The Rights of the People (26 page)

Many other cases of mistaken search warrants surface in the press, usually as local stories in scattered towns and cities around the country, but we do not know the overall error rate. The libertarian Cato Institute catalogued hundreds in a 2006 report.
¹⁴
Bill Torpy of the
Journal-Constitution
reported that four hundred warrants for drug searches were executed in 2006 by Atlanta police, but he couldn’t determine how many had actually yielded narcotics. “A lot of the affidavits and warrants have no return sheets of what evidence was seized,” he noted. “A lot of them list minuscule amounts of drugs. Also, we’ve seen returns where nothing much was
mentioned, but a police report of that same incident shows drugs or other evidence that was not listed on the warrant return.”
¹⁵

Similarly, we cannot be sure how readily judges are satisfied that probable cause has been demonstrated. We cannot tell how often, or why, judges find policemen’s warrant affidavits lacking. Rejections are not announced, reapplications are not disclosed, and no overall records are kept. Even the most experienced defense attorneys concede that they have no good feel for the situation. And this is where law enforcement is most accountable, as contrasted with the secret, uncontestable warrants issued clandestinely against suspected terrorists and spies by the Foreign Intelligence Surveillance Court.

Now and then, courts have overturned ordinary criminal warrants based on Rehnquist’s admonition in
Gates
about the inadequacy of anonymous tips alone without something more to corroborate the unsourced allegations. How much more is a question that different judges answer differently, as a divided panel of the Ninth Circuit demonstrated in ruling on a 2006 appeal from Thai Tung Luong in Los Angeles.

Luong came to the DEA’s attention during surveillance of a Taiwanese citizen, Chun-Ying Jao, who had been identified to the DEA’s Hong Kong office as a “chemist” traveling to the United States to set up a laboratory to make methamphetamine. Federal agents and local police followed Jao from the Los Angeles airport to a hotel, where Luong picked him up the next day and drove him to lunch and then to his house.

According to a Monterey Park police officer’s affidavit in the warrant application, the two men walked back and forth between the front door and the backyard several times. They were seen taking a red high-pressure hose to Home Depot, where they asked a clerk to help them find an adapter, bought the fitting, and then returned to the house. Such hoses, the officer said, were used with vacuum pumps in meth labs, which are sometimes located in garages behind houses.

On that basis, a search warrant was issued, and laboratory equipment was discovered along with documents for a rented storage unit. A second warrant, obtained for the storage locker, turned up sixty-eight pounds of methamphetamine. A federal district judge ruled, and the appeals court agreed by two to one, that the warrant lacked sufficient indicators of probable cause. The evidence was suppressed.
¹⁶

To decide for the defendant in such a case, judges have to rewind the tape, ignore the ultimate discovery of drugs, and imagine the observed behavior without any taint from the anonymous allegation. This takes a certain discipline of mind. When you strip away the DEA’s unsourced
Hong Kong report, the events witnessed by the police look pretty innocuous: A man picks another man up at his hotel, takes him to lunch, takes him home, walks around his yard, drives with him to Home Depot, and buys a fitting for a hose. Or, without the anonymous letter in
Gates
, a woman drives to Florida, her husband flies to meet her and stays overnight with her in a motel, and they then drive home.

It’s hard to see much difference between the cases, yet they were decided differently. That the Supreme Court’s opinion upholding the
Gates
warrant did not prevent a lower court from overturning the search in
United States v. Luong
illustrates how amorphous the concept of probable cause has become, how dependent it is on which judges are randomly assigned to trials and appeals. If one additional judge on Luong’s appeals panel had gone against him, the majority would have shifted and Luong would have faced a trial, probable conviction, and a long term in prison.

Any investigation of drug-dealing, terrorism, and other crime has to start somewhere, and that place is often beyond the reach of the Bill of Rights. A tip, a hunch, or a guess can legally trigger a tail and a stakeout; it can send FBI agents onto Web sites and into open meetings of mosques and peace groups. It can induce local police to sit outside gatherings and write down the license plate numbers of those who attend. But it cannot—or should not—justify a search. There is no constitutional right to invisibility in a public place, but when the state seeks to reach into your privacy, especially behind the walls of your home, the Fourth Amendment is supposed to kick in.

So it was for Martedis McPhearson, the subject of an arrest warrant for simple assault.
¹⁷
When two policemen knocked on his door in Jackson, Tennessee, on December 12, 2003, McPhearson answered, confirmed his identity, and was arrested on his front porch. Since everyone taken into custody can be legally frisked, an officer patted McPhearson down and discovered nearly seven grams of crack in his pocket.

It was too little for McPhearson to be considered a dealer. Nevertheless, on the basis of that small amount, the police swore out an affidavit surmising that evidence of drug trafficking would be discovered in his house. They got a judge to sign a search warrant, and, indeed, found “distribution quantities of crack cocaine and firearms” inside.

The federal trial judge, and two of the three judges on a Sixth Circuit appeals panel, overturned the warrant, ruling that the “totality of circumstances” test formulated by Rehnquist in
Gates
had not been met. “The affidavit did not allege that McPhearson was involved in drug dealing,” the majority wrote, “that hallmarks of drug dealing had been witnessed
at his home, such as heavy traffic to and from the residence, or that the investigating officers’ experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested).”

