Rights in the Real World

August 01, 1994|By GREGORY P. KANE

With one sweep of the gavel, Judge Kathleen Kennedy-Powell upheld sanity in the American judicial system.

She ruled that evidence police seized without a warrant from O.J. Simpson's home the night his ex-wife and a friend of hers were stabbed to death was, in fact, admissible evidence.

Mr. Simpson's lawyers tried to have the evidence excluded on the grounds that the search violated the Fourth Amendment guarantee against unreasonable searches and seizures. That is exactly what they should have done, as good lawyers for their client. But even they had to know their chances of success were virtually nonexistent.

Mind you, there have been instances where lawyers have successfully used the exclusionary rule. One was the case where my son Ray, caught dead to rights by a Baltimore police officer with a handgun, avoided prosecution when his lawyer argued successfully that the search was illegal because the officer had no probable cause to stop him in the first place.

Whether that was true or not depends on whom you believe. In the Rashomon-like tale recounted in the courtroom, Ray and the officer gave different accounts.

My son said the officer stopped him as Ray was on the porch. The officer said he noticed Ray with his hand in his pocket, acting suspiciously. Ray looked around at him nervously as he was walking down the street and quickened his pace almost to a run, according to the officer. Taking that into account along with his presence in a neighborhood where drug dealing and shootings are frequent, the officer decided to act.

Some might say that the officer

in question was guilty of nothing more than performing damned good police work. I am one of them, which is why although I paid the lawyer's fees my son will pay me back every dime.

But that case wasn't like the O.J. Simpson case, where police acted in the emergency situation of trying to track down the killer who had brutally murdered two people. Police in that situation did exactly what police are supposed to do -- they acted. They left the propriety of their actions for judges and lawyers to argue.

There is, you see, the Bill of Rights. And then there's reality. Sometimes the two are in sync. Sometimes they're not.

Let me cite an example. On Thanksgiving eve of 1992 my son -- the reformed gunslinger mentioned above -- had been standing on our front porch talking to a friend when he abruptly burst through our front door. The look of panic in his eyes let me know in one split second that something particularly nasty was afoot outside. Another split second later, I found out what it was.

A young man -- about 18 years old and named Chris, I think he told me -- came in after my son. Blood oozed from wounds to his back, turning the white shirt he

was wearing a ghastly crimson. My son and Chris then closed our door and leaned against it. I went over to help them and we were able to keep the guy who had just stabbed Chris from entering my home and finishing the job on him.

The guy had chased Chris down the street, where he slipped on my front lawn. The assailant then stabbed him several times. My son had come in to alert me. Chris had noticed the door open and quickly followed.

My wife called 911 while I applied a towel to Chris' wounds until police and paramedics arrived. The tale had a semi-happy ending. Chris survived the attack. His assailant, known to him but not to us, may still be roaming the city's streets, for all I know.

But let's say, for the sake of argument, the scenario was a little different. Suppose the lunatic with the knife had gotten into my house. He would have attacked Chris, my son, my wife, me -- anybody who stood in his way. Let's assume that someone else had called the police.

The police arrive on the block and see no assailant or victim. They do see blood on my lawn and on my walkway leading up to my front door.

Should they have stood there and worried that kicking my door in to be sure everyone was safe would have violated my Fourth Amendment rights? That would have been carrying the concept of civil liberties a bit too far.

Which is why, I suppose, the Fourth Amendment guarantees against unreasonable searches and seizures.

Gregory P. Kane is a reporter for The Sun.

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