Exclusive Justice

GOOD FAITH BREEDS BAD COPS

On February 7, by a vote of 303 to 121, the U.S. House of
Representatives voted down the Fourth Amendment. Rep. Melvin Watt
(D-N.C.) had proposed attaching the text of the amendment--which
guarantees against unreasonable searches and seizures--to pending
crime legislation. But the House, led by Republicans who claimed that
Watt's proposal would have "gutted the bill," instead voted to give
the police the right to use their own judgment and good faith in
conducting warrantless searches and seizures. The bill, H.R. 666, is
pending at press time before the Senate Judiciary Committee.

The Supreme Court has already upheld many exceptions to the so-called
exclusionary rule that prevents illegally obtained evidence from being
used in court, basing such exemptions on a broad theory of
"reasonable" or "articulable" police suspicion of criminal activity.
The proposed GOP legislation would codify this highly elastic concept
of police power. Before Congress makes the police doorstep arbiters of
the Constitution, it is worth examining some of the reasons, from
myriad locales, why that isn't always a good idea.

Boston. If police lack reliable informants on whom to base a "probable
cause" request for a search or arrest warrant, they sometimes invent
them. Harvard law professor Alan Dershowitz has stated what most in
the judicial system know but choose to ignore: Police routinely lie in
order to convict defendants. A 1988 investigation of the Boston police
Drug Control Unit revealed that its members routinely fabricated the
existence of informants and lied to obtain warrants from judges.

At 3:15 p.m. on March 26, 1994, a 13-member SWAT team from this unit,
wearing helmets, fatigues, and boots, armed with shotguns and
9-millimeter Glock pistols, sledgehammered through the apartment door
of a 75-year-old black minister, the Rev. Acelynne Williams. They were
searching for guns and drugs (never found) based on a statement of yet
another "confidential informant." At 3:58 p.m., Williams (5 feet 7 1/2
inches tall, 155 pounds) was pronounced dead of a heart attack after
being forced to the floor and handcuffed by three police officers, two
holding his arms, one pinning his legs. The autopsy showed death
caused by acute myocardial infarction brought on by heart disease and
"emotional stress."

Six weeks and two official investigations later, the Boston police
commissioner concluded that police had raided the wrong apartment,
partly because of a bad tip from an informant who was drunk the night
he visited the alleged den of guns and drugs, partly because of bad
police work and lack of proper supervision.

New York. Police lying to support criminal charges against arrested
persons is common practice in New York City, according to the official
report of the mayor's commission investigating police corruption.
After 1993-94 hearings, the commission concluded the NYPD routinely
makes false arrests, tampers with evidence, and commits perjury on the
witness stand. "Perjury is the most widespread form of police
wrongdoing," the report stated, noting courthouse cognoscenti have
coined a new descriptive word for the activity--testilying.

New York Legal Aid Society officials say "testilying" is a routine
police exercise that occurs without sanction from prosecutors or
judges, who often cooperate in the charade by not challenging officers
who tailor testimony to meet search-and-seizure constitutional
objections and to cover deficiencies in police work.

New Orleans. In late 1994, the corruption in the New Orleans police
department came to a head when a police officer had a 32-year-old
mother murdered for filing a brutality complaint against him. A new
police commissioner called in the FBI to try to change a system that
since 1985 has generated a rate of citizen complaints about civil
rights abuse by police 52 times that of New York City.

Civic leaders in New Orleans have charged police with beatings,
kidnappings, shootings, and torture of innocent citizens; routinely
falsifying reports; lying under oath; robbing drug dealers; and
keeping recovered stolen cars for their own use.

Los Angeles. The Los Angeles Times reported in January 1992 on the
trial of six Los Angeles County sheriff's narcotics officers charged
with "stealing hundreds of thousands of dollars in cash and property
during drug raids, beating suspects, planting narcotics and falsifying
police reports." Ten L.A. county officers were convicted of various
charges. A former L.A. sheriff's deputy, Robert Sobel, who was
indicted and turned state's evidence, testified his narcotics unit
stole $60 million in cash and property during 1988 and 1989 alone.

Daytona Beach. In June 1992, the Orlando Sentinel revealed that
Volusia County Sheriff Bob Vogel had created a special police drug
squad which preyed upon thousands of innocent motorists driving on
U.S. Interstate 95. Operating under a broadly written Florida law
allowing police seizure of cash and property based on probable cause
without arrests in suspected felony cases, the police engaged in pure
highway robbery.

Police conduct was guided by no written rules and reviewed only by the
sheriff, who controlled all funds confiscated. Any motorists stopped
who had $100 or more in cash were assumed to be a drug trafficker, and
their money was taken. From 1989 until the bad publicity in 1992, the
squad seized more than $8 million in cash from motorists, mostly
blacks and Latinos, and in only four cases did the innocent owners get
all their money back.

