Search and Seizure Laws - Not Mere `Technicalities'

`Good-faith exceptions' are neither exceptional nor in good faith

NEWT GINGRICH'S push for a ``good-faith exception'' to the Fourth Amendment in police arrests and searches is a bad idea. The proposed ``exception'' offered by the House Speaker will not reduce the crime rate. Why? Because it is already uncommon for such evidence to be thrown out.

Instead, the proposed exception will betray the whole purpose of the Fourth Amendment.

The Fourth Amendment prohibits the police from interfering with our liberty by arrest unless they have information amounting to ``probable cause.'' It also prohibits them from searching our homes unless a judge issues a warrant to do so. Those prohibitions are enforced by a rule that requires that courts ``exclude'' physical evidence from trials if it was seized by the police in arbitrary searches.

The ``exception'' to the exclusionary rule recently passed by the House would allow evidence gathered in unconstitutional police searches to be used if the police had ``an objectively reasonable belief'' that their conduct conformed to constitutional standards -

even though it did not.

Gingrich is supposed to be a historian; but he forgot his history here. The framers wrote the Fourth Amendment into the Bill of Rights in 1789 because they believed that citizens' right to be ``secure'' on their property was essential to a free society.

At that time, a law enforcement officer could search a house or make arrests only if he had a warrant issued by a justice of the peace. That warrant requirement reflected the belief that personal privacy was so important that law enforcement officers should never be allowed to arrest or search solely on the basis of the officer's own judgment or whim. Only judges were permitted to decide.

This principle had been threatened, shortly before the American Revolution, when the Crown issued nameless ``general warrants.'' They did not say whom the constable could arrest, or where he could search. Both American colonists and prominent English judges condemned such warrants in a series of cases well known to the framers of the Bill of Rights. They condemned these because, as James Otis Jr. in Boston put it in 1761, such a warrant ``places the liberty of every man in the hands of every petty officer'' and allows officers ``to enter our homes when they please.''

Thus, the founders wrote the Fourth Amendment so that the Congress would never have the power to give any officer similar discretionary authority to arrest or search.

However, despite the framers' intention, police officers have been gradually given more and more discretionary authority to arrest and search on their own judgment.

Today officers can legally make a wide variety of arrests and searches if they decide they have information amounting to probable cause (the Supreme Court has said that only means a ``fair probability'' that a suspect is involved in crime). Officers seldom have to get warrants unless they want to search a house; sometimes they still do not need one. The police already have much room to arrest and search.

It is a myth that hordes of dangerous criminals are released by ``legal technicalities.'' Only between 0.5 percent and 2.5 percent of all felony arrests are ``lost'' because of unconstitutional searches. Moreover, these are usually smaller drug crimes, not violent crimes.

The Supreme Court has already made search law police-friendly (the government has won 93 of the 112 criminal search and arrest cases decided since 1970).

Specifically, the justices have already ruled that ``reasonable'' mistakes that police make about the factual circumstances involved in searches and arrests do not cause the arrest or search to be illegal.

If, for example, the police arrest the wrong person because of mistaken identity, neither the arrest nor evidence is thrown out of court as long as the arrested person fits the description the officers were given.

In addition, evidence is not excluded because a judge erred in issuing a warrant. In fact, on March 1 the Court also ruled that evidence need not be excluded if it was seized because of an error in court computer records. Police reliance on warrants or court records can be said to be ``reasonable reliance'' on the court's authority.

The only kind of errors that do cause evidence to be excluded are police mistakes about the legal limits on their authority to arrest or search. The exception seems to be aimed at excusing illegal searches that happened because police misjudged the ``fair'' chance standard, or because police failed to get a warrant when one was required. Those are not ``technicalities.'' Those are what separate this country from a police state.

Indeed, how is the ``objective reasonableness'' standard in the exception supposed to work? How can police officers be ``reasonably'' mistaken about whether their information showed a ``fair'' chance of crime? What does it mean to talk about an officer's ``reasonable'' ignorance of the law? The exception slips into semantic nonsense; it is neither needed nor valid.

Moreover, there is a genuine danger that lower court judges would take this standardless ``exception'' as a signal to let in virtually all evidence seized by police - regardless of what the police did. Trial judges, already reluctant to suppress unconstitutional evidence, may choose to call virtually all unconstitutionally seized evidence an ``objectively reasonable good-faith police mistake.''

That result should frighten us. Little is now left of our right to privacy in our homes and offices and cars under the Fourth Amendment. If the police are not bound to know search law, then the police can ignore what little law still binds them.

The bottom line of this proposal is that enforcement of the Fourth Amendment right of privacy may virtually end if the proposal becomes law.

The principle that the government must deal with citizens according to law deserves better treatment than the House gave it. The Opinion/Essay Page welcomes manuscripts. Authors of articles will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.