: 1 Public Defender
12 56-60%:
13 61-65%: 2 Public Defenders
14 66-70%: 1 Public Defender
15 71-75%: 2 Public Defenders
16 76-80%: 1 Judge
17 81-85%:
18 86-90%:
19 91-95%:
20 96-100%:
Other response:
a lot more
J 1 SA 1
A. More frequently than now
J 6 (75%/k) PD 14 (100%) SA 5 (42%/k)
B. Less frequently than now
SA 5 (42%/k)
C. The same as now
J 2 (25%/k) SA 2 (17%/k)
D. Don't know
J 3 SA 1
E. No answer
J 2 SA 1
40. In what type of case is a judge most likely to disbelieve police testimony?
a. a big case
J 1(8%/k)
b. a small case
J 8 (67%/k) PD 12 (92%/k) SA 9 (64%)
c. same or no difference
J 3 (25%/k) SA 4 (29%)
d. other
PD 1 It depends (8%/k) SA 1 It depends (7%)
e. don't know
PD 1
f. no answer
J 1
*148 40a. What about you?
41. In what type of cases are the police most likely to fabricate their testimony?
a. a big case
J 1(10%/k) PD 8 (57%) SA 3 (23%
b. a small case
J 4 (40%/k) PD 4(29%) SA 4 (38%)
c. no difference or the same
J 5 (50%/k) PD 2 (14%) SA 5 (38%/k)
d. other
J 1 Can't answer
SA 1 They don't lie on any cases
e. don't know
J 1 SA 1
f. no answer
J 1
42. How frequently are judges fooled by the stories of criminal defendants and/ or defense attorneys: “Infrequently” or “hardly ever”?
42a. Explain.
42b. What about you?
43. In writing their case reports, how frequently do police officers fabricate additional or different facts to establish sufficient probable cause where probable cause did not exist in fact, in order to prevent the suppression of evidence?
a. every time that they file a case report
b. most of the time
J 1 (11%/k) PD 5 (36%)
c. half of the time
PD 4 (29%) SA 2 (15%/k)
c2. between c and d
PD 2 (14%) SA 1 (8%/k)
d. some of the time
J 6 (67%/k) PD 3 (21%) SA 7 (54%/k)
d2. between d and e
SA 1 (8%/k)
e. never
J 2 (22%/k) SA 2 (15%/k)
f. don't know
J 3 SA 1
g. no answer
J 1
43a. Explain.
43b. How often do the superiors of police officers know, or have good reason to know, that police are fabricating evidence in their case reports?
Judges - 1 Very often (50%/k); 1 Never (50%/k): 7 Don't know; 4 No answer
Public Defenders - 1 All the time (25%/k); 1 Generally know (25%/k); 1 Most of the time (25%/k); 1 Rarely (25%/k); 10 Don't know
State's Attorneys - 1 Most of the time (20%/k); 1 Rarely(20%/k); 1 If they show a pattern (20%/k); 2 None or never that I know of (40%/k); 5 Don't know; 4 No answer
*149 43c. What about prosecutors?
Judges - 1 Always; 1 Could be all the time; 1 Most to all the time; 1 Most of the time; 1 50% of the time — 5 (71%/k > 50%); 1 Sometimes; 1 Never; 2 Don't know; 4 No answer
Public Defenders - 2 All the time (100%); 1 Most to all the times; 1 80-90% of the time; 2 Most of the time; 1 Probably know — 7 (64%/k>50%); 1 Sometimes; 1 25% of the time; 1 20% of time; 1 5%/ 2.5% of the time; 3 Don't know
State's Attorneys - 2 All the time (100%); 1 They know what is going on; 1 70% of the time; 1 Most of the time — 5 (50%/k>50%); 1 If there is a pattern; 1 Rarely; 1 Infrequently; 1 Very infrequently; 1 None of the time; 1 Don't know; 3 No answer
43d. What about you?
