The American Spectator

Special Report

Terrorism and Probable Cause

By William Tucker on 1.6.06 @ 12:08AM

(Page 2 of 2)

What they discovered was "a pair of bloodstained boots, bloodstains on the concrete floor, a woman's earring with bloodstains on it... a pair of men's jockey shorts and women's leotards with blood on them, three types of wire, and a woman's hairpiece, subsequently identified as the victim's." The Massachusetts Court ruled that the warrant had failed to describe accurately "the persons or things to be seized." The evidence was excluded.

Faced with such absurdities, the Supreme Court finally attached a "good faith" exemption to the Exclusionary Rule. If the police believed they were complying with the Fourth Amendment in making a search, then the evidence would be admissible.

THE GOOD FAITH EXEMPTION is now the most commonly invoked defense for police searches. It still leaves open one broad avenue for voiding warrants, however -- the concept of "probable cause." Although procedural technicalities are now permissible, warrants can still be challenged on the grounds that police did not have reason to initiate the search in the first place. Post hoc does not justify proctor hoc. Just because a search turned up incriminating evidence did not prove police had sufficient motivation to look for it in the first place.

What is under attack is police logic -- the whole question of how officers think. Policemen are usually not highly educated -- certainly not as well as lawyers and judges. They often have trouble articulating their suspicions and putting them into acceptable terms. Much of their thinking is involves "fuzzy logic" -- various hunches or suspicions that "things don't add up." Recall the famous scene in the 1972 movie, The French Connection (based on a real investigation), where two New York drug detectives decide something "doesn't seem right" when they see a party of low-level mobsters celebrating at the Copacabana. They follow the suspects home, stake out the residence, and eventually stumble into an international narcotics ring -- still the biggest drug bust in American history.

In the new regime, such an investigation would be patently unconstitutional and the French connection drug dealers would all be politely excused and told to go home. There was not the slightest "probable cause" for initiating the investigation. All that followed -- including the subway shoot-out -- was "fruit of the poisoned tree."

Volumes of legal documents have now been written arguing what constitutes "probable cause." Much of this consists of heaping judicial scorn on police "hunches" and other "instincts" that do not meet the standard of logical deduction. As a result, law enforcement has been "professionalized," meaning that investigators are now trained to think more like lawyers than detectives. It was this "professionalism" that led the FBI to conclude -- without even bothering to consult a judge -- that there was no "probable cause" for continuing the investigation of Zacharias Moussaoui.

The Bush Administration has sought to avoid this legal swamp by bypassing the judiciary altogether and relying on the President's constitutional authority to defend the nation without consulting the judiciary. In a war on terrorism that has no international boundaries, however, eavesdropping on domestic communication with foreign enemies will be an increasingly contentious issue. Long-range, a better strategy would be to confront head-on the whole question of what constitutes probable cause in a police investigation.

THERE IS NO QUESTION THAT UNBRIDLED police actions can open the way to autocratic practice. The case of Dolree Mapp is a classic example. Without any defined protocol (the state of Ohio had never issued a search warrant), Cleveland police simply searched her home until they found something worth prosecuting. Police officers and state officials cannot be left free to pursue their own whims and personal vendettas.

But the techniques of police investigation are a valid form of scientific inquiry. Crimes cannot be solved in Hercule-Poirot fashion, with the detective sitting down and following some brilliant chain of logical deduction. They require the framing of hypotheses and then testing these theories against new evidence. Police detectives do not solve crimes in their heads. They must go out and look for things -- interview people, search for hard evidence, investigate. Nor can they "describe" everything they will find before they find it. As with any scientific investigation, it is the things you find that don't fit the theory that end up being the most important. Columbus didn't find what he was looking for when he set sail in 1492, but what he discovered was far more significant.

Even though ground rules for police investigations are well established in case law, they are however subject to constant re-interpretation by individual judges. Nor is the era of technicalities ever entirely over.

In a 1998 case in Philadelphia, police detectives obtained a search warrant for the home of a suspected drug dealer. When they arrived, the man's wife and 10-year-old daughter were present. They summoned a female officer, who took them to an upstairs bathroom and conducted a full body search but found nothing. The officers were subsequently sued by the suspect and his wife and daughter for a Fourth Amendment violation.

A three-judge panel of the Third Circuit Court of Appeals ruled in favor of the plaintiffs. The two-judge majority ruled there had been no "probable cause" to search the wife and daughter. Moreover, they noted that the request to search "all occupants" of the house had been written on a supplementary affidavit, rather than on the original warrant form. (Police argued that there wasn't enough room on the form to complete a description of the "persons or things to be seized.")

The third judge dissented. He noted that, in the experience of seasoned police officers, "drug dealers, when faced with 'impending apprehension,' often give evidence to other persons present in the hope that 'said persons will not be subject to search when police arrive.'" He called the majority's opinion "a technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach."

That judge was Samuel Alito, current nominee to the Supreme Court. (Details of this case can be viewed here at pp. 39-45.)

If this country is to defend itself against the growing threat of terrorism, what it will need -- in addition to FBI agents and police officers who have been trained to think like lawyers -- is a few judges who understand and appreciate the wisdom and responsibility that comes with being an experienced police investigator.

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