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ment applied to the States, but it was not until 1961, 14 years later, that the exclusionary rule applied. Now, the effect of applying the exclusionary rule, certainly in New York State, which I am most familiar with, was dramatic. In 1960, the year before Mapp v. Ohio, in New York City we obtained a bare handful of search warrants, and in 1962 I think about 14,000 search warrants were obtained. So, I think that the Supreme Court's action had a healthy impact in that it persuaded law enforcement officers to conform with what was clearly the law. I think that if there were another remedy or other remediesSenator MCCLELLAN. Go ahead.

Mr. BRODERICK. I think that if there were other remedies available than the exclusionary rule, which could be used in cases of inadvertent violation of the fourth amendment rather than deliberate violation, it would help law enforcement and help society.

Senator MCCLELLAN. While you are on that point I wish you would discuss the most recent decision of the Supreme Court in the Spinelli case. It was decided on the question of probable cause. The affidavit stated that the F.B.I. had information from a reliable source with respect to the operation of a gambling or bookie operation in a certain apartment. The number of the telephones was given, an account of the suspect's movements for five days was reported, and it showed him going in there just as the sources had represented. The search warrant was issued on the basis of that of showing to the court, and a raid was made, and gambling equipment and other gambling evidence was found. But the court said, well, the F.B.I. didn't show probable cause, so the whole thing went out the window.

Now, what do you think of that?

Mr. BRODERICK. Well, I thought-I disagreed with the opinion in the Spinelli case and it seemed to me that the Supreme Court was getting into a factual situation which should be more the province of the lower courts. Of course, I think what Justice Harlan was saying was that it is not enough just to have facts in your affidavit unless those facts really do go to substantiate the total picture of probable cause, and simply showing what the telephone numbers are of a woman in that apartment and showing that this man was going in and out of the apartment does not substantiate what the reliable information from the source

Senator MCCLELLAN. I think they showed in addition to that that they had definite information that the operation was there from an informant whose information had proved reliable in the past.

Mr. BRODERICK. Well, I have a basic problem, not only with the— Senator MCCLELLAN. I am not asking you to critize. But I am asking if you think that it will be more difficult to establish probable cause, in the future, and since we must resort now more often to the search warrant instead of other practices that were engaged in before, do you think police work will be made more difficult? What do you think? Mr. BRODERICK. Well, Senator, you know that this cuts both ways. In the Peters case, which was one of the stop and frisk cases, the Supreme Court found probable cause in a situation where I just could not see probable cause. My whole problem with appellate approach to probable cause is that the expertise of the experienced police officer

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1 Sibron v. New York, 392 U.S. 40 (1968).

and the expertise of the experienced trial judge, it seems to me, is not given sufficient weight by the appellate courts.

Senator MCCLELLAN. Well, that is what I think. They try it anew up here, apparently, and they just say, well, we do not think such and such is probably cause. I do not know. There is no stability_any more. What can you look to when you try a case relying on precedent, that has been good all these years, but then get to the Supreme Court and they reverse it on some technicality. How do you account for it? Mr. BRODERICK. Well, they just reversed the one case, and then you build on that case and you have a precedent. This really does not concern me too much, Senator. I think law enforcement can live with probable cause, even a more tightly structured definition of probable cause, so long as it knows what it is living with. I think law enforcement lives today pretty comfortably with the Miranda 2 rule whereas I do not think it ever could have with the Escobedo 3 rule because there is no

Senator MCCLELLAN. They lived pretty comfortably with it a few days ago here in the District in a case involving a robber. The arresting officer captured the suspect on the street and gave him the Miranda warnings. The officer called his superiors and they said bring him in to headquarters for processing. They processed him, and, of course they gave him the Miranda warnings again. He started talking and said he wanted to clear up something; he said he wanted to keep one of his buddies from being blamed for a certain robbery, and he went on talking about it and finally confessed to four robberies in his oral confession. When he started making the confession they had him read the Miranda warnings that the police have on their card and made him sign a statement that he had read it and understood it. He waived his right to counsel, and when they started to take notes of what he said, he said, "No, I don't want you to take notes; I will tell you, but I don't want anything written down." But in the course of his oral confession he confessed to the robbery for which he was indicted, and he actually demonstrated to the police there how that robbery, and three other robberies, were committed.

