United States. Congress. House. Committee on the J.

Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

. (page 33 of 51)
Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 33 of 51)
Font size
QR-code for this ebook

Criminal Justice Section, I have been designated by ABA president,
George Bushnell, to represent the association.

The American Bar Association has long supported retention of
the fourth amendment exclusionary rule in State and Federal
criminal proceedings. We continue to do so and urge this committee
to approach this issue cautiously and to reject proposals to limit
the application of the rule further in Federal criminal trial proceed-
ings. Despite the assumption of critics today, its abolition will not
stem the tide of crime in our country, but tampering with it will
destroy a portion of the cherished constitutional fabric of which our
system is constructed.

To say that the Federal exclusionary rule has not worked is to
ignore experience. It has contributed to substantial law reform by
Federal authorities. It has increased the professionalism of Federal
law enforcement officers. It has vastly enhanced the integrity of
Federal judicial process.

Let me move from my remarks — formal remarks which I ask to
be made part of the record and to speak to my personal experience.

As you have indicated, Mr. Chairman, I have spent 27 years, al-
most 27 years as district attorney of Milwaukee County and several
years as an assistant district attorney before that. I have approxi-
mately 94 assistant district attorneys, and in the past 20 years, 27
years, I have directed the prosecution of tens of thousands of per-
sons, put tens of thousands of persons behind bars.

I am an active district attorney that occasionally tries cases and
am thoroughly involved in what happens in my offices. It is an
urban population of roughly slightly less than 1 million in Milwau-
kee County. I am exposed to ongoing major types of crimes, mur-
ders, burglaries, rapes, robberies, and so on. If I felt the exclusion-
ary rule was impairing — impacting negatively on my prosecutions,
I would not be here supporting the exclusionary rule.

I have dedicated literally a professional lifetime; I have enjoyed
it. If I felt I had been handcuffed, which is an expression that you
will occasionally hear, or deterred from enforcement, I would be
candid about it. When I was asked by the bar association to ap-
pear, I pointed out that I agreed with the position of the associa-


It is my understanding as well, one of my former colleagues, Sen-
ator — the former Senator from — former district attorney of Phila-
delphia, Arlen Specter, takes the same position. It is my under-
standing former Senator Rudman who served as attorney general
of New Hampshire, certainly a man supportive of law enforcement,
takes the same position, and that is a serious concern about the
erosion of the fourth amendment.

We all know here because we are educated persons that when we
are talking about any diminution of fourth amendment rights, we
are talking about our own rights. Persons, the public might look in
on this proceeding and say they are talking about the invasion 'of
the homes of muggers and murderers and madams and prostitutes
and pimps and so on. But I know what we are talking about, is the
diminution of my privacy as well as any other citizen, and it is pre-
cisely that which concerns me.

I give many speeches, as I am sure all of you do on this panel.
A very comrnon question to me is, it seems that the defendants
have all the rights. Well, the defendants have all the rights. All of
us have all the rights. I like to walk at night in my neighborhood,
and other parts of my city at night, oftentimes near midnight, and
that question comes back to me, the defendants have all the rights,
and I walk down the quiet streets and there are no persons break-
ing into those homes. The people that have put their children to
bed and now casually slumber don't appreciate that they are right
there in their quiet homes, they are celebrating the fourth amend-
ment right then, when they can walk down the street and not be
concerned that because they are black or they have got long hair
someone is going to come up to them and search them. That is
what the fourth amendment is about.

And it is interesting that there is a direct connection, we all
know, through the writs of assistance, the historical experience,
that the invasions of the British of the privacy of the homes of the
colonists played a role in bestirring the revolution that took place.
There is direct historical studies reflecting that.

I feel as a district attorney, when I take an oath to support the
Constitution, that I am going to abide by it, but also as citizen. My
wife is a journalist and she has been enamored all her professional
career of the first amendment. I am a prosecutor and a citizen, and
I have been enamored all my professional career with the fourth
amendment, the fact that I can go home at night and not worry
about it.

