“The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had.”
“The proposition could not be presented more nakedly. It is that, although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them. . . . In our opinion, such is not the law. It reduces the Fourth Amendment to a form of words. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. ”
Id. at 251 U. S. 391 -392 (citations omitted) (emphasis added).
[ Footnote 2/6 ]
See generally Kamisar, Does (Did) (Should) The Exclusionary Rule Rest on a “Principled Basis” Rather than an “Empirical Proposition”?, 16 Creighton L.Rev. 565, 598-599 (1983); Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365, 379-380 (1981).
[ Footnote 2/7 ]
Indeed, the Court in Mapp expressly noted that the “factual considerations” raised in Wolf concerning the effectiveness of alternative remedies “are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the Fourth Amendment.” 367 U.S. at 367 U. S. 651 . It is true that, in Linkletter v. Walker, 381 U. S. 618 (1965), in holding that Mapp was not to be applied retroactively, the Court described the exclusionary rule as the “only effective deterrent to lawless police action,” 381 U.S. at 381 U. S. 636 , thereby suggesting that the rule rested on a deterrence rationale. But, as I have explained on another occasion,
“[t]he emphasis upon deterrence in Linkletter must be understood in the light of the crucial fact that the States had justifiably relied from 1949 to 1961 upon Wolf . . . . , and consequently, that application of Mapp would have required the wholesale release of innumerable convicted prisoners, few of whom could have been successfully retried. In that circumstance, Linkletter held not only that retrospective application of Mapp would not further the goal of deterrence, but also that it would not further ‘the administration of justice and the integrity of the judicial process.’ 381 U.S. at 381 U. S. 637 .”
United State v. Calandra, 414 U. S. 338 , 414 U. S. 359 -360 (1974) (dissenting opinion).
[ Footnote 2/8 ]
Justice Stewart has explained this point in detail in a recent article:
“Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the Fourth Amendment itself. It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. . . .”
“. . . The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals. . . . [T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power.”
Stewart, 83 Colum.L.Rev. at 1392-1393. See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1563 (1972) (“Under the exclusionary rule, a court attempts to maintain the status quo that would have prevailed if the constitutional requirement had been obeyed”).
[ Footnote 2/9 ]
See generally on this point, Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NU Study and Other Studies of”Lost” Arrests, 1983 A.B.F.Res.J. 611, 627-629; Canon, Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for its Retention, 23 S.Tex.L.J. 559, 561-563 (1982); Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 NW.U.L.Rev. 740 (1974).
[ Footnote 2/10 ]
Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind.L.J. 329, 332-333 (1973). See also White, Forgotten Points in the “Exclusionary Rule” Debate, 81 Mich.L.Rev. 1273, 1281-1282 (1983) (balancing of deterrent benefits and costs is an “inquiry [that] can never be performed in an adequate way, and the reality is thus that the decision must rest not upon those grounds, but upon prior dispositions or unarticulated intuitions that are never justified”); Canon, supra, at 564; Kamisar, 16 Creighton L.Rev. at 646.
[ Footnote 2/11 ]
In a series of recent studies, researchers have attempted to quantify the actual costs of the rule. A recent National Institute of Justice study based on data for the 4-year period 1976-1979 gathered by the California Bureau of Criminal Statistics showed that 4.8% of all cases that were declined for prosecution by California prosecutors were rejected because of illegally seized evidence. National Institute of Justice, Criminal Justice Research Report — The Effects of the Exclusionary Rule: A Study in California 1 (1982). However, if these data are calculated as a percentage of all arrests, they show that only 0.8% of all arrests were rejected for prosecution because of illegally seized evidence. See Davies, 1983 A.B.F.Res.J. at 619.
In another measure of the rule’s impact — the number of prosecutions that are dismissed or result in acquittals in cases where evidence has been excluded — the available data again show that the Court’s past assessment of the rule’s costs has generally been exaggerated. For example, a study based on data from nine mid-sized counties in Illinois, Michigan, and Pennsylvania reveals that motions to suppress physical evidence were filed in approximately 5% of the 7,500 cases studied, but that such motions were successful in only 0.7% of all these cases. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F.Res.J. 585, 596. The study also shows that only 0.6% of all cases resulted in acquittals because evidence had been excluded. Id. at 600. In the GAO study, suppression motions were filed in 10.5% of all federal criminal cases surveyed, but of the motions filed, approximately 80-90% were denied. GAO Report, at 8, 10. Evidence was actually excluded in only 1.3% of the cases studied, and only 0.7% of all cases resulted in acquittals or dismissals after evidence was excluded. Id. at 9-11. See Davies, supra, at 660. And in another study based on data from cases during 1978 and 1979 in San Diego and Jacksonville, it was shown that only 1% of all cases resulting in nonconviction were caused by illegal searches. F. Feeney, F. Dill, & A. Weir, Arrests Without Conviction: How Often They Occur and Why (National Institute of Justice 1983). See generally Davies, supra, at 663.
[ Footnote 2/12 ]
As Justice Stewart has observed:
“[T]he exclusionary rule is not designed to serve a specific deterrence function; that is, it is not designed to punish the particular police officer for violating a person’s fourth amendment rights. Instead, the rule is designed to produce a ‘systematic deterrence:’ the exclusionary rule is intended to create an incentive for law enforcement officials to establish procedures by which police officers are trained to comply with the fourth amendment because the purpose of the criminal justice system — bringing criminals to justice — can be achieved only when evidence of guilt may be used against defendants.”
Stewart, 83 Colum.L.Rev. at 1400. See also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 709-710 (1970) (“The exclusionary rule is not aimed at special deterrence, since it does not impose any direct punishment on a law enforcement official who has broken the rule. . . . The exclusionary rule is aimed at affecting the wider audience of all law enforcement officials and society at large. It is meant to discourage violations by individuals who have never experienced any sanction for them”); Mertens & Wasserstrom, 70 Geo.L.J. at 399-401; Kamisar, 16 Creighton L.Rev. at 597, n. 204.
[ Footnote 2/13 ]
Although specific empirical data on the systemic deterrent effect of the rule are not conclusive, the testimony of those actually involved in law enforcement suggests that, at the very least, the Mapp decision had the effect of increasing police awareness of Fourth Amendment requirements and of prompting prosecutors and police commanders to work towards educating rank-and-file officers. For example, as former New York Police Commissioner Murphy explained the impact of the Mapp decision:
“I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect. . . . I was immediately caught up in the entire program of reevaluating our procedures, which had followed the Defore rule, and modifying, amending, and creating new policies and new instructions for the implementation of Mapp. . . . Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen.”
Murphy, Judicial Review of Police Methods in Law Enforcement: The Problem of Compliance by Police Departments, 44 Texas L.Rev. 939, 941 (1966).
Further testimony about the impact of the Mapp decision can be found in the statement of Deputy Commissioner Reisman:
“The Mapp case was a shock to us. We had to reorganize our thinking, frankly. Before this, nobody bothered to take out search warrants. Although the U.S. Constitution requires warrants in most cases, the U.S. Supreme Court had ruled that evidence obtained without a warrant — illegally, if you will–was admissible in state courts. So the feeling was, why bother? Well, once that rule was changed, we knew we had better start teaching our men about it.”
N.Y. Times, Apr. 28, 1965, p. 50, col. 1. A former United States Attorney and now Attorney General of Maryland, Stephen Sachs, has described the impact of the rule on police practices in similar terms:
“I have watched the rule deter, routinely, throughout my years as a prosecutor. . . . [P]olice-prosecutor consultation is customary in all our cases when Fourth Amendment concerns arise. . . . In at least three Maryland jurisdictions, for example, prosecutors are on twenty-four hour call to field search and seizure questions presented by police officers.”
Sachs, The Exclusionary Rule: A Prosecutor’s Defense, 1 Crim. Justice Ethics 28, 30 (Summer/Fall 1982). See also LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U.Pitt.L.Rev. 307, 319 (1982); Mertens & Wasserstrom, supra, at 394-401.
[ Footnote 2/14 ]
The authors of a recent study of the warrant process in seven cities concluded that application of a good faith exception where an officer relies upon a warrant
“would further encourage police officers to seek out the less inquisitive magistrates and to rely on boilerplate formulae, thereby lessening the value of search warrants overall. Consequently, the benefits of adoption of a broad good faith exception in terms of a few additional prosecutions appears to be outweighed by the harm to the quality of the entire search warrant process and the criminal justice system in general.”
R. Van Duizend, L. Sutton, & C. Carter, The Search Warrant Process: Preconceptions, Perceptions, and Practices 8-12 (Review Draft, National Center for State Courts, 1983). See also Stewart, 83 Colum.L.Rev. at 1403.
[ Footnote 2/15 ]
Just last Term, in Illinois v. Gates, 462 U. S. 213 (1983), the Court noted:
“Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.”
Id. at 462 U. S. 239 . After today’s decisions, there will be little reason for reviewing courts to conduct such a conscientious review; rather, these courts will be more likely to focus simply on the question of police good faith. Despite the Court’s confident prediction that such review will continue to be conducted, see ante at 468 U. S. 924 -925, it is difficult to believe that busy courts faced with heavy dockets will take the time to render essentially advisory opinions concerning the constitutionality of the magistrate’s decision before considering the officer’s good faith.
