Good Faith

March 03, 1995|By JAMES J. KILPATRICK

CHARLESTON, SOUTH CAROLINA — Charleston, South Carolina. -- If there is one provision of the Constitution more vital to human liberty than all the rest, it is the Fourth Amendment. By approving H.R.666, the ''good faith'' bill, the House last month trampled the Fourth Amendment underfoot.

The amendment has two parts. The first protects us from ''unreasonable'' searches and seizures. The second demands (1) that search warrants be granted only upon a showing of probable cause, and (2) that warrants particularly describe the place to be searched and the things to be seized.

No provision of the Constitution is more important to more people. Not everyone is concerned about free speech or the free exercise of religion. Not everyone wants to bear arms. Relatively few of us will ever invoke the rights accorded to an accused person in a criminal prosecution. But the Fourth Amendment embraces us all.

Let me turn the clock back to July 5, 1984, when the Supreme Court decided two cases arising under the Fourth Amendment. One case involved a drug dealer, Alberto Antonio Leon, in Burbank, California. The other involved a murderer, Osborne Sheppard, in Boston.

The cases were preceded by a long string of cases dating to 1914, when the high court fashioned the exclusionary rule. The rule says that if the government has obtained evidence in violation of the Fourth Amendment, the evidence cannot be admitted at trial.

The rule is intended to deter police misconduct, and perhaps it does. If evidence is likely to be suppressed, why get it? But if the exclusionary rule often has served a good purpose, it just as often has served justice very poorly. One law professor says the rule is a ''formidable obstacle to law enforcement.'' Another professor says the rule is ''the scourge of the criminal-justice system.''

Now to the Leon case of 1984. An informant of ''unproven reliability'' tipped the Burbank police about drug operations at several residences. Investigation confirmed that the suspects had been involved in drug dealings before. On this basis, a state judge issued a warrant to search.

Police searched the houses and found a large quantity of cocaine and other drugs. But at trial, the U.S. district judge excluded the evidence, and the Court of Appeals for the 9th Circuit affirmed. The reliability and credibility of the informant had not been established; the supporting information was stale. In sum, the state judge had no probable cause to issue the warrant.

The Sheppard case in Boston was different. On a Saturday morning in 1979, the burned and beaten body of Sandra Boulware was found in a vacant lot. She had been bound with rope and wire and may have been burned alive. Investigation led at once to her boyfriend, Osborne Sheppard. Borrowing a car, Sheppard had left an all-night poker game for a couple of hours. He could have committed the murder in this time.

Police needed a warrant to search both the car and Sheppard's house. On Sunday morning they prepared an affidavit detailing the things to be sought and seized: the victim's clothing, rope, wire, gasoline. All court offices were closed, but detectives rummaged around and found a warrant form used for drug busts. They went to a judge who edited the warrant, stapled it to the affidavit, and assured the officers they had valid authority to proceed.

The search turned up precisely the damning evidence needed to convict, but the trial judge threw it out. The body of the warrant, as distinguished from the supporting affidavit, referred to drugs and not to rope, wire and clothing. It did not ''particularly describe the things to be seized.''

Speaking through Justice Byron White, the Supreme Court reversed both of the exclusionary rulings. In each instance the police had acted in good faith. The evidence should have have been admitted. Given the circumstances, the searches were not ''unreasonable.''

I applauded White's opinion then, and I applaud it now. If the House had been content simply to codify the Leon and Sheppard decisions having to do with defective warrants, I would be whooping it up for the House.

But the House went much farther. The bill effectively authorizes searches and seizures that have not been authorized by any warrant at all. If police believe they have ''objectively reasonable'' grounds to break into a house, they need not go first to a magistrate or a judge. Much later, at trial, their judgment may be challenged and their evidence may then be suppressed, but judicial approval would be sought after a search and not before. This is the bad part of H.R.666.

I like the good-faith rule, but I would oppose this ill-considered expansion. A neutral, dispassionate magistrate performs a vital function under the Constitution. In seeking to weaken the warrant process, cumbersome as it may be, the House has gone badly astray.

James J. Kilpatrick is a syndicated columnist.

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