The case went up to the court of appeals-incidentally, he was out on parole on a robbery charge at the time this was done. At the time he committed the robbery for which he was convicted-and he confessed to four of them-at the time he was picked up on the charge for which he was tried, he was out on parole for a robbery. I am saying that he had a prior record, a criminal record, extending back through the years, larcency, assault, various crimes, but you say the Miranda rule does not have any effect. The court reversed it saying it could be that when he suggested not to write anything down maybe he thought that they could not use anything against him unless it was written down so, therefore, they reversed the conviction. That is the court of appeals here in the District of Columbia.

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I made some comment on the floor of the Senate pertaining to this case a few days ago. Now, if that is justice, how can trial courts, how can prosecutors, how can policemen possibly know how to perform

2 384 U.S. 348 (1966).

3378 U.S. 478 (1964).

See Congressional Record, Mar. 20, 1969 (daily edition, pp. S2965-S2972).

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their duties? It simply undermines their best efforts to enforce the law and protect society.

Mr. BRODERICK. Well, of course, on that case, which I am not familiar with, Senator

Senator MCCLELLAN. Well, maybe you are not familiar with it, but I am, and I am familiar with the record in it.

Mr. BRODERICK. Well, on that case it seems to me that there was superimposed on Miranda something more. There was superimposed

Senator MCCLELLAN. Well, every time we get these things something more is imposed. That is what I am talking about. You cannot rely on the traditions and on the precedents of the past any more in the enforcement of criminal law. Everything has something else imposed on it. I do not know where we will find the end of it. I do not know how society is going to protect itself.

But, go ahead with your statement.

Mr. BRODERICK. Well, in the search and seizure area it seems to me that there are many searches and seizures which may be technically illegal but are not deliberate violations of the fourth amendment, and if other sanctions were available than exclusion in serious cases it seems to me that they could be enforced and that the trial court could have discretion, not to impose exclusion.

Mr. BLAKEY. Mr. Broderick, could I explore with you for a moment some of the implications of your suggestion? As you know, this country has experienced varying policies in the area of electronic surveillance over the last 10 or 15 years. Up until June 19 of last year, for example, there was a diversity of policy on the Federal and State level. We are now experiencing, moreover, the consequences of changes in these rules. I wonder if it would be possible, in line with your suggestion, for the Congress to pass a statute setting up an alternative civil remedy for past violations of electronic surveillance standards, so that the defendant could be given a civil remedy rather than the suppression remedy. New York, for example, would not have to experience what it did in the Berger case, when it operated under a New York statute which was thought to be constitutional. It then indicted and tried an individual, but suddenly found in Berger that what it had done was unconstitutional, and the use of electronic surveillance pursuant to New York law was illegal. I am sure you are aware of the situation involving Leonard Grossman, who was a New York City policeman, and who was overheard plotting murder of a Federal informer.2 The police department in New York is now litigating whether Mr. Grossman will be reinstated, because the evidence indicating that he participated in the murder was illegally obtained, since the Berger case controlled the situation. I wonder if in line with your suggestion it would be possible for the Congress to set up a civil remedy in this situation and thus make legal, for the purposes of admissibility, that which happened prior to June 19?

Mr. BRODERICK. I do not think I would be prepared to suggest that Congress could do something now which would retroactively legalize something which was illegal at the time. What I am suggesting is that there should be a pattern of alternative remedies available which

1388 U.S. 41 (1967).

2 People v. Grossmon, 283 N.Y.S. 2d 12, 20 N.Y. 2d 346, 229 W.E. 2d 589 (1967).

would really be remedies which are much broader than the present remedy or the present sanction of exclusion. Exclusion works only in the case that comes before the court. If somebody, if some law enforcement officer searches my house without a warrant and then does nothing about it, does not arrest me or does not bring charges against me, or does not seize evidence, there is nothing I can do about it as a practical matter. It is only when he acts on the illegal search that the court has a chance to review the thing, and then the only sanction available to the court is to suppress whatever evidence he seized. Now, what I am suggesting is that there be consideration given to a pattern of remedies which would apply not only with respect to cases that come into court, but with respect to all cases, remedies for illegal search, liquidated money damages for the victim of the search, which would be paid not by an individual police officer, but by the agency which employs him, because this would encourage the agency to maintain proper standards of search.

