The Magazine

End of a Supreme Court Blunder?

The exclusionary rule hangs on by one vote.

Aug 21, 2006, Vol. 11, No. 46 • By WILLIAM TUCKER
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At worst, the exclusionary rule could become a simple excuse for judges to impose their will. In the 1970s and '80s, for example, the California Supreme Court under Chief Justice Rose Bird, openly hostile to capital punishment, overturned dozens of death penalty convictions. With metronomic regularity, the court would rule that a warrant had not sufficiently "described the place to be searched and persons or things to be seized." One notorious 1985 case finally led to the removal from the court of Bird and two colleagues by disgusted California voters. It involved Dr. Theodore Frank, a convicted child molester who had tortured and murdered a two-year-old girl. In the warrant, police had specified that they would search for "writings which could relate to the death of [the girl] and would indicate either participation and/or an interest in that death by Theodore Frank." What they discovered was a diary in which Frank confessed his fetishes. ("I want to give pain to these little children. I want to harm them.") The writings were read to the jury at the penalty phase, and Frank received a death sentence. Upon review, the Bird court ruled the warrant had been "overbroad," mere "boilerplate" that allowed police to "rummage" through Frank's possessions. They overturned the death sentence.

In 1984, an egregious Massachusetts case arrived before the Supreme Court. The bound and burnt body of a 25-year-old woman named Sandra Boulware had been found in a vacant lot in Boston. Her boyfriend, 45-year-old Osborne Sheppard, was implicated. Police obtained a warrant to search his apartment. Among other things, the warrant specified "a woman's jacket that has been described as black-gray (charcoal), any possessions of Sandra D. Boulware, similar type wire and rope that match those on the body of Sandra D. Boulware. . . . A blunt instrument that might have been used on the victim, men's or women's clothing that may have blood" on them, and so on. What they found was "a pair of bloodstained boots, bloodstains on the concrete floor, a woman's earring with bloodstains on it, a bloodstained envelope, a pair of men's jockey shorts and women's leotards with blood on them, three types of wire, and a woman's hairpiece, subsequently identified as the victim's." The Massachusetts Supreme Court threw out the conviction on the grounds that the warrant had not adequately described the "things to be seized."

The Supreme Court finally put an end to this nonsense, carving out a "good faith exemption" to the exclusionary rule. If the police thought they were acting in good faith in conducting the search, then the evidence could be admitted. But of course this vague rule only opened up more opportunity for semantics. Whose "good faith" was involved? The police or the judge who issued the warrant? What constitutes "good faith"? That was for future courts to debate.

Meanwhile, defense attorneys moved on to new terri tory. The phrase of choice became "probable cause." Yes, a warrant might have been issued in good faith, and yes, the warrant might sufficiently describe the persons or things to be seized. But was there "probable cause" for issuing it?

Here's a good example. In the 1971 Academy Award-winning movie The French Connection, New York City drug detective "Popeye" Doyle and his partner see a small-time mobster celebrating with a party of friends at the Copacabana. "Something doesn't look right," he says, and they decide to follow the party home. They stake out the residence and eventually uncover the biggest drug shipment ever to reach New York City--a true story.

Such an investigation would be blatantly unconstitutional under today's standards, and all the evidence would likely be thrown out. Police cannot stake out a person's home, even a mobster's, because "something doesn't look right." They cannot follow hunches or investigate because a person "looks suspicious." For the most part, they must have evidence that a crime is being committed. When they seek a warrant, they must have specific, detailed knowledge of what they expect to find.

Of course, this philosophy of policing finally came home to roost in August 2001, when Minnesota FBI agents arrested Zacarias Moussaoui, an alien with an expired visa who had aroused the suspicion of flight school instructors in Minneapolis because he wanted to learn to fly a commercial jet without having any interest in how to take off or land. Dutifully following established procedures, the Minneapolis agents applied to Washington for a search warrant to look into his computer. FBI lawyers there turned down the request. There was no "probable cause" for investigating any further. All they had was a suspicious guy with an expired visa taking flight lessons. After forty years of playing Russian roulette with the American public, the criminal justice system finally hit a loaded chamber.

What makes the exclusionary rule so absurd is that it only protects people who are guilty of crimes. If the police come to your house, knock down your door, ransack your home, throw all your belongings in the street, and find no incriminating evidence, then the exclusionary rule offers you no compensation whatsoever. Only if evidence turns up that shows you to be guilty of something are you rewarded.

In pointing out how dated the exclusionary rule has become, Justice Scalia noted both the "increasing professionalism of police forces" and the ease with which aggrieved citizens can now pursue other remedies against the police for the violation of their rights. "Citizens whose Fourth Amendment rights were violated by federal officers could not bring suit until 10 years after Mapp," Scalia noted. Since then, "Congress has authorized attorney's fees for civil-rights plaintiffs. . . . The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded. . . . [E]xtant deterrences against [Fourth amendment violations] are . . . incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified."

After 45 years, the misbegotten practice of freeing the criminal because the constable has blundered may finally be about to come to an end.

William Tucker is author of Vigilante: The Backlash Against Crime in America.