[House Report 104-17]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     104-17
_______________________________________________________________________


 
                  EXCLUSIONARY RULE REFORM ACT OF 1995

                                _______


February 2, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. McCollum, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 666]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 666) to control crime by exclusionary rule reform, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
    History of the Exclusionary Rule.............................     2
    Justifications Advanced for the Use of the Rule..............     4
    Leon ``Good Faith'' Exception to the Rule....................     4
    The Reach of H.R. 666........................................     6
Hearings.........................................................     7
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     9
Committee on Government Reform and Oversight.....................     9
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Estimate.............................     9
Inflationary Impact Statement....................................    10
Section-by-Section Analysis and Discussion.......................    10
Agency Views.....................................................    12
Changes in Existing Law Made by the Bill, as Reported............    13
Dissenting Views.................................................    15

                          Purpose and Summary

    H.R. 666, the ``Exclusionary Rule Reform Act of 1995'' is 
comprised of title VI of H.R. 3, ``The Taking Back Our Streets 
Act of 1995.'' H.R. 666 would enact an exception to what is 
known as the ``exclusionary rule'' in criminal law 
jurisprudence.
    The fourth amendment to the United States Constitution 
guarantees that the people have a right to be secure against 
``unreasonable'' searches and seizures of their persons, 
houses, papers, and effects. Under current law, when the court 
finds that evidence or testimony was obtained in violation of 
the fourth amendment, the court, in criminal cases, applies the 
so-called ``exclusionary rule.'' Application of that rule 
operates to prohibit the use of the challenged evidence or 
testimony during the government's case-in-chief at trial.
    The Supreme Court first applied this judicially created 
rule to enforce the fourth amendment in Weeks v. United States, 
232 U.S. 383 (1914). The Supreme Court later applied the rule 
to criminal proceedings in state courts. Mapp v. Ohio, 367 U.S. 
643 (1961).
    In 1984, the Supreme Court held, in United States v. Leon, 
468 U.S. 897 (1984), that evidence gathered pursuant to a 
search warrant which was later held to be invalid could, 
nevertheless, be used at trial if the prosecution demonstrated 
that the law enforcement officers who gathered the evidence did 
so with an ``objectively reasonable belief'' that the warrant 
was valid at the time the evidence was gathered. The court's 
holding in that case is often referred to as the ``good faith'' 
exception to the exclusionary rule. The Court stated that the 
exclusionary rule was created to deter law enforcement 
officials from violating the fourth amendment. Thus, the Court 
held that excluding evidence gathered by government actors who 
in good faith believed they were acting consistently with the 
Constitution could serve no deterrent purpose.
    H.R. 666 would both codify the holding in Leon and 
legislatively expand the ``good faith'' exception of that case 
to warrantless searches. Under H.R. 666, evidence gathered in 
violation of the fourth amendment by law enforcement officials 
with or without a warrant will be admitted at trial, as long as 
their actions are later determined by a court to have been 
``objectively reasonable'' at the time. The bill would also 
make it clear that, except in limited circumstances, evidence 
will only be suppressed in federal court if it was gathered in 
a manner that violated the Constitution and where the good 
faith exception does not apply. Evidence gathered in violation 
of a statute, administrative rule or regulation, or rule of 
procedure would be admissible, as long as it was gathered in a 
manner consistent with the Constitution.

                Background and Need for the Legislation

                    History of the Exclusionary Rule

    The fourth amendment to the United States Constitution 
provides:

        The right of the people to be secure in their persons, 
        houses, papers, and effects, against unreasonable 
        searches and seizures, shall not be violated, and no 
        Warrants shall issue but upon probable cause, supported 
        by Oath or affirmation, and particularly describing the 
        place to be searched, and the persons or things to be 
        seized.

This right is one of the most prized rights enumerated in the 
Bill of rights. The scope of this amendment, and the manner of 
ensuring compliance with it, have been among the most 
controversial and vehemently contested rules of law affecting 
our criminal justice system. Quite plainly, the fourth 
amendment is the primary protection of personal privacy and 
security against unreasonable government intrusion.
    Unlike the fifth amendment, which contains explicit 
exclusionary language, the fourth amendment is silent as to the 
manner of ensuring that its terms are honored. As a result, 
over time the courts have taken different actions in an effort 
to ensure compliance with its provisions. Prior to 1914, courts 
relied upon common law principles to enforce the amendment. 
Violations of the amendment were treated as trespass against 
the individual entitling a victim to petition the court for the 
return of the improperly seized evidence and to sue the 
violator for monetary damages. After 1914, however, the manner 
of enforcing the amendment was through the application of the 
``exclusionary rule.''
    The Supreme Court first used this judicially-created rule 
of evidence to enforce the fourth amendment in Weeks v. United 
States, 232 U.S. 383 (1914). In Weeks, the Court held that 
evidence owned by the defendant which was gathered in violation 
of the amendment could not be introduced at the trial of the 
defendant. Over time, the Court expanded the holding in Weeks 
to eliminate the requirement that the defendant actually own 
the evidence. In Mapp v. Ohio, 367 U.S. 643 (1961), all the 
Court required before suppressing the seized evidence, was that 
the defendant had a reasonable expectation of privacy in the 
evidence illegally seized. Through that same case, the Court 
applied the rule in state criminal proceedings, as well. Mapp 
v. Ohio, 367 U.S. 643 (1961).
    Throughout its history the exclusionary rule has proved 
controversial, principally due to the fact that its application 
always suppresses highly probative and reliable evidence of a 
defendant's guilt. In short, application of the rule often 
means that ``the criminal is to go free because the constable 
has blundered.'' People v. Defore, 242 N.Y. 13, 21, cert. 
denied 270 U.S. 657 (1926) (Cardozo, J.).
    In light of the significant social cost that results from 
excluding evidence of a defendant's guilt, the Supreme Court 
has steadily narrowed the application of the rule since the 
Mapp decision. For example, the Court has held that the fourth 
amendment right is personal and thus evidence obtained 
illegally against one defendant may be used against another 
person. Alderman v. United States, 394 U.S. 165 (1969) 
(allowing use of unconstitutionally obtained evidence against 
co-conspirators). The illegally seized evidence may also be 
used in grand jury proceedings. United States v. Calandra, 414 
U.S. 338 (1974). In fact, it is now settled law that evidence 
gathered in violation of the fourth amendment can only be 
suppressed in criminal proceedings. United States v. Janis, 428 
U.S. 433 (1976) (such evidence may be used in civil 
proceedings); Immigration and Naturalization Service v. Lopez-
Mendoza, 468 U.S. 1032 (1984) (such evidence may be used in 
deportation proceedings). Finally, the Court has also held that 
evidence seized in violation of the fourth amendment may be 
used in criminal trials to impeach the testimony of the 
defendant. Walder v. United States, 347 U.S. 62 (1954) (use to 
rebut direct testimony); United States v. Havens, 446 U.S. 620 
(1980) (use on cross-examination).