44. In the drafting of search warrants, how frequently do police officers fabricate additional or different facts to create sufficient probable cause where it did not exist in fact, in order to prevent the suppression of evidence?
a. every time that they draft a search warrant
b. most of the time
J 1 (11%/k) PD 3 (21%)
c. half of the time
J 1 (11%/k)
d. some of the time
J 4 (44%/k) PD 10 (71%) SA 6 (60%/k)
d2. between d and e
J 1 (11%/k) PD 1 (think)(7%)
e. never
J 2 (22%/k) SA 4 (40%/k) (1 that I know of)
f. don't know
J 2 SA 4
g. no answer
J 2
h. other
J I don't know of any, but I suspect them of doing it.
44a. Give examples.
44b. How often do the superiors of police officers know, or have good reason to know, that police are fabricating evidence drafting search warrants?
Judges - 1 Always; 1 Often; 1 They suspect but don't know; 1 Almost never; 1 Never; 4 Don't Know; 4 No answer
Public Defenders - 3 All the time; 1 Most of the time; 1 Sometimes; 9 Don't know
State's Attorneys - 1 All the time; 1 If there is a pattern; 1 Very rarely; 1 Never; 4 Don't know; 5 No answer
44c. What about prosecutors?
Judges - 1 They know; 1 Most of the time (more than 50%); 1 Often; 1 Sometimes; 1 Less than 50%; 1 Not know; 3 Don't know; 4 No answer;
Public Defenders - 2 All the time; 1 80-90% of the time; 1 The vast majority of the time; 1 Most of the time; 1 25% of the time; 8 Don't know
State's Attorneys - 2 All the time; 1 Sometimes; 1 Very rarely; 1 We don't get into it; 1 If there is a pattern; 4 Don't know; 4 No answer
44d. What about you?
*150 45. How often do police use the same warrant or set of facts improperly for different searches?
Judges - 1 Always; 1 A lot; 1 Often; 2 Sometimes; 1 Almost never; 1 Only once; 2 Never; 3 Don't know; 1 No answer
Public Defenders - 1 Always; 1 90% of the time; 1 60-70% of all reliable informant warrants; 1 50% of the time; 1 Most of the time — (56%/k); 1 Put in evidence to make probable cause; 1 Frequently; 1 Often; 1 Rarely; 5 Don't know
State's Attorneys - 1 Yes, fill in the blank, 1 95% of the time; 1 30-40 of the time; 1 20% of the time; 1 Sometimes; 1 Thinks never; 4 Never; 4 Don't know; 1 No answer
45a. Explain.
46. In their testimony at suppression hearings, how frequently do police officers ever fabricate additional or different facts to create sufficient probable cause where it did not exist in fact in order to prevent the suppression of evidence?
a. every time that they testify
b. most of the time
J 1 (9%/k) PD 4 (29%)
b2. between b and c
PD 1 (7%)
c. half of the time
PD 2 (14%)
c2. between c and d
PD 2 (14%) SA 1 (17%/k)
d. some of the time
J 9 (82%/k) PD 5 (36%/k) SA 8 (67%/k)
d2. between d and e
SA 1
e. never
J 1 (9%/k) SA 2 (17%/k)
f. don't know
J 1 SA 2 (both suspect)
g. no answer
J 1
1 0-5%: 1 Judge
2 6-10%: 1 Judge, 1 State's Attorney
3 11-15%: 1 State's Attorney
4 16-20%: 1 Judge, 1 Public Defender
5 21-25%: 1 Public Defender
6 26-30%: 1 Judge, 1 Public Defender, 1 State's Attorney
7 31-35%:
8 36-40%: 2 Public Defenders, 1 State's Attorney
9 41-45%:
10 46-50%: 4 Public Defenders
11 51-55%:
12 56-60%:
13 61-65%:
14 66-70%: 1 Public Defender
15 71-75%: 1 Public Defender
16 76-80%:
*151 17 81-85%:
18 86-90%:
19 91-95%:
20 96-100%:
Judges 16% Public Defenders 44% State's Attorneys 24%
46b. How often do the superiors of police officers know, or have good reason to know, that police are fabricating evidence in their testimony?