[ Footnote 2/16 ]
As the Court of Appeals for the Second Circuit has observed in this regard:
“If a magistrate’s issuance of a warrant were to be, as the government would have it, an all but conclusive determination of the validity of the search and of the admissibility of the evidence seized thereby, police officers might have a substantial incentive to submit their warrant applications to the least demanding magistrates, since, once the warrant was issued, it would be exceedingly difficult later to exclude any evidence seized in the resulting search even if the warrant was issued without probable cause. . . . For practical purposes, therefore, the standard of probable cause might be diluted to that required by the least demanding official authorized to issue warrants, even if this fell well below what the Fourth Amendment required.”
United States v. Karathanos, 53 F.2d 26, 34 (1976).
[ Footnote 2/17 ]
See Kamisar, Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa L.Rev. 551, 588-589 (1984); Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am.Crim.L.Rev. 257 (1984); LaFave, 43 U.Pitt.L.Rev. at 307.
JUSTICE STEVENS, concurring in the judgment in No. 82963, post, p. 468 U. S. 981 , and dissenting in No. 82-1771.
It is appropriate to begin with the plain language of the Fourth Amendment:
“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.”
The Court assumes that the searches in these cases violated the Fourth Amendment, yet refuses to apply the exclusionary rule because the Court concludes that it was “reasonable” for the police to conduct them. In my opinion, an official search and seizure cannot be both “unreasonable” and “reasonable” at the same time. The doctrinal vice in the Court’s holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures, and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable, [ Footnote 3/1 ]
Home Page 468 U. S. 961
and that there are only a few carefully delineated exceptions to that basic presumption. [ Footnote 3/2 ] But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not “unreasonable” within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless “reasonable” within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable.
I
In No. 82-963, the Supreme Judicial Court of Massachusetts determined that a warrant which purported to authorize a search of respondent’s home had been issued in violation of the Warrant Clause. In its haste to make new law, this Court does not tarry to consider this holding. Yet, as I will demonstrate, this holding is clearly wrong; I would reverse the judgment on that ground alone.
In No. 82-1771, there is also a substantial question whether the warrant complied with the Fourth Amendment. There was a strong dissent on the probable cause issue when Leon was before the Court of Appeals, and that dissent has been given added force by this Court’s intervening decision in Illinois v. Gates, 462 U. S. 213 (1983), which constituted a significant development in the law. It is probable, though admittedly not certain, that the Court of Appeals would now conclude that the warrant in Leon satisfied the Fourth Amendment if it were given the opportunity to reconsider the issue in the light of Gates. Adherence to our normal
Home Page 468 U. S. 962
practice following the announcement of a new rule would therefore postpone, and probably obviate, the need for the promulgation of the broad new rule the Court announces today. [ Footnote 3/3 ]
It is, of course, disturbing that the Court chooses one case in which there was no violation of the Fourth Amendment, and another in which there is grave doubt on the question, in order to promulgate a “good faith” exception to the Fourth Amendment’s exclusionary rule. The Court’s explanation for its failure to decide the merits of the Fourth Amendment question in No. 82-963 is that it “is a fact-bound issue of little importance,” Massachusetts v. Sheppard, post at 468 U. S. 988 , n. 5. In No. 82-1771, the Court acknowledges that the case could be remanded to the Court of Appeals for reconsideration in light of Gates, yet does not bother to explain why it fails to do so except to note that it is “within our power” to decide the broader question in the case. United States v. Leon, ante at 468 U. S. 905 . The Court seems determined to decide these cases on the broadest possible grounds; such determination is utterly at odds with the Court’s traditional practice, as well as any principled notion of judicial restraint. Decisions made in this manner are unlikely to withstand the test of time.
Judges, more than most, should understand the value of adherence to settled procedures. By adopting a set of fair procedures, and then adhering to them, courts of law ensure that justice is administered with an even hand.
“These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice.”
Offutt v. United States, 348 U. S. 11 , 348 U. S. 14 (1954). Of course, this Court has a duty to face questions of constitutional law when necessary to the disposition of an actual case or controversy. Marbury v. Madison, 1 Cranch
Home Page 468 U. S. 963
137, 5 U. S. 177 (1803). But when the Court goes beyond what is necessary to decide the case before it, it can only encourage the perception that it is pursuing its own notions of wise social policy, rather than adhering to its judicial role. I do not believe the Court should reach out to decide what is undoubtedly a profound question concerning the administration of criminal justice before assuring itself that this question is actually and of necessity presented by the concrete facts before the Court. Although it may appear that the Court’s broad holding will serve the public interest in enforcing obedience to the rule of law, for my part, I remain firmly convinced that “the preservation of order in our communities will be best ensured by adherence to established and respected procedures.” Groppi v. Leslie, 436 F.2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting), rev’d, 404 U. S. 496 (1972).
II
In No. 82-963, there is no contention that the police officers did not receive appropriate judicial authorization for their search of respondent’s residence. A neutral and detached judicial officer had correctly determined that there was probable cause to conduct a search. Nevertheless, the Supreme Judicial Court suppressed the fruits of the search because the warrant did not particularly describe the place to be searched and the things to be seized.
The particularity requirement of the Fourth Amendment has a manifest purpose — to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search is carefully tailored to its justification, and does not resemble the wide-ranging general searches that the Framers intended to prohibit. [ Footnote 3/4 ] In this
Home Page 468 U. S. 964
case the warrant did not come close to authorizing a general search. [ Footnote 3/5 ]
The affidavit supporting the application for the warrant correctly identified the things to be seized, and on its face the affidavit indicated that it had been presented to the judge who had issued the warrant. [ Footnote 3/6 ] Both the police officers and the judge were fully aware of the contents of the affidavit, and therefore knew precisely what the officers were authorized to search for. Since the affidavit was available for after-the-fact review, the Massachusetts courts could readily ascertain the limits of the officers’ authority under the warrant. In short, the judge who issued the warrant, the police officers who executed it, and the reviewing courts all were able easily to ascertain the precise scope of the authorization provided by the warrant.
All that our cases require is that a warrant contain a description sufficient to enable the officers who execute it to ascertain with reasonable effort where they are to search and what they are to seize. [ Footnote 3/7 ] The test is whether the executing officers’ discretion has been limited in a way that forbids a general search. [ Footnote 3/8 ] Here there was no question that the
Home Page 468 U. S. 965
executing officers’ discretion had been limited — they, as well as the reviewing courts, knew the precise limits of their authorization. There was simply no “occasion or opportunity for officers to rummage at large,” Zurcher v. Stanford Daily, 436 U. S. 547 , 436 U. S. 566 (1978). [ Footnote 3/9 ]
The only Fourth Amendment interest that is arguably implicated by the “defect” in the warrant is the citizen’s interest in being able to ascertain the limits of the officers’ authorization by examining the warrant. [ Footnote 3/10 ] Respondent, however, was not home at the time the warrant was executed, and therefore had no occasion to see the warrant. The two persons who were present when the warrant was executed, respondent’s mother and sister, did not read the warrant or ask to have it read.
“[T]he general rule [is] that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”
Alderman v. United States, 394 U. S. 165 , 394 U. S. 174 (1969). Thus, respondent, who has standing to assert only his own Fourth Amendment interests, [ Footnote 3/11 ] cannot complain that his interest in ascertaining the limits of the officers’ authority under the search warrant was infringed. [ Footnote 3/12 ] In short, our
Home Page 468 U. S. 966
precedents construing the particularity requirement of the Warrant Clause unambiguously demonstrate that this warrant did not violate the Fourth Amendment.
III
Even if it be assumed that there was a technical violation of the particularity requirement in No. 82-963, it by no means follows that the “warrantless” search in that case was “unreasonable” within the meaning of the Fourth Amendment. For this search posed none of the dangers to which the Fourth Amendment is addressed. It was justified by a neutral magistrate’s determination of probable cause, and created no risk of a general search. It was eminently “reasonable.”
In No. 82-1771, however, the Government now admits — at least for the tactical purpose of achieving what it regards as a greater benefit — that the substance, as well as the letter, of the Fourth Amendment was violated. The Court therefore assumes that the warrant in that case was not supported by probable cause, but refuses to suppress the evidence obtained thereby because it considers the police conduct to satisfy a “newfangled” nonconstitutional standard of reasonableness. [ Footnote 3/13 ] Yet if the Court’s assumption is correct — if there was no probable cause — it must follow that it was “unreasonable”
Home Page 468 U. S. 967
for the authorities to make unheralded entries into and searches of private dwellings and automobiles. The Court’s conclusion that such searches undertaken without probable cause can nevertheless be “reasonable” is totally without support in our Fourth Amendment jurisprudence.
Just last Term, the Court explained what probable cause to issue a warrant means:
“The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. at 462 U. S. 238 . Moreover, in evaluating the existence of probable cause, reviewing courts must give substantial deference to the magistrate’s determination. [ Footnote 3/14 ] In doubtful cases, the warrant
Home Page 468 U. S. 968
should be sustained. [ Footnote 3/15 ] The judgment as to whether there is probable cause must be made in a practical and nontechnical manner. [ Footnote 3/16 ] The probable cause standard therefore gives law enforcement officers ample room to engage in any reasonable law enforcement activity. What is more, the standard has been familiar to the law enforcement profession for centuries. [ Footnote 3/17 ] In an opinion written in 1949, and endorsed by the Court last Term in Gates, we explained:
“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”
Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 .