            Justifications Advanced for the Use of the Rule

    Three justifications for the use of the rule have been 
offered at differing points in the history of the rule. In 
1928, Justice Brandeis, in a dissenting opinion, first asserted 
that application of the rule was necessary to maintain judicial 
integrity. Olmstead v. United States, 277 U.S. 438, 485 (1928) 
(Brandeis, J., dissenting). He believed that if courts allowed 
people to be convicted on the basis of improperly obtained 
evidence those courts would, in effect, become accomplices to 
the government's misconduct, thus ratifying the illegal act.
    In Mapp, the Court's plurality held that the exclusionary 
rule was an essential part of the right to privacy inherent in 
the language of the fourth, fifth, and fourteenth amendments to 
the Constitution. In that decision, the Court held that 
application of the rule was required by the fourth amendment in 
order to prevent any additional invasion of privacy resulting 
from the use of unconstitutionally obtained evidence.
    Shortly after that decision, however, the Court began to 
back away from the notion that either of these rationales 
support the application of the rule. In 1965, the Court noted 
that ``the ruptured privacy of the victims' homes and effects 
cannot be restored'' by the means of the exclusionary rule 
because ``reparation comes too late.'' Linkletter v. Walker, 
381 U.S. 618 (1965).
    In United States v. Calandra, the Court provided a third 
rationale for the rule. There, the Court stated that the rule 
is a ``judicially created remedy designed to safeguard Fourth 
Amendment rights generally through its deterrent effect, rather 
than a personal constitutional right of the party aggrieved.'' 
414 U.S. at 348. In Stone v. Powell, 428 U.S. 465 (1976) the 
Court further eroded the judicial integrity rationale stating 
that ``this concern has limited force as a justification for 
the exclusion of highly probative evidence.'' 428 U.S. at 485. 
Finally, in United States v. Leon, 468 U.S. 986 (1984), the 
Court folded the judicial integrity rationale into the 
deterrence rationale. The Court stated, ``Our cases establish 
that the question whether the use of illegally obtained 
evidence in judicial proceedings represents judicial 
participation in a Fourth Amendment violation and offends the 
integrity of the courts `is essentially the same as the inquiry 
into whether the exclusion would serve a deterrent purpose.' '' 
468 U.S. at 921, n.22 (quoting United States v. Janis, 428 U.S. 
at 459, n.35).

             THE LEON ``GOOD FAITH'' EXCEPTION TO THE RULE

    In Leon, police gathered evidence pursuant to a search 
warrant which had been issued by a neutral and detached 
magistrate but which later was held to have been invalid. The 
Court held that application of the exclusionary rule was not 
appropriate in that case because the police officers had acted 
in a reasonably objective belief that their conduct did not 
violate the fourth amendment.
    The Court noted that ``[t]he substantial social costs 
exacted by the exclusionary rule for the vindication of Fourth 
Amendment rights had long been a source of concern.'' 468 U.S. 
at 907. It pointed out: ``[o]ur cases have consistently 
recognized that unbending application of the exclusionary 
sanction to enforce the ideals of governmental rectitude would 
impede unacceptably the truth-finding functions of judge and 
jury.' '' Id. (quoting United States v. Payner, 447 U.S. 727, 
734 (1980). The Court pointed out that ``[t]he Fourth Amendment 
contains no provision expressly precluding the use of evidence 
obtained in violation of its commands, and an examination of 
its origin and purposes makes clear that the use of fruits of a 
past unlawful search or seizure `work[s] no new Fourth 
Amendment wrongs.' '' 468 U.S. at 906 (quoting United States v. 
Calandra, 414 U.S. at 354). It held that the appropriateness of 
using the exclusionary rule was dependent on ``weighing the 
costs and benefits'' of withholding reliable evidence from the 
truth-seeking process. 468 U.S. at 907. In light of that 
standard, the Court suggested that ``when law enforcement 
officers have acted in objective good faith or their 
transgressions have been minor, the magnitude of the benefit 
conferred on such guilty defendants offends basic concepts of 
the criminal justice system.'' 468 U.S. at 907-08 (quoting 
Stone v. Powell, 428 U.S. at 490).
    Later in its opinion, the Court noted that the rule 
``cannot be expected, and should not be applied, to deter 
objectively reasonable law enforcement activity.'' As the court 
reasoned, ``where an officer's conduct is objectively 
reasonable, excluding the evidence will not further the ends of 
the exclusionary rule in any appreciable way; for it is 
painfully apparent that * * * the officer is acting as a 
reasonable officer would and should under the circumstances. 
Excluding the evidence can in no way affect his future conduct 
unless it is to make him less willing to do his duty.' '' 468 
U.S. at 919-20 (quoting Stone v. Powell, 428 U.S. at 539-40 
(White, J., dissenting)).
    Following the Leon holding, the Court further limited the 
use of the exclusionary rule by recognizing an additional Leon-
type exception. In Illinois v. Krull, 480 U.S. 340 (1987), the 
Court held that the exclusionary rule should not be applied to 
illegally obtained evidence law enforcement officers reasonably 
rely on a statute authorizing them to conduct a search.
    In Leon the Court characterized its holding as a ``good 
faith'' exception to the exclusionary rule. 468 U.S. at 924. In 
fact, however, the label is a misnomer. The subjective good 
faith of the government actor is not determinative of the issue 
as to whether his or her conduct was objectively reasonable 
under the circumstances at the time the evidence was gathered. 
While subjective intent may be an element that courts should 
consider in determining reasonableness, the holding in Leon 
turns on whether the government actors gathered the evidence at 
issue in an objectively reasonable belief that their actions 
did not violate the fourth amendment. H.R. 666 would 
legislatively limit the use of the exclusionary rule in a 
manner consistent with the Leon ``objective reasonableness'' 
philosophy.