Judges - 1 Often; 1 They suspect it; 1 None of the time; 7 Don't know; 3 No answer
Public Defenders - 3 Always; 1 Generally know; 1 Sometimes; 1 Never; 8 Don't know
State's Attorney - 1 Should know; 1 If pattern; 1 Rarely; 2 Never; 6 Don't know; 3 No answer
46c. What about prosecutors?
Judges - 1 50% of the time; 1 Would know; 1 Most of the time —(43%/k>50%); 1 Often: 1 They would suspect; 1 Minimally: 1 1% of the time; 4 Don't know; 2 No answer
Public Defenders - 2 All of the time; 1 80-90% of the time; 1 75% of the time; 3 Most of the time; 1 Generally know — (73%/k>50%); 1 25% of the time; 1 20% of the time; 1 Sometimes; 3 Don't know
State's Attorneys - 1 Most of the time; 1 Should know; 1 50% of time — (33%/k> 50%); 1 20-25% of time gut feeling; 1 If pattern; 1 Rarely; 1 Very infrequently; 1 If know would stop; 1 None of the time; 2 Don't know; 3 No answer
46d. What about you?
47. Do the superiors of police officers
a. encourage
Judges 1 (17%/k) Public Defenders 2 (18%/k)
b. tolerate
J 4 (67%/k) PD 5 (45%/k) SA 1 (14%/k)
c. discourage
J 1 (17%.k) SA 4 (57%/k)
d. encourage and tolerate
PD 3 (27%/k) SA 1 (14%/k)
e. encourage, tolerate and discourage
PD 1 (9%/k) SA 1 (14%/k)
f. don't know
J 6 PD 3 SA 7
g. no answer
J 1
47a. How do you know this?
48. Do police superiors in any way discourage police fabrications?
48a. Explain?
49. Do prosecutors
a. encourage?
State's Attorneys 1 (8%/k)
a2. encourage and tolerate?
Judges 1 (13%/k) Public Defenders 3 (23%/k)
b. tolerate?
J 2 (25%/k) PD 8 (62%/k) SA 2 (15%/k)
*152 b2. tolerate and discourage?
PD 1 (8%/k) SA 3 (23%/k)
c. discourage?
J 5 (63%/k) PD 1 (8%/k) SA 6 (46%/k)
f. don't know
J 4 PD 1 SA 1
g. no answer
J 1
h. other
SA 1 Won't say (8%/k)
49a. How do you know this?
49b. What about you?
50. Do prosecutors in any way discourage police fabrications?
State's Attorneys - 10 Yes; 2 No; 1 If blatant; 1 No answer
50a. Explain.
50b. What about you?
51. Do judges ever reprimand police officers when they do not believe their testimony?
Judges - 9 Yes (82%/k); 2 No (18%/k); 2 No answer
Public Defenders - 10 Yes, 1 Thinks yes (85%); 3 No (15%)
State's Attorneys - 11 Yes (85%); 3 No (15%)
51a. How frequently?
51b. In what circumstances?
51c. What about you?
52. Does judicial scrutiny of police testimony in any way reduce the incidence of police fabrications?
Judges - 4 Yes (80%/k); 1 No (20%/k); 1 Don't know; 7 No answer
Public Defenders - 3 Yes (21%); 1 Rarely; 1 Possibly; 1 Very slightly; 1 Not much (29%); 5 No; 1 Thinks no; 1 Makes them better liars (50%)
State's Attorneys - 3 Yes (23%/k); 7 No; 1 Thinks no (62%/k); 2 Encourages them to lie (77%/k); 1 Don't know
53. Do you equate police fabrications in their testimony at suppression hearings with the felony crime of perjury?
Judges - 8 Yes (80%/k); 2 No (20%/k); 3 No answer
Public Defenders - 7 Yes (50%); 1 Yes/no (7%); 6 No (43%)
State's Attorneys - 10 Yes (71%); 1 Sometimes (7%); 3 No (21%)
53a. If not, why?
54. In big cases, judges assess the truthfulness of police testimony in the following way:
a. Judges are extremely biased in favor of the defense and far more likely than they should be to disbelieve police testimony.
b. Judges are slightly biased in favor of the defense and slightly more likely than they should be to disbelieve police testimony.