Thus, if the majority’s assumption is correct, that even after paying heavy deference to the magistrate’s finding and resolving all doubt in its favor, there is no probable cause here, then by definition — as a matter of constitutional law —
Home Page 468 U. S. 969
the officers’ conduct was unreasonable. [ Footnote 3/18 ] The Court’s own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct. [ Footnote 3/19 ]
The majority’s contrary conclusion rests on the notion that it must be reasonable for a police officer to rely on a magistrate’s finding. Until today, that has plainly not been the law; it has been well settled that, even when a magistrate issues a warrant, there is no guarantee that the ensuing search and seizure is constitutionally reasonable. Law enforcement officers have long been on notice that, despite the magistrate’s decision, a warrant will be invalidated if the officers did not provide sufficient facts to enable the magistrate to evaluate the existence of probable cause responsibly and independently. [ Footnote 3/20 ] Reviewing courts have always inquired into whether the magistrate acted properly in issuing the warrant — not merely whether the officers acted properly in executing it. See Jones v. United States, 362 U. S. 257 , 362 U. S. 271 -272 (1960). [ Footnote 3/21 ] Indeed, just last Term, in Gates, after noting
Home Page 468 U. S. 970
that
“”the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for conclud[ing]’ that probable cause existed,””
462 U.S. at 462 U. S. 238 -239 (quoting Jones, 362 U.S. at 362 U. S. 271 ), the Court added:
“Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.”
462 U.S. at 462 U. S. 239 . [ Footnote 3/22 ]
Thus, under our cases, it has never been “reasonable” for the police to rely on the mere fact that a warrant has issued; the police have always known that, if they fail to supply the magistrate with sufficient information, the warrant will be held invalid, and its fruits excluded. [ Footnote 3/23 ]
The notion that a police officer’s reliance on a magistrate’s warrant is automatically appropriate is one the Framers of
Home Page 468 U. S. 971
the Fourth Amendment would have vehemently rejected. The precise problem that the Amendment was intended to address was the unreasonable issuance of warrants. As we have often observed, the Amendment was actually motivated by the practice of issuing general warrants — warrants which did not satisfy the particularity and probable cause requirements. [ Footnote 3/24 ] The resentments which led to the Amendment were directed at the issuance of warrants unjustified by particularized evidence of wrongdoing. [ Footnote 3/25 ] Those who sought to amend the Constitution to include a Bill of Rights repeatedly voiced the view that the evil which had to be addressed was the issuance of warrants on insufficient evidence. [ Footnote 3/26 ] As Professor Taylor has written:
Home Page 468 U. S. 972
“[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches. . . .”
T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).
In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds, the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct “reasonable.” The Court’s view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia. [ Footnote 3/27 ]
IV
In Brinegar, Justice Jackson, after observing that
“[i]ndications are not wanting that Fourth Amendment freedoms are tacitly marked as secondary rights, to be relegated to a deferred position,”
338 U.S. at 338 U. S. 180 (dissenting opinion), continued:
“These, I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and
Home Page 468 U. S. 973
seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”
“ * * * *”
“Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.”
“Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar’s car must be regarded as a search of the car of Everyman.”
Id. at 338 U. S. 180 -181. Justice Jackson’s reference to his experience at Nuremberg should remind us of the importance of considering the consequences of today’s decision for “Everyman.”
The exclusionary rule is designed to prevent violations of the Fourth Amendment. [ Footnote 3/28 ]
“Its purpose is to deter — to compel
Home Page 468 U. S. 974
respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it.”
Elkins v. United States, 364 U. S. 206 , 364 U. S. 217 (1960). [ Footnote 3/29 ] If the police cannot use evidence obtained through warrants issued on less than probable cause, they have less incentive to seek those warrants, and magistrates have less incentive to issue them.
Today’s decisions do grave damage to that deterrent function. Under the majority’s new rule, even when the police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait. No longer must they hesitate and seek additional evidence in doubtful cases. Thus, what we
Home Page 468 U. S. 975
said two Terms ago about a rule that would prevent exclusion except in cases in which the authorities violate well-settled law applies fully to the rule the Court adopts today:
“If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would ‘encourage police or other courts to disregard the plain purport of our decisions and to adopt a let’s-wait-until-it’s-decided approach.'”
United States v. Johnson, 457 U. S. 537 , 457 U. S. 561 (1982) (emphasis in original) (footnote omitted) (quoting Desist v. United States, 394 U. S. 244 , 394 U. S. 277 (1969) (Fortas, J., dissenting)). [ Footnote 3/30 ]
The Court is, of course, correct that the exclusionary rule cannot deter when the authorities have no reason to know that their conduct is unconstitutional. But when probable cause is lacking, then by definition a reasonable person under the circumstances would not believe there is a fair likelihood that a search will produce evidence of a crime. Under such circumstances, well-trained professionals must know that they are violating the Constitution. The Court’s approach —
Home Page 468 U. S. 976
which, in effect, encourages the police to seek a warrant even if they know the existence of probable cause is doubtful — can only lead to an increased number of constitutional violations.
Thus, the Court’s creation of a double standard of reasonableness inevitably must erode the deterrence rationale that still supports the exclusionary rule. But we should not ignore the way it tarnishes the role of the judiciary in enforcing the Constitution. For the original rationale for the exclusionary rule retains its force as well as its relevance:
“The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”
Weeks v. United States, 232 U. S. 383 , 232 U. S. 392 (1914). [ Footnote 3/31 ] Thus,
“Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional
Home Page 468 U. S. 977
rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . .”
Terry v. Ohio, 392 U. S. 1 , 392 U. S. 13 (1968). [ Footnote 3/32 ] As the Court correctly notes, [ Footnote 3/33 ] we have refused to apply the exclusionary rule to collateral contexts in which its marginal efficacy is questionable; until today, however, every time the police have violated the applicable commands of the Fourth Amendment a court has been prepared to vindicate that Amendment by preventing the use of evidence so obtained in the prosecution’s case in chief against those whose rights have been violated. [ Footnote 3/34 ] Today, for the first time, this Court holds that, although the Constitution has been violated, no court should do anything about it at any time and in any proceeding. [ Footnote 3/35 ] In my judgment,
Home Page 468 U. S. 978
the Constitution requires more. Courts simply cannot escape their responsibility for redressing constitutional violations if they admit evidence obtained through unreasonable searches and seizures, since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial. If such evidence is admitted, then the courts become not merely the final and necessary link in an unconstitutional chain of events, but its actual motivating force.
“If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.”
Olmstead v. United States, 277 U. S. 438 , 277 U. S. 470 (1928) (Holmes, J., dissenting). Nor should we so easily concede the existence of a constitutional violation for which there is no remedy. [ Footnote 3/36 ] To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy. [ Footnote 3/37 ] If the Court’s new rule is to be followed, the Bill of Rights should be renamed.
Home Page 468 U. S. 979
It is, of course, true that the exclusionary rule exerts a high price — the loss of probative evidence of guilt. But that price is one courts have often been required to pay to serve important social goals. [ Footnote 3/38 ] That price is also one the Fourth Amendment requires us to pay, assuming as we must that the Framers intended that its strictures “shall not be violated.” For in all such cases, as Justice Stewart has observed,
“the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. [ Footnote 3/39 ]”
“[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught.”
Harris v. United States, 331 U. S. 145 , 331 U. S. 198 (1947) (Jackson, J., dissenting). [ Footnote 3/40 ]
We could, of course, facilitate the process of administering justice to those who violate the criminal laws by ignoring the commands of the Fourth Amendment — indeed, by ignoring
Home Page 468 U. S. 980
the entire Bill of Rights — but it is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency. In a just society, those who govern, as well as those who are governed, must obey the law.
While I concur in the Court’s judgment in No. 82-963, I would vacate the judgment in No. 82-1771 and remand the case to the Court of Appeals for reconsideration in the light of Gates. Accordingly, I respectfully dissent from the disposition in No. 82-1771.
[ Footnote 3/1 ]
See, e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 586 (1980); Chimel v. California, 395 U. S. 752 , 395 U. S. 762 -763 (1969).
[ Footnote 3/2 ]
See, e.g., Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 474 -475 (1971); Vale v. Louisiana, 399 U. S. 30 (1970).
[ Footnote 3/3 ]
In his petition for certiorari in Leon, the Solicitor General did not seek plenary review, but only that the petition “be disposed of as appropriate in light of the Court’s decision in Illinois v. Gates, ” Pet. for Cert. in United States v. Leon, No. 82-1771, p. 10.
[ Footnote 3/4 ]
See Andresen v. Maryland, 427 U. S. 463 , 427 U. S. 480 (1976); Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 569 -572 (1969) (Stewart, J., concurring in result); Stanford v. Texas, 379 U. S. 476 , 379 U. S. 481 -482, 485 (1965); Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S. 357 (1931); Marron v. United States, 275 U. S. 192 , 275 U. S. 195 -196 (1927).
