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

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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 35 of 51)
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chairman's question. I am not sure that I have clear in my mind
your answer and I will address the question to each of you.

Which of these two statements is the more accurate? The good
faith exception turns on the subjective intent or good faith of the
law enforcement official at the scene, one; or two, the good faith ex-
ception rather involves a determination by the court as to the ob-
jective reasonableness of the contact — of conduct of the law enforce-
ment official after the fact? Which of those two do you think is the
more accurate?

Mr. McCann. I would say in terms of the — it is really a mixture.
If it surfaces in my experience

Mr. Coble. It probably is a mixture?

Mr. McCann. Yes, sir, that is my opinion. If it surfaces during
the hearing that the officer was acting in bad faith, the duck is
dead; it won't fly. If there is something — the judge gets the sense
this is a rogue act by a police officer, whether it is objective or not
is — if it is really a bad faith. If it is good faith, that is a threshold
and the judge then will consider, was there some objective reason-
ableness to it.

Mr. Coble. Mr. Larkin, you want to be heard on it?

Mr. Larkin. Thank you. The latter is the correct inquiry. What
has been — come to be known as the good faith exception in that
sense is a misnomer. It is not — it doesn't turn on the good faith of
the officer. It turns on whether the officer had an objectively rea-
sonable belief.

The law that the Supreme Court has developed in this regard
doesn't look to the subjective views of the officer involved, for a va-



394

riety of reasons. It looks to see whether or not a reasonable person
could have had an objectively reasonable belief that what the offi-
cer did was valid.

Now, if the judge in a particular case decides that this officer is
going to be punished and decides that — the judge decides he doesn't
want to apply the exception as it has been developed by the Su-
preme Court, there is nothing anybody can do about that. But the
exception the Supreme Court adopted looks to the objective reason-
ableness of the officer's actions.

Mr. Coble. Well, much has been said about this during this
hearing, but it is my belief that if this — if H.R. 3 is in fact enacted,
I just don't believe that is going to open the floodgates and you are
going to see abuse after abuse on the part of law enforcement offi-
cers trashing the fourth amendment. I just don't have that fear.

Let me put this question to you all, perhaps extending a question
expressed by the gentleman from New York when he said this is
a goofy way, is there not a better way. Do you all have any sugges-
tions regarding additional provisions that should be included in
title IV to make the statutory exemption to the exclusionary rule
more effective and more workable?

Mr. McCann. I think to the second section, particularly, al-
though my first concern really speaks to the warrantless search.
That is what causes me the greatest concern. Where a warrant is
issued, my experience has been almost universally the magistrate
takes the job seriously and so that I have less concern where there
is a warrant there.

I do find the second — ^the second phrase really addresses, makes
prima facie assumptions, I wish that were more detailed just what
that means. The Leon case has the advantage, although it provides
a good faith exception for the magistrate, it provides nevertheless
the magistrate can't abandon his responsibilities.

There must be — it must — the warrant can't be grossly deficient
in naming what must be searched — what will be searched and
what is searched for, and the affidavit can't be grossly deficient in
terms of the statement of probable cause. That is how I read Leon.
It isn't an open check that any warrant is appropriate if the officer
acts in good faith.

I fear that even that there is a potential in the legislation here
that almost any warrant on its face will be sufficient, and I can tell
you, when I — when these exclusionary rules came down, I directed
thereafter that an assistant district attorney would always attend,
except upon a very simple, would always attend upon a search war-
rant application.

I have serious concerns that there may be a diminution in the
protection afforded by — even by warrants if the very general termi-
nology of the proposal is adopted. I do not oppose the Leon. I sup-
port the Leon decision. This would expand the Leon decision, it
seems to me, and I am concerned about it because it is broadly
drawn.

Mr. Coble. Mr. Larkin.

Mr. Larkin. Mr. Chairman, could I?

Mr. McCOLLUM. You may respond, Mr. Larkin.

Mr. Larkin. I will be very brief. There are various suggestions
that I included in my written testimony, my written statement,



395

that I thought would strengthen the bill. I will mention just one
of them here.

