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Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, the attorney persuaded the police not to carry out the search. He also persuaded them to accompany him to the chambers of the municipal judge who issued the warrant so that he could move to quash it. After various legal maneuvers, the lawyer eventually prevailed.

For me, the most remarkable feature of this extraordinary case 4 is that the police never actually seized, let alone searched, the lawyer's work product file. Thus the courts were able to rule on the legality of the police action in an adversary proceeding before a search or seizure was carried out-before anyone other than O'Connor knew what was in the file. Thus O'Connor did not need an exclusionary rule to effectuate his rights.


This is an Accepted Manuscript of an article published by Taylor & Francis Group in Criminal Justice Ethics in 1982. available online; 9/1/2010