Let me take — end with a simple experience. If your home is bur-
glarized this — ^you get home tonight after you have done a day's
work and find your home is burglarized and the television set is
taken, you are going to be angry about it. Go home instead and
learn that a government agent has entered your home without an
arrest warrant, has gone through your private papers and has re-
moved an ambiguous writing. The anger you will feel, the rage you
will feel will dwarf the anger you would feel about a burglar enter-
ing and taking your television set.

And if the government agent came up to you later and said to
you, I am sorry that that happened, I made a good faith mistake,
I thought it was objectively reasonable grounds to do it, you would
be enraged. You would say, Mr. Government agent, you have got


to abide by the Constitution. And if someone said, well, we are
going to introduce that ambiguous writing, you would feel strongly
about it.

What I see here is a proposal to diminish my rights, not just the
rights of burglars, murderers, rapists and so on. From practical ex-
perience, I very rarely see a case lost because of violation of the
fourth amendment.

Certainly we are not here to say to officers, go out and violate
the fourth amendment. Most of the officers with whom I have
worked are conscientious, capable people, but the best of the lot are
zealous, eager, hard hitting and driving and to say that they are
neutral or detached, as we ask the magistrate to be, of course
would be absurd. They are not.

The occasional, in my experience, limited number of lazy or in-
competent or corrupt or Dirty Harry type of rogue officers, you are
going to have a hard time ever controlling them. But to open the
door would seem to me to say, well, the test will be what is in the
objective mind, what is in the objective — and not the law. We are
broadening what type of searches can be conducted.

I say as a constitutional republic we should abide by the Con-
stitution by law and not someone's good faith misperceptions of
what that law is. I want my constitutional rights to be abided ac-
cording to law and not good faith misinterpretation of law.

Thank you.

[The prepared statement of Mr. McCann, follows:]


Prepared Statement of E. Michael McCann, Chairperson, Section of
Criminal Justice, on Behalf of the American Bar Association

Mr. Chairman and Members of the Subcommittee:

The American Bar Association is pleased to appear before you
to express our views on the subject of H.R. 3, legislation which
would, among other things, limit the application of the Fourth
Amendment exculsionary rule by establishing a "good faith"
exception in warrantless cases. My name is E. Michael McCann.
As Chairperson of the ABA Criminal Justice Section, I have been
designated by ABA President George E. Bushnell, Jr. to represent
the Association.

I am the elected district attorney of Milwaukee County,
Wisconsin, and am serving in my 27th year in that capacity. My
experience has included the prosecution of all types of cases
from disorderly conduct charges against the average offender to
multiple murder charges against Milwaukee's cannibalistic serial
slayer Jeffrey Dahmer.

The American Bar Association has long supported retention of
the Fourth Amendment exclusionary rule in state and federal
criminal proceedings. We continue to do so, and urge this
Committee to approach this issue cautiously — and reject
proposals to limit the application of the rule further in federal
criminal trial proceedings. Despite the assumption of critics
today, its abolition will not stem the tide of crime in our
country — but tampering with it will destroy a portion of the
cherished constitutional fabric of which our system is constructed.


To say that the federal exclusionary rule has not worked is
to ignore experience. It has contributed to substantial law
reform by federal authorities. It has increased the
professionalism of federal law enforcement officers. It has
vastly enhanced the integrity of federal judicial process.

It is important to remember the rationale underlying the
exclusionary rule. The Supreme Court first held that evidence
obtained in violation of the Fourth Amendment was inadmissible in
a federal criminal trial in the 1914 case of Weeks v. United
States . 232 U.S. 383. In 1961, the Supreme Court in Mapp v.
Ohio . 367 U.S. 643, in imposing the exclusionary rule as a
constitutional requirement on the states, articulated the need
for the rule's creation. The Mapp Court held that the only way
to give real meaning to the protections afforded by the Fourth
Amendment was to no longer "tolerate denial of its [Fourth
Amendment] most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to
give by reason of the unlawful seizure." "To hold otherwise,"
the Court stated, "is to grant the right but in reality to
withhold its privilege and enjoyment." 367 U.S. 656.

