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 36 of 51)
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require or encourage law enforcement officers to go out and train
their officers that the law now is what we can get away with rather
than what the Constitution requires. The Constitution requires
that officers act reasonably. There have been various judicial inter-
pretations setting out clearly defined rules as to what they can and
can't do in certain circumstances.

The Supreme Court has set down a rule, and if an officer violates
that rule, he is not acting reasonably because officers can be re-
quired to know what the Supreme Court has said. But in terms of
whether or not that is inconsistent with the Constitution, it seems
to me that that is a mistake. There is nothing in the statute that
is inconsistent with the Constitution at all. There is nothing in the
statute that would encourage lawlessness by the police, that would
encourage police to be trained to try to get away with what they
can rather than to learn the rules. If they have a reasonable belief
that what they are doing is lawful, the evidence will be admissible.
If they have an objectively unreasonable belief, the evidence will
not be admissible.

Mr. Barr. Thank you.

Mr. McCOLLUM. Mr. Schiff.

Mr. Schiff. Thank you, Mr. Chairman.

Mr. McCann, I would like to start with a purely academic ques-
tion. You testified earlier that you viewed the exclusionary rule as
something that protected you, and presuming that you are not
yourself a criminal, that no illegal materials would be found in a
search of you, I would like you to explain briefly how the exclusion-
ary rule protects you, since you could be illegally and flagrantly
searched by police officers day in and day out, and since they
wouldn't find anything, what remedy does it provide to you?

Mr. McCann. The remedy is the discouragement, of course. I can
pass through the city streets and I know those homes won't be en-
tered. That is part of the reason. As those of us who are in political
life, we have to be concerned about things like wiretaps. There is
a special specific law addressing it, even the intersection of commu-
nications and so on, that might be innocuous, where a person
would enter and I think that would anger everybody here.

Mr. Schiff. If a police officer desires to harass you and desires
to search you for the purpose of harassment, how does the exclu-
sionary rule protect you?

Mr. McCann. Only by discouraging him from doing that. If it is
malicious, it won't. It is hard to control the rogue officer.

Mr. Schiff. That is what I wanted to hear. Thank you.

Let me summarize. I appreciate the testimony of both witnesses.
I would like to summarize my position and allow what time I have
for both witnesses to respond. I want to say that I very much sup-
port this provision of H.R. 3. I very much support a good faith ex-
ception to the exclusionary rule.



402

I obviously support the fourth amendment to the U.S. Constitu-
tion and its application by the 14th amendment. I support the ex-
clusionary rule as set out in Mapp v. Ohio even in application to
State and local law enforcement. But I think we have to under-
stand what are the circumstances that were intended to be ad-
dressed there and the circumstances clearly were an attempt to
discourage flagrant disregard of the fourth amendment by local law
enforcement officers, which were the circumstances of that case, as
I recall. One cannot, through the exclusionary rule, discourage a
good-faith error, because if an individual is in fact in good faith,
an individual will make that error exclusionary rule or no exclu-
sionary rule. So I don't think society is served even with the intent
of using the exclusionary rule by not allowing a good-faith excep-
tion. I think that is prima facie if there is a warrant, if an officer
has a warrant, gets a neutral magistrate to sign. The fact that
later lawyers disagree over that shouldn't affect that search.

With respect to warrantless searches, before I was district attor-
ney in my area, I was general counsel to the Albuquerque Police
Department and the rulings from the Supreme Court would some-
times change on certain stops, like for example automobiles on the
highway, faster than I could advise the police officers. So if you had
a situation where an officer made a stop and search of an auto-
mobile in circumstances that later there is a Supreme Court deci-
sion saying we have decided you didn't have enough basis to stop,
but the officer didn't know that at the time, I think we accomplish
nothing by going back and after the fact of a new ruling judging
the officer's actions.

I want to conclude by saying that the idea of what is good faith
presents some degree of a problem, but no greater degree than de-
fining what is beyond a reasonable doubt, what is probable cause,
what is negligence. That differs in our system from judge-to-judge
and from jury-to-jury and seems to survive that very well. So I am
a very strong supporter of this provision and would allow either
witness to respond.