Nashville. In 1991 Willie Jones, a legitimate businessman, was stopped
when he paid cash for a plane ticket to Houston at the Nashville
Airport, losing $9,600 in cash to Drug Enforcement Administration
agents (which a federal judge eventually ordered returned). Paying in
cash and being an African American are both factors in DEA "profiles"
used to spot potential drug traffickers at public transportation hubs,
especially airports. In 1992, 60 Minutes reporters checked out these
DEA airport operations in New York, Atlanta, and other cities, by
having a well-dressed black male undercover reporter buy a plane
ticket with cash. Within minutes of each purchase, DEA agents accosted
the black reporter and confiscated all his money.

Hudson, New Hampshire. The Supreme Court has ruled that in order to
fulfill the "particularity" clause of the Fourth Amendment, a police
search warrant must be based on the most recent available information.
At 5 a.m. on August 3, 1989, police came to the home of Bruce Lavoie,
34, a machinist with a wife and three children. Without announcing
themselves and with no evidence that Lavoie was armed, police smashed
the door in with a battering ram. They had a search warrant based on
an informant's tip that was 20 months old. As he arose from his bed,
Lavoie was shot to death as his son watched. A single marijuana
cigarette was found.

Ruby Ridge, Idaho. After 18 months of FBI surveillance of his family's
isolated cabin in the Idaho mountains, six armed, camouflaged U.S.
marshals sneaked onto the land of Randy Weaver on August 21, 1992.
Weaver had been charged with selling illegal firearms to an undercover
agent. In the ensuing 11-day siege, Weaver was wounded and his wife
and 14-year-old son were both shot to death. His wife was holding her
10-month-old daughter in her arms when she was murdered. More than 400
police agents were involved in the raid. A federal judge found Weaver
and the others innocent of all charges and condemned the FBI for its
actions. The FBI announced after a two-year investigation that no
agents would be fired or severely punished for their part in this
lethal fiasco.

San Diego County. On the night of August 25, 1992, in Poway,
California, U.S. Customs Service and heavily armed DEA agents broke
down the door of Donald L. Carlson's suburban home. Aroused from sleep
and thinking a robbery was under way, Carlson grabbed a gun as the
agents lobbed a percussion grenade into his home. In the ensuing
exchange of gun fire, Carlson was hit three times, in the arm, lung,
and femoral vein.

After three weeks on a ventilator in intensive care, he was lucky to
be alive. He suffered life-long diaphragm paralysis, chronic pain, and
circulatory problems. There were no drugs in Carlson's house, he had
no criminal record, and he is a vice president of a Fortune 500
company and a respected family man. But Carlson was fingered falsely
by a paid informer known only as "Ron," who already had been kicked
out of one federal anti-drug program because of two other false
reports, one fingering a vacant house. Carlson has filed suit for
damages and alleges a government conspiracy to cover up the Customs
Service blunder. No one has been charged with any wrongdoing as a
result of this tragedy.

Malibu. October 2, 1992, dawned as another peaceful southern
California morning at Trail's End Ranch in the Santa Monica mountains
overlooking the Pacific Ocean at Malibu. Peaceful until the ranch
owners, 61-year-old retired millionaire Donald Scott and his wife
Frances, were jolted awake by the terrifying sound of a 27-man police
task force smashing through the front door of their rural home.
Frances Scott, racing downstairs and confronted by a house full of men
with guns drawn, screamed in panic: "Don't shoot me. Don't kill me."
Don Scott responded, holding his legal handgun above his head as he
rushed to the top of the stairs. He was ordered to lower the gun and
as he obeyed, Scott was shot to death by Gary Spencer, the Los Angeles
County deputy sheriff who led the raid.

As in thousands of similar "drug" raids in America, the police wanted
to surprise the Scotts, whom they suspected of growing marijuana
based, as it turned out, on an informant's false information. After a
five-month investigation of Scott's death, the Ventura County district
attorney, Michael Bradbury, concluded police not only lacked evidence
of drugs, but had obtained the search warrant by lying to the judge
who signed it.

Not content with the expanded power to search and seize the Supreme
Court has granted police, four cases are now on appeal from state
courts attempting to overturn the 400-year-old common law "knock and
announce" rule. That rule requires police conducting a raid to knock
and announce their identity and purpose, allowing sufficient time for
the homeowner or occupant to respond. Courts, including the Supreme
Court, have held this practical rule protects privacy, reduces the
risk of violence, prevents property destruction, and gives innocent
people a chance to correct police mistakes. Police counter that it
allows time to flush drug evidence down the toilet and to use guns or
other weapons. They contend the rule should be abolished.

There is nothing conservative about attempting to reestablish in
America the police tactics of King George III. Those tactics are the
reason the Fourth Amendment exists, and the reason it needs to be
preserved. For the sake of gaining and keeping power, Republicans seem
willing to promise segments of their coalition whatever they demand in
terms of appearing "tough on crime," at whatever cost to the rights of
others. In this respect, conservatives have become a grotesque
companion to liberals, filling in the gaps of state power that
liberals have left empty.