1 State's Attorney (7%)
c. Judges are fair in their assessments of police truthfulness.
5 Judges (42%)
5 State's Attorneys (36%)
0 Public Defenders
c2. between c and d or c and d
J 3 (25%/k) PD 4 (29%) SA 2 (14%)
*153 d. Judges are slightly biased in favor of the prosecution and slightly less likely than they should be to disbelieve police testimony.
J 3 (25%/k) PD 1 (7%) SA 2 (14%)
d2. between d and e or d and e
PD 3 (21%) SA 1 (7%)
e. Judges are extremely biased in favor of the prosecution and far less likely than they should be to disbelieve police testimony.
PD 5 (36%); SA 1 (7%)
f. Judges will simply not disbelieve police testimony under any circumstances.
g. other
J 1 c, d, f, (8%/k) PD 1 c, d, e (7%) SA 1 b, c, d, e (7%) SA 1 b, c, d (7%)
h. don't know
J 1
58 % of J, think judges are biased in favor of prosecution
100% of PD
50 or 57 % of SA
54a. Explain.
54b. What about small cases (explain)?
Judges - 4 c — (44%/k); 1 d; 3 c, d; 1 c, d, f — (56%/k); 1 Don't know; 3 No answer
Public Defenders - 1 b; 4 c — 36%; 1 c, d; 3 d, e; 4 d; 1 e — 64%
State's Attorneys - 7 b (54%/k); 3 c — (77%/k); 2 c, d; 1 d — (23%/k); 1 No answer
54c. What about you?
55. Do judges ever fail to suppress evidence when they know police searches are illegal?
Judges - 9 Yes (82%/k); 2 No (18%/k) (“prably I am idealistic,” knowing laughing look); 1 Don't know; 1 No answer
Public Defenders - 14 Yes (100%)
State's Attorneys - 9 Yes (64%); 4 No; 1 not that I know of (36%)
55a. If so, is it because
a. The judge thinks the exclusionary rule is unjust.
PD 2 (14%) SA 1 (7%) (11%/k)
b. The judge believes that it is unjust to suppress the evidence, given the circumstances of the case before him.
J 6 (50%/k) PD 13 (93%) SA 9 (64%)
c. The judge wishes to avoid adverse publicity.
J 6 (50%/k) PD 12 (86%) SA 6 (43%)
d. The judge wishes to avoid opposition from lobbying groups (specify which ones).
J 1 (8%/k) PD 5 (29%) SA 2 (14%)
e. The judge thinks that if she suppresses evidence it will hurt her chances of being retained.
J 5 (42%/k) PD 9 (64%) SA 5 (36%)
f. can't answer
J 2 SA 5
g. no answer
J 1
*154 55b. Rate the above factors in terms of their importance.
55c. What about you?
56. Do judges ever unreasonably strain the meaning of the law in order to prevent the suppression of evidence?
Judges - 5 Yes (56%/k); 1 Probably (11%/k) — (67%/k); 3 No (33%/k); 2
Don't know; 2 No answer
Public Defenders - 11 Yes (85%/k); 2 No (15%/k); 1 No answer
State's Attorney's - 6 Yes; 1 Could (50%); 7 No
56a. What about you?
57. If judges in Cook County were appointed for life, or insulated from public pressure in some way, would they suppress evidence more frequently?
Judges - 7 Yes; 1 Me-no/others-yes (73%/k); 1 No (9%/k); 2 Think no (18%/k); 1 Don't know; 1 No answer
Public Defenders - 8 Yes (57%); 2 Think yes (14%) (71%); 4 No (29%)
State's Attorney's - 2 Yes (15%/k); 1 Maybe (8%/k); 7 No (54%/k); 3 Thinks no (23%/k); 1 Don't know
57a. How much more frequently?
57b. Explain.
57c. What about you?
58. Does the requirement that police officers must testify from their case reports reduce the incidence of police perjury?
