Pressures mount to limit US safeguards against illegal search and seizure
A young woman is attacked, robbed, and murdered on New York's Lower East Side. Her assailant is caught, admits to the crime, and is arraigned for homocide. But he gets off, without ever coming to trial.
The defendant's ''out'' is the US Constitution. He has been let go because of improper police procedures at the time of his arrest.
The victim's father is outraged. He decides to take the law into his own hands. He rejects a system that he sees as callous to a law-abiding society and protective of criminals.
This is the theme of ''Outrage,'' a new drama by Henry Denker, which was presented at the Kennedy Center in Washington, D.C., during December and January. Fiction - but based on fact. And it's a scenario that raises questions that are sparking one of the most emotional constitutional controversies in US history.
The Fourth Amendment to the US Constitution protects citizens, including those accused of crime, ''against unreasonable searches and seizures.'' This has led to a judicial interpretation that excludes from criminal trials evidence obtained illegally by police or confessions obtained without reading the accused his or her rights.
This ''exclusionary rule'' has raised several questions: Does the US legal system lean too far toward shielding the criminal and the accused? Are the rights of a lawful society jeopardized by recent interpretations of the Constitution? Would it serve the cause of justice to allow police more latitude in the use of certain investigative procedures?
Civil libertarians answer ''no.'' But the Reagan administration, a large segment of the American public, and the political right answer with a resounding ''yes.'' They'll get their day in court. Later this year, the US Supreme Court reexamines the exclusionary rule, which has guided the conduct of federal criminal trials since 1914 and state court trials since 1961.
The case now before the Supreme Court, Illinois v. Gates, could limit the exclusionary rule in cases where the police have a ''reasonable belief'' that their search is legal. If the justices limit the rule, evidence gathered under this circumstance would be admissible, even if a court later declared it had been gathered illegally. Up to now such evidence has been excluded.
The ''reasonable belief'' or police ''good faith'' doctrine has reportedly been gaining acceptance by the conservative-leaning high court. It has already heard this case on a different basis but has asked for rearguments to discuss modification of the exclusionary rule. The doctrine has strong support from the US Justice Department. Solicitor General Rex E. Lee insists that ''the time has come for recognition by this court that, at least in the case of reasonable good faith violations of the Fourth Amendment, the exclusionary rule is entirely unjustified.''
Further, the Attorney General's Task Force on Violent Crime has urged litigation and legislation to reform the rule.
If a modified exclusionary rule would bring swifter justice and better protect the lawful, why shouldn't it be changed?
In general, civil libertarians view such a move as the beginning of the end to Fourth Amendment protections. Some see it as an invitation for police misconduct - including prejury in court in order to obtain a conviction.
Also, there is concern that the public doesn't fully appreciate the importance of constitutional safeguards. These rights ''are extended to defendants not because we sympathize with their actions, but because in upholding their rights we protect our own,'' Judge Damon Keith of the US Court of Appeals, Sixth Circuit, is quoted as saying in a special section on justice in U.S. News & World Report.
University of Michigan law Prof. Yale Kamisar, in a recent issue of Human Rights, an American Bar Association publication, argues that '' . . . if the government is supposed to honor . . . 'the right of people to be secure . . . against unreasonable searches and seizures' and the government violates that right, it should not be able to benefit from it. . . .''
A New York Times editorial suggests that proposed ''good faith'' exception might further clog an already overloaded court system by creating a new area of litigation: minitrials in which police officers would try to show that they thought their conduct was legal.
Constitutional scholars Robert C. Welsch and Ronald K.L. Collins point out that very few federal cases have been dramatically affected by the exclusionary rule. They cite a 1978 study by the US Comptroller General, which concludes that only 0.4 percent of all federal prosecutions from July to August of that year were jeopardized by the exclusion of evidence. However, the authors say these figures may be somewhat higher in state cases.
If not a ''good faith'' modification of the exclusionary rule, what changes, if any, are in order? Some say better legal training for police might shore up search and seizure procedures and avoid later suppression of evidence in court. Others would take punitive action against police officers who violate the law, rather than exclude evidence.
Los Angeles Superior Court Judge William P. Hogoboom says judges should be allowed to include or exclude evidence on a case-by-case basis. ''It's basically a good rule (the exclusionary rule). But sometimes it's construed in an absurd manner,'' he says. This column dealing with important legal issues will appear from time to time.