PLATFORM : Should Evidence Collected Without a Warrant Be Allowed?

The House of Representatives has passed a measure that would greatly relax search and seizure rules, allowing evidence taken by police without a warrant to be used in court if police acted “in good faith.” Critics see the proposal as an attack on the Fourth Amendment to the Constitution, which protects Americans against “unreasonable search and seizure.” Proponents say the change would prevent the obviously guilty from going free on a technicality. DANIELLE MASTERSON asked politicians, police, prosecutors and defense attorneys to respond.

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DAVID DOLINKO

Professor of criminal law, UCLA School of Law

I think it’s a complicated area. The Fourth Amendment says that searches must be reasonable, but does not explain what reasonable means. So the courts had to establish the rules to decide which searches are reasonable and which are not. And how are these rules to be enforced? Prosecutors aren’t enthusiastic about conflict with the very officers they need to work with. Juries may well balk at convicting an officer who, for example, finds tons of cocaine at a big-time drug dealer’s home through an “unreasonable” search.

Watering down the exclusionary rule is likely to weaken the incentive for police to find out what the constitutional requirements are for a search. Instead, police may feel that once a court finds a certain behavior to be a “good faith” violation of the rules, they can repeat that behavior in the future. Also, courts will have to make difficult decisions as to which mistakes about constitutional rights are “reasonable” and will be tempted to defer to the judgment of police in a way that will end up encouraging further illegal searches.

Balanced against this, what’s the benefit of a broad “good faith” exception? Less than 4% of felony convictions are overturned because of search and seizure problems. People tend to believe that dangerous, violent criminals are routinely getting off because of some minor technicality in the law. But that isn’t true at all.

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Rep. DANA ROHRABACHER

Republican, Huntington Beach

This has nothing to do with the Fourth Amendment. That’s just what liberals claim. The Fourth Amendment talks about unlawful search and seizure: Whether or not evidence has been collected with the right process by authorities is another issue.

The exclusionary rule was a court ruling that was never voted on by the people. It was established through non-democratic means and the American people would have never been so dumb as to vote in favor of excluding evidence from a criminal case. We are one of the only countries to do that.

The exclusionary rule protects criminals’ rights. If there is evidence to indicate that a person is guilty, it should be admitted, no matter how it was acquired. We’re one of the only countries in this world that is stupid enough to let criminals go because the procedures have not been followed 100% accurately by the authorities. We’ve made criminal justice a game of attorneys rather than a search for truth.

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THOMAS GRAY

Special assistant, U.S. Commission on Civil Rights

The problem is that the Republican bill will eliminate the exclusion of any fraudulently obtained warrants unless you can show that the officer lied to the judge to obtain a search warrant. But if the officer gives the warrant to his partner who didn’t know he lied, the evidence would still be good. That’s just one example of how the statute works.

If the reform passes, what we’re talking about is the possibility of forming a police state. The exclusionary rule says an officer needs a search warrant. The new bill says there are times in which an officer doesn’t need a warrant if he acts in good faith. In virtually all jurisdictions, you have a judge whom you can contact 24 hours a day to get a warrant. And the officer doesn’t even have to go to the judge. He can just place a phone call. The bottom line is the that legislation will transfer the test of reasonable good faith away from the magistrate who is supposed to issue the warrant to the police officer.

Congressman Rohrabacher said that the United States was one of the only countries that has an exclusionary rule. I would agree with him. Some countries, such as China and Iraq, don’t have any search and seizure problems. But I’m not sure that America wants to be classed with those countries.

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MELINDA JANE MURRAY

L.A. County deputy district attorney

The Supreme Court has already modified the exclusionary rule by allowing prosecutors to introduce evidence obtained in good-faith reliance on a search warrant, even if the search warrant was later found to be invalid.

The current law protects citizens against police misconduct. Recent events such as the Rodney King incident have drawn the public’s attention toward even the appearance of abuse. Because crime has escalated in every region of Los Angeles County, citizens must trust police agencies to protect their communities.

Admission of tainted evidence will do nothing to restore the public’s faith in the criminal justice system. Proponents of the current legislation fear the suppression of any evidence will lead to the acquittal of criminals. However, even prosecutors do not condone the introduction of tainted evidence to obtain a conviction at any cost. Our job is to promote justice.

‘If there is evidence to indicate that a person is guilty, it should be admitted, no matter how it was acquired.’