Very importantly, empirical evidence reveals that the
operation of the rule has not greatly affected case dispositions.
The overwhelming percentage of guilty pleas and convictions in
federal courts provided ample proof that the rule has not
stultified federal law enforcement or the judiciary. To be sure
the body of law defining Fourth Amendment restrictions is


complex, and as a result, teaching, understanding, and obeying

the Fourth Amendment can be difficult, and at times frustrating

for police departments. But it has not been shown to be an

impediment to crime control.

As Former Justice Potter Stewart noted in a series of

renowned Columbia Law School lectures in 1983:

Much of the criticism leveled at the exclusionary rule
is misdirected; it is more properly directed at the
Fourth Amendment itself. It is true that, as many
observers have charged, the effect of the rule is to
deprive the courts of extremely relevant, often direct
evidence of the guilt of a defendant. But these same
critics sometimes fail to acknowledge that, in many
instances, the same extremely relevant evidence would
not have been obtained had the police officer complied
with the commands of the Fourth Amendment in the first

There are three principal reasons why we believe action on

H.R. 3 or similar legislation is unwarranted and unwise. I will

explore each of these in turn:

1. H.R. 3's present language would sweep away four
limitations to the good faith warrant exception
established by the Supreme Court in Leon.

2. Extension of the good faith exception to warrantless
situations represents a major leap beyond Leon .

3. Empirical evidence demonstrates that the operation of
the rule has had a minimal impact on criminal cases.



Any discussion of a good faith exception to the
exclusionary rule must, of course, begin with the U.S.
Supreme Court's 1984 decision in United States v. Leon . 468
U.S. 897. Leon carved out a limited good faith exception in
warrant cases. Specifically, the Court held that the
exclusionary rule does not bar the use of evidence obtained
in violation of the Fourth Amendment if the police acted in
objective good faith reliance on a warrant that later proved
to be defective. The Leon Court, however, stated that
suppression is still an appropriate remedy if one of four
factors is present:

1. that the magistrate is not neutral and detached;

2 . that the magistrate in issuing a warrant was
either intentionally or recklessly misled by
information contained in an affidavit;

3. that the officer relied on a warrant based on an
affidavit "so lacking in indicia of probable cause as
to render official belief in its existence entirely
unreasonable" ( Brown v. Illinois . 422 U.S. 590, 610-11
(1975)); or

4. that a warrant is so facially deficient (i.e., in
failing to particularize the place to be searched or



things to be seized) that the executing officers cannot
reasonably presume it to be valid.

Yet H.R. 3 would sweep away these limitations. H.R. 3
provides in part that, "The fact that evidence was obtained
pursuant to and within the scope of a warrant constitutes prima
facie evidence" of "an objectively reasonable belief that it was
in conformity with the Fourth Amendment."

H.R. 3 would thus substitute a lesser standard for assessing
"objectively reasonable" than that established by the Supreme
Court in Leon . This proposed language in the bill is, therefore,
at best a poor policy judgement flying in the face of the Court's
majority opinion.


An overriding reason it is not desirable to extend the good

faith warrant exception to warrantless searches is that this

expansion would negate a desirable consequence of the Leon

decision: if the good faith exception is limited only to

seizures conducted pursuant to a warrant, the police will have an

additional incentive to obtain a warrant. And as the Court

stated in Leon:

Because a search warrant "provides the detached
scrutiny of a neutral magistrate, which is a more
reliable safeguard against improper searches than the
hurried judgement of a law enforcement officer 'engaged
in the often competitive enterprise of ferreting out
crime," United States v. Chadwick , 433 U.S. 1, 9 (1971)
(quoting Johnson v. United States . 333 U.S. 10, 14
(1948) , we have expressed a strong preference for


warrants and declared that "in a doubtful or marginal
case a search under a warrant may be sustainable where
without one it would fail."

