Special Report

Terrorism and Probable Cause

There's a real reason why President Bush has been reluctant to turn to the courts -- just check out the history of the "exclusionary rule."

By 1.5.06

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In August 2001, instructors at a flight school in Minneapolis became suspicious of Zacharias Moussaoui, a French national of Moroccan descent who want to fly airplanes but didn't want to learn how to land them. They tipped off the FBI, which arrested Moussaoui on an immigration violation.

Among Moussaoui's possessions was a computer. Minneapolis agents wanted to go into the hard drive to check for contacts or other information. Doing so, however, required that FBI headquarters in Washington apply for a search warrant before a federal judge. Schooled in the latest niceties of contemporary law enforcement, the Washington office responded that there was no "probable cause" for conducting a search. "All you've got is a guy with an expired visa who's taking flight lessons," they said. "Where's the crime?"

The Minneapolis office responded that it would be good to find out exactly what was going on before Moussaoui "took an airplane and flew it into the World Trade Center." Their pleas had no impact. Only after September 11th did FBI officials finally look into Moussaoui's computer, where they found information linking him to both the Hamburg cell that planned the attack and to its leader, Mohammed Atta.

The FBI's failure to search Moussaoui's computer caused a sensation in the liberal press. In 2002, Time made Coleen Rowley, staff attorney in the Minneapolis office, along with two other women, its "Persons of the Year" because of their "whistle blowing" efforts. "Rowley is the FBI staff attorney who caused a sensation in May with a memo to FBI Director Robert Mueller about how the bureau brushed off pleas from her Minneapolis, Minn., field office that Zacharias Moussaoui, who is now indicted as a Sept. 11 coconspirator, was a man who must be investigated," reported Time. She had also fought hard during the weeks before September 11th for a search warrant -- until Washington finally told her not to call back.

Yet as Heather Mac Donald pointed out, the press took little interest in this story until it could be fit in the familiar Hollywood scenario of a courageous woman taking on dumb organization men. Even in its "Person of the Year" cover story, Time was never able to articulate exactly what it was that Rowley and Washington were arguing about in the first place.

Now the same liberal press is pillorying President Bush for "spying on Americans" because he has authorized monitoring some international phone calls to terrorist countries. In fact, the President has complete authority to issue such an order, just as customs inspectors have every right to inspect every package arriving in the country. Yet the real reason the Bush Administration has been reluctant to involve the Federal judiciary is the same issue that was at stake in the Moussaoui incident. Over the last twenty years, the courts have tied themselves in knots over what constitutes "probable cause" for investigating a crime.

THE FOURTH AMENDMENT CONCERNING searches and seizure reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The target of the Fourth Amendment was the "unreasonable searches" of the British Colonial government, particularly "writs of assistance," which were general warrants allowing government officials to search individuals and their homes for anything that might be deemed suspicious or incriminating.

The Amendment does not say warrants must accompany every search and seizure. In fact, very few warrants were ever issued until the Supreme Court began to crack down in the early 20th century. Frustrated with increasing federal abuse -- particularly after the formation of the FBI under Theodore Roosevelt -- the Supreme Court attached an "exclusionary rule" as a means of enforcing the Fourth Amendment. If law enforcement officials failed to follow the strictures of the Amendment in conducting a search, the evidence would be inadmissible in court as "fruit of the poisoned tree."

The exclusionary rule had its early dissenters. Justice Benjamin Cardozo summed them up succinctly in 1926 when he complained, "The criminal goes free because the constable has blundered." Still, the exclusionary rule had only minimal impact because it was limited to federal officials under the prevailing doctrine of the era that the Bill of Rights applied only to the federal government. Most criminal investigations occur at the state level. In subsequent years, the FBI developed a "hand-off" system where, in order to circumvent the exclusionary rule, state police conducted searches before handing over the evidence for federal prosecution.

By the 1960s, the Warren Court had become exasperated with these evasions. In Mapp vs. Ohio (1961), it "incorporated" the Fourth Amendment into state proceedings, along with the exclusionary rule. The case before the court cried out for intervention. In 1958, Cleveland police had gone to the home of Dolree Mapp, a black woman, in pursuit of a fugitive. When she refused them entry, the police broke down her door and ransacked her home. Failing to find the fugitive, they confiscated some racy books from her basement and charged her with violating the state's pornography laws -- an obviously vindictive prosecution.

When the appeal reached the Supreme Court, it was the pornography laws that were under challenge. Without any oral argument, however, the Warren majority decided to use the opportunity to incorporate the Fourth Amendment into state criminal proceedings. Mapp became a pillar of the Warren revolution. Hard evidence -- even a dead body or murder weapon -- was now subject to constitutional challenge. Alert criminal defense attorneys quickly seized the opportunity to "put the state on trial," since malfeasance now made the warrant illegal, the search "unconstitutional," and the evidence inadmissible in court.

The atrocities soon began to pile up. Warrants were found to be defective if a name had been misspelled or a street address or license plate number transposed. A whole new breed of appeal attorneys emerged who never faced a jury or trial judge but concentrated on such minutia. Alan Dershowitz succeeded in overturning Claus Von Bulow's conviction for attempting to murder his wife by arguing that state police had violated the Fourth Amendment when they failed to secure a warrant before sending a powdery substance found in a black bag owned by Von Bulow to a police laboratory. The powder -- which turned out to be a hard-to-obtain barbiturate -- was taken from a locked closet by a private detective hired by the Von Bulow children and turned over to the police. With this key piece of evidence excluded, Von Bulow was acquitted at a second trial.

Finally, in 1986, two Massachusetts murder convictions -- both overturned on defective warrants -- reached the Supreme Court. In the first, the police had contacted the judge for a search warrant on a Sunday night. Not having keys to the courthouse, the judge improvised a warrant for a criminal search on a form for drug searches. The Massachusetts Supreme Court said this impropriety made the search unconstitutional. Moreover, the court noted, a supplementary sheet had not been properly stapled to the original warrant. This further defect also voided the evidence.

In the second, police had found a 25-year-old woman strangled in a vacant lot. Investigating her 45-year-old boy friend, they secured a warrant to search his apartment for "a woman's jacket that has been described as black-gray (charcoal), any possessions of Sandra D. Boulware [the victim], similar type wire and rope that match those on the body... a blunt instrument that might have been used on the victim, men's or women's clothing that may have blood, gasoline burns on them."

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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About the Author
William Tucker is news editor for RealClearEnergy.org.