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
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. …