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Lawyers seek ways to work with new Supreme Court ruling on 'tainted' evidence

It's been just over a month since the US Supreme Court handed down its historic and controversial rulings on the exclusionary rule. And the nation's legal community is now starting to make some hard assessments on the impact on criminal-justice procedures.

Lawyers attending the American Bar Association's annual meeting here indicate they are looking to the future in terms of redirecting legal strategies for dealing with ''tainted'' evidence - that which has been obtained by improper police or judicial practices.

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Here is what they are saying:

* The high court's decision July 5 to modify the exclusionary rule with a so-called ''good faith'' exception is narrow in letter but could be sweeping in concept. Ostensibly, it will affect only a small number of cases in which magistrates have issued defective warrants. Heretofore, evidence gathered under these circumstances was usually disallowed in court. Now, it may be presented if a judge finds that police acted in ''good faith.''

* Despite the limits of these particular rulings, the implications are broad and the symbolism is significant for the future of criminal justice in the United States. Public perception is that the hands of law-enforcement agents are now untied and criminal suspects' rights restricted.

* The exclusionary rule, however, is far from being on the ropes. Defense lawyers say it will be more difficult to get judges to rule out suspect evidence in some cases. But they will now focus on proving affidavits to be false; unsubstantiated bases for conducting searches and seizures; partiality on the part of a warrant-issuing magistrate; or that police reliance on a warrant was not ''objectively reasonable.'' All of these factors could still render evidence inadmissible in court.

Government lawyers (particularly if the Reagan administration is retained in office) will make a push to further restrict the exclusionary rule, probably now testing the good-faith exception in the absence of a valid search warrant. US Solicitor General Rex E. Lee, who championed the administration's recently successful fight to modifiy the exclusionary rule, says some ''nonwarrant'' cases are already ''in the pipeline.'' But so far none have reached the US Supreme Court for review.

Certain jurisdictions with ''liberal'' state supreme courts - such as New Jersey, Oregon, and Washington - may still resist the good-faith exception and try to insulate their decisions to rule out evidence from US Supreme Court review and probable reversal. This could happen under a time-honored doctrine of ''adequate and independent state grounds.'' Experts say there may be significant state-federal conflicts in the criminal-justice area. Beyond this, the debate continues over whether, in its recent decisions to restrict the exclusionary rule, the Supreme Court acted judiciously, consistently, and in accord with constitutionally guaranteed individual protections.

Judge Charles E. Moylan of the Court of Special Appeals in Baltimore asks semi-seriously whether the ''decisions of the fifth of July (1984) repealed the Fourth of July.''

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Judge Moylan holds that the Burger court's rulings on the exclusionary rule are not surprising and are consistent with the high tribunal's historic role of using ''judicial restraint.''

The Maryland jurist points out that only in contrast to its predecessor, the so-called Warren court - which broke unprecedented ground in affirming civil rights - does it appear that the present Supreme Court has abandoned the role of ''traditional guardian of individual liberties.''

And US Solicitor General Lee insists that the court's recent action gave Americans more freedom, not less. In modifying the rule, Mr. Lee says, the court was on the side of the individual, not ''some impersonal, unidentifiable, bureaucratic nonentity. The individuals affected are larger in number than the criminally accused, but they are nonetheless individuals - individuals whose interest is in the security of their persons, their property, and their homes.''

Others see it quite differently. Among them is constitutional scholar Gerald F. Uelman, who argues that individual protections against unreasonable searches and seizures are absolute under the Fourth Amendment. He says they cannot be balanced on a ''cost-benefit'' basis as Lee successfully argued before the Supreme Court.

Professor Uelman predicts that prosecutors eager to get convictions will now ''go shopping'' for magistrates who will give them the kinds of warrants they need. Alluding to the historic British law that ensures a citizen's privacy even from the intrusion of a monarch, Uelman says: ''The king can now search with an invalid warrant in one hand and a 'good faith' paper in the other.''

In an unprecedented public criticism of his colleagues Aug. 4, Associate Justice John Paul Stevens of the US Supreme Court, a dissenter in the good-faith cases, scored the court for ''attempts to codify the law instead of merely performing a judicial task of deciding the cases that came before them.''

Justice Stevens particularly singled out the exclusionary-rule cases as examples of too-broad opinions ''about the rule of law that should have been applied to the merits of the case.''

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