[ Footnote 3/5 ]
Indeed, the “defect” in the warrant was that it authorized — albeit mistakenly — a search for quite particular “things to be seized,” controlled substances, rather than the evidence described in the affidavit supporting the warrant application. This “defect” posed no risk of a general search. On its face, the warrant correctly identified the place to be searched. Thus, the threshold invasion of privacy — entry into respondent’s home — was properly and specifically authorized. Moreover, the four corners of the warrant plainly indicate that it was not intended to authorize a search for controlled substances. On the cover of the warrant the caption “Controlled Substances” had been crossed out, and an “addendum” to the warrant authorized a search for and seizure of a rifle and ammunition, indicating that the warrant was not limited to controlled substances.
[ Footnote 3/6 ]
The issuing judge attested to the affiant’s signature on the affidavit.
[ Footnote 3/7 ]
See Steele v. United States, 267 U. S. 498 , 267 U. S. 503 (1925).
[ Footnote 3/8 ]
See Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 , 442 U. S. 325 (1979); Andresen v. Maryland, 427 U.S. at 427 U. S. 480 -482; Marcus v. Search Warrant, 367 U. S. 717 , 367 U. S. 732 -733 (1961).
[ Footnote 3/9 ]
See also Coolidge v. New Hampshire, 403 U.S. at 403 U. S. 467 .
[ Footnote 3/10 ]
See Illinois v. Gates, 462 U. S. 213 , 462 U. S. 236 (1983); United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977); Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 532 (1967).
[ Footnote 3/11 ]
See, e.g., Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S. 104 -106 (1980); Rakas v. Illinois, 439 U. S. 128 (1978).
[ Footnote 3/12 ]
Even if respondent had standing to assert his right to be able to ascertain the officers’ authority from the four corners of the warrant, it is doubtful that he could succeed. On its face, the warrant authorized a search of respondent’s residence, “42 Deckard Street.” Had respondent read the warrant, he would have had no reason to question the officers’ right to enter the premises. Moreover, the face of the warrant indicated that the caption “Controlled Substances” had been stricken, and at the bottom of the warrant an addendum authorized the search for and seizure of a rifle and ammunition. The supporting affidavit, which the police had with them when they executed the warrant, and which was attested by the same judge who had issued the warrant, described in detail the items which the police were authorized to search for and to seize.
[ Footnote 3/13 ]
I borrow the adjective from Justice Clark, who so characterized the warrants authorized by the Court in Camara v. Municipal Court, 387 U. S. 523 (1967), but not authorized by the Constitution itself. In an opinion joined by Justice Harlan and Justice Stewart, he wrote:
“Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. Maryland [359 U.S. 360 (1959)] and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people.”
“But this is not all. It prostitutes the command of the Fourth Amendment that ‘no Warrants shall issue, but upon probable cause’ and sets up in the health and safety codes area inspection a newfangled ‘warrant’ system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop.”
See v. City of Seattle, 387 U. S. 541 , 387 U. S. 547 (1967) (dissenting in both Camara and See ).
The kind of doctrinal difficulties in the two lines of cases engendered by the Court’s creation of a newfangled warrant, compare Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978), with Donovan v. Dewey, 452 U. S. 594 (1981), can be expected to grow out of the Court’s creation of a new double standard of reasonableness today. Ironically, as I have previously suggested, the failure to consider both Clauses of the Amendment infects both lines of decision. See Michigan v. Clifford, 464 U. S. 287 , 464 U. S. 301 -303 (1984) (STEVENS, J., concurring in judgment); Dewey, 452 U.S. at 452 U. S. 606 -608 (STEVENS, J., concurring); Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 513 (1978) (STEVENS, J., concurring in part and concurring in judgment); Barlow’s, 436 U.S. at 436 U. S. 325 -339 (STEVENS J., dissenting).
[ Footnote 3/14 ]
See Massachusetts v. Upton, 466 U. S. 727 , 466 U. S. 732 -733 (1984) (per curiam); Illinois v. Gates, 462 U.S. at 462 U. S. 236 ; United States v. Harris, 403 U. S. 573 , 403 U. S. 577 -583 (1971) (plurality opinion); Spinelli v. United States, 393 U. S. 410 , 393 U. S. 419 (1969); Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 111 (1964); Jones v. United States, 362 U. S. 257 , 362 U. S. 271 (1960).
[ Footnote 3/15 ]
See Illinois v. Gates, 462 U.S. at 462 U. S. 237 , n. 10; United States v. Ventresca, 380 U. S. 102 , 380 U. S. 109 (1965).
[ Footnote 3/16 ]
See Massachusetts v. Upton, 466 U.S. at 466 U. S. 732 (per curiam); Illinois v. Gates, 462 U.S. at 462 U. S. 231 ; United States v. Ventresca, 380 U.S. at 380 U. S. 108 .
[ Footnote 3/17 ]
See, e.g., 2 M. Hale, Pleas of the Crown 150 (1st Am. ed. 1847).
[ Footnote 3/18 ]
“[I]f nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable cause requirement is not satisfied. In the absence of some other showing of reasonableness, the ensuing search violates the Fourth Amendment.”
Zurcher v. Stanford Daily, 436 U. S. 547 , 436 U. S. 583 (1978) (STEVENS, J., dissenting).
[ Footnote 3/19 ]
As the majority recognizes, United States v. Leon, ante at 468 U. S. 915 , n. 13, an officer’s good faith cannot make otherwise “unreasonable” conduct reasonable. See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 22 (1968); Beck v. Ohio, 379 U. S. 89 , 379 U. S. 97 (1964); Henry v. United States, 361 U. S. 98 , 361 U. S. 102 (1959). The majority’s failure to appreciate the significance of that recognition is inexplicable.
[ Footnote 3/20 ]
See Franks v. Delaware, 438 U. S. 154 , 438 U. S. 165 , 438 U. S. 169 -170 (1978), Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 564 (1971); Spinelli v. United States, 393 U.S. at 393 U. S. 415 -416; United States v. Ventresca, 380 U.S. at 380 U. S. 108 -109; Aguilar v. Texas, 378 U.S. at 378 U. S. 113 -115; Nathanson v. United States, 290 U. S. 41 (1933); Byars v. United States, 273 U. S. 28 (1927).
[ Footnote 3/21 ]
In making this point in Franks v. Delaware, 438 U. S. 154 (1978), JUSTICE BLACKMUN wrote for the Court:
“We see no principled basis for distinguishing between the question of the sufficiency of an affidavit, which is also subject to a post-search examination, and the question of its integrity.”
Id. at 438 U. S. 171 . Yet today the Court justifies its holding in part by distinguishing veracity claims, United States v. Leon, ante at 468 U. S. 922 -923, thereby distinguishing what we previously held could not be distinguished on a principled basis. Just why it should be less reasonable for an innocent officer to rely on a warrant obtained by another officer’s fraud than for him to rely on a warrant that is not supported by probable cause is entirely unclear to me.
[ Footnote 3/22 ]
Judicial review of magisterial determinations is all the more necessary since the magistrate acts without benefit of adversarial presentation; his determination partakes of the unreliability inherent in any ex parte proceeding. See Franks v. Delaware, 438 U.S. at 438 U. S. 169 .
[ Footnote 3/23 ]
The majority seems to be captivated by a vision of courts invalidating perfectly reasonable police conduct because of “technical” violations of the Fourth Amendment. In my view, there is no such thing as a “technical” violation of the Fourth Amendment. No search or seizure can be unconstitutional unless it is “unreasonable.” By definition, a Fourth Amendment violation cannot be reasonable. My analysis of No. 82-963 illustrates this point.
[ Footnote 3/24 ]
See, e.g., Steagald v. United States, 451 U. S. 204 , 451 U. S. 220 (1981); Payton v. New York, 445 U.S. at 445 U. S. 583 -584; Lo-Ji Sales, Inc. v. New York, 442 U.S. at 442 U. S. 325 ; Marshall v. Barlow’s, Inc., 436 U.S. at 436 U. S. 327 -328 (STEVENS, J., dissenting); United States v. Chadwick, 433 U.S. at 433 U. S. 7 -8; Chimel v. California, 395 U.S. at 395 U. S. 760 -762; Stanford v. Texas, 379 U.S. at 379 U. S. 480 -485; Marcus v. Search Warrant, 367 U.S. at 367 U. S. 727 -729; Henry v. United States, 361 U.S. at 361 U. S. 100 -101; Frank v. Maryland, 359 U. S. 360 , 359 U. S. 363 -365 (1959); United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 69 -70 (1950) (Frankfurter, J., dissenting); Marron v. United States, 275 U.S. at 275 U. S. 195 -196; Weeks v. United States, 232 U. S. 383 , 232 U. S. 390 -391 (1914); Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 -630 (1886).
[ Footnote 3/25 ]
See J. Landynski, Search and Seizure and the Supreme Court 19-47 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 53-98 (1937); R. Rutland, The Birth of the Bill of Rights 11 (rev. ed.1983); Marke, The Writs of Assistance Case and the Fourth Amendment, in Essays in Legal History in Honor of Felix Frankfurter 351 (M. Forkosch ed.1966).
