When the Police Blunder a Little

By Bennett H. Beach

The court considers a major exception to the exclusionary rule

The anonymous letter to police in Bloomingdale, Ill., reported that Lance and Susan Gates had more than $100,000 worth of drugs in their basement and that they "make their living on selling drugs." Prompted by the letter, officers made a preliminary investigation, went to a magistrate, got a warrant, searched the Gates home and car and found more than 350 lbs. of marijuana, along with drug paraphernalia, weapons and ammunition. A good bust of two suspected drug traffickers? Not exactly. Instead, that case turned out to be potentially the most important test of the search-and-seizure rules in two decades.

Before the Gateses went on trial, the Illinois Supreme Court ruled that the anonymous tip and preliminary investigation did not provide probable cause to issue a warrant. The court threw out all the discovered physical evidence because of the much reviled exclusionary rule, which holds that the fruits of an illegal search may not be used against the defendant in court. The U.S. Supreme Court last year considered arguments on the legality of the warrant in the Gates case, but then unexpectedly asked the lawyers to return to debate a proposition not previously at issue in the case: Should there be an exception to the exclusionary rule when law-enforcement officials act illegally but "in good faith"?

Before a crowded, tense courtroom last week, Illinois First Assistant Attorney General Paul Biebel told the Justices that the actions of the Bloomingdale police "can only be characterized as thorough and professional. This is clearly not the kind of activity the exclusionary rule was meant to deter." Speaking against a legal rule that the President has called "absurd," U.S. Solicitor General Rex Lee added that the search was made in the "reasonable good-faith belief " that it was constitutional; second thoughts by an appeals court should not bar use of "highly relevant" evidence. James Reilley, the Gateses' attorney, countered by reciting a long list of state and federal court rulings on the exclusionary rule that seem to brook no major exceptions. But the list may be coming to an end.

The drafters of the Bill of Rights never imagined the current complexity. Their experience with search-and-seizure problems involved writs of assistance, general warrants that allowed the King's agents to conduct wide-ranging searches of the homes of his colonial subjects. To protect citizens from such intrusions by the new Federal Government, the Fourth Amendment specifically prohibits "unreasonable searches and seizures" by authorities and requires detailed warrants. In 1914, the Supreme Court concluded that officials were leaving the amendment in tatters as they routinely tore through privacy rights. The court unanimously ordered federal criminal trial judges to exclude evidence seized unconstitutionally.

Even at its birth, the exclusionary rule seemed to many an overreaction. "The criminal is to go free because the constable has blundered," objected New York Court of Appeals Judge Benjamin Cardozo, who was later to join the high bench. The real howls, however, did not come until 1961, when Earl Warren's Supreme Court ruled that state as well as federal courts were bound by the rule. About half the states had not previously adopted it; they hurriedly set up programs to school patrolmen on the ins and outs of the new requirements. The specifics changed almost monthly as courts grappled with an array of new defense challenges.

In recent years, high crime rates and a more conservative mood have prompted a growing outcry. "People are all mad as the dickens that defendants are freed on technicalities," says Utah Supreme Court Chief Justice Dallin Oaks. The rule, wrote Oaks in 1970 when he was a University of Chicago law professor, "imposes excessive costs on the criminal-justice system." It takes "limitless patience with irrationality" to tolerate the fact that "where there have been two wrongs, the defendant's and the officer's, both will go free." Another problem, says U.S. Appeals Court Judge Malcolm Wilkey of the District of Columbia Circuit, is that "every defense lawyer feels obliged to make a suppression motion in search-and-seizure cases." Wilkey reports that 22% of the criminal cases in his court required analysis of such claims, a process that seriously bogged down the system. Says he: "No other civilized country in the world has a rule excluding relevant material evidence." He contends that the sanction only encourages perjury by police when they testify about the search in question.

New York City Deputy Police Commissioner Kenneth Conboy claims that the rule does not deter much official misconduct. If evidence is discarded at trial, he says, "most officers don't care. You know why? Because the guy rarely goes to jail anyway." Besides, police have no certainty that their best efforts will stand up. "You're talking about sophisticated, subtle distinctions," notes Conboy. "It takes judges months to reach decisions. Police have to make them instantaneously, in alleys, with guns and knives around."

Nonetheless, argue the rule's backers, a judge has to look intently over the policeman's shoulder in order to keep the process as pure as possible. "Law enforcement must be sound and aggressive," insists Maryland Attorney General Stephen Sachs, "but citizens must see law enforcement as law-abiding. The government should not stoop to conquer."

Does this concern for purity cost too much in lost prosecutions? The statistics do not provide a clear-cut answer. According to a 1979 report by the General Accounting Office, Congress's investigatory arm, one in every 250 federal criminal cases is not prosecuted because of the exclusionary rule. A recent study in California, however, found that nearly one in 20 felony cases was not brought because of the rule. The only fact that the figures do clearly demonstrate is that the vast majority of search-and-seizure problems involve drug cases. The impact on cases of violent crimes seems small.

No one considers the rule ideal. "Even civil libertarians sort of hold their noses while arguing for it," says Stanford Law Professor John Kaplan. He would permit the use of any relevant evidence even if it was unlawfully obtained, but only when the offending officer's department has training and disciplinary programs to promote adherence to the Fourth Amendment. Kaplan's approach is also favored by the Police Executive Research Forum, which is made up of police chiefs and county sheriffs.

In a variation of that idea, Judge Wilkey proposes a minitrial after conviction to examine challenged police conduct. If it was ruled illegal, the officer's department would have to punish him adequately or risk having the conviction thrown out. Others suggest that the convicted subject of an unlawful search could sue police for damages. But this idea has never seemed very realistic. Scoffs New York City Defense Lawyer Robert Morvillo: "A defendant is not going to have the money to bring a suit, and he's not going to have credibility with a jury."

The most widely supported alternative is the good-faith exception now before the court. The proposal has already been adopted by at least two federal appeals courts and three states. If the Supreme Court approves such an exception, it could be limited to searches conducted with warrants that turn out to be invalid, as in the Gates case. The exception could also apply any time police were able to prove they had acted in good faith.

"The idea frightens me. Police would be more careless," says Georgetown Law Professor William Greenhalgh, a former prosecutor; on behalf of the American Bar Association, he wrote a Gates brief supporting the existing rule. Notes University of Michigan Law Professor Yale Kamisar: "What are we asking here? Whether a police officer reasonably acted unreasonably? If they lower the standard any more, they'll reduce the rule to the vanishing point."

How the Supreme Court will resolve this debate will probably not be known until the end of the term in June. But most court watchers suspect that the exclusionary rule is in for a rough time. Sentiment on the court is thought to be narrowly divided, and the outcome could depend on Justice Sandra Day O'Connor, who succeeded Potter Stewart, an exclusionary-rule backer; O'Connor seemed to favor a good-faith exception at her 1981 Senate confirmation hearing. That change could produce a new majority, one that favors closing a loophole for criminals at the risk of opening a new one for police.

-- By Bennett H. Beach.

Reported by David S. Jackson/ Washington

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