Judges - 7 Yes (64%/k); 1 Probably (9%/k); 3 No (27%/k); 2 No answer
Public Defenders - 8 Yes (57%); 1 Yes, probably (7%); 1 Maybe (7%); 4 No (29%)
State's Attorneys - 7 Yes (54%/k); 1 Probably (8%/k); 5 No (38%/k); 1 Don't know
58a. Explain.
59. Does the criminal justice system in Chicago effectively control police perjury at suppression hearings?
Judges - 2 Yes; 1 For the most part, not entirely— (30%/k); 3 No; 1 Not substantially; 1 No in narcotics/yes otherwise; 1 Probably not — (60%/k); 1 I hope so — (10%/k); 1 Don't know; 2 No answer
Public Defenders - 14 No (100%)
State's Attorneys - 6 Yes; 1 Yes, the system does, but don't know whether the courts have any effect —(58%/k); 5 No (42%/k); 1 Don't know; 1 No answer
59a. How could it do a better job?
60. Is the incidence of police perjury
a. on the decline?
Judges - 4 (1: I hope its on the decline)(33%/k)
Public Defenders - 2 (14%)
State's Attorneys - 2 (17%/k)
b. increasing?
J 1 (8%) PD 4 (29%)
c. relatively stable?
J 7 (58%/k) PD 8 (57%) SA 8 (67%/k)
d. other
SA 2 (perjury does not exist) (17%/k)
*155 e. don't know
SA 2
f. no answer
J 1
60a. Explain.
61. If you had sufficient legislative or judicial power, how would you deal with the problem of police perjury at suppression hearings?
VIII. The Tort Remedy
62. If the exclusionary rule were abolished and replaced by a tort remedy system in which police officers were held individually liable when they committed violations of the Fourth Amendment what would be the effect?
63. Would such a tort remedy deter unlawful searches and seizures
a. better than the exclusionary rule?
Judges 1 (11%/k)
Public Defenders 2 (14%)
State's Attorneys 3 (33%/k)
a2. between a and b
SA 1 (10%/k)
b. about the same as the exclusionary rule?
PD 1 (7%) SA 2 (20%/k)
b2. between b and c
J 1 (11%/k)
c. not as effectively as the exclusionary rule?
J 7 (78%/k) PD 10 (%/k) SA 3 (30%/k)
d. no answer
J 4 SA 3
e. don't know
SA 1
f. other
PD a, c SA a, c
62a. Explain.
64. If such a remedy would not sufficiently deter unlawful police behavior, it would be because:
a. Plaintiffs seldom have the resources to bring such actions.
Judges 3 (25%/k) Public Defenders 9 (64%) State's Attorneys 5 (36%)
b. Plaintiffs generally are disaffected and cynical about the legal system and unlikely to pursue a tort remedy.
J 3 (25%/k) PD 6 (43%) SA 1 (7%)
c. Plaintiffs are extremely unsympathetic claimants to a judge and/or a jury.
J 8 (67%/k) PD 13 (93%) SA 5 (36%)
d. Police officers are extremely sympathetic defendants, and judges and/or juries are extremely unlikely to award damages against police officers unless their conduct is unusually willful or egregious.
J 5 (42%/k) PD 11 (79%) SA 4 (29%)
e. Police are always indemnified by the city when they lose such a lawsuit, so they don't care about these lawsuits.
J 6 (50%/k) PD 5 (36%) SA 5 (36%)
*156 f. none
J 2 (16%/k) SA 3 (21%)
g. no answer
J 1
65. If a system could be devised in which police officers would actually be forced to pay money damages every time it could be fairly shown that they violated the Fourth Amendment rights of citizens (for example if a special board designed to deal with illegal search activity were created), what would be the effect?
a. The police would be more careful than they are now of the requirements of the Fourth Amendment.
PD 1 (7%)
b. They would be about as careful as they are now.
PD 1 (7%)
c. They would be less careful.
d. The police would not make the searches they should be able to make because they would fear personal liability.
J 2, 2 think d, 1 and lie (42%/k) PD 2 (14%) SA 6 (43%)
e. a and d
J 7 (58%) PD 8, 1 and lie (65%) SA 8 (57%)
f. other
PD (Not possible to set up such a system) (7%)
g. no answer
J 1
66. What would be the effect if the police department and/or the city government were forced to indemnify the officer or somehow internalize the cost of these lawsuits based on illegal search activity?