Mr. McCann.

Mr. McCann. When we are taking — I think judges will disagree,
they do now, but we think it is very hard to define where the juris-
prudence will take us in terms of the objectively reasonable. I have
always felt the greatest danger lies with the warrantless search
and I think as a former district attorney those are the cases that
were raised and disputed. The law will change as well what might
be objectively reasonable. A new jurisprudence will come out of it
and that will change. We know it will be very difficult to predict
what is objectively reasonable because it is difficult now. The bene-
fit of the exclusionary rule is it does push towards warrants, it en-
courages the officer to get the warrant. Then you are not con-
fronted with the problem.

Mr. SCHIFF. My time is up, but may I have 30 more seconds?

Mr. McCoLLUM. Go ahead.

Mr. SCHIFF. Suppose our bill only allowed good-faith exception
with a warrant; would you still oppose that?

Mr. McCann. I think Leon reaches that right now, I believe. I
would be certainly much less opposed, I can tell you that.



403

Mr. McCoLLUM. Mr. Buyer. You reserved time. Do you wish to
question?

Mr. Buyer. I yield to the Chair.

Mr. McCoLLUM. Mr. Heineman, you reserved time, as well.

Mr. Heineman. Mr. McCann, your concern obviously is prece-
dent — one of your concerns is precedent being set by going just a
little bit over what the Constitution allows us, and your concern
also is trying to rationalize and convince a court that the officer's
actions were in good faith; is that correct?

Mr. McCann. Yes.

Mr. Heineman. So you are making the distinction here be-
tween — you are making the ruling on a search or on an arrest and
the officer at the scene is making a ruling as to whether he should
terminate what he is doing to get a search warrant or get official
notice that what he is doing is proper; is that right? That we
should shift that decisionmaking to an officer at the scene of a situ-
ation whether it be a spontaneous development or whether it be a
long time investigation? You are looking to say you don't want to
make that decision or you don't want to present that decision to a
court, but it would be a lot easier for your office to justify and pros-
ecute the results of the officer's action; is that correct?

Mr. McCann. I am not sure I entirely understand your question.
But I would say that, of course, there are many search and seizures
now without reference to a search warrant. The good-faith excep-
tions, that hot pursuit, emergency situations, the stop and frisk,
which I support, I expect no officer to interview a stranger on a
street at night without an appropriate pat-down — so there are al-
ready broad areas that are proper searches without warrants and
there is no debate about it. The Constitution, as interpreted, pro-
vides already broad grounds for searches without warrants, and I
don't disagree with that, obviously.

What concerns me is if we have — this is our body of jurispru-
dence, what has been defined as legal is basically to say, all right,
this man acted in good faith — good faith does not appear, whether
a person feeling that the person is not acting in good faith but
what appears to be reasonable, an example of the guy looking from
the hallway into the rooming house and sees the drugs there — I
know there is some price paid by the fourth amendment. We know
if we did away with the fourth amendment we could solve cases.

We could say we have a problem at 12th and D, NW, with drugs,
there are a number of drug dealers living in that neighborhood, ig-
nore the fourth amendment and search the houses. We know we
would have a suppressive effect on drug dealing. There is no ques-
tion about that.

The fourth amendment says, you can't do that. That is what we
fought the Revolutionary War on. What my concern is, expanding,
saying as long as you act in good faith even though it goes beyond
prior precedent, if you acted in good faith, as I see an officer that
goes into that rooming house saying it is in plain view, why should
I have to get a warrant — he has entered a private dwelling. If
someone is about to throw away the drugs, he can go in. If a child
was about to use the drugs, he can go in.

There are grounds that he can go in to do it, but that is the sa-
credness of the home. You can expand that to your home. He can



404

look in passing your house, looks like you have been using talcum
or something, but he thinks that is drugs — he goes into your house.

That is a good-faith error. I have had officers make mistakes like
that, saying I saw the drugs. I know it is in good faith, but he vio-
lated the Constitution. He entered somebody^s dwelling without a
warrant and no matter how reasonable that may seem, that is un-
lawful search. That invades the sanctity of the home. That is what
the fourth amendment is about.