[ Footnote 3/26 ]
See 1 The Bill of Rights: A Documentary History 473, 488-489, 508 (B. Schwartz ed.1971); 2 id. at 658, 665, 730, 733-734, 805-806, 815, 841-842, 913, 968. In fact, the original version of the Fourth Amendment contained only one clause providing that the right to be protected against unreasonable searches and seizures “shall not be violated by warrants issuing. . . .” The change to its present form broadened the coverage of the Amendment, but did not qualify the unequivocal prohibition against the issuance of warrants without probable cause. See 2 id. at 1112; N. Lasson, supra, <l=|468 u.s.=”” 897fn3=”” 25|=””>n. 25, at 101-103.</l=|468>
[ Footnote 3/27 ]
“It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.”
United States v. Rabinowitz, 339 U.S. at 339 U. S. 69 (Frankfurter, J., dissenting).
[ Footnote 3/28 ]
For at least two reasons, the exclusionary rule is a better remedy than a civil action against an offending officer. Unlike the fear of personal liability, it should not create excessive deterrence; moreover, it avoids the obvious unfairness of subjecting the dedicated officer to the risk of monetary liability for a misstep while endeavoring to enforce the law. Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work. What THE CHIEF JUSTICE wrote, some two decades ago, remains true today:
“It is the proud claim of a democratic society that the people are masters and all officials of the state are servants of the people. That being so, the ancient rule of respondeat superior furnishes us with a simple, direct and reasonable basis for refusing to admit evidence secured in violation of constitutional or statutory provisions. Since the policeman is society’s servant, his acts in the execution of his duty are attributable to the master or employer. Society as a whole is thus responsible, and society is ‘penalized’ by refusing it the benefit of evidence secured by the illegal action. This satisfies me more than the other explanations because it seems to me that society — in a country like ours — is involved in and is responsible for what is done in its name and by its agents. Unlike the Germans of the 1930’s and early ’40’s, we cannot say ‘it is all The Leader’s doing. I am not responsible.’ In a representative democracy, we are responsible, whether we like it or not. And so each of us is involved and each is in this sense responsible when a police officer breaks rules of law established for our common protection.”
Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1, 14 (1964) (emphasis in original) (footnote omitted).
[ Footnote 3/29 ]
See Stone v. Powell, 428 U. S. 465 , 428 U. S. 484 (1976); United States v. Janis, 428 U. S. 433 , 428 U. S. 443 , n. 12 (1976); United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 -348 (1974); Terry v. Ohio, 392 U.S. at 392 U. S. 29 ; Tehan v. United States ex rel. Shott, 382 U. S. 406 , 382 U. S. 413 (1966); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 656 (1961).
[ Footnote 3/30 ]
See also LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U.Pitt.L.Rev. 307, 358 (1982); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum.L.Rev. 1365, 1401-1403 (1983); Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am.Crim.L.Rev. 257, 395-397(1984).
[ Footnote 3/31 ]
The Court continued:
“The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the things for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and, under color of his office, undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”
232 U.S. at 232 U. S. 393 -394.
[ Footnote 3/32 ]
See United States v. Peltier, 422 U. S. 531 , 422 U. S. 536 (1975); Lee v. Florida, 392 U. S. 378 , 392 U. S. 385 -386 (1968); Berger v. New York, 388 U. S. 41 , 388 U. S. 50 (1967); Mapp v. Ohio, 367 U.S. at 367 U. S. 647 -650; Byars v. United States, 273 U.S. at 273 U. S. 33 -34.
[ Footnote 3/33 ]
United States v. Leon, ante at 468 U. S. 908 -913.
[ Footnote 3/34 ]
Indeed, we have concluded that judicial integrity is not compromised by the refusal to apply the exclusionary rule to collateral contexts precisely because the defendant is able to vindicate his rights in the primary context — his trial and direct appeal therefrom. See Stone v. Powell, 428 U.S. at 428 U. S. 485 -486.
[ Footnote 3/35 ]
As the majority recognizes, United States v. Leon, ante at 468 U. S. 922 -923, and n. 23, in all cases in which its “good faith” exception to the exclusionary rule would operate, there will also be immunity from civil damages. See also United States v. Ross, 456 U. S. 798 , 456 U. S. 823 , n. 32 (1982); Stadium Films, Inc. v. Baillargeon, 542 F.2d 577, 578 (CA1 1976); Madison v. Maner, 441 F.2d 537 (CA1 1971). See generally Pierson v. Ray, 386 U. S. 547 (1967). The Court amazingly suggests that, in some cases in which suppression would not be appropriate, courts should nevertheless adjudicate the merits of Fourth Amendment claims to provide guidance to police and magistrates, but not a remedy. United States v. Leon, ante at 468 U. S. 925 . Not only is the propriety of deciding constitutional questions in the absence of the strict necessity to do so open to serious question, see Bowen . United States, 422 U. S. 916 , 422 U. S. 920 (1975), but such a proceeding, in which a court would declare that the Constitution had been violated but that it was unwilling to do anything about it, seems almost a mockery:
“[T]he assurance against unreasonable federal searches and seizures would be ‘a form of words,’ valueless and undeserving of mention in a perpetual charter of inestimable human liberties.”
Mapp v. Ohio, 367 U.S. at 367 U. S. 655 . See also Segura v. United States, ante at 468 U. S. 838 -840 (STEVENS, J., dissenting).
[ Footnote 3/36 ]
“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
Marbury v. Madison, 1 Cranch 137, 5 U. S. 163 (1803). See generally Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn.L.Rev. 251, 350-372 (1974).
[ Footnote 3/37 ]
See Stewart, 83 Colum.L.Rev. at 1383-1384 (footnotes omitted) (“In my opinion, however, the framers did not intend the Bill of Rights to be no more than unenforceable guiding principles — no more than a code of ethics under an honor system. The proscriptions and guarantees in the amendments were intended to create legal rights and duties”). See also Ervin, The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment, 1983 S.Ct.Rev. 283. In fact, if the Constitution of the United States does not compel use of the exclusionary rule, Mapp v. Ohio, 367 U. S. 643 (1961), which the majority does not purport to question, could not have been decided as it was. See id. at 367 U. S. 655 (“We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”).
[ Footnote 3/38 ]
The exclusion of probative evidence in order to serve some other policy is by no means unique to the Fourth Amendment. In his famous treatise on evidence, Dean Wigmore devoted an entire volume to such exclusionary rules, which are common in the law of evidence. See 8 J. Wigmore, Evidence (J. McNaughton rev.1961) (discussing, inter alia, marital privilege, attorney-client privilege, communications among jurors, state secrets privilege, physician-patient privilege, priest-penitent privilege).
[ Footnote 3/39 ]
Stewart, 83 Colum.L.Rev. at 1392 (footnote omitted). See also Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 322 (“Ah, but surely the guilty should not go free? However grave the question, it seemed improperly directed at the exclusionary rule. The hard answer is in the United States Constitution, as well as in state constitutions. They make it clear that the guilty would go free if the evidence necessary to convict could only have been obtained illegally, just as they would go free if such evidence were lacking because the police had observed the constitutional restraints upon them”).
[ Footnote 3/40 ]
See also United States v. Di Re, 332 U. S. 581 , 332 U. S. 595 (1948).
Contributors and Attributions
- Authored by : US Government . Located at : https://supreme.justia.com/cases/federal/us/468/897/case.html . License : Public Domain: No Known Copyright


9.3: Probation
-
- Last updated
- Save as PDF
- Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, & Shanell Sanchez
- Southern Oregon University via OpenOregon
Probation is arguably the oldest and certainly the largest of the intermediate sanctions. Its roots stem from concepts of common law from England, like many of our other legal/correctional practices. In early American courts, a person was able to be released on their own recognizance, if they promised to be responsible citizens and pay back what they owed. In the early 1840s, John Agustus, a Boston bootmaker was regularly attending court and began to supervise these individuals as a Surety. A Surety was a person who would help these individuals in court, making sure they repaid these costs to the courts. We would consider John Augustus as the Father of Probation, for this work in the courts in Boston in the 1840s and 1850s. Augustus, pictured below, would take in many of these individuals, providing options like work and housing, to help ensure these individuals would remain crime free and pay back society. He continued this practice for nearly two decades, effectively becoming the first probation officer. For a more lengthy historical discussion of probation, see the history of probation at https://probation.smcgov.org/history-probation .
Probation is a form of a suspended sentence, in that the jail or prison sentence of the convicted offender is resuspended, for the privilege of serving conditions of supervision in the community. Conditions of probation often include: report to a probation officer, submit random drug screens, do not consort with known felons, pay court costs, restitution, and damages, attend AA or NA courses, as well as other conditions. Probation lengths vary greatly, as do the conditions of probation place on an individual. Almost all people on probation will have at least one condition of probation. Some have many conditions, depending on the seriousness of the conviction, while others are just a blanket condition that is imposed on all in that jurisdiction, or for that conviction type. Juvenile Probation Departments were within all States in the 1920s, and by the middle of the 1950s, all States had adult probation.
Probation Officers
Probation officers usually work directly for the state or federal government, but that can be directed through local or municipal agencies. Many Counties will have a community justice level structure where probation offices operate. Within these offices, probation officers will be assigned cases (caseload), in term of the probationers, they will manage. The volume of cases in a probation officer’s caseload can vary from just a few clients if they are high need/risk clients, to several hundred probationers. It depends on the jurisdiction, the structure of the local PO office, and the abilities of the probation officers themselves.
