SAFE FROM SEARCHES

Two Supreme Court Cases Will Help Define the Boundaries Between
Privacy and Policing.

The 4th Amendment guarantees the right to be secure from "unreasonable
searches and seizures." But the strength of that protection depends on
the willingness of the U.S. Supreme Court to prevent police from going
too far in the name of law and order.

Two cases newly added to the court's docket will test its commitment
to privacy rights.

In one case, the court will review a sensible decision by the Arizona
Supreme Court that police acted unlawfully in searching the parked car
of a man they already had in custody on a charge of driving with an
expired license.

Rodney Gant was handcuffed and locked in a patrol car when police
searched his car and found a gun and cocaine.

The Arizona court ruled that the search didn't fall under an exception
to the warrant requirement that allows police to search a stopped car
for a gun or evidence that the suspect might destroy -- an exception
created to protect officers from harm and prevent the loss of
evidence. Those are worthy goals, but neither is relevant once the
suspect is in custody.

Arizona is asking the U.S. high court to permit warrantless searches
of cars "recently occupied" by someone under arrest.

That would provide police with a blank check for warrantless searches
of a vehicle driven by someone under arrest for a nonviolent offense.

And what does "recently" mean? As the Arizona court pointed out, the
state's position suggests that a "warrantless search incident to an
arrest could be conducted hours after the arrest and at a time when
the arrestee had already been transported to the police station."

In the ,other case the court will revisit the limits of the so-called
exclusionary rule, which prevents prosecutors from using tainted
evidence. Sheriff's department employees in Coffee County, Ala.,
arrested Bennie Dean Herring after being told by a neighboring
county's sheriff's department that a warrant was outstanding for
Herring's arrest.

In fact, the warrant had been recalled.

But by the time the correction reached Coffee County, Herring was
under arrest, and the police had confiscated illegal drugs and a gun
from his truck.

Because the police lacked a valid warrant, the search of Herring's
truck was illegal, but a federal judge allowed the evidence to be used
against him anyway, a decision upheld by the U.S. 11th Circuit Court
of Appeals. That court cited a 1995 case in which the Supreme Court
allowed a "good-faith exception" to the exclusionary rule when an
error by a court employee misled police into believing that a valid
arrest warrant existed.

If the high court extends that exemption to inaccurate police
information, the exclusionary rule will be one loophole closer to
extinction. Reversing the decision, on the other hand, would provide
an incentive for police to ensure that their computerized information
is accurate and up to date.

The exclusionary rule is, admittedly, a hard one to love. Critics like
to quote the great jurist Benjamin Cardozo's 1926 complaint that the
rule means "the criminal goes free because the constable has
blundered." The problem is that the critics haven't offered an
alternative way to deter illegal searches.

One common proposal is to allow victims of illegal searches to sue the
police for damages, but it's unlikely (to put it mildly) that juries
would be willing to punish officers for searches that resulted in a
conviction. The Supreme Court already has gone too far in creating
exceptions to the rule. An exemption for police who rely on the
mistakes of other police would further blur what should be a bright
line.