66a. Would they be able to change police search and seizure behavior by internal bureaucratic/policy action?
Judges - 3 Yes; 1 Thinks yes (36%/k); 5 No; 1 Thinks no (55%/k); 1 It would be bad for the system (9%); 2 No answer
Public Defenders - 9 Yes; 1 Could — (71%); 4 No (29%)
State's Attorneys - 6 Yes; Probably; 1 Could — (67%/k); 4 No (33%); 2 Don't know
66b. If not, why?
67. Would a tort remedy system function better or worse than the exclusionary rule?
Judges - 1 Better if special board (8%); 12 Worse (92%)
Public Defenders - 14 Worse (100%)
State's Attorneys - 2 Better (14%); 11 Worse; 1 Thinks worse (86%)
IX. Leon and Gates [Note - Although these questions appear on the questionnaire, during the interviews it became obvious that respondents did not understand the questions in the same manner. Therefore, these question were dropped from the interviews. For that reason no results are listed for the section below.]
68. What are the beneficial effects of the Supreme Court's decision in United States v. Leon?
68a. In what circumstances does Leon keep evidence in court where before it would have been unjustly suppressed?
*157 68b. How frequently is Leon invoked?
69. What are the detrimental effects of Leon?
69a. Has Leon
1. made police searches less careful?
2. allowed the police more leeway than they reasonably need?
3. affected the care with which police draft warrants?
4. affected the care with which prosecutors and/or judges screen warrants?
5. weakened the incentives of individual officers to learn the law of search and seizure?
6. affected the level of police training?
70. What are the beneficial effects of the Supreme Court's decision in Illinois v. Gates?
70a. In what circumstances does Gates keep evidence in court where before it would have been unjustly suppressed?
70b. How frequently is Gates invoked?
71. What are the detrimental effects of Gates?
71a. Has Gates
1. made police searches less careful?
2. allowed the police more leeway than they reasonably need?
3. affected the care with which police draft warrants?
4. affected the care with which prosecutors and/or judges screen warrants?
5. weakened the incentives of individual officers to learn the law of search and seizure?
6. affected the level of police training?
72. Was the Aguilar-Spinelli two-prong test too restrictive of police action?
72a. Was it too difficult for police officers to understand?
72b. Is the Aguilar-Spinelli two-prong test easier to understand and apply that the “totality of the circumstances” test?
72c. Explain.
X. Overview Questions
73. Are there police practices that no longer occur as frequently today as they did at one time?
Judges - 11 Yes (85%); 1 Things are better; 1 I suspect so
Public Defenders - 9 Yes (100%/k); 4 Don't know; 1 No answer
State's Attorneys - 11 Yes (100%/k); 3 Don't know
73a. If so, could you give some examples?
74. Are search and seizure techniques different than they once were?
Judges - 9 Yes (90%/k); 1 Thinks no (10%/k); 3 No answer
Public Defenders - 6 Yes (67%/k); 3 No (33%/k); 4 Don't know; 1 No answer
State's Attorneys - 8 Yes (100%/k); 5 Don't know; 1 No answer
74a. Explain.
75. Was there a time when police officers used warrants far less often than they do now?
Judges - 10 Yes (100%/k); 3 Don't know
Public Defenders - 5 Yes; 1 Probably; 1 Thinks yes — (78%.k); 2 No (22%/ k); 4 Don't know; 1 No answer
State's Attorneys - 4 Yes (67%/k); 2 No (33%/k); 7 Don't know (50%); 1 No answer
*158 76. As far as you know, was there substantive observance of Fourth Amendment guarantees by police prior to the early 1960's in Chicago?
Judges - 1 Yes, it was way worse then; 1 To a lesser extent than now; 1 There is more now; 1 No; 1 I doubt; 5 Don't know; 3 No answer
Public Defenders - 1 Yes; 2 No; 1 Thinks no; 9 Don't know; 1 No answer
State's Attorneys - 1 Yes; 1 No; 1 I doubt it; 10 Don't know; 1 No answer
76a. Explain.
