Less Second-Guessing On Police Searches

The Supreme Court often winds up issuing one of its most important decisions on the concluding day of the term. Last week was no exception. Just before hanging up their robes for a badly needed summer recess--the 39-week term was among the longest ever--the Justices issued a ruling that means an immediate end to almost all review by federal courts of alleged violations by states of the Fourth Amendment's search and seizure provisions. The decision created far less of a public stir than the court's dramatic rulings on capital punishment (TIME, July 12), but it will actually have a greater impact on the administration of criminal justice. The effect will be to cut the number of judicial umpires who second-guess the legality of police searches.

Trusting States. Prisoners whose convictions have been upheld by state courts have been able in recent years to move their cases to the federal courthouse with habeas corpus petitions that raised constitutional claims. By a 6-to-3 vote,* the court last week ruled that a federal review need not be granted if the prisoner is contending that evidence used against him was unconstitutionally seized--and if "the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim" in its own trial and appeal process. Writing for the majority, Lewis Powell argued that the exclusionary rule barring the use of such evidence is not aimed at helping defendants but at deterring police from making improper searches. State courts can adequately enforce that purpose, said Powell. He specifically cited the high court's growing trust in the ability of state courts to apply federal constitutional principles.

Dissenter William Brennan was less sanguine. He argued that "state judges popularly elected may have difficulty resisting popular pressures not experienced by federal judges [who have] lifetime tenure ... Such detached federal review is a salutary safeguard against any detention of an individual in violation of the Constitution." Brennan was also worried that the court was really getting ready to cut back on the exclusionary rule directly.

Three other decisions by the court last week showed that there was reason for his concern. Continuing its recent pattern of nibbling at the rule, the court held that evidence can be used against a defendant in a federal civil tax case even though it was originally seized illegally in an unconnected state investigation. The high bench also permitted the use as evidence of marijuana taken without a warrant from a car impounded for parking violations, and it okayed the admission of evidence found in routine searches of cars stopped at a non-customs checkpoint 66 miles from the U.S. border. Indeed, there seems a possibility that the court will eventually allow the use of any evidence seized by a policeman acting reasonably and "in good faith." Last week Warren Burger and Byron White said clearly they thought it was time to make such a ruling as soon as the right case comes along.

* Though his dissent was recorded, Thurgood Marshall was in Bethesda Naval Hospital last week after suffering a mild heart attack.

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