One is I thought that the bill should make clear that it covers
evidence obtained in violation not only of the fourth amendment
but various statutes, whether they be State or Federal. In my expe-
rience, there are instances where there are various statutes that
govern, for example, what the Customs Service can do and what
the Coast Guard can do, or what the IRS can do. It makes sense
to have a reasonable mistake exception apply where the claim is
that someone has violated the fourth amendment.

It also makes sense to have a reasonable mistake exception
where the claim is someone has exceeded his statutory authority,
and you want to apply that to both Federal and State laws, because
this way, if a State officer violates a State law in conducting a
search, it would clearly be admissible in Federal court, because as
long as the reasonable mistake exception was a matter of Federal
law, it wouldn't matter if he had violated a State law.

The second point is that I don't think you need to have as de-
tailed an exception written into the statute as perhaps my col-
league and others would like. I mean, I have — I brought here, just
to show you, the Georgetown Law Journal each year publishes a
journal that discusses a variety of different police practices. This
particular issue is 1,400 pages long and has more than 3,000 foot-
notes, and a good bit of that is directed toward fourth amendment
law.

You could have an enormously complex statute if you wanted,
that would make it completely impossible for anybody to under-
stand. I am not saying at all that my colleague is saying that.

What I am saying is there is a great deal of law out there and
a general statute that talks about what the police officer having
done is being reasonable, I think, is a reasonable way to approach
this problem.

Mr. Coble. Thank you, Mr. Chairman.

Mr. McCOLLUM. Mrs. Schroeder.

Mrs. Schroeder. Thank you very much and I want to thank our
witnesses, particularly you, Mr. McCann, because you hit one of my
hot buttons as you talked about how this fourth amendment really
does protect us.

I remember as a young candidate in 1972, our campaign slogan
was, she wins, we win, and someone in the FBI office decided that
meant I was probably a Communist and they hired someone to
keep breaking into our house. We had no idea. It was terrifying be-
cause we had no idea what was going on.

It was years later when I got my file and realized what had hap-
pened and they had found wonderful things, like I was a dues pay-
ing member to the League of Women Voters, and all sorts of things
that actually we would have told them if they had just come in and
asked.

But it was a very, very scary time, because we thought somebody
might be after the children, someone might be after — who knew?
Because we didn't see anything of import ever missing after the
break-ins of the car and house.

And I think one of the things that concerns me about the fourth
amendment is right now we can all say, yes, yes, drugs, we are



396

mad about that. But you can have another time where you may be
mad about Communists or whatever, who knows what the prevail-
ing hysteria is, and I think we all have to be mindful that any of
us could be there.

But let me go to your specific career as a prosecutor. I was im-
pressed that you say that the exclusionary rule hasn't posed a par-
ticular problem for you in your many years as a prosecutor. I want-
ed to ask you, do you think the distinction between warrant-based
searches and warrantless searches makes good sense? I suppose in
one area you could say a neutral magistrate is involved in the war-
rant phase and they aren't in the other. Do you think that is the
distinction that makes any sense?

Mr. McCann. Well, there is no question in my mind, the greater
danger lies in the warrantless search. There is no question. When
you have a warrant, a record has to be made of the evidence. When
you have a warrantless search, those are the searches that we
never see.

In this city there will be hundreds of searches conducted. A few
will be arbitrary undoubtedly in this city. The ones that are arbi-
trary, innocent people, there are going to be no result from. But the
suffering that occasions, the fear and so on, so that I do see — the
fact that there is an intervention of a usually neutral magistrate
poses that protection that the whole fourth amendment is about.
That is why we want to do things to encourage officers to get
search warrants.

Unquestionably, the proposal here will suggest to them that
there is a broader area where they don't have to get search war-
rants and the whole thrust of the fourth amendment is get a search
warrant, put that independent neutral person between you and the
subject of the investigation, so that I see the — in the warrant case,
there is already a safeguard, a substantial safeguard there.