The classic statement of the policy underlying the warrant

requirement of the Fourth Amendment is that of Justice Jackson

writing for the Court in Johnson ;

Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search
warrant will justify the officers in making a search without
a warrant would reduce the Amendment to a nullity and leave
the people's homes secure only in the discretion of police
officers.... When the right of privacy must reasonably
yield to the right of search is. as a general rule, to be
decided by a judicial officer, not by a policeman or
government enforcement agent. 333 U.S. 14 [emphasis added]

A search and seizure without a warrant bypasses the safeguards

provided by an objective predetermination of probable cause —

and substitutes instead a far less reliable procedure of an

after-the-event justification for the arrest or search. This

method is too likely to be subtly influenced by the familiar

shortcomings of hindsight judgment. If a good faith warrantless

exception were adopted, the focus of police officers would likely

shift from "What are the requirements of the Fourth Amendment?"

to "What will the courts allow?"

It is instructive that in post- Leon America today,
suppression hearings on claims of unconstitutional searches and
seizures do not focus on the existence of probable cause for the
warrant, but on whether the police had an "objectively reasonable
belief" that the warrant was valid.

A good faith warrantless exception could encourage police
and other participants in the criminal justice enforcement system


to cast caution to the wind and take risks with the
constitutional freedoms of our citizens. The point was well made
by former Republican Senator Warren Rudman (who served as
Attorney General of New Hampshire for many years and who is
strongly opposed to a good faith warrants exception) during a
1991 Senate floor debate on the issue: "Under this proposal the
police would have a powerful incentive to, to use a polite word,
customize and shape their good faith after the fact."


Opponents of the exclusionary rule and many citizens believe
the rule results in legions of criminals going free on
"technicalities." Evidence from available studies strongly
suggests otherwise.

A major review of research on the effects of the rule —
cited approvingly by the majority in Leon — found minimal impact
on case dispositions. Thomas Y. Davies' lengthy study published
in 1983 by the American Bar Foundation, A Hard Look at What We
Know (and Still Need to Learn) About the "Costs" of the
Exclusionarv Rule , concluded that the "costs" of the exclusionary
rule — in terms of dropped prosecutions and lost convictions —
are actually low. Specifically, Davies found that —

* The cumulative loss — nonprosecution or nonconviction —
resulting from illegal searches is in the range of 0.6%
to 2.35% of all adult felony arrests.

* In felony arrests for offenses other than drugs or


weapons possession, the cumulative loss is in the range
of 0.3% to 0.7% of such arrests.

* The cumulative loss due to nonprosecution or
nonconviction of those arrested on felony drug charge
is likely in the range of 2.8% to 7.1%.

* Less than 1% of individuals arrested for felonies are
released because of illegal searches and seizures at
the preliminary hearing or after trial.

Prior studies by the General Accounting Office' and the
Institute for Law and Social Research^ present a fairly
consistent picture of the limited impact of the exclusionary rule
on felony case dispositions.

Under these circumstances, is the effort to nullify or
severely limit the exclusionary rule necessary? Would its
abolition result in many more cases being pursued? The data does
not suggest so.

It also must be noted that the application of the
exclusionary rule has already been considerably restricted by

' Report of Comptroller General of the United States,
Impact of the Exclusionary Rule of Federal Criminal
Prosecutions Rep. No. CDG-79-45 (Apr. 19, 1979)

^ Brian Forst, Judith Lucianovic and Sarah J. Cox, What
Happens After the Arrest? A Court Perspective of Policy
Operations in the District of Columbia, PROMIS Research
Project Publication 4 (Washington, D.C.: Institute for Law
and Social Research, 1977) ; Kathleen B. Brosi, A Cross City
Comparison of Felony Cases Processing (Washington, D.C.:
Institute for Law and Social Research (Research, 1979) .



numerous exceptions. Searches incident to a lawful arrest,
exigent circumstances, consent searches, stop and frisk,
inventory searches, automobile searches, and independent source
rules are just some examples of how the Court has expanded the
scope of the areas treated as exceptions to the Fourth Amendment
warrant requirement and thus narrowed the applicability of the
exclusionary rule.


