Critics Say House Bill Will Gut 4th Amendment

By Hunter, Jane | National Catholic Reporter, March 10, 1995 | Go to article overview

Critics Say House Bill Will Gut 4th Amendment


Hunter, Jane, National Catholic Reporter


"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

House Republicans say their recently passed bill easing the rules on police searches will put an end to criminals' using technicalities to escape conviction.

Opponents of the measure, however, say it will effectively abolish the Fourth Amendment to the Constitution, which forbids arbitrary searches of people and their homes.

The measure, the Exclusionary Rule Reform Act of 1995, HR 666, which permits evidence seized without a warrant to be used in court, was passed Feb. 8 by the House of Representatives as part of the Republican majority's "Contract with America." If it becomes law, it will overturn the long-standing rule under which courts throw out evidence that was not properly obtained. HR 666 directs judges to allow such evidence if law enforcement officers could have reasonably believed they were acting in good faith when they seized it.

Weakening the exclusionary rule, critics argue, removes the only deterrent to the abuse of authority by law enforcement agencies. "It's like saying burglary is a crime, but there is no punishment," says David Rudovsky, a professor of law at the University of Pennsylvania in Philadelphia.

Over the past century, the Supreme Court has allowed exceptions to the exclusionary rule. Officers in "hot pursuit" of a suspect can break into a home. They can also seize evidence in plain view, evidence that is about to be destroyed and evidence they find on someone they arrest. The Supreme Court has also allowed evidence obtained with invalid warrants, as long as police did not lie to obtain them. A less controversial element of HR 666 permits the use of evidence seized with warrants containing clerical and other errors.

Added to the Constitution in 1791 - when the memory of British soldiers breaking down colonists' doors was still fresh - the Fourth Amendment says that officials must obtain search warrants from a judge, whom they must tell, under oath, exactly where they want to search and what they expect to find and, most important of all, why they want to search - what probable cause they have to believe they will find evidence of a crime.

Under HR 666, says Katherine Goldwasser, a professor at Washington University School of Law in St. Louis and a former federal prosecutor, police can not only proceed without a warrant, they no longer have to satisfy the probable-cause requirement of the Fourth Amendment. They only have to convince a judge that they were acting in "good faith."

"The key point is that a judge is making the (good faith) determination," lawyer on the House Judiciary Committee's majority staff said in an interview. But in an analysis of HR 666 provided to NCR, the American Civil Union said, "We know from experience that courts will rarely question the goo faith of police officers."

Although HR 666 applies only to federal court proceedings, evidence gathered by local law enforcement agencies is often used in federal cases. And, according to the ACLU analysis, it is likely that state legislatures "will follow Congress' example."

The Senate version of the exclusionary rule - it will probably be considered next month, a Senate Judiciary Committee aide told NCR - goes even further, saying evidence "shall not be excluded .. …

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