77. If police search and seizure behavior has changed, how important have Supreme Court decisions concerning the Fourth Amendment been in terms of this change?
Judges - 3 Yes; 1 Extremely important; 3 Very important; 5 Important; 1 Marginal
Public Defenders - 1 Very important; 2 Yes; 3 Important; 1 Significant; 1 Absolutely important; 1 Thinks yes; 1 Somewhat important; 3 Don't know; 1 No answer
State's Attorneys - 4 Very important; 2 All important; 2 Important; 1 Primary; 1 The centerpiece of change; 1 Not important; 2 Don't know; 1 No answer
78. Are there other factors — independent of Supreme Court decisions concerning the Fourth Amendment — such as an increasing level of police professionalism that have changed police search and seizure behavior?
Judges - 11 Yes; 1 Probably — (92%/k); 1 No; 1 No answer
Public Defenders - 6 Yes; 1 Probably — (78%/k); 1 No; 1 I doubt it — (22%/k); 4 Don't know; 1 No answer
State's Attorneys - 7 Yes — (70%/k); 3 No — (30%/k); 3 Don't know; 1 No answer
78a. Explain.
78b. How important are these other factors compared to the decisions of the Supreme Court in terms of the change in police search and seizure behavior?
Judges - 11 Supreme Court more important (85%); 2 Equally important (15%)
Public Defenders - 6 Supreme Court more important; 1 Illinois law and Supreme Court more important — (86%/k); 1 Supreme Court less important (14%/k); 1 Can't answer; 3 Don't know; 2 No answer
State's Attorneys - 7 Supreme Court more important — (70%/k); 1 Equal (10%/k); 1 Supreme Court less important; 1 Social factors moved Court to make its decisions; 3 Don't know; 1 No answer
79. Does the exclusionary rule cause police officers to behave more professionally?
Judges - 13 Yes (100%)
Public Defenders - 12 Yes (86%); 2 No (14%)
State's Attorney's - 14 Yes (100%)
79a. How?
80. Does the exclusionary rule deter unlawful police behavior?
Judges - 13 Yes (100%)
Public Defenders - 14 Yes (100%)
State's Attorneys - 13 Yes (93%); 1 Thinks no (7%)
80a. Explain.
*159 80b. Is it an effective deterrent?
Judges - 5 Yes (42%/k); 1 Reasonably effective; 2 To a certain extent; 1 Within limits; 1 Not fully (42%/k); 2 No (17%/k); 1 No answer
Public Defenders - 4 Yes (29%); 2 Yes, to a degree; 2 Yes, somewhat (29%); 1 Yes, to good cops; 1 Yes, for white middle class non-criminals (14%); 1 That's a real question, not always; 1 Not necessarily (14%); 1 No; 1 Not as currently used (14%)
State's Attorneys - 6 Yes (43%); 3 Sometimes; 1 It's not perfect but it's the best around — (29%); 3 No; 1 A little in big cases, not much in small, not overall — 29%
80c. What would be better?
Judges - 4 Nothing; 2 Add tort; 1 Add punishment for police perjury in addition; 1 Add more education — 69%; 3 Don't know — 92%; 1 special board tort remedy — (8%)
Public Defenders - 1 Add tort; 9 Nothing, 1 Add true responsibility for constitutional violations by cops. It would be an internal police thing; 1 Add, police morals have to be changed, they have to learn to about the law — 100%/k — 86%; 1 I don't know but not a tort remedy; 1 Don't know — 100%
State's Attorneys - 1 Add tort; 7 Nothing — (73%/k); 2 Don't know — 77%/k; 2 Replace with tort; 1 Some internal police policy where they don't get paid if evidence suppressed. — (27%/k), 23%/k; 1 No answer
81. How could the exclusionary rule function better?
82. Does the exclusionary rule help police officers build better cases?
Judges - 9 Yes (75%/k); Sometimes (83%/k); 2 No (17%/k); 1 Don't know
Public Defenders - 6 Yes; 1 Probably — (54%/k); 1 Depends — (8%/k); 5 No — (38%/k); 1 Don't know
State's Attorneys - 4 Yes — (31%/k); 1 Sometimes — (38%/k); 8 No — (62%/k); 1 No answer
82a. How?
