Law: When the Police Blunder a Little

The court considers a major exception to the exclusionary rule

The anonymous letter to police in Bloomingdale, Ill., reported that Lance and Susan Gates had more than $100,000 worth of drugs in their basement and that they "make their living on selling drugs." Prompted by the letter, officers made a preliminary investigation, went to a magistrate, got a warrant, searched the Gates home and car and found more than 350 lbs. of marijuana, along with drug paraphernalia, weapons and ammunition. A good bust of two suspected drug traffickers? Not exactly. Instead, that case turned out to be potentially the most important test of the search-and-seizure rules in two decades.

Before the Gateses went on trial, the Illinois Supreme Court ruled that the anonymous tip and preliminary investigation did not provide probable cause to issue a warrant. The court threw out all the discovered physical evidence because of the much reviled exclusionary rule, which holds that the fruits of an illegal search may not be used against the defendant in court. The U.S. Supreme Court last year considered arguments on the legality of the warrant in the Gates case, but then unexpectedly asked the lawyers to return to debate a proposition not previously at issue in the case: Should there be an exception to the exclusionary rule when law-enforcement officials act illegally but "in good faith"?

Before a crowded, tense courtroom last week, Illinois First Assistant Attorney General Paul Biebel told the Justices that the actions of the Bloomingdale police "can only be characterized as thorough and professional. This is clearly not the kind of activity the exclusionary rule was meant to deter." Speaking against a legal rule that the President has called "absurd," U.S. Solicitor General Rex Lee added that the search was made in the "reasonable good-faith belief " that it was constitutional; second thoughts by an appeals court should not bar use of "highly relevant" evidence. James Reilley, the Gateses' attorney, countered by reciting a long list of state and federal court rulings on the exclusionary rule that seem to brook no major exceptions. But the list may be coming to an end.

The drafters of the Bill of Rights never imagined the current complexity. Their experience with search-and-seizure problems involved writs of assistance, general warrants that allowed the King's agents to conduct wide-ranging searches of the homes of his colonial subjects. To protect citizens from such intrusions by the new Federal Government, the Fourth Amendment specifically prohibits "unreasonable searches and seizures" by authorities and requires detailed warrants. In 1914, the Supreme Court concluded that officials were leaving the amendment in tatters as they routinely tore through privacy rights. The court unanimously ordered federal criminal trial judges to exclude evidence seized unconstitutionally.