The warrantless search is — there is no safeguard there, and no
one knows how many innocent people are stopped. No one knows
that, and the price — and when — the exclusionary rule for me has
always existed not for the defendant. It has existed for the society.
That is the benefit of the exclusionary rule. That is why as a pros-
ecutor, I am also a citizen and human being. To me my individual
liberty is profoundly important. I agree with you, who may be the
concern for the next — all of us.

This rule will impact potentially on everybody in this room. No
one knows upon whom the finger of suspicion will be cast next
month. No one can say that, who will be subject to an investiga-
tion. All I say, if you are going to investigate me, follow the Con-
stitution. Not reasonable. The Constitution could have said — our
doctrine of the Constitution could have said, we will use a reason-
able belief Forget about the warrant, just say reasonable belief

Mrs. SCHROEDER. I think you are absolutely right, and the prob-
lem is, the horror stories we always hear are of someone who we
really don't have any sympathy for, but, boy oh, boy do your phones
light up when they come after someone who is a law-abiding citizen
and they feel that they are really having their rights violated, and
indeed they are.

But it is interesting we don't hear about that part. So it is so im-
portant we keep that in, and the great thing about having a war-



397

rant is you do have this independent neutral judge making the de-
cision as to whether you are just out trying to get your number of
arrests up or there really is some reason to go after this person.

Obviously if they could come search all of us every single day,
they would probably have many more arrests for some reason or
another, I imagine, and it would be a lot easier than trying to put
the work together the other way.

The other thing I wanted to ask you is, if we adopt these provi-
sions in H.R. 3, do you think we will see inconsistencies in how the
fourth amendment is going to operate in different cases around the
country?

Mr. McCann. I don't even know how a legal scholar, because
there will be judges — to one judge, what is reasonable, to another
judge, is unreasonable, and in defining what is reasonable, which
scholars will attempt, you are going to have to say to what one per-
son is reasonable — to this judge is reasonable, to that judge is un-
reasonable. I think it opens a very undefined area of law.

Mrs. SCHROEDER. Thank you very much.

Mr. McCOLLUM. Mr. Heineman.

Mr. Heineman. I reserve my time, Mr. Chairman.

Mr. McCOLLUM. Reserve the time. Then Ms. Jackson Lee.

Ms. Jackson Lee. Mr. Chairman, thank you very much for the
time and, gentlemen, thank you for your presence here. I have
begun these 2 days of hearings with the adage or the commitment
that we are all here to fight crime, that the very catchy name of
take back our streets does not suggest that there are people who
rampantly want to advocate criminals in the street.

Whatever party we are of or whatever hamlet, town, city. State
that we have come from, you will find law-abiding citizens gather-
ing, collecting together to fight crime, and so I claim to be a crime
fighter by the evidence of my record.

Mr. McCann, I want to suggest to you that I have been hopefully
that independent arbiter as a city court judge late in the night,
being asked to review the findings of an undercover officer who has
been out in the trenches, possibly has not been home for a number
of days, and clearly has a find, if you will. Maybe a little unsightly
and unseemly, but has been involved in a pursuit of criminal activ-
ity and comes now to be able to make the catch, and that is, of
course, almost similar to your story where the law-abiding citizens
are home sleeping, but this officer is putting his or her life out on
the line and now comes forward.

I would offer to say to you, and I appreciate your analysis as we
walk through that because, as a prosecutor, you have certainly
been there. This opportunity allows a person who has laid their life
on the line, has been in the field for a number of days, has
watched, has gotten the insulin rising because this is now true
what is going on and creating a bad situation in a neighborhood,
but yet, has to pause for a moment so that that neutral party can
collectively review the facts and provide that extra cushion, if you
will.

I was never called down on a PC signing for it being wrong, and
I think that — nor did I provide any hindrance for that officer who
had spent that time building that case to do his or her job. I ask
you, then, to help me understand or help me be able to find the



398

necessity in fighting crime to now leap beyond that healthy process
that probably takes place in towns and hamlets and cities and
States across the Nation, just a moment to pause.

