Congress and the exclusionary rule: would killing the exclusionary rule repeal the Fourth Amendment - or restore it?

'THE greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding." It's almost as if, way back in 1927, Supreme Court Justice Louis D. Brandeis foresaw the advent of the 104th Congress and the so-called anti-crime provisions of the "Contract with America."

Brandeis's eloquent dissent was rendered in a case interpreting the Fourth Amendment, that revered provision of the Bill of Rights that for 204 years in theory has prohibited an American police state by forbidding unreasonable searches and seizures.

One can imagine the reaction of the late Justice had he returned to witness the scene in the House of Representatives when, by a roll- call vote of 303 to 121, the crime-busting congressmen rejected the actual language of the Fourth Amendment, after the chief sponsor of the "Exclusionary Rule Reform Act of 1995," Bill McCollum (R., Fla.) made the astounding claim that its inclusion would "gut the bill."

The bill in question, HR-666, now pending in the U.S. Senate, went on to sail through the House by a vote of 289 to 142, even though it eviscerates the traditional guarantees of personal privacy and freedom. A subsequent New York Times/CBS News poll showed 69 per cent of Americans opposed to warrantless searches such as the bill permits, suggesting that Congress is out of step with both the Constitution and the people.

The Fourth Amendment has two parts, a) a prohibition against "unreasonable" police search and seizure, and b) a specific requirement 1) that police may obtain a search warrant from a judge only after a showing of "probable cause," and 2) that warrants must particularly describe the place to be searched and the things to be seized. This is the heart of the Amendment -- forcing police to convince a neutral magistrate that the totality of the circumstances indicates that evidence of a crime exists.

As James Jackson Kilpatrick observed in opposing the bill, while most Americans will rarely if ever avail themselves of most other constitutional protections, "the Fourth Amendment is the one provision of the Constitution more vital to human liberty than all the rest . . . [because it] embraces us all." Our home really is our castle.

Representative McCollum's deplorable bill effectively repeals the constitutional duty of police to obtain a search warrant. Instead, any rookie cop or eager DEA or FBI agent is empowered to kick down your door if he personally has formed "an objectively reasonable belief" that his action is "in conformity with the Fourth Amendment." The constitutional interpretation of your right to privacy would be delegated by Congress to that well-known local civil libertarian -- the cop on the beat.

As a conservative, a Republican, and a former member of Congress viewing the capricious and driven atmosphere of Gingrich's reign of terror, I wonder if any of these "representatives" have read any American history.

The First Congress of the United States, on September 25, 1789, forwarded to the states 12 Amendments to the new Constitution. This was done, in the words of Congress, because the states had "expressed a desire, in order to prevent . . . abuse of power, that further declaratory and restrictive clauses should be added," among which was the Fourth Amendment. The ten Amendments ratified became our "Bill of Rights."

The 1789 prohibition against warrantless searches and seizures was rooted in very real contemporary history. The Amendment was the direct product of the fear and humiliation experienced by thousands of colonial Americans at the hands of King George III's agents.

Crown revenue agents were issued blanket "writs of assistance" empowering each officer at his own discretion to search suspected places for smuggled goods. So widespread and brutal were these police actions that the fiery James Otis, an early leader of the Revolution, denounced the writs in a February 1761 speech as "the worst instrument of arbitrary power," since they placed "the liberty of every man in the hands of every petty officer." No less a witness to history than John Adams characterized Otis's denunciation with the opinion: "Then and there the child of Independence was born."

In Weeks v. United States, the 1914 decision that established the so-called "exclusionary rule," Chief Justice Edward D. White of Louisiana recalled this hallowed history as a unanimous Court held that evidence illegally obtained by police in violation of the Fourth Amendment would no longer be admissible in federal courts. In 1961 this rule was extended to state courts as well. The main purpose of the rule is to deter police misconduct, and except for this mild sanction, little does. As Justice Robert Jackson put it in a 1948 case: "[To justify] officers in making a search without a warrant would reduce the Fourth Amendment to a nullity and leave the people's homes secure only in the discretion of police officers."

Attacks on the Amendment

AS POLITICIANS have frantically tried to outbid each other in "wars" on drugs in particular and crime in general, the exclusionary rule has been ritually denounced as a "legal technicality" allowing criminals to go free. This was the demagogy codified as part of the GOP's Contract with America. This scare tactic is pure myth. Various studies by the General Accounting Office, the American Bar Association, and the National Institute of Justice have shown that possibly less than 1 per cent, and at most 2.35 per cent, of criminal cases are dismissed because of the rule. As they should be.

In the last twenty years warrantless raids and ransackings have become standard police procedure, and, except in the most outrageous instances, the courts give routine approval for exceptions where evidence is in plain view, police are in hot pursuit, or evidence might be destroyed. The big break for unbridled police power came in 1984 when the Supreme Court held that illegally obtained evidence could be admitted if based on "good faith" use of a warrant later determined to be defective. The Republicans now want to go one better and remove even the need for the warrant.

Proponents of curtailing the exclusionary rule argue that internal police disciplinary measures will curb any misconduct (ask Rodney King about that), or that injured citizens can sue police for civil damages, presumably after these aggrieved citizens have been convicted of crimes based on the illegally obtained evidence. Fat chance.

The measure of congressional cynicism was taken when the House adopted floor amendments retaining the exclusionary rule on searches by agents of the Internal Revenue Service and the Bureau of Alcohol, Tobacco and Firearms, but rejected an amendment imposing the rule's application on agents of the Immigration and Naturalization Service.

A decade ago Kevin Phillips suggested the Republican "New Right" contained the inherent potential for what he unhesitatingly identified as "American fascism," the formation of an electoral majority by blatant appeals to anger, frustration, and prejudice. In spite of ceremonial lamentations about excesses of government power, congressional "conservatives" seem willing to jettison the principles of limited government, sacrificing individual rights as a sop to a perceived majority.

Nowhere is this unprincipled policy more evident than in the attack on the Fourth Amendment.