A dissenting judge argued that McPhearson’s possession of crack as he emerged from his house provided probable cause, since “it is a reasonable inference that at least some people who carry crack cocaine around with them in their homes would leave some of the contraband, which they could divide into smaller amounts, elsewhere in their homes.” Besides, he added, even if probable cause had not been established, the police thought it had, and that was enough to admit the evidence under the loophole devised by the Supreme Court called the “good-faith exception.”

That came from a pernicious ruling in 1984,
United States v. Leon
,
¹⁸
holding that a judge’s error in approving a search should not result in the exclusion of evidence when the police, in good faith, have relied on the warrant. The case was a complex narcotics investigation involving multiple defendants, residences, and automobiles.

All three levels of the federal judiciary—a district court judge, a Ninth Circuit appeals panel, and the Supreme Court—agreed that a warrant to search for drugs in Alberto Leon’s house in Burbank, California, was flawed because it was based on an unreliable informant with stale information, five months old, which the police had failed to corroborate. Following precedent, the two lower courts suppressed the pound of cocaine that was discovered.

But a six-to-three majority of the Burger Court used the opportunity to carve out an exception to the exclusionary rule, noting that “the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands.” The opinion, by Justice Byron White, concluded that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”

So, if officers honestly believe they have probable cause, if the issuing judge agrees, and even if a court later finds probable cause lacking, the evidence is still admissible. The reasoning has a whiff of Lewis Carroll: A police officer executes a sworn affidavit that forms the sole basis for a judge’s issuance of a warrant, but then it’s all the judge’s fault, not the officer’s, when the affidavit is found to fall short of probable cause. And since the judge is in error, it is pointless to deter the police with the
exclusionary rule, and so the defendant is punished. One can almost hear the Queen declaring to the accused: “The judge was wrong, so off with your head!”

White inserted caveats into his opinion. Evidence can still be excluded if the police mistake is “substantial and deliberate,” such as the “knowing or reckless falsity of the affidavit,” or if the affidavit fails to provide “substantial basis for determining the existence of probable cause.” To get evidence suppressed, then, the police error must be egregious. Anything short of that extreme, some attorneys have noticed, now induces courts to skip past their essential role of judging probable cause, concentrating instead on whether the police acted in good faith.

“If subjective good faith alone were the test,” the retired justice Potter Stewart remarked a year before
Leon
, “the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”
¹⁹

What prevents the police from violating the Fourth Amendment, and what is the remedy if they do?

America’s unique answer has been the exclusionary rule, but it was assembled haphazardly and is now being similarly dismantled. “Looking back,” said Stewart in 1983, “the exclusionary rule seems a bit jerry-built—like a roller coaster track constructed while the roller coaster sped along. Each new piece of track was attached hastily and imperfectly to the one before it, just in time to prevent the roller coaster from crashing, but without the opportunity to measure the curves and dips preceding it or to contemplate the twists and turns that inevitably lay ahead.”
²⁰

It has never sat as comfortably in the criminal justice system when applied to the Fourth Amendment, as when it enforces the Fifth. There is a practical reason. A confession coerced in violation of the Fifth Amendment can easily be false, given only to stop the abuse; so even a defendant who confesses can be innocent. Excluding the confession forces the police to prove the case.

But physical evidence is tangible and real, confirmation of guilt in most prosecutions. Its suppression often sets criminals free. Consequently, no country but the United States has such a mandatory exclusionary rule, and many have none at all, including China, England, Germany, Israel, and Italy. Russia has one on paper only, and in keeping with Russia’s long history of legal-looking charades, it is rarely observed in practice.
²¹

The exclusionary rule did not exist in English common law, the uncodified tradition that forms the basis of law in almost all American states.
²²
It is not mentioned in the Constitution (but neither is any remedy for any violation of fundamental rights), and it was not required as a corrective mechanism in federal courts for the first 123 years after the Bill of Rights was ratified, and not in state courts for another 47 years after that. An illegal search “is no good reason for excluding the papers seized in evidence,” ruled a Massachusetts court in 1841. “When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully.”
²³

Not until 1914, in the landmark case of
Weeks v. United States
,
²⁴
did the Supreme Court decide that evidence illegally seized was inadmissible at trial. The opinion applied to federal courts only and, despite its ringing language, left ambiguous the supposed origins of the cure. Was it embedded implicitly in the bedrock of the Constitution, or was it a judicial invention, merely a new rule of evidence? The uncertainty carries into the present and fuels ongoing controversy about the rule’s merits.

The circumstances of the case were clear, however. While Fremont Weeks was being questioned by police at his job, other officers—without a warrant—twice searched his room in Kansas City, Missouri, found envelopes with illegal lottery tickets, and arrested him for transporting gambling materials by mail. He petitioned unsuccessfully for a return of his papers, whose seizure, he argued, violated not only the Fourth Amendment but also the Fifth, which bars both compulsory self-incrimination and the deprivation of property without due process. The Supreme Court addressed only the Fourth Amendment issues.

“If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense,” the Court declared, “the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and … might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”
²⁵

The Court did not apply
Weeks
to the states, however, and explicitly refused to do so in the 1949 case
Wolf v. People of the State of Colorado
,
²⁶
leaving police and prosecutors with creative detours around the Fourth Amendment. State and federal officials collaborated in the “silver platter” technique in which state agents with illegally obtained evidence would
turn it over, as if on a silver platter, to federal officials for prosecution. As long as the Fourth Amendment violation had not been committed by federal agents, the evidence was admitted in federal courts.
²⁷