Zollicoffer's actions show Fourth Amendment's worth

May 04, 2002|By GREGORY KANE

SO, IT'S CLEAR that the "Thurman Zollicoffer Conflict Resolution Award" will not be handed out this year. But there's one not-so-trivial item everyone's overlooking in the matter of our at-one-time embattled and now-contrite city solicitor.

It's called the Fourth Amendment. The right against unlawful search and seizure. Anybody heard of it? Is anybody proud of it, or would we like to see it kicked to the curb like those other Bill of Rights amendments we find so troubling like numbers One, Two, Six and Nine?

Those amendments, respectively, deal with free speech and assembly; the right to bear arms; the right to a speedy trial; and the guarding of the rights of citizens.

Let's recap the story you couldn't possibly have avoided hearing in the Baltimore area this week even if you were dead and buried. On Tuesday evening, Baltimore police stopped Lawrence D. Hutchings, 22, in the 1800 block of E. Belvedere Ave. An undercover officer said he recognized Hutchings as the man who had sold him cocaine the night before. The officers wanted positive identification for Hutchings, which he didn't have.

Police then took Hutchings to where he said his identification was: his mother's home in the 1900 block of E. Belvedere Ave. Here is where the tale gets tricky. Police reports say Sgt. William Davis, Agent Stephen Derkosh, and Officers David Kennedy and David Thompson "secured" the house while awaiting a search-and-seizure warrant. Others say the police started searching the house before they got the warrant. Therein lies the controversy.

Zollicoffer's sister called to tell him that police were in the house. Zollicoffer talked to Davis, but the conversation went nowhere. Zollicoffer then went to his sister's house, where he made the "white Gestapo" comment he came to regret.

"[Zollicoffer's] concern was about his sister and the police searching his sister's house," said Tony White, spokesman for the mayor's office. "When his sister called him, they were actually in the house, searching the house."

Zollicoffer confirmed White's comment a day later.

"That was her concern," Zollicoffer said of his sister's angst about police allegedly searching her home without a warrant. "I really wanted to resolve that issue. Things escalated after that. Now it's my responsibility to bring peace back to the community. I don't want people thinking police aren't trustworthy. I contributed to the mess - now I have to help clean it up."

Zollicoffer sounded like a man truly sorry, amazingly so, considering what he has been called the past few days. ("Racist" was foremost among them.) But those of us who treat civil liberties as more than a passing fad have to ask the questions no one - especially those in the "We Want Zollicoffer's Barely Visible Scalp" mob - wants to answer: Were the police searching the house of Hutchings' mother, Helen Hutchings, before they had a search warrant, and did they have authority to be there before they had one?

According to Dwight Sullivan, who works for the Maryland chapter of the American Civil Liberties Union, there are only five reasons for police to be in a private home:

1. They have a warrant.

2. They are in hot pursuit of a suspect. (Not pertinent here. They had their man.)

3. They have reasonable cause to believe evidence would be destroyed. (Perhaps valid in this case, but couldn't this entire incident have been avoided by taking Hutchings back to the Northern District police station, waiting for the warrant, then going to his mother's house? Because he would have been in custody the entire time with no opportunity to call anyone, what were the chances evidence would have been destroyed? By the way, a weapon and paraphernalia were found in the home, but no drugs were recovered.)

4. There's something in the house causing a physical danger. (A sniper, for example.)

5. Consent.

Even the consent criteria are tricky, said Sullivan. If Helen Hutchings had ordered police out of her house at any time before the warrant arrived and they refused, "at that point they became trespassers," Sullivan said. "They didn't have authority to remain in the house."

That question about authority is precisely why Zollicoffer says he was in his sister's house arguing with police. We've heard all the other stuff about how Zollicoffer was supposedly out of control, enraged, abusive, indignant and threatening. We've heard how Zollicoffer misused his authority by getting involved in the matter. Not appropriate, some say, for a city solicitor.

But should Zollicoffer stop caring about the Fourth Amendment just because he's the city solicitor? Don't all of us have the right - indeed, the duty and responsibility - to challenge police conduct if we feel it's wrong and crosses the line and violates the Constitution?

Zollicoffer apparently does. Judging from the reaction to him, it looks as if he belongs to the ever-shrinking body of civil libertarians in this country.

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