The role of the probation officer is complex, and sometimes diametrically opposing. A PO’s primary function is to enforce compliance of individuals on probation. This is done through check-ins, random drug screenings, and enforcement of other conditions that are placed on the probationers. Additionally, the PO may go out into the field to serve warrants, do home checks for compliance, even make arrests if need be.
However, at the same time, a probation officer is trying to help individuals on probation succeed. This is done by trying to help individuals to get jobs, get schooling, enter into substance or alcohol programs, and generally support people on probation to be successful. This is why the job of the PO is complex, as they are trying to be supportive, but also having to enforce compliance. Many equate this to kind of like being a parent. Recently, there has been a movement within probation to have probation officers act more like coaches than just disciplinarians. Here is a talk about how POs can view themselves as coaches to enact positive change within individuals on probation:
criminaljusticeofficehours.libsyn.com/dr-brian-lovins-probation-coaches?fbclid=IwAR2pHROGAPpm09-PFqVzFG10ItFhCi1huFItChe65Ew7-gXDB0OSacCliQs
The other primary function of a probation officer is to complete PSI reports on individuals going through the court process. A PSI or Pre-Sentence Investigation report is a psycho-social workup on a person headed to trial. It includes basic background information on an individual, such as age, education, relationships, physical and mental health, employment, military service, social history, and substance abuse history. It also has a detailed account of the current offense, witness or victim impact statements of the event, and prior offenses (criminal records), which are tracked across numerous agencies. Finally, the PSI also has a section that is devoted to a plan of supervision or recommendations, which are created by the PO. These usually list out the conditions of probation recommendations, if probation is to be granted. Judges use this information during sentencing discussions and hearings, and will usually follow these recommendations often (around 85% of the time). Thus, many of the conditions of probation are prescribed by the PO.
Individuals on Probation
As stated, there are several million people on probation, serving various lengths of probation, and under numerous conditions or condition types. Additionally, the convictions which place individuals on probation vary, to include misdemeanors and felonies. Probationers serve their probation at the state level, and there is even federal probation. As depicted below, it is easy to see how much probation is used in the United States.
Probation is not a right, and it is not a suspended sentence. It is a privilege, but it most certainly comes with conditions for the suspension of the incarceration. Due to how cheap probation is, relative to jail or prison, and the ability for lower-risk individuals to maintain connections within their community, millions of people will be on probation in the United States at any given time.
Other important factors that help to decide if a person warrants probation is within the PSI and other assessments are done on the individual. If the person is basically, a prosocial person, has an education and a job, has a family, these would all be considered as ties to the community. These ties to the community could weaken or break if a person was incarcerated. Thus, providing a sanction while allowing the person to stay in the community is often the approach that is utilized within probation and other intermediate sanctions.
Probation Success
There are mixed reviews about probation. Recently, the Bureau of Justice Statistics (2018 report, for 2016. [1] listed the successful completion rate at about 56%. In years past, this number has been reported higher, upwards of 65%, depending on the years 2008-2013. [2] There are a host of reasons listed for unsuccessful completion, which include: incarcerated on a new sentence/charge, or placement for the current sentence/charge, absconding (fleeing jurisdiction), discharged to warrant or detainer, other unsatisfactory reason, death, or some other unknown or not reported reason. Unsuccessful completion can produce some different responses but can include a concept called tourniquet sentencing. Tourniquet sentencing is where the restrictions of a level of sanction are increased, due to non-compliance, in order to force compliance. If an individual on probation is not adhering to the conditions of probation, a PO can recommend a probation revocation hearing. This bench hearing can lead to an informal admonishment by a judge, an increase in the sanctions or sanction lengths, an increased level of control (moving from regular probation to intensive supervised probation), even up to placement in a secure facility (jail or prison), all depending on the infraction of the condition of probation that has been violated. Many go from regular probation to ISP, in an effort to force compliance through increased monitoring.
Intensive Supervised Probation
Intensive Supervision Probation (ISP) began in the late 1950s, and early 1960s, in California. Their basic premise was to allow caseworkers (POs) to have smaller caseloads and increase the level of treatment across offenders. As stated, many promised multiple success measures. However, if an individual who was revoked because of a technical violation due to an increase in control, they were not seen as a failure. Rather, they were seen as a success because of the way the public was served by the recidivism. However, this went directly against the notion that ISPs could save money. Because of these problems, the earlier forms of ISPs may have become less popular. In the 1980s, a newer model of the ISP was created in Georgia. More emphasis was placed on the control aspect rather than on treatment. Further, less emphasis was placed on the reduction of money saved.
ISP and regular probation are similar, except for the frequency of contacts with POs, the increases in surveillance and monitoring, and usually the volume of conditions. Rather than meeting a PO once a month in regular probation, a person on ISP would likely be meeting with their PO weekly, or even more frequently. Additionally, individuals on ISP normally are submitting drug screens weekly. The increased conditions of supervision more frequently include more substance abuse treatment, either in the form of AA, NA, or some other residential or outpatient substance abuse treatment programs. Thus, the core difference is about the increased level of surveillance and control over the offender.
ISP Success
While initial praise of the newer model for its increase on control was evidenced by its rapid spread through the States, some researchers questioned their effectiveness. In one of the largest studies of ISPs, in conjunction with the RAND Corporation. [3] They examined the effectiveness of ISPs in reducing recidivism and saving costs. In a random sample of 14 cities across 9 States, they evaluated the reductions of recidivism against a sample of regular probationers. Their findings suggested that there were higher amounts of technical violations, which were probably substance violations, but there were no significant differences between control-centered ISPs and regular probation, as far as new arrests. Moreover, when looking at outcomes over 3 years, they found that recidivism rates were slightly higher for these ISPs (39%), vs. regular probation (33%). Also, there were no substantive cost savings. Other studies have produced similar findings as to the effects of non-treatment oriented ISPs. While these findings might be better than prison recidivism rates, there were no reductions in prison overcrowding, which was also one of the intents of ISP.
- Kaeble, D. (2018). Probation and Parole in the United States, 2013. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, April 2018, NCJ 251148 https://www.bjs.gov/content/pub/pdf/ppus13.pdf ↵
- Huberman, E. J., & Bonczar, T. P. (2014). Probation and parole in the United States, 2013. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 2014, NCJ 248029 https://www.bjs.gov/content/pub/pdf/ppus13.pdf ↵
- Petersilia, J. R., & Deschenes, E. (2004). Evaluating intensive supervision probation/parole (ISP) for drug offenders. Santa Monica, CA: RAND Corporation. https://www.rand.org/pubs/reprints/RP168.html ↵


5.1: Using a Decision Tree
- Describe the components and use of a decision tree.
Decision trees are useful tools, particularly for situations where financial data and probability of outcomes are relatively reliable. They are used to compare the costs and likely values of decision pathways that a business might take. They often include decision alternatives that lead to multiple possible outcomes, with the likelihood of each outcome being measured numerically.
How to Construct a Decision Tree
A decision tree is a branched flowchart showing multiple pathways for potential decisions and outcomes. The tree starts with what is called a decision node, which signifies that a decision must be made.
From the decision node, a branch is created for each of the alternative choices under consideration. The initial decision might lead to another decision, in which case a new decision node is created and new branches are added to show each alternative pathway for the new decision. The result is a series of decision pathways. The flowchart might include only one or two decisions with only one or two alternatives, or it can become a complex sequence of many decisions with many alternatives at each node.
Along the decision pathway, there is usually some point at which a decision leads to an uncertain outcome. That is, a decision could result in multiple possible outcomes, so an uncertainty node is added to the tree at that point. Branches come from that uncertainty node showing the different possible outcomes.
Eventually, each pathway reaches a final outcome. The decision tree, then, is a combination of decision nodes, uncertainty nodes, branches coming from each of these nodes, and final outcomes as the result of the pathways.
How to Make Calculations with a Decision Tree
Even in only this simple form, a decision tree is useful to show the possibilities for a decision. However, a decision tree becomes especially useful when numerical data is added.
First, each decision usually involves costs. If a company decides to produce a product, engage in market research, advertise, or any other number of activities, the predicted costs for those decisions are written on the appropriate branch of the decision tree. Also, each pathway eventually leads to an outcome that usually results in income. The predicted amount of income provided by each outcome is added to that branch of the decision tree.
The other numerical data that needs to be provided is the probability of each outcome from the uncertainty nodes. If an uncertainty node has two branches that are both equally likely, each should be labeled with a 50 percent, or 0.5, probability. Alternatively, an uncertainty node might have three branches with respective probabilities of 60 percent, 30 percent, and 10 percent. In each case, the total of the percentages at each uncertainty node will be 100 percent, representing all possibilities for that node.
With this numerical data, decision makers can calculate the likely return value for each decision pathway. The value of each final outcome must be multiplied by the probability that the outcome occurs. The total of the possibilities along each branch represent the total predicted value for that decision pathway. The costs involved in that decision pathway must be subtracted to see the final profit that pathway represents.