                         The Reach of H.R. 666

    H.R. 666 is intended to accomplish two broad purposes. 
First, it codifies the Leon holding for cases where evidence is 
wrongfully gathered pursuant to a facially valid warrant. 
Second, it extends the holding in that case to situations where 
government actors gather evidence without a warrant but under 
circumstances justifying an objectively reasonable belief that 
their actions were proper. Both purposes are based on the 
underlying proposal that the exclusionary rule should not be 
applied to cases where no deterrence is likely to result.
    In noting the lack of any deterrent effect by applying the 
exclusionary rule to objectively reasonable police conduct, the 
Court stated that ``this is particularly true, we believe, when 
an officer acting with objectively reasonable good faith has 
obtained a search warrant from a judge or magistrate and is 
acting within its scope.'' 468 U.S. at 920. While it may be 
``particularly true'' in those situations, the Committee 
believes that it is also true in other situations where police 
or other government actors gather evidence in the objectively 
reasonable belief that their conduct is proper. In fact, the 
Supreme Court, itself, has recognized the legitimacy of 
warrantless searches in limited situations such as those 
involving automobiles, exigent circumstances, inventories, 
objects in plain view, pat down searches of persons lawfully 
detained, searches incident to an arrest, and where the 
evidence would have been inevitably discovered had a warrant 
been obtained.
    Notwithstanding the Court's allowances in those and other 
reasonable situations, the Committee is aware of cases where 
government actors gathered evidence without a warrant but with 
an objectively reasonable belief that their actions did not 
violate the fourth amendment, where a court excluded that 
evidence from trial because the evidence had not been gathered 
pursuant to a warrant. The Committee believes that in these 
situations there is no deterrent effect achieved by applying 
the exclusionary rule when the law enforcement officers 
believed their actions were consistent with the fourth 
amendment. Thus, H.R. 666 will preclude application of the rule 
in all situations where government actors gathered evidence in 
a manner that violates the fourth amendment but yet did so in 
the objectively reasonable belief that they were acting in 
accord with that amendment, regardless of whether a search 
warrant had been issued.
    The Committee has also become aware of cases where the 
exclusionary rule has been used to exclude evidence that was 
gathered in violation of a statute, administrative rule, or 
regulation, or rule of procedure, but where no constitutional 
violation of any type occurred. The Committee believes that in 
light of the extreme social cost resulting from the application 
of the exclusionary rule, the rule should only apply to 
evidence gathered in violation of the Constitution. 
Consequently, H.R. 666 will prohibit the application of the 
exclusionary rule to evidence gathered in violation of a 
statute, administrative rule, regulations, or rule of 
procedure. This bill does, however, contain an exception to 
that prohibition when a statute or rule of procedure expressly 
authorizes exclusion.
    The bill provides that in the event a statute or rule of 
procedure authorizes exclusion, the evidence is not to be 
excluded if the government actors gathering the evidence did so 
in the objectively reasonable belief that they were acting 
properly. In essence, the bill creates an ``objective 
reasonableness'' exception to this application of the 
exclusionary rule as well.
    Finally, the bill specifies that evidence gathered pursuant 
to and within the scope of a warrant constitutes prima facie 
evidence of the existence of objective reasonableness. As the 
Supreme Court stated in Leon, `` `a warrant issued by a 
magistrate normally suffices to establish' that the law 
enforcement officer has `acted in good faith in conducting the 
search.' '' 468 U.S. at 922 (quoting United States v. Ross, 456 
U.S. 789, 823, n.32 (1982). H.R. 666 codifies this presumption 
and places the burden squarely upon the defendant to overcome 
the presumption by proving, by a preponderance of the evidence, 
that the government actors who gathered the evidence pursuant 
to the warrant were not acting in an objectively reasonable 
belief that their actions were constitutional.

                                Hearings

    The Committee's Subcommittee on Crime held two days of 
hearings on H.R. 3 on January 19 and 20, 1995. The text of H.R. 
666 is substantially identical to Title VI of H.R. 3. Testimony 
specifically related to H.R. 666 was received from two 
witnesses, Paul J. Larkin, Jr., Esq., former Assistant to the 
Solicitor General of the United States, on behalf of himself; 
and E. Michael McCann, Esq., Chairman of the Criminal Law 
Section of the American Bar Association, on behalf of the ABA, 
with no addition material submitted.

                        Committee Consideration

    On January 27, 1995, the Committee met in open session and 
ordered reported the bill H.R. 666, without amendment, by a 
recorded vote of 19 to 14, a quorum being present.