The Supreme Court has had numerous opportunities in the ten
years since the Leon and Sheppard decisions to grant certiorari
in a case where the rule might be extended to warrantless
searches. It is reasonable to conclude that the Court has given
the Circuits sufficient time to apply the good faith warrant
exception in particular cases.

Given the Court's long-standing expressed "strong
preference" for warrants, reemphasized in Leon , it is very clear
the Court will weigh very carefully any possible extension of the
good faith exception to warrantless searches involving the
"hurried judgement" of a police officer. It is no criticism to
observe that it is not in the nature of a law enforcement officer
to be neutral and detached. Moreover, it is apparent that
adoption of a warrantless exception not carefully crafted would
impose a considerable burden on judges to determine when police
officers' erroneous probable cause decisions are "objectively


reasonable. "


I am honored to serve as the spokesperson for the American
Bar Association on this issue. Further, while ray experiences as
a prosecutor profoundly influence my remarks, rest assured that I
appear here first as a citizen of the United States prizing as
uncommonly precious the privacy of my home and personal papers.

It was as a law student that I first read William Pitt's

memorable remarks on government invasion of privacy:

The poorest may, in his cottage, bid defiance to
all the force of the Crown. It may be frail; its
roof may shake; the wind may blow through it, the
storm may enter; the rain may enter: but the King
of England may not enter; all his force dares not
cross the threshold of the ruined tenement.

Even the casual student of history appreciates that abusive

government, rather than the criminal element, poses by far the

greatest potential for loss of liberty. It was as a bulwark

against the government and its potential threat to their God

given liberties that the citizenry of the newly founded United

States adopted the Fourth Amendment.

It was to maintain that constitutional protection that the
United States Supreme Court implemented the exclusionary rule in
federal cases in Weeks v. United States . 223 U.S. 383 (1914) and
later in state cases in Mapp v. Ohio . 367 U.S. 643 (1961).

I have spent a professional lifetime in prosecuting
offenders and putting them behind bars - and in protecting their
rights and the same rights of the innocent. Over the past thirty
years, aided by a staff now numbering ninety-plus assistant


35-667 96-13


district attorneys, we have caused to be incarcerated tens of
thousands of convicted offenders. I do not feel that my hands
have been "cuffed" or that we have been crippled by the
exclusionary rule. It is inevitable that this magnificent shield
of liberty, the Fourth Amendment with the exclusionary rule,
would be turned by some into a sword. In my extensive
experience, however, few cases are lost because of the Fourth
Amendment and the exclusionary rule.

If I awake in the night and find a burglar in my home, I
fear for the lives of my family and my property. If I awake in
the night and find an armed police officer illegally in my home,
I fear not only for the lives of my family and my possessions but
also for the loss in the republic of freedom which, with my
faith, I hold as the most precious gift I hope to pass to my
progeny .

Let us assume that you go home at the close of today's
business and find your dwelling burglarized and your television
taken. It will anger you. Let us assume in another scenario
that you return home and determine that a government agent has
entered your dwelling without a warrant and searched through your
private papers removing therefrom some ambiguous writing. I will
wager that the rage you then experience toward the government
would dwarf the anger you would feel toward the burglar. And the
more innocent you were, the more palpably you would sense a
menace to your liberty. Were you later to confront the
government agent, and were he to plead to you that he acted in



good faith and in ignorance of the law, certainly you would
answer, "Rot on that, sir, you must be held to abide by the
constitution." Surely, you would deem it an outrage were the
ambiguous writing later to be used against you in any fashion by
the government.

Of course, it is usually not Members of Congress's
residences but rather the lairs of drug dealers, muggers, and
madames which are the subject of court challenged police entries.
Ought we be concerned for the rights of such malefactors and
their ilk? Again, history suggests that when governments
undertake to diminish the rights of the people, the attack
usually begins against those deemed undesirable by their fellow
citizens. In the words of the poet John Donne, "Never send to
know for whom the bell tolls, it tolls for thee." The treasured

Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 33 of 51)