PERSPECTIVE ON THE SIMPSON CASE : The 4th Amendment Survives in World’s Biggest Courtroom : The police were within bounds; a ruling to suppress the evidence would have bred public scorn for the law.

Judge Kathleen Kennedy-Powell admitted the evidence in the O. J. Simpson suppression hearing, confirming Deputy Dist. Atty. Marcia Clark’s polished summation, and denying a passionately argued presentation by defense attorney Gerald Uelmen.

Among the various television commentators, those who were defense attorneys seemed convinced that the cops had lied and that the judge should have suppressed the evidence they collected at Simpson’s home before obtaining a search warrant. But Kennedy-Powell made the right decision--right in her reasoning, right on the law and most important, right on the larger implications for Fourth Amendment protections.

The police detectives told a credible story about going to Simpson’s residence to inform him of the death of his children’s mother, but not, I think, the whole story. They must have suspected, at least in the back of their minds, the former husband and convicted batterer. But the police were convincing in their expectation that someone would be home at 5 a.m. and would have admitted them to the house. Had the cops asked to look around, they would probably have been given permission. (“Consent” searches are the most frequent exception to the Fourth Amendment’s warrant requirement.) So the police must have been genuinely surprised to find no one answering the intercom or the phone even though lights were on in the main house. They had just arrived from a brutal and bloody double murder scene. The absence of a response from inside the Simpson house, along with what seemed to be blood on the door of a car parked outside, raised in their minds the reasonable question of whether somebody was injured or dying within the walled property.

This, the prosecution argued, constituted an “exigent circumstance,” an emergency, one of the several important exceptions to the Fourth Amendment’s warrant requirement.

In her statement Thursday, Judge Kennedy-Powell relied on People vs. Cain, a 1989 California Court of Appeal case, where officers made a warrantless entry of an apartment, following a rape in the adjacent residence. The officers were said to have “entered the apartment with a purely benevolent motive,” to see if there was another victim. But police always have mixed motives. They are law-enforcement officers as well as emergency-service workers, and, unlike medical personnel, are supposed to take notice of evidence of crime when they come across it.

Whether evidence should be suppressed via “the exclusionary rule” has generated enormous controversy over the years. Preeminent legal authorities, such as Benjamin Cardozo, opposed the rule. In a 1926 New York case, Judge Cardozo (later to be appointed to the U.S. Supreme Court) asked whether the criminal should go free “because the constable has blundered.”

In reality, police rarely, if ever, blundered. Rather, in states where the exclusionary rule was not in effect, police simply ignored the Fourth Amendment and routinely conducted illegal searches. After all, they had nothing to lose.

The U.S. Supreme Court did not impose the exclusionary rule on the states until 1961, and even then, in Mapp vs. Ohio-- a case in which the police had behaved outrageously--the court was closely divided. But by that time, a majority of the states had adopted it, including California, in 1955.

There can be no question that the exclusionary rule has had a positive influence on police practices. The year before Mapp was decided, New York City police had applied for no warrants. Still, as conservatives have come to dominate the Supreme Courts of the United States and California, the rule has been diluted, most notably with “good faith” exceptions. I have long supported the exclusionary rule, but it has to be carefully administered.

Arguing that the Simpson case evidence should be suppressed, Uelmen concluded his summation with a quote from Justice Louis Brandeis: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”

The Simpson suppression hearing has to be the most visible legal proceeding in the history of the republic, offering a powerful lesson of the fairness and good sense of the judiciary. Millions of people watching on television had seen photographs of some of the evidence; had it been suppressed in a “gray area” of legal doctrine, what would the public have learned from the judiciary? Not what law professor Uelmen had hoped--respect for the law and the Constitution. On the contrary, the public would have been outraged, reigniting controversy over the wisdom of the exclusionary rule (which is not inscribed in the Fourth Amendment and could be diluted further.)

By not excluding the evidence, Judge Kennedy-Powell made the right decision on the merits. She also contributed to heightening the public’s respect for the Constitution and the legal process.