As crime and the fear of crime increasingly govern the public's daily lives, the search for solutions has understandably become more and more desperate. Nevertheless, we should remain alert to the dangers of answers that not only offer false promise, but, more important, trample on cherished constitutional principles. The current legislative movement to eliminate or modify the federal 4th Amendment exclusionary rule is a case in point.
The 4th Amendment provides: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
Few advocates of a free and orderly society would dispute this principle in theory. While on the one hand it guarantees all citizens protection against unreasonable government searches and seizures, on the other it provides a system for searches and seizures when probable cause for them exists. Unfortunately, however, power is a heady thing. Experience has demonstrated numerous instances in which state and federal law enforcement officers have tried to limit the amendment's applicability by illegally searching--that is, searching without a warrant--those they would like to see convicted of criminal activity.
In 1914, the Supreme Court attempted to remedy this situation on the federal level. Its Weeks v. U.S. decision required the federal courts to exclude from consideration at criminal trial all evidence collected in violation of the 4th Amendment. In 1961, in Mapp v. Ohio, the court used the 14th Amendment's "due process" clause to extend this "exclusionary rule" to the states.
Now Congress is considering several bills and the administration is proposing to sponsor another to modify the rule, arguing that it allows criminals to escape federal conviction when the excluded evidence is crucial to the prosecution's case. The American Bar Association vehemently opposes such efforts as unconstitutional, unwarranted and unnecessary.
Because Congress has no authority to pass legislation that violates the Constitution, it lost its power to legislate the abolition of the exclusionary rule when the Supreme Court in Mapp declared the rule to be an essential part of the 4th and 14th amendments. Now the rule can only be nullified by constitutional amendment or a reversal of the Mapp decision.
A less radical approach pending in the Senate recognizes the rule in cases where there is an "intentional or substantial" violation of the 4th Amendment but not in other cases--in effect, sanctioning some illegal searches and seizures. This legislation, like the broader proposal to abolish the rule outright, is a violation on its face because it effectively abolishes the objective standard of reasonableness that has been the law for 67 years.
The administration has recommended legislation to admit evidence illegally obtained in the course of a reasonable, "good faith" search. The rationale is that since application of the exclusionary rule is not anticipated by the offending officer in such cases, it will not act as a deterrent to his actions. The ABA again objects. For over 100 years the Supreme Court has consistently rejected the so-called "good faith" test. Objectivity--not subjectivity--must be the rule of law.
Since Congress has no authority to legislate a change in the exclusionary rule, are we "stuck" with a rule we would be better off without? Our response is an emphatic "no." Public policy alone militates against the proposed legislation. By creating a lesser standard in federal courts, its passage would exhume the "silver platter" doctrine that allowed federal courts to admit evidence illegally seized by state officers, or vice-versa, thereby destroying any semblance of uniformity of 4th Amendment decisional law in federal and state criminal proceedings.
Moreover, the exclusionary rule should be retained because it works. Since its imposition, federal law enforcement has come a long way toward living and working well without the need of unlawful searches and seizures.
Not only does the federal exclusionary rule work, it works without greatly affecting the disposition of cases. The overwhelming percentage of guilty pleas and convictions in federal courts provides ample proof that the rule has not stultified either federal law enforcement or judicial determination.
The current rhetoric that the rule is responsible for legions of criminals going free on "technicalities" is absolutely refuted by several recent studies. In one survey undertaken by the prestigious Institute for Law and Social Research "less than 1 percent of all arrests were refused by the prosecutor with an indication that the police failed to protect the arrestee's right to due process." In another, due process questions appeared to have "little impact on the overall flow of criminal cases after arrest." A General Accounting Office report confirms this minimal impact of the exclusionary rule on conviction rates.
The American Bar Association joins with the administration, Congress and the public in recognizing the need to undertake concerted and effective measures to reduce crime in America. But it emphatically opposes legislation to abolish or modify the exclusionary rule as an easy answer to our crime problem. Constitutional issues aside, congressional changes in the rule will undercut law enforcement professionalism, engender decades of litigation over various new tests and result in very few additional criminals ending up behind bars.
And in the bargain. we will--perhaps forever--have casually tossed aside a valued constitutional protection on which this country was founded.