                         Vote of the Committee

    The committee then considered the following amendments, 
none of which was adopted.
    1. An amendment by Mr. Reed to limit the scope of H.R. 666 
to searches and seizures conducted pursuant to and within the 
scope of a warrant. The amendment was defeated by a 13-21 
rollcall vote.

                            roll call no. 1

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mrs. Schroeder                      Mr. Moorhead
Mr. Schumer                         Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Boucher                         Mr. Gekas
Mr. Bryant (TX)                     Mr. Coble
Mr. Reed                            Mr. Smith (TX)
Mr. Nadler                          Mr. Schiff
Mr. Scott                           Mr. Canady
Mr. Becerra                         Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Buyer
Ms. Jackson-Lee                     Mr. Hoke
                                    Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr
                                    Mr. Frank
                                    Mr. Watt

    2. An amendment by Mr. Watt. The Watt amendment would have 
inserted the text of the fourth amendment to the United States 
Constitution as substantially all of the text of the bill. The 
Watt amendment was defeated by a 12-21 rollcall vote.

                            roll call no. 2

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mrs. Schroeder                      Mr. Moorhead
Mr. Berman                          Mr. Sensenbrenner
Mr. Bryant (TX)                     Mr. McCollum
Mr. Reed                            Mr. Coble
Mr. Nadler                          Mr. Smith (TX)
Mr. Scott                           Mr. Gallegly
Mr. Watt                            Mr. Canady
Mr. Becerra                         Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Buyer
Ms. Jackson-Lee                     Mr. Hoke
                                    Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr
                                    Mr. Frank
                                    Mr. Schumer
                                    Mr. Boucher

    3. Final passage. Mr. Hyde moved to report H.R. 666 
favorably to the whole House. The resolution was adopted by a 
rollcall vote of 19-14.

                            roll call no. 3

        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Moorhead                        Mrs. Schroeder
Mr. Sensenbrenner                   Mr. Schumer
Mr. McCollum                        Mr. Berman
Mr. Coble                           Mr. Boucher
Mr. Smith (TX)                      Mr. Bryant (TX)
Mr. Gallegly                        Mr. Reed
Mr. Canady                          Mr. Nadler
Mr. Inglis                          Mr. Scott
Mr. Goodlatte                       Mr. Watt
Mr. Buyer                           Mr. Becerra
Mr. Hoke                            Mr. Serrano
Mr. Bono                            Ms. Lofgren
Mr. Heineman                        Ms. Jackson-Lee
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Frank

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 666, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 1, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 666, the Exclusionary Rule Reform Act of 1995, as 
ordered reported by the House Committee on the Judiciary on 
January 27, 1995. CBO estimates that enacting H.R. 666 would 
not result in any significant cost to the federal government. 
Because enactment of H.R. 666 would not affect direct spending 
or receipts, pay-as-you-go procedures would not apply to the 
bill.
    This bill would prohibit federal courts from excluding 
certain evidence obtained in warrantless searches if the law 
enforcement officials who conducted the search had an 
``objectively reasonable belief'' that the search was legal 
under the Fourth Amendment. Because CBO expects that this bill 
could enable the Justice Department to prosecute certain 
criminal cases that would otherwise be excluded from initial or 
full prosecution for lack of evidence, enacting H.R. 666 could 
impose additional costs on federal prosecutors and the federal 
court system. On the other hand, the bill could reduce the 
number of appeals that are currently filed to dispute the 
exclusion of certain evidence, and thus allow cases to move 
forward in a more timely fashion. Based on information from the 
Administrative Office of the United States Courts, CBO does not 
expect any resulting change in caseload or court costs to be 
significant. Any increase in costs would be subject to the 
availability of appropriated funds.
    H.R. 666 would not affect the proceedings of state courts, 
and thus would have no budgetary impact on state or local 
governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                    Robert D. Reischauer, Director.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 666 
will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

Sec. 101. Short title

    This section states the short title of the bill as the 
``Exclusionary Rule Reform Act of 1995.''

