The 4th Amendment is alive and well

July 08, 1994

Judge Kathleen Kennedy-Powell was correct to rule that Los Angeles Police Department detectives did not trample on O.J. Simpson's constitutional rights when they climbed a fence at his estate looking for him after the murder of his wife. Mr. Simpson's lawyers argued that evidence of a possible crime found on the grounds and, later, after a search warrant had been issued, in the main house, could not be used in a preliminary hearing or in a trial because it was gathered in violation of the Fourth Amendment.

In fact, what the Fourth Amendment says is that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated. . ." It calls for search warrants based on probable cause for most searches. But the courts have often allowed evidence gathered by police without search warrants when the circumstances involved made haste seem necessary. Judges know that sometimes police can't wait for a warrant. That is what happened here. We believe Judge Kennedy-Powell was correct is assessing her decision as one that left "the Fourth Amendment . . . alive and well."

After all, the key word in the amendment is "unreasonable." It was definitely reasonable for detectives who had just left a terrible and relatively nearby scene of a double murder to seek out Mr. Simpson to inform him. And it was reasonable for them to go beyond mere formality in trying to make sure if he was or was not at home. It was reasonable for them, once on the grounds for that purpose, to react to what seemed like evidence related to the murders lying in plain sight. We agree with the prosecutor in this case, Assistant District Attorney Marcia Clark, who said it would have been "derelict" of the officers not to do what they did at Mr. Simpson's.

The so-called "exclusionary rule," which allows such evidence occasionally to be excluded from trial is not an ancient one, as its advocates would have the public believe. It is by no means a part of the Constitution. It was created by judges and applied to state and local law enforcement only 33 years ago. Even federal law enforcement was unencumbered by an exclusionary rule for more than 100 years after the Bill of Rights was adopted.

The Fourth Amendment does indeed protect a vital interest of the people. Judges and others should constantly look over the shoulders of the police to make sure they don't become arrogant and insensitive -- storm troopers. But you can do that and still allow them reasonable leeway in criminal investigations. The people have a vital interest in effective crime control, too.

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