Chipping away at the Constitution

The U.S. Supreme Court has again undermined the only realistic protection against illegal searches and seizures: the ban on using tainted evidence at trial. The 5-4 decision in an Alabama case is doubly ominous for California, where misguided ballot initiatives have forbidden state courts from adopting stricter standards for the use of illegal evidence than federal courts require.

The justices upheld drug and gun charges against Bennie D. Herring, whose truck was searched by a sheriff's department officer who thought a warrant was outstanding for Herring's arrest. In fact, the warrant had been withdrawn, but that information hadn't been entered into the computers of a neighboring department.

Under the so-called exclusionary rule, established by the court in federal cases in 1914 and extended to state prosecutions in 1961, illegally seized evidence may not be introduced at trial. The rule is designed to deter police violations of the 4th Amendment, which protects the people from "unreasonable searches and seizures."

The rule always has been controversial. In 1926, future Supreme Court Justice Benjamin Cardozo lamented that "the criminal goes free because the constable has blundered." But opponents haven't offered a workable alternative. One suggestion -- making it easier for victims of illegal searches to sue the police -- is fanciful. How many jurors would be willing to punish the police for a search that produced a conviction?

Unable to abolish the rule, conservatives on the Supreme Court have succeeded in carving out exceptions to it. In 1984, the court held that there was a "good-faith exception" to the rule when police rely on a defective warrant issued by a judge. In 1995, it widened that loophole to include illegal searches based on computer errors by the court system.

Now sloppy record-keeping by police themselves is to be winked at. True, Chief Justice John G. Roberts Jr.'s majority opinion suggests that illegally seized evidence might still be excluded if police have been reckless in keeping track of warrants or "knowingly made false entries to lay the groundwork for future arrests." But if police can search and arrest people on the basis of erroneous computer files, what incentive is there to ensure that the files are accurate?

Turning the exclusionary rule into the legal equivalent of Swiss cheese would be bad policy at any time, but it's especially dangerous in the Information Age. As Justice Ruth Bader Ginsburg noted in her dissent: "Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty." Instead of calming such concerns, the majority has exacerbated them.

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