When I was much younger and used to watch the TV go off at
night, they showed ships and see and armies marching and the
flag, I realized Russia does the same thing. China does the same
thing.

To me, when they show the flag, they should show the homes
that aren't entered. We are celebrating the first amendment right
now. When I read the newspaper this morning, I celebrated the
first amendment. When I go to bed at night and close the door and
fall asleep, I am celebrating the fourth amendment. That is how
personal I feel about it.

Mr. Heineman. Your example of the heroin and the open door,
I can see your point in that.

How would you have handled Terry?

Mr. McCann. I think Terry is good law. I tend to prosecute the
cases — not all the cases, but in my community where an officer is
slain, I tend to prosecute personally. Terry, you can't expect an offi-
cer to stop someone at night under suspicious circumstances and
not pat him down. I think that is common sense, good law, it is
reasonable. So that I feel very strongly that Terry is good law.

Mr. Heineman. How does a black man in a white neighborhood
under Terr/s circumstance, how is his right protected, as you see
it in regard to Terry?

Mr. McCann. If he does not cause suspicion in any way, is not
doing suspicious activity, he ought not be stopped and patted down.
I was stopped and patted down once in Cambridge, MA, one night.
I was out walking, and praying, by the way, and I was a law stu-
dent, I should have known better. They were in an unmarked car,
stopped the car in front of me and jumped out, and I thought I was
about to be robbed, and I started to run. Here was a graduate law
student. They said: "Stop, police." I said if you are an officer, show
me your gun. Can you imagine an3rthing more foolish? They did.

They pulled out the gun and I stopped. They patted me down
and they said, well, you match the description of someone wanted.
Well, any officer can find in an urban area a description that
matches anybody in this room within the past 24 hours. If you are
black, they will find more to match that description. But in an
urban area — if it was a white neighborhood, if I were a black man,
could they have been harassing me? They could have been, but I
know they could have found a description that matched me. Most
officers I work with, thank God, are good, decent people. You can
abuse it by stopping and frisking people. That can be abused, and
I assume it is abused.

Mr. McCOLLUM. Mr. Heineman, your time has expired.

I just want to conclude by summarizing something from Mr.
McCann of what Mr. Larkin said because like, there is an essence
here and get a reaction. The fact Mr. Larkin says is, that the evi-



405

dence often excluded by the exclusionary rule is highly, I think he
said, relevant and trustworthy evidence.

He says that the exclusionary rule, as I am reading his testi-
mony, is not really that valid a rule in the first place because it
doesn't serve its purposes. It really doesn't do the job, and that the
fact of the matter is that society suffers.

I presume the argument Mr. Larkin is making is that on balance
that doesn't merit the kind of strength that it has in the first place.
He cites a number of things. I don't have the time to cite all of
them, but he suggests that there is no penalty on the police officers
imposed by this and the court rules something not in evidence.

He says something I found particularly interesting: He suggests
that actually the exclusionary rule has the side effect of causing
the actors in the criminal justice system to engage in various kinds
of undesirable conduct. He says the rule intensifies plea bargaining
because prosecutors may be willing to negotiate over the charge or
sentence rather than risk dismissal. It obligates the defense coun-
sel to move for suppression in every case, regardless of the merits
of the defendant's claim. It sabotages internal discipline efforts by
law enforcement authorities because findings made in such pro-
ceedings will haunt any related criminal prosecution.

He says the rule may actually encourage certain forms of police
misconduct such as perjury and it places increasing pressure on
judges to sanction dubious searches and seizures due to their reluc-
tance to watch a grinning hoodlum walk away.

What do you say to that analysis, an analysis saying it is well-
meaning but it doesn't do the job and it costs us otherwise relevant
evidence. First, maybe I should ask, is it correct, in your opinion,
that often evidence is highly relevant and trustworthy otherwise?
I assume that it is.