Contributors and Attributions
- Decision Trees. Authored by : Aaron Spencer, David Thompson, PhD, and Lumen Learning. License : CC BY: Attribution
- Revision and adaptation of Image: decision-tree. Authored by : jean-louis Zimmermann. Located at : https://www.flickr.com/photos/jeanlouis_zimmermann/3203572717 . License : CC BY: Attribution


21.4: Gross Anatomy of the Kidney
External Anatomy
The left kidney is located at about the T12 to L3 vertebrae, whereas the right is lower due to slight displacement by the liver. Upper portions of the kidneys are somewhat protected by the eleventh and twelfth ribs (Figure \(\PageIndex{1}\)). Each kidney weighs about 125–175 g in males and 115–155 g in females. They are about 11–14 cm in length, 6 cm wide, and 4 cm thick, and are directly covered by a fibrous capsule composed of dense, irregular connective tissue that helps to hold their shape and protect them. This capsule is covered by a shock-absorbing layer of adipose tissue called the renal fat pad , which in turn is encompassed by a tough renal fascia. The fascia and, to a lesser extent, the overlying peritoneum serve to firmly anchor the kidneys to the posterior abdominal wall in a retroperitoneal position.
Internal Anatomy
A frontal section through the kidney reveals an outer region called the renal cortex and an inner region called the medulla (Figure \(\PageIndex{2}\)). The renal columns are connective tissue extensions that radiate downward from the cortex through the medulla to separate the most characteristic features of the medulla, the renal pyramids and renal papillae . The papillae are bundles of collecting ducts that transport urine made by nephrons to the calyces of the kidney for excretion. The renal columns also serve to divide the kidney into 6–8 lobes and provide a supportive framework for vessels that enter and exit the cortex. The pyramids and renal columns taken together constitute the kidney lobes.
Nephrons and Vessels
The renal artery first divides into segmental arteries, followed by further branching to form interlobar arteries that pass through the renal columns to reach the cortex (Figure \(\PageIndex{3}\)). The interlobar arteries, in turn, branch into arcuate arteries, cortical radiate arteries, and then into afferent arterioles. The afferent arterioles service about 1.3 million nephrons in each kidney.
Nephrons are the “functional units” of the kidney; they cleanse the blood and balance the constituents of the circulation. The afferent arterioles form a tuft of high-pressure capillaries about 200 μm in diameter, the glomerulus. The rest of the nephron consists of a continuous sophisticated tubule whose proximal end surrounds the glomerulus in an intimate embrace—this is Bowman’s capsule. The glomerulus and Bowman’s capsule together form the renal corpuscle. As mentioned earlier, these glomerular capillaries filter the blood based on particle size. After passing through the renal corpuscle, the capillaries form a second arteriole, the efferent arteriole (Figure \(\PageIndex{4}\)). These will next form a capillary network around the more distal portions of the nephron tubule, the peritubular capillaries and vasa recta, before returning to the venous system. As the glomerular filtrate progresses through the nephron, these capillary networks recover most of the solutes and water, and return them to the circulation. Since a capillary bed (the glomerulus) drains into a vessel that in turn forms a second capillary bed, the definition of a portal system is met. This is the only portal system in which an arteriole is found between the first and second capillary beds. (Portal systems also link the hypothalamus to the anterior pituitary, and the blood vessels of the digestive viscera to the liver.)


8.4: Adding and Subtracting Fractions
Fractions with the Same Denominators
Here are two very similar fractions: \(\frac{2}{7}\) and \(\frac{3}{7}\). What might it mean to add them? It might seem reasonable to say:
\[\frac{2}{7}\; \text{represents 2 pies shared by 7 kids} \ldotp \nonumber \]
\[\frac{3}{7}\; \text{represents 3 pies shared by 7 kids} \ldotp \nonumber \]
So maybe \(\frac{2}{7} + \frac{3}{7}\) represents 5 pies among 14 kids, giving the answer \(\frac{5}{14}\). It is very tempting to say that “adding fractions” means “adding pies and adding kids.”
The trouble is that a fraction is not a pie, and a fraction is not a child. So adding pies and adding children is not actually adding fractions. A fraction is something different. It is related to pies and kids, but something more subtle. A fraction is an amount of pie per child .
One cannot add pies, one cannot add children. One must add instead the amounts individual kids receive.
Let us take it slowly. Consider the fraction \(\frac{2}{7}\). Here is a picture of the amount an individual child receives when two pies are given to seven kids:
Consider the fraction \(\frac{3}{7}\). Here is the picture of the amount an individual child receives when three pies are given to seven children:
The sum \(\frac{2}{7} + \frac{3}{7}\) corresponds to the sum:
The answer, from the picture, is \(\frac{5}{7}\).
Remember that \(\frac{5}{7}\) means “the amount of pie that one child gets when five pies are shared by seven children.” Carefully explain why that is the same as the picture given by the sum.
Many people read this as “two sevenths plus three sevenths gives five sevenths” and think that the problem is just as easy as saying “two apples plus three apples gives five apples.”  Sevenths (or any other size of number) can be thought of as objects just like apples are objects.
This is how the addition of fractions is first taught to students: Adding fractions with the same denominator seems just as easy as adding apples.
4 tenths + 3 tenths + 8 tenths = 15 tenths:
\[\frac{4}{10} + \frac{3}{10} + \frac{8}{10} = \frac{15}{10} \ldotp \nonumber \]
(And, if you like, \(\frac{15}{10} = \frac{5 \cdot 3}{5 \cdot 2} = \frac{3}{2}\).)
82 sixty-fifths + 91 sixty-fifths = 173 sixty-fifths:
\[\frac{82}{65} + \frac{91}{65} = \frac{173}{65} \ldotp \nonumber \]
We are really adding amounts per child not amounts, but the answers match the same way.
We can use the “pies per child" model to explain why adding fractions with like denominators works in this way.
Think about the addition problem \(\frac{2}{7} + \frac{3}{7}\):
\[\begin{split} \text{amount of pie each kids gets when 7 kids share 2 pies} & \\ +\; \text{amount of pie each kids gets when 7 kids share 3 pies} \\ \hline ????? \qquad \qquad \qquad \qquad & \end{split} \nonumber \]
Since in both cases we have 7 kids sharing the pies, we can imagine that it is the same 7 kids in both cases. First, they share 2 pies. Then they share 3 more pies. The total each child gets by the time all the pie-sharing is done is the same as if the 7 kids had just shared 5 pies to begin with. That is:
\[\begin{split} \text{amount of pie each kids gets when 7 kids share 2 pies} & \\ +\; \text{amount of pie each kids gets when 7 kids share 3 pies} \\ \hline \text{amount of pie each kids gets when 7 kids share 5 pies} \ldotp & \end{split} \nonumber \]
\[\frac{2}{7} + \frac{3}{7} = \frac{5}{7} \ldotp \nonumber \]
Now let us think about the general case. Our claim is the following.
\[\frac{a}{d} + \frac{b}{d} = \frac{a + b}{d} \ldotp \nonumber \]
Translating into our model, we have \(d\) kids. First, they share \(a\) pies between them, and \(\frac{a}{d}\) represents the amount each child gets. Then they share \(b\) more pies, so the additional amount of pie each child gets is \(\frac{b}{d}\). The total each kid gets is \(\frac{a}{d} + \frac{b}{d}\).
But it does not really matter that the kids first share \(a\) pies and then share \(b\) pies. The amount each child gets is the same as if they had started with all of the pies — all \(a + b\) of them — and shared them equally. That amount of pie is represented by \(\frac{a + b}{d}\).
Try to answer the following questions and share them with a classmate, friend, or any other person. Do they agree with your answers?
- How can you subtract fractions with the same denominator? For example, what is \(\frac{400}{903} - \frac{170}{903}\)?
- W hy does \(\frac{a}{d} - \frac{b}{d} = \frac{a - b}{d}\)? Use the “pies per phild” model.
- Why is the fact that the denominators are the same essential to this addition and subtraction method? Where is that fact used in the explanations?
Fractions with Different Denominators
This approach to adding fractions suddenly becomes tricky if the denominators involved are not the same common value. For example, what is \(\frac{2}{5} + \frac{1}{3}\)?
Let us phrase this question in terms of pies and kids.
Suppose Poindexter is part of a team of five kids that shares two pies. Then later he is part of a team of three kids that shares one pie. How much pie does Poindexter receive in total?
Try to answer the following questions and share your answer with a classmate or friend. It is actually very difficult! Especially think about the situation where the person you are talking to does not already know about adding fractions.
- Do you see that the Poindexter problem is the same problem as computing \(\frac{2}{5} + \frac{1}{3}\)?
- What might be the best approach to answering the problem?