As a prosecutor, I guess I am asking you, how many cases do we
miss? Do we have statistical numbers to suggest that we are not
fighting crime because we have that moment of pause, wherever it
might be, and does it not balance saving the life of an officer as
well as protecting that suburban community for some mistaken in-
trusion? Isn't that the best way to fight crime with a constitutional
protection that allows that officer to stand in court after the fact
and the case goes forward and the criminal subsequently indicted,
tried, and hopefully confined, and at the same time, Mr. and Mrs.
Smith and four children have a protection of the fourth amend-
ment?

Mr. McCann. Madam Congresswoman, I agree 100 percent. In
my community we have gone to telephonic search warrants so in
the DA — we have fax machines between the judge, the DA and pre-
pare the warrant, can do it by telephone which cuts down the time
so they can be expeditiously secured. I agree with you 100 percent.

Ms. Jackson Lee. Is there a problem of not being able to do your
job and not being able to get that officer who has been on the street
coming in 11 o'clock at night — I have signed them 12 midnight;
passion and emotion is high. Are we losing cases by not having
that opportunity?

Mr. McCann. In my opinion we are not, but by requiring them
to get that warrant — no, in my opinion very, very few are. As any-
one who as worked in this knows, once that warrant is there — and
the courts have said very clearly there is a presumption of valid-
ity — once the warrant is there, the courts are immediately in favor
of it. When I walk in with a search warrant, I know I am almost
home. We don't lose many cases, but I know when you get a war-
rant you are in a much better position.

Ms. Jackson Lee. I know that the proposal is not suggesting we
eliminate search warrants, but taking the extra leap to suggest
that you have a defense on warrantless searches. And of the extra
leap, then, from my understanding without denying officers the
right of their judgment because I respect them greatly, still then
opens the floodgates, if you will. I guess that is a hard point to ar-
ticulate to Mr. and Mrs. America as to whether or not they are los-
ing out.

That is why I am asking you as a prosecutor, how many cases
are going down the tubes, how many cases are not being fulfilled
because we have not had that extra leap in warrantless searches
and that is where we are trying to go. We are trying to fight crime.
So I am trying to understand does that extra leap fight crime for
you.

Mr. McCann. I think very few cases, and I think what you have
said — I don't know what community you are from, but across the
country certainly sensitive judicial systems have reached out and
have nighttime search warrants. When I started, you couldn't get
a search warrant in my community. Now you can get it by tele-
phone.

In other words, we have made it easier and easier for officers to
enter with a search warrant, and again, the search warrant is the



399

intervention of the independent neutral magistrate. I think we
should do everything to encourage that and to facilitate it as we
do with fax machines and telephones now. To me it is easier to get
a warrant now and we should do everything to encourage it.

This says there is an area between what the Constitution says.
You can still go beyond and conduct a search and the evidence will
be admissible. That is what the upshot is. Even a conscientious
good officer will read that here is where I can go as far as is legal.

Here is a little further that is not constitutional, but if there is
reasonable ground I can go a little further. That is what this says
to the conscientious police officer. That is what the upshot of this
is, an invitation to a zealous — I am not talking corrupt or dirty —
you are saying to good cops you can go a little beyond the Constitu-
tion. I don't think we should say that.

Mr. McCOLLUM. Mr. Bryant.

Mr. Bryant of Tennessee. Thank you, Mr. Chairman.

Let me thank each of you for your contribution to this meeting
today.

Mr. Larkin, do you have a response to make to Ms. Jackson Lee's
question?

Mr. Larkin. I think one way to decide how many cases are lost
is if you are going to get into the empirical battle at all, is to say
take a look at the number of cases decided — the term before Leon
was decided by the Supreme Court. The Supreme Court sits at the
apex of the criminal justice system and seven times that term it
reversed lower court rulings in which they said the police have
acted unlawfully. If you have that many cases at the apex of the
criminal justice system, you can imagine how many more you have
down below.

After all, the reasonable mistake exception is going to apply in
instances where different courts disagree as to the correct answer
to a legal issue. And if different courts can disagree, then it must
be that it is subject to reasonable dispute amongst parties. And it
is in those circumstances that applying the exclusionary rule will
have an overdeterrent effect.