Sec. 102. Admissibility of certain evidence

    This section amends Title 18 of the United States Code to 
add new section 3510 governing the admissibility of certain 
evidence obtained by search or seizure.
    Specifically, subsection (a) of new section 3510 provides 
that evidence obtained as the result of a search or seizure 
that allegedly violated the fourth amendment to the United 
States Constitution nevertheless will be admissible in any 
proceeding in a court of the United States, so long as the 
government actors gathering the evidence did so in 
circumstances justifying an objectively reasonably belief that 
their actions were in conformity with the requirements of the 
fourth amendment. This subsection, in part, codifies the 
holding of the United States Supreme Court in United States v. 
Leon, 468 U.S. 897 (1984).
    The new subsection also extends the holding of the Leon 
case to situations where law enforcement officials conduct 
searches or seizures without a warrant but with the objectively 
reasonable belief that their actions did not violate the fourth 
amendment. Thus, regardless of the existence of a warrant, 
evidence obtained in a manner that otherwise might violate the 
fourth amendment will be admissible in a proceeding in a court 
of the United States if the search or seizure was carried out 
in circumstances justifying an objectively reasonable belief 
that the search or seizure was conducted in conformity with the 
fourth amendment.
    The court, not the jury, is to determine whether the search 
or seizure was carried out in circumstances justifying an 
objectively reasonable belief that it was in conformity with 
the fourth amendment. The statute provides, however, that 
evidence gathered pursuant to and within the scope of a warrant 
constitutes prima facie evidence of the existence of those 
circumstances. In those cases, the defendant will have the 
burden of proving, by a preponderance of the evidence, that the 
government actors gathering the evidence could not have been 
acting in the objectively reasonable belief that their actions 
were consistent with the fourth amendment.
    The Committee emphasizes that the ``objectively 
reasonable'' test is not a subjective inquiry into the state of 
mind of the government actors who carried out the search or 
seizure. Although the state of mind of those persons is one 
factor that the court should consider in determining objective 
reasonableness, the Court will inquire of the objective facts 
of the search situation to determine the reasonableness of the 
officers' actions. The better view of the test is that it is an 
objective examination of the facts and circumstances that were 
either apparent to the government actors at the time the 
evidence was gathered or which could have been ascertained by 
the exercise of reasonable diligence and whether, in light of 
those facts and circumstances, those persons could reasonably 
have believed their conduct was consistent with the fourth 
amendment. While intentional violations of the Constitution 
should never be deemed objectively reasonable, it is also not 
the Committee's intention that government actors, in order to 
meet the objective reasonableness standard, be required to go 
to extreme lengths in uncovering unknown facts or circumstances 
that might have a bearing on their decision to gather the 
evidence in question. On the other hand, the courts should not 
allow government actors to ignore or dismiss facts and 
circumstances of which they are aware or can readily observe in 
deciding how, when, and where to conduct searches and seizures.
    As stated, new subsection (a) applies to all situations 
where government officials gather evidence, whether pursuant to 
a warrant or not. The Committee is quick to note, however, that 
situations where a warrantless search should be deemed to be 
reasonable will seldom, if ever, include those situations where 
the Supreme Court has expressly held that a warrant is 
required. Nothing in this bill is intended to overturn existing 
Supreme Court decisions that interpret the fourth amendment. 
Government officials are charged with understanding the 
holdings in these cases and acting in conformity with them. The 
Committee doubts that any failure to act in accordance with the 
prior decisions of the Supreme Court on fourth amendment issues 
could be deemed to be objectively reasonable.
    Section 102 of the bill also adds new subsection (b)(1) of 
section 3510 in order to make it clear that the exclusionary 
rule is applicable only to evidence gathered in violation of 
the fourth amendment, and then only if it was gathered in a 
manner that was not objectively reasonable under the 
circumstances. This portion of section 102 thus precludes use 
of the exclusionary rule with respect to evidence gathered in 
violation of a statute, administrative rule or regulation, or 
rule of procedure unless a statute or rule of procedure 
specifically authorizes exclusion of the evidence. The statute 
or rule of procedure authorizing exclusion of the evidence need 
not be the statute or rule violated; it may be a separate 
statute or rule of procedure. Exclusion may not be authorized 
by an administrative rule or regulation.
    The bill also adds new subsection (b)(2) of section 3510 
which provides that the fact that a statute or rule of 
procedure authorizes application of the exclusionary rule does 
not end the inquiry. Even if exclusion if authorized, the court 
is nevertheless prohibited from excluding the evidence if the 
government actors who gathered the evidence did so in 
circumstances justifying the objectively reasonable belief that 
their actions did not violate the statute, administrative rule 
or regulation, or rule of procedure in question. In essence, 
this section applies a ``good faith'' or ``objective 
reasonableness'' exception to the use of the exclusionary rule 
with respect to this type of evidence as well.
    Finally, section 102 adds new subsection (c) to section 
3510 in order to emphasize the fact that section 3510 is not to 
be construed to require or authorize the exclusion of evidence 
in any proceeding.

                              Agency Views

    The committee received a letter from the U.S. Department of 
Justice providing Administration views on H.R. 3, the ``Taking 
Back Our Streets Act of 1995.'' This letter addressed the 
issues presented in H.R. 666 in pertinent part as follows:


                      vi. exclusionary rule reform


    Title VI creates an exception to the search-and-seizure 
exclusionary rule by providing that evidence is not subject to 
suppression on fourth amendment grounds if it was obtained in 
circumstances justifying an objectively reasonable belief that 
the search or seizure was in conformity with the fourth 
amendment. The title also prohibits the creation of 
exclusionary rules based on non-constitutional violations, 
except by statute or by rules promulgated by the Supreme Court.
    The House of Representatives has previously passed the same 
or similar reforms on a number of occasions, most recently in 
section 1720 of H.R. 3371 of the 102d Congress, and the Senate 
passed a similar provision in S. 1764 of the 98th Congress. In 
United States v. Leon, 468 U.S. 897 (1984), the Supreme Court 
held that evidence is not subject to suppression of obtained in 
objectively reasonable reliance on a warrant, and the 
``objective reasonableness'' standard is applied in determining 
the personal liability of officers in Bivens actions and 
section 1983 suits, in both warrant and non-warrant cases.
    The federal courts in the Fifth and Eleventh Circuits have 
gone further, and have applied a ``reasonableness'' standard in 
ruling on the suppression of evidence, in both warrant and non-
warrant cases, following the decision in United States v. 
Williams, 622 F. 2d 830 (5th Cir. 1980). However, this is a 
minority position, which has not been adopted by most courts or 
state legislatures.
    The caselaw in the Fifth and Eleventh Circuits does not 
show a large number of reported decisions applying the broader 
``reasonableness'' exception for non-warrant cases, which 
suggests that proponents of this type of legislative reform 
overestimate its value to law enforcement. In most cases in 
which a court could find officers' conduct to be objectively 
reasonable, the court would find in any event that there was no 
fourth amendment violation.
    The prevailing approach of recognizing a ``reasonableness'' 
exception for warrant cases only provides the strongest 
incentive for officers to obtain warrants before carrying out 
searches and seizures. We support an exclusionary rule 
exception in such cases because it insures that guilty 
criminals do not escape punishment--without undermining the 
goal of encouraging police officers to obtain search warrants 
before abridging personal freedoms. By contrast, a 
``reasonableness'' exception for non-warrant cases would reduce 
the relative advantage of the practice of seeking a warrant 
whenever it is feasible to do so.
    Hence, we believe that it would be unwarranted to attempt 
to resolve this issue legislatively, in the direction of 
narrowing the exclusionary rule's application. We believe that 
ensuring the permanence of the Leon exception for warrant cases 
through a statutory codification is a preferable alternative, 
if Congress believes that legislation in this area is 
desirable.
    We do support the feature of this proposal that limits the 
creation of exclusionary rules based on non-constitutional 
violations. Because of the importance of the truth-finding 
functions in litigation, and particularly in criminal 
proceedings, it is reasonable to require Congress (or the 
Supreme Court) to indicate affirmatively when it wishes courts 
to apply an exclusionary rule sanction for statutory or rule 
violations that do not infringe upon the constitutional rights 
of the defendant.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                      TITLE 18, UNITED STATES CODE

