Safe from searches

The 4th Amendment guarantees the right to be secure from “unreasonable searches and seizures.” But the strength of that protection depends on the willingness of the U.S. Supreme Court to prevent police from going too far in the name of law and order. Two cases newly added to the court’s docket will test its commitment to privacy rights.

In one case, the court will review a sensible decision by the Arizona Supreme Court that police acted unlawfully in searching the parked car of a man they already had in custody on a charge of driving with an expired license. Rodney Gant was handcuffed and locked in a patrol car when police searched his car and found a gun and cocaine. The Arizona court ruled that the search didn’t fall under an exception to the warrant requirement that allows police to search a stopped car for a gun or evidence that the suspect might destroy -- an exception created to protect officers from harm and prevent the loss of evidence. Those are worthy goals, but neither is relevant once the suspect is in custody.

Arizona is asking the U.S. high court to permit warrantless searches of cars “recently occupied” by someone under arrest. That would provide police with a blank check for warrantless searches of a vehicle driven by someone under arrest for a nonviolent offense. And what does “recently” mean? As the Arizona court pointed out, the state’s position suggests that a “warrantless search incident to an arrest could be conducted hours after the arrest and at a time when the arrestee had already been transported to the police station.”

In the ,other case the court will revisit the limits of the so-called exclusionary rule, which prevents prosecutors from using tainted evidence. Sheriff’s department employees in Coffee County, Ala., arrested Bennie Dean Herring after being told by a neighboring county’s sheriff’s department that a warrant was outstanding for Herring’s arrest. In fact, the warrant had been recalled. But by the time the correction reached Coffee County, Herring was under arrest, and the police had confiscated illegal drugs and a gun from his truck.

Because the police lacked a valid warrant, the search of Herring’s truck was illegal, but a federal judge allowed the evidence to be used against him anyway, a decision upheld by the U.S. 11th Circuit Court of Appeals. That court cited a 1995 case in which the Supreme Court allowed a “good-faith exception” to the exclusionary rule when an error by a court employee misled police into believing that a valid arrest warrant existed. If the high court extends that exemption to inaccurate police information, the exclusionary rule will be one loophole closer to extinction. Reversing the decision, on the other hand, would provide an incentive for police to ensure that their computerized information is accurate and up to date.

The exclusionary rule is, admittedly, a hard one to love. Critics like to quote the great jurist Benjamin Cardozo’s 1926 complaint that the rule means “the criminal goes free because the constable has blundered.” The problem is that the critics haven’t offered an alternative way to deter illegal searches. One common proposal is to allow victims of illegal searches to sue the police for damages, but it’s unlikely (to put it mildly) that juries would be willing to punish officers for searches that resulted in a conviction. The Supreme Court already has gone too far in creating exceptions to the rule. An exemption for police who rely on the mistakes of other police would further blur what should be a bright line.