That is not the circumstance where you want to discourage peo-
ple from engaging in reasonable police conduct, and I don't think
that having them do so is going to lead to the floodgates problem
that has been mentioned, or that you are going to see something
approaching a police state in that regard.

Mr. Bryant of Tennessee. I yield back the balance of my time.

Mr. McCoLLUM. Mr. Barr.

Mr. Barr. Mr. McCann, this year we celebrate I think the 204th
anniversary of the fourth amendment and I know you are familiar
with it and with the proposed statute that is before us today, which
leaves me somewhat baffled by your last remarks. I must admit I
think you are overblowing the rhetoric a bit. You are saying that
if H.R. 3, and specifically title VI is passed is that it will be a clear
signal to police officers with whom — by the way as a former pros-
ecutor myself I think I have more faith than you do that they will
abide by the Constitution — ^you are saying that if this title is
passed into law, that it provides a clear incentive for police officers
to look at the Constitution and look at what would then be section



400

3510 and say, gee, this allows me to go a little beyond the Con-
stitution. Where do you see that here?

I see in the specific language of title VI that the officers will con-
tinue to be expressly and explicitly limited to continue to be in con-
formity with the fourth amendment by an objective standard of
reasonableness, which is precisely the standard that is in the Con-
stitution.

Where do you see this fear in the statute? Or how do you con-
clude that?

Mr. McCann. As I read the law now, this is the law as it stands,
and what we are saying when we modify this is we are going to
permit the issues — where the search is lawful there is no question
about it. So the question is, is this an unlawful search? Did they
go beyond the Constitution? This usually only comes up in
warrantless searches. It is rare that there is a tough challenge of
a search warrant. I read this as saying the test is reasonableness.
Was it reasonable?

Mr. Barr. Isn't that the test now the way both the Constitution
is written and the way the judges have interpreted it? Isn't reason-
ableness the standard now?

Mr. McCann. It certainly is in terms of an objective reasonable
test when one has to get — it bears on a search warrant and what
would be a search without a warrant. My concern is that the courts
have articulated what the law is. Here is what the law is. You will
abide by the law and let's take a good faith mistake where an offi-
cer has been acting conscientiously, but he should get a warrant.
Say an unskilled officer looks through a window and sees cocaine,
looks through window and thinks that he can see it confuses the
plain view law with a necessity — which we know applies only when
you are lawfully on the premises, sees narcotics in plain view in-
side the window. He can reach through the window and grab the
narcotics and he thinks I am in plain view. But he violates the law
when he goes through the window.

Or if he is in a dwelling, a rooming house he walks down a hall-
way, looks through a partially open door and sees narcotics. He has
no lawful right to enter there. He should call and get a search war-
rant. He doesn't know the essence of the plain view rules, which
says you have to be lawfully on the premises. He goes in and seizes
the narcotics. He should call first, he can stand there and guard
it and call; that is good faith but it is illegal entry. He can't enter
that without a warrant, but he in good faith confuses the plain
view rule and says I can see it in plain view, therefore I can seize
it. That is a good faith — is that reasonable — it is an illegal entry,
but the doorway is open so he thinks he can walk in, but he isn't
invited in. He can't cross that threshold. That is what William Pitt
was saying. By god, you can't cross that threshold without a war-
rant. But he sees it in plain view and he goes and gets it. It is an
illegal search.

Mr. Barr. It isn't the Constitution itself that sets that threshold.
That is a subsequent judicial determination that is based on stat-
utes that have changed over the years as well as on judicial deci-
sions that have changed over the years.

Mr. Larkin, do you see anything in the language of proposed title
VI that signals, as Mr. McCann thinks it will, to police officers he



401

said earlier he believed were very well trained, more so now than
ever before — do you see anything in title VI that will provide a sig-
nal as — I don't want to misquote him — but as a signal to police offi-
cers to go beyond the Constitution when it is really judges that
have interpreted the Constitution over the years and in fact those
interpretations have changed.

Mr. Larkin. I don't see anything in title VI that is going to either



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 35 of 51)