          * * * * * * *

                  CHAPTER 223--WITNESSES AND EVIDENCE

Sec.
3481. Competency of accused.
3482. Evidence and witnesses--Rule.
     * * * * * * *
3510. Admissibility of evidence obtained by search or seizure.
          * * * * * * *

Sec. 3510. Admissibility of evidence obtained by search or seizure

  (a) Evidence Obtained by Objectively Reasonable Search or 
Seizure.--Evidence which is obtained as a result of a search or 
seizure shall not be excluded in a proceeding in a court of the 
United States on the ground that the search or seizure was in 
violation of the fourth amendment to the Constitution of the 
United States, if the search or seizure was carried out in 
circumstances justifying an objectively reasonable belief that 
it was in conformity with the fourth amendment. The fact that 
evidence was obtained pursuant to and within the scope of a 
warrant constitutes prima facie evidence of the existence of 
such circumstances.
  (b) Evidence Not Excludable by Statute or Rule.--
          (1) Generally.--Evidence shall not be excluded in a 
        proceeding in a court of the United States on the 
        ground that it was obtained in violation of a statute, 
        an administrative rule or regulation, or a rule of 
        procedure unless exclusion is expressly authorized by 
        statute or by a rule prescribed by the Supreme Court 
        pursuant to statutory authority.
          (2) Special rule relating to objectively reasonable 
        searches and seizures.--Evidence which is otherwise 
        excludable under paragraph (1) shall not be excluded if 
        the search or seizure was carried out in circumstances 
        justifying an objectively reasonable belief that the 
        search or seizure was in conformity with the statute, 
        administrative rule or regulation, or rule of 
        procedure, the violation of which occasioned its being 
        excludable.
  (c) Rule of Construction.--This section shall not be 
construed to require or authorize the exclusion of evidence in 
any proceeding.
          * * * * * * *
                            DISSENTING VIEWS

    We strongly dissent from the majority's opinion. In their 
zeal to rush through their ``Contract with America'', the 
Republican majority has embraced a number of provisions that 
may benignly be called either wrongheaded or simplistic. But 
finally, in its embrace of H.R. 666, the so-called 
``Exclusionary Rule Reform Act of 1995'', they have now 
succeeded in committing affirmative harm to the Constitution. 
And in keeping this provision of the ``Contract with America'', 
they have broken our Constitution's higher covenant with the 
people maintained for over 200 years.
    Simply stated, H.R. 666 ends the Fourth Amendment as we 
know it by eviscerating the warrant requirement that the 
American colonists demanded from the Framers following their 
experience with British occupation. That starting point may 
seem like a quaint vestige from a far-away past, but when that 
vestige is retranslated into recently documented abuses of 
enforcement officers--whether the FBI, the BATF, or local 
police, occurring not just in our large urban centers but in 
rural communities in Idaho and Texas--then the right of all 
Americans to be protected from arbitrary and unfounded 
invasions of their homes becomes much more than a historical 
remembrance.
    Plainly stated, what the framers of the Fourth Amendment 
attempted to do was to place a check on the unfettered 
authority of the state from having the authority without 
probable cause to invade people's homes on a pretext of 
searching for property or papers that had not been tied to the 
likely commission of a crime. Without the requirement that a 
search of private property have a nexus to both criminal 
conduct and to an external authority (judge or magistrate), a 
soldier, a federal agent, or a policeman, could take unto 
himself the right to execute what was called in the colonies a 
``general warrant'', which permitted a search of a home for 
``whatever'' evidence that might be found.
    Lost in the Judiciary Committee's adoption of this bill is 
the basic axiom of the Fourth Amendment: that it serves to 
protect citizens against unreasonable governmental searches and 
seizures. The Fourth Amendment of the Constitution reads 
simply:

        The right of the people to be secure in their persons, 
        houses, papers, and effects against unreasonable 
        searches and seizures, shall not be violated and no 
        Warrants shall issue, but upon probable cause, 
        supported by Oath or affirmation, and particularly 
        describing the place to be searched, and the persons or 
        things to be seized.

