By Thomas Y. Davies. Thomas Y. Davies teaches University of Tennessee College of Law .
The Christian Science Monitor
NEWT GINGRICH'S push for a "good-faith exception" to the Fourth Amendment in police arrests and searches is a bad idea. The proposed "exception" offered by the House Speaker will not reduce the crime rate. Why? Because it is already uncommon for such evidence to be thrown out.
Instead, the proposed exception will betray the whole purpose of the Fourth Amendment.
The Fourth Amendment prohibits the police from interfering with our liberty by arrest unless they have information amounting to "probable cause." It also prohibits them from searching our homes unless a judge issues a warrant to do so. Those prohibitions are enforced by a rule that requires that courts "exclude" physical evidence from trials if it was seized by the police in arbitrary searches.
The "exception" to the exclusionary rule recently passed by the House would allow evidence gathered in unconstitutional police searches to be used if the police had "an objectively reasonable belief" that their conduct conformed to constitutional standards - even though it did not.
Gingrich is supposed to be a historian; but he forgot his history here. The framers wrote the Fourth Amendment into the Bill of Rights in 1789 because they believed that citizens' right to be "secure" on their property was essential to a free society.
At that time, a law enforcement officer could search a house or make arrests only if he had a warrant issued by a justice of the peace. That warrant requirement reflected the belief that personal privacy was so important that law enforcement officers should never be allowed to arrest or search solely on the basis of the officer's own judgment or whim. Only judges were permitted to decide.
This principle had been threatened, shortly before the American Revolution, when the Crown issued nameless "general warrants." They did not say whom the constable could arrest, or where he could search. Both American colonists and prominent English judges condemned such warrants in a series of cases well known to the framers of the Bill of Rights. They condemned these because, as James Otis Jr. in Boston put it in 1761, such a warrant "places the liberty of every man in the hands of every petty officer" and allows officers "to enter our homes when they please."
Thus, the founders wrote the Fourth Amendment so that the Congress would never have the power to give any officer similar discretionary authority to arrest or search.
However, despite the framers' intention, police officers have been gradually given more and more discretionary authority to arrest and search on their own judgment.
Today officers can legally make a wide variety of arrests and searches if they decide they have information amounting to probable cause (the Supreme Court has said that only means a "fair probability" that a suspect is involved in crime). Officers seldom have to get warrants unless they want to search a house; sometimes they still do not need one. The police already have much room to arrest and search.
It is a myth that hordes of dangerous criminals are released by "legal technicalities." Only between 0. …