"THEY BRAG ABOUT the fact that they never have to work, and make their entire living on pushers," wrote an anonymous tipster to the Bloomingdale, Ill., police. The reference was to Sue and Lance Gates, whose illegal and luxurious life style had become too much for one citizen to abide. The informer provided police with details of the Gates' forthcoming trip to Florida to purchase drugs, and these facts were corroborated by local officers and federal agents. A search warrant was obtained from a DuPage County judge, and hundreds of pounds of marijuana, weapons and other contraband were found in the Gates' car and home. All this evidence, however, was thrown out by an Illinois court on the grounds that the warrant had been improperly issued.
This is exactly the kind of thing that infuriates and perplexes the public. Clearly guilty persons involved in a multi-million dollar criminal enterprise were to go free because of a defective search warrant. Many civil libertarians believe that the only way to ensure that the police observe the Fourth Amendment is to prohibit the use of illegally obtained evidence in court. But others propose alternatives--punishing the offending police officer, for example--that do not affect the outcome of the criminal trial itself. When the Supreme Court decided to hear the Gates case and specifically asked for argument on the question of the exclusionary rule, it seemed as though a dramatic revision might be at hand. Here was a case where the police had acted in good faith--they had obtained a warrant that they had every right to assume was valid--and had uncovered important evidence vital to the prosecution of these drug dealers. Excluding that evidence could not possibly deter unlawful police conduct since they never thought they had acted improperly. The case appeared to be the perfect vehicle for a reconsideration of the rule.
Last week those hopes were dashed when the Supreme Court decided Gates on narrow grounds. Six justices held that the warrant in this case had, in fact, been properly issued. In doing so, they reversed two earlier cases that had set specific tests for determining probable cause and directed magistrates to make a common-sense judgment based on the "totality of circumstances" when asked to issue a warrant. We now have a new, relaxed standard for determining whether the Fourth Amendment has been violated, but the same harsh penalty--exclusion of evidence--when a violation occurs.
Justice Byron White, in a separate opinion, questions this action. He would keep the old standard for determining whether a violation of the Fourth Amendment has occurred, but use a method other than the exclusion of evidence to punish violations. It is this view that most law enforcement officials and an increasing number of lower court judges hope will be adopted by another four justices. The Gates case is an indication that a solid majority of the court is uneasy enough about the results of applying the exclusionary rule to listen with growing interest to these arguments next term.