One way to think about answering this addition question is to write \(\frac{2}{5}\) in a series of alternative forms using our key fraction rule (that is, multiply the numerator and denominator each by 2, and then each by 3, and then each by 4, and so on) and to do the same for \(\frac{1}{3}\).
\[\begin{split} \frac{2}{5} + \frac{1}{3} & \\ \frac{4}{10} \quad \frac{2}{6} & \\ \textcolor{red}{\frac{6}{15}} \quad \frac{3}{9} & \\ \frac{8}{20}\; \; \frac{4}{12} & \\ \frac{10}{25}\; \; \textcolor{red}{\frac{5}{15}} & \\ \vdots \qquad \vdots\; & \end{split} \nonumber \]
We see that the problem \(\frac{2}{5} + \frac{1}{3}\) is actually the same as \(\frac{6}{15} + \frac{5}{15}\). So we can find the answer using the same-denominator method.
\[\frac{2}{5} + \frac{1}{3} = \frac{6}{15} + \frac{5}{15} = \frac{11}{15} \ldotp \nonumber \]
Here is another example of adding fractions with unlike denominators: \(\frac{3}{8} + \frac{3}{10}\). In this case, Valerie is part of a group of 8 kids who share 3 pies. Later she is part of a group of 10 kids who share 3 different pies. How much total pie did Valerie get?
\[\begin{split} \frac{3}{8} + \frac{3}{10} & \\ \frac{6}{16}\; \; \frac{6}{20} & \\ \frac{9}{24}\; \; \frac{9}{30} & \\ \frac{12}{32}\; \; \textcolor{red}{\frac{12}{40}} & \\ \textcolor{red}{\frac{15}{40}}\; \; \frac{15}{50} & \\ \vdots \qquad \vdots\; & \end{split} \nonumber \]
\[\frac{3}{8} + \frac{3}{10} = \frac{15}{40} + \frac{12}{40} = \frac{27}{40} \ldotp \nonumber \]
Of course, you do not need to list all of the equivalent forms of each fraction in order to find a common denominator. If you can see a denominator right away (or think of a faster method that always works), go for it!
Cassie suggests the following method for the example above:
When the denominators are the same, we just add the numerators. So when the numerators are the same, shouldn’t we just add the denominators? Like this: \[\frac{3}{8} + \frac{3}{10} = \frac{3}{18} \ldotp \nonumber \]
What do you think of Cassie’s suggestion? Does it make sense? What would you say if you were Cassie’s teacher?
On Your Own
Try these exercises on your own. For each addition exercise, also write down a “pies per child” interpretation of the problem. You might also want to draw a picture.
- What is \(\frac{1}{2} + \frac{1}{3}\)?
- What is \(\frac{2}{5} + \frac{37}{10}\)?
- What is \(\frac{1}{2} + \frac{3}{10}\)?
- What is \(\frac{2}{3} + \frac{5}{7}\)?
- What is \(\frac{1}{2} + \frac{1}{4} + \frac{1}{8}\)?
- What is \(\frac{3}{10} + \frac{4}{25} + \frac{7}{20} + \frac{3}{5} + \frac{49}{50}\)?
Now try these subtraction exercises.
- What is \(\frac{7}{10} - \frac{3}{10}\)?
- What is \(\frac{7}{10} - \frac{3}{20}\)?
- What is \(\frac{1}{3} - \frac{1}{5}\)?
- What is \(\frac{2}{35} - \frac{2}{7} + \frac{2}{5}\)?
- What is \(\frac{1}{2} - \frac{1}{4} - \frac{1}{8} - \frac{1}{16}\)?


4.3: Self-Perception
-
- Last updated
- Save as PDF
Now that we have an understanding of identity, we will explore the concept of self-perception and the various factors that create our understanding of ourselves. Specifically, in this section, we will explain how self-concept, self-esteem, and self-efficacy shape our self-perception.
Self-Concept
The overall idea of who a person thinks they are is called their self-concept.  Each person has an overall self-concept that might be encapsulated in a short list of overarching characteristics that they find important. But each person’s self-concept is also influenced by context, meaning we think differently about ourselves depending on the situation we are in. In some situations, personal characteristics, such as our abilities, personality, and other distinguishing features, will best describe who we are. You might consider yourself laid back, traditional, funny, open minded, or driven, or you might label yourself a leader or a thrill seeker. In other situations, our self-concept may be tied to group or cultural membership. For example, you might consider yourself a member of the track team or a Southerner.
Our self-concept is also formed through our interactions with others and their reactions to us. The concept of the looking glass self explains that we see ourselves reflected in other people’s reactions to us and then form our self-concept based on how we believe other people see us (Cooley, 1902). This reflective process of building our self-concept is based on what other people have actually said, such as “You’re a good listener,” and from how we interpret other people’s actions, (e.g., a friend coming to you for advice may suggest you have valuable suggestions to offer). These thoughts evoke emotional responses that feed into our self-concept. For example, you may think, “I’m glad that people can count on me to listen to their problems.”
We also develop our self-concept through comparisons to other people. Social comparison theory states that we describe and evaluate ourselves in terms of how we compare to other people. Social comparisons are based on two dimensions: superiority/inferiority and similarity/difference (Hargie, 2011). In terms of superiority and inferiority, we evaluate characteristics like attractiveness, intelligence, athletic ability, and so on. For example, you may judge yourself to be more intelligent than your brother or less athletic than your best friend, and these judgments are incorporated into your self-concept. This process of comparison and evaluation isn’t necessarily a bad thing, but it can have negative consequences if our reference group isn’t appropriate. Reference groups are the groups we use for social comparison, and they typically change based on what we are evaluating. In terms of athletic ability, many people choose unreasonable reference groups with which to engage in social comparison. If a someone wants to get into better shape and starts an exercise routine, they may be discouraged by the difficulty keeping up with the aerobics instructor and judge themselves as inferior, which could negatively affect their self-concept.
We also engage in social comparison based on similarity and difference. Since self-concept is context specific, similarity may be desirable in some situations and difference more desirable in others. Factors like age and personality may influence whether or not we want to fit in or stand out. Although we compare ourselves to others throughout our lives, adolescent and teen years usually bring new pressure to be similar to or different from particular reference groups. Think of all the cliques in high school and how people voluntarily and involuntarily broke off into groups based on popularity, interest, culture, or grade level. Some kids in your high school probably wanted to fit in with and be similar to other people in the marching band but be different from the football players. Conversely, athletes were probably more apt to compare themselves, in terms of similar athletic ability, to other athletes rather than kids in show choir.
As with other aspects of perception, there are positive and negative consequences of social comparison. We generally want to know where we fall in terms of ability and performance as compared to others, but what people do with this information and how it affects self-concept varies. Not all people feel they need to be at the top of the list, but some won’t stop until they get the highest grade or set a new school record in a track-and-field event. Social comparison that isn’t reasoned can have negative effects and result in negative thoughts like “Look at how bad I did on that test. Man, I’m stupid!” These negative thoughts can lead to negative behaviors and may affect our self-esteem.
Self-Esteem
Self-esteem refers to the judgments and evaluations we make about our self-concept. While self-concept is a broad description of the self, self-esteem is a more specifically an evaluation of the self (Byrne, 1996). If I again prompted you to “Tell me who you are,” and then asked you to evaluate (label as good/bad, positive/negative, desirable/undesirable) each of the things you listed about yourself, I would get clues about your self-esteem. Like self-concept, self-esteem has general and specific elements. Generally, some people are more likely to evaluate themselves positively while others are more likely to evaluate themselves negatively (Brockner, 1988). More specifically, our self-esteem varies across our life span and across contexts.
How we judge ourselves affects our communication and our behaviors, but not every negative or positive judgment carries the same weight. The negative evaluation of a trait that isn’t very important for our self-concept will likely not result in a loss of self-esteem. For example, if you were a person who doesn’t consider drawing abilities to be a big part of your self-concept, your self-esteem would not take a big hit if someone critiqued a picture you drew. However, if you considered yourself and artist and someone negatively commented on a picture you drew, your self-esteem would be impacted.
Self-Efficacy
Self-esteem isn’t the only factor that contributes to our self-concept; perceptions about our competence also play a role in developing our sense of self. Self-efficacy refers to the judgments people make about their ability to perform a task within a specific context (Bandura, 1997). Judgements about our self-efficacy influence our self-esteem, which influences our self-concept.
The following example also illustrates these interconnections. Aki did a good job on their first college speech. During a meeting with their professor, Aki indicates that they are confident going into the next speech and thinks that they will do well. This skill-based assessment is an indication that Aki has a high level of self-efficacy related to public speaking. If Aki does well on the speech, the praise from classmates and professor will reinforce Aki’s self-efficacy and lead Aki to positively evaluate their speaking skills, which will contribute to Aki’s self-esteem. By the end of the class, Aki likely thinks that they are a good public speaker, which may then become an important part their self-concept. Throughout these points of connection, it’s important to remember that self-perception affects how we communicate, behave, and perceive other things. Aki’s increased feeling of self-efficacy may give them more confidence in delivering speeches, which will likely result in positive feedback that reinforces Aki’s self-perception. Over time, Aki may even start to think about changing their major to communication or pursuing career options that incorporate public speaking, which would further integrate being “a good public speaker” into Aki’s self-concept.
You can hopefully see that these interconnections can create powerful positive or negative cycles. While some of this process is under our control, much of it is also shaped by the people in our lives. The verbal and nonverbal feedback we get from people affect our feelings of self-efficacy and our self-esteem. As we saw in Aki’s example, being given positive feedback can increase our self-efficacy, which may make us more likely to engage in a similar task in the future (Hargie, 2011). Obviously, negative feedback can lead to decreased self-efficacy and a declining interest in engaging with the activity again. In general, people adjust their expectations about their abilities based on feedback they get from others. Positive feedback tends to make people raise their expectations for themselves and negative feedback does the opposite, which ultimately affects behaviors and creates the cycle.