COURT WEIGHS IN ON POLICE ACTION

SINCE THE END of the Earl Warren Supreme Court in 1969, the court has
continuously and substantially watered down Fourth Amendment protections
against police action. It has done so principally by sanctioning an
ever-increasing array of warrantless searches and by creating exception
after exception to the rule requiring that evidence obtained as a result of
an unconstitutional search be excluded at trial.

The Supreme Court decisional law is riddled with so many exceptions to the
warrant requirement that we have reached the point where warrantless
searches are the norm. So, too, application of the exclusionary rule has
become the exception rather than the rule.

Given these developments, the legal community and the media were taken by
surprise by a recent unanimous Supreme Court decision. The court ruled in a
Florida case that an anonymous tip that a black youth wearing a plaid shirt
was at a bus stop carrying a concealed gun did not justify a police officer
stopping and frisking a person at the bus stop who met the description.

The court found that this information did not constitute the reasonable
suspicion required for the police to stop someone. Does this unanimous
decision mean that the tide in the Supreme Court has turned to meaningful
enforcement of the Fourth Amendment against police searches and seizures?
It's an appropriate question.

About a year ago, Justice John Paul Stevens observed in an opinion that
during his many years on the court he has heard lawyers argue scores of
Fourth Amendment cases. The court, he said, has generally been sensitive to
the needs of law enforcement and, in virtually all of these cases, at least
one justice thought the police action was reasonable; in only a handful did
the court unanimously find a Fourth Amendment violation. A present-day
unanimous decision by the Supreme Court that police action violated the
Fourth Amendment is, indeed, a modern miracle.

But miracles sometimes happen, even in bunches. And, in fact, one might get
the impression that Fourth Amendment miracles are happening more frequently
lately. For in some other quite recent decisions, the court also
unanimously upheld the suspect's Fourth Amendment claim.

Last term, the court unanimously held that Iowa went too far when it
authorized police officers to conduct warrantless searches of automobiles
upon making traffic stops. The court ruled that the doctrine allowing
police officers to search automobiles when they arrest the driver or a
passenger does not extend to traffic stops in which the driver is given a
traffic citation and allowed to go.

The court last term also unanimously held that law-enforcement officers
went too far in inviting members of the media to tag along to observe the
execution of arrest and search warrants in suspects' homes. These
decisions, however, must be viewed in the broader context of the Supreme
Court's Fourth Amendment jurisprudence developed over the past 30 years.
Viewed in this light, the recent rulings do not begin to repair the damage
the court has done to the Fourth Amendment.

The court's Fourth Amendment decisions over those 30 years have
overwhelmingly favored law-enforcement authorities. Just a few months ago,
the court held, 5-4, that an individual's flight upon seeing the police in
a high drug-trade area gave the police reasonable suspicion to stop and
frisk him.

The recent pro-Fourth Amendment victories have come in extreme cases where
the government sought to push the envelope too far. Consider the
anonymous-tip case. If the court had held that an anonymous tip that a
person meeting a particular description is carrying a gun justified a
police stop and frisk, it would, as Justice Ruth Bader Ginsburg pointed
out, enable any person seeking to harass another to set in motion an
intrusive, embarrassing police search of the targeted person simply by
placing an anonymous call falsely reporting the targets unlawful carriage
of a gun.

So viewed, the court's decision in the Florida anonymous-tip case is
significant in a type of negative sense. The Fourth Amendment would have
little meaning if the police could seize presumptively innocent people
based on nothing more than a bare-bones anonymous tip.

When the court has had leeway in interpreting the Fourth Amendment, it has
invariably favored the government. It has held that individuals have no
reasonable expectation of privacy, and hence no Fourth Amendment
protection, with respect to: trash placed in opaque bags at the curb for
collection; financial information turned over by a customer to a bank;
telephone numbers dialed and recorded by a pen register; aerial
surveillance of a back yard; and dog sniffs of luggage at an airport.

The post-Warren court has embraced virtually every government attempt to
carve out exceptions to the exclusionary rule. The court's decisions have
created exceptions to the rule for good-faith reliance by the police upon
search warrants that turn out not to be based upon probable cause;
good-faith police reliance upon erroneous information in court computer
records; grand jury proceedings; parole revocation proceedings; and
attempts to impeach the credibility of criminal defendants who exercise
their constitutional right to testify on their own behalf.

So, looking at the big picture, the Fourth Amendment, while alive, is still
not too well. The recent rulings should not mislead us into false security
that the Supreme Court is vigorously enforcing our Fourth Amendment
protections.

Martin A. Schwartz is a professor of law at Touro College in New York. He
wrote this article for Newsday.