A Matter of Good Faith

By Michael S. Serrill

The court ends a busy term with a major ruling on police searches

It was a very good year for prosecutors and police as the U.S. Supreme Court sliced away at various precedents to give more leeway to law enforcement. In completing its work for the term, the court last week handed down 19 decisions, including what one law professor called "a real get-out-of-town" ruling on a major Fourth Amendment search-and-seizure issue. Overshadowing their other opinions on such matters as women's rights and free speech, the Justices did what law officials had long hoped for and what civil libertarians had feared. For the first time they created a "good faith" exception to the so-called exclusionary rule, and allowed the use of some illegally obtained evidence in criminal trials.

Although the opinion was less sweeping than some had predicted, the court held 6 to 3 that when judges issue search warrants that are later ruled defective, the evidence gathered by police may still be used at trial in most cases. In 1981 Alberto Leon was one of several people indicted on drug-conspiracy charges in California after police searches of their homes and cars had turned up a large quantity of drugs. A judge had issued the warrant, even though it was based on outdated information provided by an informant of uncertain reliability. Two federal courts later threw out much of the key evidence because the warrant had been issued without a showing of "probable cause" to believe a crime was being committed.

A second case before the court was the classic kind of legal horror story that leads critics to rail against the consequences of the exclusionary rule: a Boston detective, investigating a woman's brutal murder, had good reason to suspect her boyfriend, Osborne Sheppard. Unable to find the proper warrant form, the officer unsuccessfully tried to alter a form normally used in drug cases. A judge okayed the warrant, and Sheppard was convicted. But because of this technical imperfection, Massachusetts highest court declared the search illegal and threw out the incriminating evidence, including bloody clothing, that had been found in the suspect's house.

The Supreme Court accepted the lower courts' determinations that both warrants were defective, but found that the police had acted in the good-faith belief that the searches they made were lawful. Justice Byron White argued that the principal justification for the exclusionary rule was to deter police misconduct. But when police have obtained what they reasonably think is a valid warrant, "there is no police illegality and thus nothing to deter," wrote White. "Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations."

If the police lie in seeking the warrant, or if the judge granting the warrant is not impartial, the court ruled, evidence in such cases may still be suppressed. But by and large, last week's decision means that if police officers get a warrant, defense attorneys will be unable to persuade trial judges to block the use of the evidence gathered with it. The ruling did not address the question of whether this good-faith exception would apply when police act without a warrant, but the court may look at that issue soon. Dissenter William Brennan thought the majority had done enough already. "In case after case, I have witnessed the court's gradual but determined strangulation of the rule," he wrote. "It now appears that the court's victory over the Fourth Amendment is complete." David Shrager, president of the Association of Trial Lawyers of America, agreed. "Good faith is just a code word for saying we're sick and tired of the exclusionary rule," he complained.

Atlanta District Attorney Lewis Slayton, by contrast, was delighted, because "this ruling takes the technicality out and gives us more practicality, and that's what we need." Massachusetts Assistant Attorney General Barbara Smith argued that the decision would actually protect civil liberties by encouraging more officers to get warrants, because they no longer have to be concerned that "the court is waiting to pounce on them for the slightest error."

The Reagan Administration, which supports a broad good-faith exception, was pleased, particularly by Justice White's statement that "the substantial costs of exclusion" outweigh "the marginal or nonexistent benefits produced by suppressing evidence" in these cases. Said Associate Attorney General D. Lowell Jensen: "It restores a better balance to the criminal justice system."

Whether it is "better balance" or overreach, the court has been tilting decidedly toward the prosecution, especially in search cases. That trend continued last week, prompting Justice John Paul Stevens to decry the majority's "voracious appetite for judicial activism ... at least when it comes to restricting the constitutional rights of the citizen." In a Virginia case, the court found last week that prison inmates are not protected by the Fourth Amendment. Chief Justice Warren Burger, writing for a 5-to-4 majority, held that an inmate had no right to challenge cell searches. "The recognition of privacy rights for prisoners in their individual cells," Burger wrote, "simply cannot be reconciled with the concept of incarceration." In a dissent that he took the trouble to read aloud when the decision was handed down, Justice Stevens said, "To hold that a prisoner's possession of a letter from his wife, or a picture of his baby, has no protection against arbitrary or malicious perusal, seizure or destruction would not, in my judgment, comport with any civilized standard of decency."

