Exclusive Justice

Good faith breeds bad cops

Robert Bauman from the May 1995 issue

On February 7, by a vote of 303 to 121, the U.S. House of Representatives voted down the Fourth Amendment. Rep. Melvin Watt (D-N.C.) had proposed attaching the text of the amendment--which guarantees against unreasonable searches and seizures--to pending crime legislation. But the House, led by Republicans who claimed that Watt's proposal would have "gutted the bill," instead voted to give the police the right to use their own judgment and good faith in conducting warrantless searches and seizures. The bill, H.R. 666, is pending at press time before the Senate Judiciary Committee.

The Supreme Court has already upheld many exceptions to the so-called exclusionary rule that prevents illegally obtained evidence from being used in court, basing such exemptions on a broad theory of "reasonable" or "articulable" police suspicion of criminal activity. The proposed GOP legislation would codify this highly elastic concept of police power. Before Congress makes the police doorstep arbiters of the Constitution, it is worth examining some of the reasons, from myriad locales, why that isn't always a good idea.

Boston. If police lack reliable informants on whom to base a "probable cause" request for a search or arrest warrant, they sometimes invent them. Harvard law professor Alan Dershowitz has stated what most in the judicial system know but choose to ignore: Police routinely lie in order to convict defendants. A 1988 investigation of the Boston police Drug Control Unit revealed that its members routinely fabricated the existence of informants and lied to obtain warrants from judges.

At 3:15 p.m. on March 26, 1994, a 13-member SWAT team from this unit, wearing helmets, fatigues, and boots, armed with shotguns and 9-millimeter Glock pistols, sledgehammered through the apartment door of a 75-year-old black minister, the Rev. Acelynne Williams. They were searching for guns and drugs (never found) based on a statement of yet another "confidential informant." At 3:58 p.m., Williams (5 feet 7 1/2 inches tall, 155 pounds) was pronounced dead of a heart attack after being forced to the floor and handcuffed by three police officers, two holding his arms, one pinning his legs. The autopsy showed death caused by acute myocardial infarction brought on by heart disease and "emotional stress."

Six weeks and two official investigations later, the Boston police commissioner concluded that police had raided the wrong apartment, partly because of a bad tip from an informant who was drunk the night he visited the alleged den of guns and drugs, partly because of bad police work and lack of proper supervision.

New York. Police lying to support criminal charges against arrested persons is common practice in New York City, according to the official report of the mayor's commission investigating police corruption. After 1993-94 hearings, the commission concluded the NYPD routinely makes false arrests, tampers with evidence, and commits perjury on the witness stand. "Perjury is the most widespread form of police wrongdoing," the report stated, noting courthouse cognoscenti have coined a new descriptive word for the activity--testilying.

New York Legal Aid Society officials say "testilying" is a routine police exercise that occurs without sanction from prosecutors or judges, who often cooperate in the charade by not challenging officers who tailor testimony to meet search-and-seizure constitutional objections and to cover deficiencies in police work.

New Orleans. In late 1994, the corruption in the New Orleans police department came to a head when a police officer had a 32-year-old mother murdered for filing a brutality complaint against him. A new police commissioner called in the FBI to try to change a system that since 1985 has generated a rate of citizen complaints about civil rights abuse by police 52 times that of New York City.

Civic leaders in New Orleans have charged police with beatings, kidnappings, shootings, and torture of innocent citizens; routinely falsifying reports; lying under oath; robbing drug dealers; and keeping recovered stolen cars for their own use.

Los Angeles. The Los Angeles Times reported in January 1992 on the trial of six Los Angeles County sheriff's narcotics officers charged with "stealing hundreds of thousands of dollars in cash and property during drug raids, beating suspects, planting narcotics and falsifying police reports." Ten L.A. county officers were convicted of various charges. A former L.A. sheriff's deputy, Robert Sobel, who was indicted and turned state's evidence, testified his narcotics unit stole $60 million in cash and property during 1988 and 1989 alone.

Daytona Beach. In June 1992, the Orlando Sentinel revealed that Volusia County Sheriff Bob Vogel had created a special police drug squad which preyed upon thousands of innocent motorists driving on U.S. Interstate 95. Operating under a broadly written Florida law allowing police seizure of cash and property based on probable cause without arrests in suspected felony cases, the police engaged in pure highway robbery.

Police conduct was guided by no written rules and reviewed only by the sheriff, who controlled all funds confiscated. Any motorists stopped who had $100 or more in cash were assumed to be a drug trafficker, and their money was taken. From 1989 until the bad publicity in 1992, the squad seized more than $8 million in cash from motorists, mostly blacks and Latinos, and in only four cases did the innocent owners get all their money back.

Nashville. In 1991 Willie Jones, a legitimate businessman, was stopped when he paid cash for a plane ticket to Houston at the Nashville Airport, losing $9,600 in cash to Drug Enforcement Administration agents (which a federal judge eventually ordered returned). Paying in cash and being an African American are both factors in DEA "profiles" used to spot potential drug traffickers at public transportation hubs, especially airports. In 1992, 60 Minutes reporters checked out these DEA airport operations in New York, Atlanta, and other cities, by having a well-dressed black male undercover reporter buy a plane ticket with cash. Within minutes of each purchase, DEA agents accosted the black reporter and confiscated all his money.

Hudson, New Hampshire. The Supreme Court has ruled that in order to fulfill the "particularity" clause of the Fourth Amendment, a police search warrant must be based on the most recent available information. At 5 a.m. on August 3, 1989, police came to the home of Bruce Lavoie, 34, a machinist with a wife and three children. Without announcing themselves and with no evidence that Lavoie was armed, police smashed the door in with a battering ram. They had a search warrant based on an informant's tip that was 20 months old. As he arose from his bed, Lavoie was shot to death as his son watched. A single marijuana cigarette was found.

Ruby Ridge, Idaho. After 18 months of FBI surveillance of his family's isolated cabin in the Idaho mountains, six armed, camouflaged U.S. marshals sneaked onto the land of Randy Weaver on August 21, 1992. Weaver had been charged with selling illegal firearms to an undercover agent. In the ensuing 11-day siege, Weaver was wounded and his wife and 14-year-old son were both shot to death. His wife was holding her 10-month-old daughter in her arms when she was murdered. More than 400 police agents were involved in the raid. A federal judge found Weaver and the others innocent of all charges and condemned the FBI for its actions. The FBI announced after a two-year investigation that no agents would be fired or severely punished for their part in this lethal fiasco.