Mr. McCann. There is no question, in my mind, that it is rel-
evant evidence. I don't think it happens often because I think the
officers are aware of the rule. In my lengthy experience, I don't find
it happening often. In terms of plea bargaining, there are a few
cases that are bargained but when the test is modified, and when
conduct approaches a modified test, there will be discussions and
plea negotiations over it.

My whole focus is not just the internal criminal justice system
and the impact. My major focus is as a citizen. I don't think and
don't mean to mean that the police will walk out and trash people,
but any diminution it, seems to me, I think there will be more
searches without warrants if this is adopted. I look at the price
that the whole society pays.

Mr. McCOLLUM. I was really asking, I think that point has been
made. My question was to try to find out if you have any argument
with the position that Mr. Larkin took that there are some nega-
tive side effects to the rule beyond simply not allowing the evidence
in?

Mr. McCann. There are some negative but they have to be bal-
anced against the overall societal view. We are basically a society
where we are safe in our homes from unlawful intrusion. I would
suggest that Mr. Larkin is looking at the hole in the doughnut and
not the doughnut. The doughnut is our safety community, we can
go to bed at night, we are not stopped arbitrarily, our cars aren't



406

searched, our phones aren't tapped. That is the doughnut, there is
a hole in the doughnut and that is the price we pay.

Mr. McCOLLUM. What do you say about the fact as he pointed
out that the fifth circuit and other courts have already adopted the
exception he says, without adverse effects that anybody has been
able to show?

Mr. McCann. I am not familiar with those cases. I am surprised
they have not reached the U.S. Supreme Court. They do tend, if
you looked at the count of the cases they suppressed, but we all
know as part of certiorari process, they are selecting cases where
they think there has been an unconstitutional search. To count the
Supreme Court cases as opposed to counting the tens of thousands
of cases that I am familiar with from my own office, I think is an
unfair comparison; it is a highly select number of cases.

Mr. Scott. May I ask one question?

Mr. Larkin, I think Mr. McCann suggested if a court decided
that a search was clearly illegal but in good faith, would the next
time that same situation — the next time that same situation were
to come up if you would expect the court to rule the same way on
the next officer and the next officer — how would you ever get the
rule changed, particularly in light of the fact that it would never
reach the appellate courts because there is no controversy? If the
court decides that it is illegal, rules it admissible, how would we
ever change the law on that application if this bill passes in its
present form?

Mr. Larkin. In the first place, if the court finds that it is clearly
illegal, then it wouldn't find that it was also reasonable. It is only
where the court finds it is in that gray area where reasonable peo-
ple could disagree

Mr. Scott. They decide they could disagree, but the court de-
cides that it is illegal.

Mr. Larkin. You started by saying if the court says it is clearly
illegal, but then says the officer acted reasonably. I am saying that
if the court starts out with the proposition that this is a clearly ille-
gal search or seizure, then the exception wouldn't come up at all.
So you have to take out the adverb from the court's decision.

The court would decide that it is illegal but the officer acted rea-
sonably. The question is how does that get translated into actions
in the field. You said there is no controversy and, therefore, it is
not likely to reach an appellate court. I think there certainly is a
controversy.

If the court rules that the evidence is admissible under the rea-
sonable mistake exception, the defendant is certainly likely to ap-
peal, because he can always challenge that issue on appeal. If the
appellate court says that the search was illegal but the officer rea-
sonably believed that it was legal, the court will have achieved two
benefits; it will have told the law enforcement officers in that com-
munity what the law is, and it will also have allowed a guilty de-
fendant to be convicted in that case.

There is a very didactic value in having an appellate court say
this is what the law is and is not, and people on the street, law
enforcement officers, whether uniformed or undercover, can be re-
quired to know appellate decisions in their jurisdiction. They can
all be required to know what the Supreme Court says, and they



407

can all be required to know what an appellate court in their juris-
diction has said. That will set out what the law is and that will
govern for the future.

At the same time, you will have allowed that person to be con-
victed and the value of that conviction will be felt immediately by
the society. So the process by which this will work out is valuable
from the both perspectives; from the perspective of the innocent
person who won't be bothered by the police because they will know
what the law is, and from the perspective of the guilty person, who
will be convicted because the evidence will have been admitted and
upheld.