In another decision involving a special group, the court held, 5 to 4, that illegal aliens are not entitled to the protection of the exclusionary rule in civil deportation hearings because such a rule would unduly "burden" the administration of immigration laws. And in an exclusionary-rule case involving a suspected drunken driver in Ohio, the court held, 8 to 1, that the Miranda warnings on the right to remain silent and the right to counsel need not be given to motorists stopped routinely by police; those warnings must be given, the Justices added, if the driver is placed in custody.

When the issues raised do not involve search and seizure or the exclusionary rule, the court's direction is less predictable. Last week's decisions again produced varied results. One case seemed to involve a ghost from the '60s: draft resistance. The court upheld, 6 to 2, a 1982 law that denies federal education aid to students who fail to register with the Selective Service System. Six Minnesota students, who are among 400,000 nonregistrants, claimed that the law forced them to incriminate themselves if they wished to qualify for federal aid. Not so, said Chief Justice Burger for the majority, since "a person who has not registered clearly is under no compulsion to seek financial aid; if he has not registered, he is simply ineligible for aid." Applauded Selective Service System Director Thomas Turnage: "If you accept the benefits of society, you should accept the obligations associated with them."

While the court ruled that attaching strings to federal education aid is permissible, it would allow no such strings to prevent public broadcasting stations from speaking out. The court threw out a federal law that bars "editorializing" by educational television and radio stations receiving federal money. Justice Brennan, a court liberal writing for an unusual 5-to-4 majority that included Conservatives Lewis Powell and Sandra Day O'Connor, ruled that the federal ban is "directed at a form of speech--namely, the expression of editorial opinion--that lies at the heart of First Amendment protection." Dissenting Justice Stevens found that the prohibition was a reasonable effort to prevent the Government's fiscal power over stations from influencing editorial positions. "The court jester who mocks the King must choose his words with great care," Stevens wrote.

A second First Amendment case went the Government's way when the Justices decided that it had a compelling interest in limiting the media's right to picture U.S. currency. The case involved a suit filed by Time Inc. after Government agents informed the company that a full-color 1981 Sports Illustrated cover showing $100 bills pouring through a basketball hoop was a violation of law. To prevent counterfeiting, federal law requires that publishers depict bills only in black and white and at less than 75% or more than 150% of actual size. The court turned down Time Inc.'s argument that the right of free expression was improperly restricted; a company spokesman said that Time Inc. would now consider lobbying for a change in Congress.

In one of the most important First Amendment cases of the term, the Justices unanimously ruled that a state law barring sex discrimination applies to the Jaycees, a national organization of 270,000 young business and community leaders in 7,000 chapters. The Minneapolis and St. Paul chapters of the Jaycees began admitting women in 1974 and '75. The national organization, steadfast in its men-only policy, threatened to cancel their charters. The Minnesota chapters fought back, citing the state's human rights act, which prohibits discrimination based on race or sex in public business facilities. The Jaycees argued in the Supreme Court that as a private fraternal group it was beyond the scope of discrimination laws, since such laws violated the organization's First Amendment right to "freedom of association." But, writing for the court, Justice Brennan concluded that "Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jay cees may have on the male members' associational freedoms."

The ruling is expected eventually to have a broad impact on other private na tional groups that exclude women, but it is not yet clear which organizations might be affected. The status of such groups as the Boy Scouts and Kiwanis will have to await case-by-case tests. But the Minnesota Jaycees chapters did not have to delay celebrating. Kathy Ebert, former vice president of the Minneapolis chapter, had suffered through the 5 1/2 yearlong legal process as one of the original plaintiffs and happily called a press conference to savor the victory. As for Anne Nelson, a St. Paul banker and onetime local Jaycees president, she reports that on the day of the decision "we had 25 bottles of champagne on ice, and after work we did our best to get through them." --Michael S. Serrill. Reported by Anne Constable/Washington, with other bureaus

With reporting by Anne Constable/Washington, other bureaus