    Since United States v. Weeks, 232 U.S. 384 (1914), the 
mandates of the Fourth Amendment have been enforced through the 
application of an exclusionary rule. That rule forbids the 
introduction into evidence at a criminal trial of items found 
as a result of an illegal search or seizure. Since 1961, the 
exclusionary rule has applied not only in the Federal courts 
but also in every state or local court in which defendants 
stand accused of crime. During all those years, Congress has 
never spoken on the wisdom of the exclusionary rule but instead 
allowed the judiciary to develop its standards to judge the 
rule--as well as its very visible exceptions--as procedural 
safeguards for the Fourth Amendment. Such procedural safeguards 
are indeed necessary because the constitutional protections are 
never self-enforcing. In numerous cases, the Supreme Court, the 
ultimate arbiter of our constitutional rights, has held 
precisely that: that the exclusionary rule is required to 
enforce the protections of the Fourth Amendment. To do 
otherwise, as the Court observed in the seminal case of Mapp v. 
Ohio would be ``to permit that right [ensured in the Fourth 
Amendment] to remain an empty promise.''
    Comes now the Contract with America with its own promise to 
make the Fourth Amendment an empty promise. We do not find that 
to be a reasonable tradeoff. Moreover, lost on the majority in 
its passage of H.R. 666 is the fundamental issue of whether 
Congress even has the power to lessen the requirements of the 
exclusionary rule as mandated by the Constitution. While the 
majority evidently does not wish to address the question 
directly, it would be difficult for anyone but the purest 
polemicist to contend that if, in fact, the exclusionary rule 
is a constitutional requirement, then Congress has the power to 
change it by simple legislation rather than by a constitutional 
amendment. Even though the Contract with America offers up a 
panoply of other constitutional amendments, for some reason in 
lacerating the Fourth Amendment the Contract proposes a 
statutory change and frames the issue around whether the 
exclusionary rule serves or does not serve other interests.
    What is inescapable is that the decision in Mapp v. Ohio 
clearly applied the exclusionary rule to the States. Prior to 
Mapp, it might have been argued that the Supreme Court in 
requiring the exclusion of illegally seized evidence in Federal 
courts was simply exercising its supervisory powers over the 
inferior Article III tribunals. But that argument evaporated 
with the Mapp decision; for the Supreme Court has no 
supervisory power over state courts. The power to extend the 
exclusionary rule to state courts could have only derived from 
the due process clause of the Fourteenth Amendment, and as 
such, the exclusionary rule must be viewed as a constitutional 
requirement.
    Let us be clear: the majority refuses to acknowledge that 
the exclusionary rule has undergone continuing scrutiny and 
refinement in the federal judiciary. If the problem being 
identified by the proponents of this legislation is whether our 
policemen are being hamstrung in discharging their duties, then 
the majority should acknowledge that this concern has been well 
attended to by the Supreme Court--the Burger and Rehnquist 
Courts--as a viable factor in making the exclusionary rule 
work. But where H.R. 666 strays beyond concern for effective 
law enforcement to seeking the dangerous goal of eradicating 
the warrant requirement entirely is by permitting law 
enforcement officers to exercise his or her own judgment about 
``probable cause'' being found for a search without first 
consulting an external source of authority to validate or 
invalidate that impulse.\1\
    \1\ It should be noted that the need for a warrant is already 
dispensed with in other law enforcement exigencies where because of 
direct observation, law enforcement officials believe the commission of 
criminal conduct is likely and imminent. The so-called plain-view 
doctrine is accepted law and a valuable tool to law enforcement 
officials everywhere.
---------------------------------------------------------------------------
    Beginning with United States v. Leon, 468 U.S. 897 (1984), 
the Supreme Court formally adopted a ``good faith'' exception 
to the Fourth Amendment exclusionary rule. In Leon, the Court 
ruled that evidence seized in reasonable ``good faith'' 
reliance on a search warrant subsequently found to be defective 
would be admissible provided that the officer's reliance is 
objectively reasonable. The key phrase here is, of course, the 
officer's ``reliance'' on the judgment of an external authority 
(a member of another branch of government)--namely, the 
``judiciary'', which has always been presumed to be a ``neutral 
and detached'' party. Id at 914. Leon thus gave police officers 
needed latitude to discharge their duties in a good faith 
manner--without severing all ties to a ``reality check'' in the 
form of a judge or magistrate.
    The same type of ``good faith'' reliance by an officer on 
external authority for permission to search or seize was 
further developed in the subsequent cases of Illinois v. Krull, 
480 U.S. 340 (1987); and Illinois v. Rodriguez, 497 U.S. 177 
(1990). That the good faith exception is alive and well can be 
observed in the wide parameters most recently established in 
Krull. There, the question the Supreme Court faced was whether 
the good faith exception could even extend to a situation where 
an officer's reliance on the constitutionality of a statute 
appears objectively reasonable but that the statute is 
subsequently declared unconstitutional. The Supreme Court ruled 
that such evidence was permissible.
    In Krull, Justice O'Connor, among others, began to warn 
that the court may have begun to reach the outer limits of the 
good-faith exception. Perceptively, she warned that 
legislators--not wanting to be perceived ``as soft on crime''--
might well pass a statute that went well beyond permissible 
police search and seizure powers. In that case, the statute 
would be the sole guidepost for permissible police conduct 
until a case could challenge such an unconstitutional grant of 
authority.
    But even as recently as seven years ago, Justice O'Connor 
underestimated the fierce forces driving certain legislators 
not to be perceived as ``soft on crime.'' For in H.R. 666, 
Krull is left far behind. In H.R. 666, there is found no 
requirement of reliance by an enforcement official on some 
warrant issued by a judge, or even by some impermissibly broad 
statute passed by a legislature. There is only the officer's 
own determination that ``probable cause'' exists to invade a 
person's home or property.
    The proponents of H.R. 666 have never revealed why the 
Supreme Court jurisprudence on the good-faith exception is 
unacceptable. They merely claim that police are being 
hamstrung; that criminals are being released in droves because 
of ``technical'' violations of evidentiary rules. No empirical 
evidence is cited in support of such inflammatory and graphic 
rhetoric. But in the single hearing held debating the warrant 
requirement from the Constitution, contrary evidence was 
offered by criminal justice officials--and not by prison 
inmates convicted of repeat, violent offenses, as the 
proponents would have one believe. For example, a General 
Accounting Office report of 38 U.S. Attorney's offices which 
found that defendants raise the exclusionary rule in only 1.3% 
of the cases and, even here, more than 50% of the defendants 
were convicted anyway.\2\
    \2\ General Accounting Office, ``Impact of the Exclusionary Rule on 
Federal Criminal prosecutions,'' Report No. CDG-79-45 (Apr. 19, 1979). 
See also, Thomas Y. Davies, ``A Hard Look at What We Know (and still 
need to learn) About the `Costs' of the Exclusionary Rule,'' American 
Bar Association (1983) (non-prosecution or non-conviction resulting 
from illegal searches is in the range of 0.6% to 2.35% of all adult 
felony arrests.)
---------------------------------------------------------------------------
    E. Michael McCann, the District Attorney for Milwaukee 
County, who said he has prosecuted and ``put tens of thousands 
of persons behind bars'' testified at a hearing of the 
Subcommittee on Crime that:

        * * * if I felt the exclusionary rule was impairing 
        [or] impacting negatively on my prosecutions, I would 
        not be here supporting the exclusionary rule. * * * If 
        I felt I had been handcuffed, which is an expression 
        you will occasionally hear, or deterred from 
        enforcement, I would be candid about it.\3\
    \3\ Testimony of E. Michael McCann, before the Subcommittee on 
Crime, January 20, 1995, at page 12-13.