Senator MCCLELLAN. Well, would you make the city, the municipality, liable for the illegal search by a police officer?

Mr. BRODERICK. I would in the case

Senator MCCLELLAN. And make the taxpayers liable for it?

Mr. BRODERICK. In a case where he is acting, you know, within the scope of his duties

Senator MCCLELLAN. Well, if an officer goes out and acts beyond the law, knowing that he has no right to do it, he is not acting within the scope of his duty. Why should the taxpayer be penalized?

Mr. BRODERICK. Well, because, Senator, the fact of the matter is that for years and years and years, police officers made searches without warrants even though this was in violation of the law because at that time there was no remedy at all. Even exclusion was not applied to the States, so there was no remedy at all, and even though the law required a search warrant before a search, no search warrant was secured. Now, I certainly would not be prepared to say that he was acting outside of the scope of his employment. He was doing what he thought served the purpose of the law

Senator MCCLELLAN. Well, it has been established now that that is illegal and, of course, it was then.

Mr. BRODERICK. That is right.

Senator MCCLELLAN. Should the taxpayers be held responsible?

Mr. BRODERICK. I think they should, because I think the taxpayers should be responsible for the quality of the people who serve them as police officers

Senator MCCLELLAN. I just want to get your reaction.

Mr. BRODERICK (continuing). And for the behavior of those police officers, and I think if this burden is put on the taxpayer you are going to see fairly rigid policies of what is right and what is wrong in this area will be laid down by police agencies, just as

Senator MCCLELLAN. Well, let us carry it a little further. We are having a lot of disorders in the country, have had, and are still having some, riots and so forth, and the charge is made that police officers use excessive force sometimes. Well, it is in violation of the law when you use excessive force; that is, make an assault upon someone unnecessarily. Would you make the taxpayers of the country liable for those damages?

Mr. BRODERICK. Well, I think there is no question. I am not suggesting that at this point, but I think there is no question that in a civil action for damages stemming out of police behavior in a riot situation that the city is going to be responsible for excesses on the part of the police. I would like to say something, and this is off the subject, Senabut I would like to say

tor,

Senator MCCLELLAN. Well, there are so many ramifications to this problem of trying to find a way to protect society against crime.

Mr. BRODERICK. I would just like to say something on this business of excesses by police officers. We highlight the situation where there has been an excess, and we completely ignore, and television and radio and newspapers do not cover the hundreds and thousands of situations where police officers have very responsibly and very calmly, and without any excesses, handled situations very well, and this gets completely out of proportion in my judgment.

But, I would suggest that this remedy be considered, the remedy of damages for illegal searches. I would also suggest that there be statutory provision for the possibility of enjoining in proper searches. You would then have a pattern of alternative remedies, remedies alternative to exclusion, and you could statutorially give to the judge the power to use his discretion as to whether this particular search, technically illegal, should or should not result in suppression. Right now he has no discretion at all.

Senator MCCLELLAN. Well, of course, that would be subject to review, would it not?

Mr. BRODERICK. Well, of course, Senator, everything that Congress does is, in one way or another

Senator MCCLELLAN. Well, I know. I just point it out, that that would not be final necessarily, it would be subject to review.

Mr. BRODERICK. It would be subject to review, but we have to reach for different approaches, we have to try new approaches, and I do not think we should be deterred by the fact that what Congress does will be reviewed, because I think we

Senator MCCLELLAN. Well, I did not say that

Mr. BRODERICK. No; I know you did not.

Senator MCCLELLAN. I say to you that I think you are absolutely correct on that, anything that the Congress does, or anything that the lower court does, should be subject to review.

Mr. BRODERICK. But, I think there is a tendency to think in this whole area of law enforcement that because the Supreme Court has had a particular opinion in a particlar area, has made a particular interpretation, that experimentation in other directions in the same area is foreclosed, and I think this is thinking that we should avoid.. Senator MCCLELLAN. Well, in other words, you feel there are court decisions that require attention, and we should try to alleviate their impact on law enforcement?

Mr. BRODERICK. Oh, I think there is no question about that. I think there is no question about that.

Now, similarly, in the area of interrogation, our committee has. suggested that there is room for a new approach here. At the present time if a witness refuses to testify, refuses to make a statement, there is no comment that can be made on this in the course of a trial..

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