Mr. Scott. Did you want to comment, Mr. McCann?

Mr. McCann. No. I think the thrust of the question is very clear
and I agree with the thrust of the question.

Mr, McCOLLUM. I think we need to go back to a principle earlier
and say that we can take a little bit of leeway when we have fewer
panels and fewer witnesses, as we do today from yesterday, but at
the same time, we have a large number of Members here, and I
am letting Mr. Scott ask in large measure for balance to your side
today.

Mr. Chabot, would you like to be recognized?

Mr. Chabot. I have no questions at this time.

Mr. McCoLLUM. Mr. Schumer.

Mr. Schumer. Let me just ask one final question of both wit-
nesses.

It has been said that now that the exclusionary rule has been in
effect for awhile, that police chiefs have not only come to live with
it, but basically feel it is not the horrible thing that it once was and
that when they look at alternatives, they think maybe this is the
best in a difficult situation. I would like each of your views on that
particular issue from your dealings, both of you being attorneys
and practicing.

Mr. McCann. I think the police have come to live with it. There
has been unquestionably increased education across the board,
some stimulated by what Congress has done in terms of edu-
cational opportunities for police officers and committee resources
for police officers.

I find that officers that were unquestionably better schooled
about it, have learned basically quite well the rules of search and
seizure. I don't know whether any — how they would greet a pro-
gram of lawsuits against them.

I don't think they would be elated about it. I do know that when
there is an illegal search, usually a mistake made and the wrong
house is entered, it is paid out. There is usually not a dispute,
there is substantial payment usually made and that is it.

Who would you get to bring these suits

Mr. Schumer. I am just asking a different question, not about
the alternatives. You hear from your local law enforcement when
they are really upset about seeing it. The No. 1 I hear from the
cops in my city, they make arrests and the people are back on the
streets and the courts don't seem to pay attention. And I also hear
they feel their hands are tied. But I don't hear much from the offi-
cer on the street, the cop on the beat or from their superiors, get



408

rid of that exclusionary rule, we can't live with it. Is that just New
York

Mr. McCann. I would agree. I think they have learned.

Mr. Larkin. Well, I think what you have is a situation where you
have people that will naturally adjust their behavior over time to
fit what is required of them. Law enforcement officers, like a pros-
ecutor, if told they can't do something and they have no way to
change that whether or not they would like to change it, will adjust
behavior if they have to.

To some extent that is true, but what we are talking about in
this case is whether an officer who in the view of a court has acted
reasonably, nonetheless, is going to be that the evidence has to be
suppressed. We are talking not about the case of Mapp v. Ohio,
where there are outrageous actions by law enforcement officers.
Those I think have largely disappeared.

We are talking about cases where reasonable people can disagree
over the right answer to the problem, and I don't think law enforce-
ment officers in that circumstance would say that this is not a val-
uable way for the law to proceed. I think they would all say that
if they reasonably believe that what they were doing is lawful and
they were told by a judge that what you did, any reasonable person
would have thought was lawful, I think any officer who knows
those two facts would s^y, it makes no sense then to exclude the
evidence.

So if you put that type of question to them, I think the officers
in your district or any other would say yes, this is a valid advance
in the criminal justice system and it is one that this committee
should make.

Mr. SCHUMER. Thank you.

Mr. McCOLLUM. Thank you, Mr. Schumer.

Unless another member has a burning question, we need to move
on.

Thank you, Mr. Larkin and Mr. McCann, for spending the time.

Mr. McCann. Could I say that in the bottom of my heart, I don't
believe there are few more subjects of greater import to the Repub-
lic than what we have been discussing this morning.

Mr. McCOLLUM. We understand that and thank you for the time
you have spent, and we appreciate it very much.

Today, our final panel will address the topic of crime prevention.
As the panel comes forward, I will read something to introduce
each one of them in the essence of saving time.

First, we have John DiLulio, professor of politics and public af-



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 36 of 51)