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.
San Diego County. On the night of August 25, 1992, in Poway, California, U.S. Customs Service and heavily armed DEA agents broke down the door of Donald L. Carlson's suburban home. Aroused from sleep and thinking a robbery was under way, Carlson grabbed a gun as the agents lobbed a percussion grenade into his home. In the ensuing exchange of gun fire, Carlson was hit three times, in the arm, lung, and femoral vein.
After three weeks on a ventilator in intensive care, he was lucky to be alive. He suffered life-long diaphragm paralysis, chronic pain, and circulatory problems. There were no drugs in Carlson's house, he had no criminal record, and he is a vice president of a Fortune 500 company and a respected family man. But Carlson was fingered falsely by a paid informer known only as "Ron," who already had been kicked out of one federal anti-drug program because of two other false reports, one fingering a vacant house. Carlson has filed suit for damages and alleges a government conspiracy to cover up the Customs Service blunder. No one has been charged with any wrongdoing as a result of this tragedy.
Malibu. October 2, 1992, dawned as another peaceful southern California morning at Trail's End Ranch in the Santa Monica mountains overlooking the Pacific Ocean at Malibu. Peaceful until the ranch owners, 61-year-old retired millionaire Donald Scott and his wife Frances, were jolted awake by the terrifying sound of a 27-man police task force smashing through the front door of their rural home. Frances Scott, racing downstairs and confronted by a house full of men with guns drawn, screamed in panic: "Don't shoot me. Don't kill me." Don Scott responded, holding his legal handgun above his head as he rushed to the top of the stairs. He was ordered to lower the gun and as he obeyed, Scott was shot to death by Gary Spencer, the Los Angeles County deputy sheriff who led the raid.
As in thousands of similar "drug" raids in America, the police wanted to surprise the Scotts, whom they suspected of growing marijuana based, as it turned out, on an informant's false information. After a five-month investigation of Scott's death, the Ventura County district attorney, Michael Bradbury, concluded police not only lacked evidence of drugs, but had obtained the search warrant by lying to the judge who signed it.
Not content with the expanded power to search and seize the Supreme Court has granted police, four cases are now on appeal from state courts attempting to overturn the 400-year-old common law "knock and announce" rule. That rule requires police conducting a raid to knock and announce their identity and purpose, allowing sufficient time for the homeowner or occupant to respond. Courts, including the Supreme Court, have held this practical rule protects privacy, reduces the risk of violence, prevents property destruction, and gives innocent people a chance to correct police mistakes. Police counter that it allows time to flush drug evidence down the toilet and to use guns or other weapons. They contend the rule should be abolished.
There is nothing conservative about attempting to reestablish in America the police tactics of King George III. Those tactics are the reason the Fourth Amendment exists, and the reason it needs to be preserved. For the sake of gaining and keeping power, Republicans seem willing to promise segments of their coalition whatever they demand in terms of appearing "tough on crime," at whatever cost to the rights of others. In this respect, conservatives have become a grotesque companion to liberals, filling in the gaps of state power that liberals have left empty.
Robert Bauman, a Republican member of the U.S. House of Representatives from 1973-81, is an attorney and writer living in Florida. He is a former national chairman of both the American Conservative Union and the Young Americans for Freedom.