[926] Such language appears to
effect the very absorption into the Fourteenth Amendment which Justice
Frankfurter rejects in the Adamson case; but he concluded by adding that
as long as "a State [does not] affirmatively * * * sanction * * *
[arbitrary] police incursion into privacy"; that is, as long as its
police are deterred from making searches without authority of law by
virtue of such internal discipline as an alert public opinion may induce
and by reason of the statutory or common law remedies which the victims
of such illegal searches may invoke, a State, without running counter to
the due process clause, may employ at a trial incriminating evidence
obtained by unlawful search and seizure. The fact that most of the
English-speaking world, including 30 States and the British Commonwealth
of Nations, does not regard the exclusion of evidence thus obtained, as
vital to the protection of the right of privacy is interpreted by the
Justice as lending abundant support to the merit of his position.[927]

Without departing from his previously adopted position which he
restated in his dissenting opinion in Adamson _v._ California;[928]
namely, that the due process clause of the Fourteenth Amendment embraces
the Fourth Amendment's prohibition of unreasonable searches and
seizures, Justice Black concurred in the result on the ground that the
exclusionary rule, whereby evidence procured in an illegal search and
seizure is not admissible in a federal court, is "not a command of the
Fourth Amendment but is a judicially created rule of evidence which
Congress might negate."[929] Justices Douglas, Murphy, and Rutledge, in
separate dissenting opinions, all declared that the Fourth Amendment was
applicable to the States and that "evidence obtained in violation of it
must be excluded in State prosecutions as well as in federal
prosecutions, * * *."[930] Attacking Justice Frankfurter's method of
approach, Justice Murphy declared that the Court should not "decide due
process questions by simply taking a poll of the rules in various
jurisdictions, * * *" and agreed with Justice Rutledge that unless
illegally obtained evidence is excluded, no effective sanction "exists
to deter violations of the search and seizure clause."

In two recent cases, both argued the same day, a nearly unanimous Court
reached opposite results.[931] In the first the outcome of the Wolf case
was repeated. The Court, speaking by Justice Frankfurter, refused to
e