    District Attorney McCann then described how he believed 
police officers would interpret the change in the exclusionary 
---------------------------------------------------------------------------
rule:

          If I was educating police officers, if this rule is 
        adopted, I would say to them * * *, here is the 
        constitutional law. You shouldn't go beyond this but I 
        will tell you what the courts are doing. They are 
        permitting evidence that goes beyond the Constitution. 
        They are permitting evidence if you are acting on 
        objectively reasonable belief.
          And an officer, then, saying, should I go into that 
        house, do I have the grounds, would think, what does 
        the Constitution say and then what goes beyond the 
        Constitution? * * *
          And he [the police officer] says, I know this is 
        unconstitutional. I [also] know from prior experience 
        in the narcotics courts, the judges have said this 
        constitutes reasonable belief. I am going to act on it 
        even though I know it is unconstitutional.\4\
    \4\ McCann at page 27.

    Thus, the exclusionary rule protects the very integrity of 
the criminal justice system by requiring law enforcement to 
articulate to the judiciary the factors indicating the 
existence of probable cause. By so doing, the rule encourages 
careful police work that will help build the prosecution case 
at trial.
    The Republican majority must be given great credit for one 
thing: succeeding, temporarily, in eclipsing the debate in the 
judiciary over whether the Leon-Krull-Rodriguez line of cases 
has taken the ``good faith'' exception beyond the outer bounds 
of permissible constitutional requirements. By leaping to 
another constitutional solar system entirely where there is no 
judiciary but only FBI and BATF agents breaking into homes of 
private citizens, the legislation has attempted to denigrate 
the real and continuing legal debate over the exclusionary rule 
to an arcane dialogue among constitutional scholars, federal 
judges, law professors and the defense bar while Congress takes 
decisive action. But that debate is precisely what is needed to 
shape well-reasoned and sound constitutional requirements, as 
adopted to life in the 21st Century, and not just in the 18th 
Century.
    There is another area obscured by the arguments presented 
by the majority: that the exclusionary rule was not put in 
place as a procedural safeguard to select which class of guilty 
defendants should go free; rather, it was instituted to protect 
the innocent who were subjected to illegal search and 
seizures.\5\
    \5\ Congressman Scott pursued this important line of inquiry when 
he asked District Attorney McCann (transcript at pp. 31-32) if there 
was any remedy other than the exclusionary rule for people whose Fourth 
Amendment rights may have been violated:
    ``Mr. Scott. Could you say a little bit more about how this rule 
affects innocent people? Is there any other way of keeping officers out 
of illegal searches of innocent people other than the exclusionary 
rule? Mr. Larkin has suggested suing the officer. Have you seen any 
success in that area?
    ``Mr. McCann. No, there is not. And, by the way, you asked--
civilly, no. They are not going to get much in damages if they bothered 
to sue.
    ``Mr. Scott. If I drive a Florida rental car up [Interstate] 95 and 
get stopped because I am black, there is just no remedy.
    ``Mr. McCann. No remedy, sir. Realistically, none.
    ``Mr. Scott. And the exclusionary rule is the only thing that 
prevents the police officers from doing that because if they found 
cocaine in my car, they couldn't use it anyway?
    ``Mr. McCann. That is basically the rule.
    ``Mr. Scott. That is what keeps them out of my car as an innocent 
person going up 95 driving a Florida rental car.
    ``Mr. McCann. That is right, sir. I do want to say, about ten years 
ago * * * I did an exhaustive search to see if there was anywhere I 
could find an officer criminally prosecuted for maliciously, 
deliberately, unconstitutionally searching a citizen. I could find no 
criminal prosecution in the United States for that. Not one in the 
United States.''
---------------------------------------------------------------------------
    The Constitution is inherently a ``conservative'' document 
by safeguard unto individuals rights and liberties that cannot 
be taken away by the State without due process of law. In that 
light, H.R. 666 is not a ``conservative'' effort to refine the 
exclusionary rule within constitutional bounds. It is a 
cartoon-like enterprise, aimed at eliciting instant visceral 
responses, and all the while promoting a disturbing subtextual 
current of race and big-city crime underneath its surface.
    Submerged in this effort for now is how average Americans 
all across this country would be affected if H.R. 666 were to 
become law even for a short period before being struck down as 
unconstitutional. There is a strong reason why the Constitution 
sets up high barriers to the government breaking into private 
citizens' homes, or capriciously seeking to exercise its 
``taking power'' of private property without adequate 
compensation. It should be remembered: the life of the 
``Contract with America'' expired in a hundred days. It is now 
up to the full House, the Senate, the President and the federal 
judiciary to ensure that this 100 days is not permitted to do 
lasting damage to the Fourth Amendment of the Constitution, 
which has lasted a good bit longer than 100 days.
    For all these reasons, I [we] strongly dissent.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Pat Schroeder.
                                   Jack Reed.
                                   Jerrold Nadler.
                                   Sheila Jackson-Lee.
                                   Bobby Scott.
                                   Jose E. Serrano.
                                   Melvin L. Watt.
                                   Zoe Lofgren.