High Court Takes Low Ground


IN HER acceptance speech to the Democratic Convention last week. Rep. Geraldine A. Ferraro (D-N.Y.) warned of "a Supreme Court that turns the clock back to the 19th century. "She was referring to an array of recent High Court decisions which have made in roads into the most basic personal freedoms protected by the Constitution Perhaps the most clear-cut example of this has been the court's assault on the so-called exclusionary rule.

By handing down a 6-3 decision which allows prosecutors to use illegally obtained evidence in certain cases, the Court has severely curtailed an individual's protection against unwarranted police intrusions. The exclusionary rule is, in effect, the bite of the Fourth Amendment which grants "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." A logical extension of that right would be the exclusion of the fruits of such illegaly obtained evidence from courts of law. Hence the application of the exclusionary rule, first introduced in 1914.

When Ferraro speaks, then, of a pre-20th century rollback, she is on the mark--literally. The decision by the nation's highest court effectively gives judges--who make the decision to give out warrants--and police officers--who carry them out--free reign to search you or your person at the slightest provocation. As one dissenting justice stated, this move threatens to undermine the entire warrant process because it does not force police or magistrates to prove there is just cause for a search.

BUT THERE is something even more troubling about this, the latest in a series of decisions which have supported the Reagan Administration's rightist conception of law. This is the method by which the six justices in the majority decided their position--cost benefit analysis. In effect, the justices subjected indivisible individual rights to a social calculus, whereby they measured whether the gain from convicting more criminals outweighed the relative loss of an individual's right to privacy. Justice Byron White was quite explicit on this point: "Because we find that the [exclusionary] rule can have no substantial deterrent effect in the sorts of situations under consideration in this case, we conclude that it cannot pay its way in those situations."

The justices' frustration over watching criminals get off or get reduced sentences because of legal technicalities is quite understandable. But this is the price of a criminal justice system which must, above all, protect the rights of individuals. Instead, we have arrived at a situation where only those rights who can "pay" for themselves are unquestioningly protected--and one shudders to think of what would happen to other Constitutional rights were they subjected to a similar cost-benefit analysis.


The implications of the decision for the criminal justice system loom large indeed. Not only is there no proof that a more narrow application of the exclusionary rule will yield more valid prosecutions, but such cost-benefits, analysis focuses excessively on the short-term pros and cons of laws--rather than the long-range impact of such a major change in this country's governing document.

The majority's rationale--a feeble attempt to appease the stalwart defendants of the Fourth Amendment--justifies this slashing of the amendment by introducing the "good faith" concept, which stresses police officers' intentions rather than actions. "Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor," reads the majority opinion, "the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system."

The decision gives police officers more leeway in determing whether the evidence constitutes just cause for search and seizure and frees him or her from responsibility for bad decisions. The Supreme Court, moreover, has given great latitude to magistrates; judges will no longer be held responsible for their decision to grant a warrant and they will have the authority to interpret "good faith." Those justices who support the narrowing of the exclusionary rule did not understand its two-pronged purpose: it puts a check on both police and judge, making them both responsible for proving there is just cause for search and seizure.

Dissenting Justice Brennan articulated the newly granted immunity of judges when he said. "If their decision to issue a warrant was correct, the evidence will be admitted; if their decision was incorrect but the police relied in good faith on the warrant, the evidence will also be admitted." Such a scenario illustrates the pointlessness of a warrant process without a strict application of the exclusionary rule--it becomes defunct, a meaningless bureaucratic procedure, neither facilitating detailed police work or protecting individuals rights.

IT IS LIKELY that the Constitution's framers would be turning in their graves at the majority's application of simple cost-benefit analysis on a question involving one of that document's most sacred amendments. Their decision "ignores the fundamental constitutional importance of what is at stake here," said Justice Brennan, echoing fellow dissenters Stevens and Marshall.

Coupled with a similarly conservative move last month to allow admission of illegally obtained evidence if it would have inevitably been discovered, this decision sends a dangerous message to law enforcers--telling them that they will not always be held accountable for their actions and probably increasing their inclinations to act without sufficient provocation. As the rollback on civil liberties continues, Ferraro might have been more on the money to call the Court's decisions regressions to the 18th century, as the exclusionary rule touches the heart of the Bill of Rights. As Stevens stated, this more narrow application turns "the Bill of Rights into an unenforced Honor Code that the police may follow in their discretion."