83. How often does the law of search and seizure keep police officers from making the searches they should be able to make?
a. Very frequently:
State's Attorneys - 1 “The Fourth Amendment is bullshit” (7%)
b. Frequently
Judges 1 (10%/k) State's Attorneys 2 (14%)
c. Sometimes
J 2 (20%/k) Public Defenders 3 (21%) SA 3 (21%)
d. Infrequently
J 4 (40%/k) PD 8 (57%) SA 6 (43%)
d2. Between d and e or d and e
PD 1 (7%)
e. Never
J 3 (30%/k) PD 2 (14%) SA 2 (14%)
f. Don't know
J 3
Between infrequently and never
J 7 (70%/k) PD 10 (71%) SA 8 (57%)
*160 Sometimes
J 2 (20%/k) — 90% PD 3 (21%) — 93% SA 3 (21%) — 79%
Frequently to very frequently
J 1 (10%/k)
SA 3 (21%)
84. How much damage does the exclusionary rule do to police work?
Judges - 1 None, it makes them professional, 3 None (40%/k); 1 Very little, 2 Little (60%); 1 It frustrates them at times, 1 Monumental to what they'd like to do (smiling), not to what they should do (80%); 1 Considerable (20%); 1 Don't know; 1 No answer
Public Defenders - 2 None (14%); 1 Very little, 1 Little, 8 Not much (86%); 1 It effects the 40% of searches that are based on hunches (93%); 1 A lot (7%)
State's Attorneys - 1 None, 1 If society can tolerate people walking around on the street with small amounts of drugs in their possession, no effect — 15%/k; 1 Very little, 1 Little damage for good police, often damages bad police, 1 Minimal amount, 1 Not much, 1 Small amount — 31%/k — 43%/k; 1 Sometimes, 1 Depends on case/ care, 1 Fair amount, 1 A lot in a few cases — 31%/k — 77%/k; 1 Significant, 1 Immense — 15%/k; 1 Don't know
85. Should the exclusionary rule be:
a. Abolished?
J 1 (8%) SA 4 (29%) (SA1 Replace with nothing; SA2 Replace with something else — tort remedy better; SA3 Abolish, later answered that tort would be worse; SA4 Add a tort remedy)
b. Weakened (if so, how)?
J 4 (31%) SA 2 (14%)
c. Kept as it is?
J 6 (46%) PD 5 (36%) SA 8 (57%)
d. Strengthened? (If so, how?)
J 2 (15%) PD 9 (64%)
86. Is the exclusionary rule unjust to victims of crimes?
Judges - 9 Yes (82%/k); 2 No (18%/k); 2 No answer
Public Defenders - 4 Yes (29%); 1 Yes to victim at outset, not overall (7%); 8 No; 1 I never see the air at that height (64%)
State's Attorneys - 10 Yes, 2 Yes, at times — (86%); 2 No (14%)
86a. How?
87. Weigh the costs and benefits of the exclusionary rule to society
87a. Do the costs
a. greatly exceed the benefits?
Judges 2 (15%) State's Attorneys 4 (28%)
b. slightly exceed the benefits?
J 1 (8%) SA 1 (7%)
b2. between b and c or ba and c
J 1 (8%) SA 1 (7%)
c. equal the benefits?
J 2 (15%) Public Defenders 1 (7%) SA 3 (21%) Or do the benefits
d. slightly exceed the costs?
J 1 b ex. romie (8%); J 3 (23%) PD 4 (29%)
*161 d2. between d and e or d and e
J 1 (8%) SA 1 (7%)
e. greatly exceed the costs?
J 2 (15%) PD 9 (64%) SA 4 (28%)
Benefits exceed costs
J 7 (54%) PD 13 (93%) SA 4 (29%)
Benefits equal or exceed costs
J 9 (70%) PD 14 (100%) SA 7 (50%)
87b. Explain.
63 UCOLR 75
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