Police See No Change in Policy on Searches
DEBBIE ELLIOTT, host:
This ALL THINGS CONSIDERED from NPR News. I'm Debbie Elliott.
If police enter a house without knocking, can the government use the evidence they collect in a trial? The Supreme Court says yes. Under a long-established rule, courts have barred no-knock evidence. But this week, a sharply divided Supreme Court decided the so-called Exclusionary Rule does not apply when police fail to announce themselves before executing a search warrant.
The rule, first adopted by the Supreme Court nearly a century ago, has long been the target of conservative criticism, both on the bench and off. But NPR's legal affairs correspondent, Nina Totenberg, reports that police professionals have accepted the Exclusionary Rule as something they can live with.
NINA TOTENBERG reporting:
For decades conservative politicians have charged that the rule excluding illegally obtained evidence has handcuffed the police. And that criticism has been reflected in the opinions of some conservative jurists. But as former federal prosecutor and Justice Department Inspector General Michael Bromwich observes, there is something of a disconnect between this conservative rhetoric and the publicly stated views of police professionals.
Mr. MICHAEL R. BROMWICH (Former Inspector General, US Department of Justice): It is very interesting that the views of experienced law enforcement professionals differ from what appears to be the views of so-called conservatives, both on the courts and elsewhere.
TOTENBERG: Bromwich says he's never met a big city police chief who thinks the Exclusionary Rule is unacceptable.
Mr. BROMWICH: The contrary views of both judges on the Court and elsewhere is the result of not having been intimately involved in running or administering law enforcement agencies, and having a maybe unrealistic view of what the costs will be. If the rules are known and they're well taught in law enforcement agencies, they're not that difficult to follow.
TOTENBERG: A sampling of police opinion bears that out. Former Newark Police Chief Hubert Williams is president of the Police Foundation. He says that the Exclusionary Rule provides enough flexibility for police on the job.
Mr. HUBERT WILLIAMS (President, Police Foundation): I think the Exclusionary Rule has helped to professionalize the way police approach their job. And I think that the Exclusionary Rule has not been an undue handicap on the police in discharging their responsibilities properly in apprehending criminals. In the long-term, we can have a lot of unnecessary trouble because of this decision.
TOTENBERG: Miami Police Chief John Timony agrees.
Chief JOHN TIMONY (Miami Police Department): I spent quite a few years in New York City in the Narcotics Division. And the reason why you announced (unintelligible) the police are here, was to let them know we're the police, don't be shooting through the door, this is not a drug dealer trying to take the door down. You're doing it not to really announce your presence, but as much for police officer safety as anything else.
TOTENBERG: Timony says that in addition he sees no need to get rid of the Exclusionary Rule in a larger sense; that is, to admit into evidence, for instance, evidence obtained without a warrant, or confessions obtained without a Miranda warning.
Chief TIMONY: Why change? I don't think there was a huge problem with the Exclusionary Rule. So why are we tinkering with it?
TOTENBERG: Gaithersburg, Maryland Police Chief Mary Ann Viverette is president of the International Association of Chiefs of Police.
Chief MARY ANN VIVERETTE (President, International Association of Chiefs of Police): You know, we always want to make our own rules as far as not being - having them forced on us by the courts. But this is one where it does give us the proper guidelines and reasonableness to do our jobs effectively. So, you know, maybe 25 years ago that was seen a problem, or 20 years ago, but not anymore.
TOTENBERG: Ken Scheidegger is the director of the Criminal Justice Legal Foundation, which often files briefs in the Supreme Court on behalf of law enforcement. He notes that in the last 20 years or so, the Supreme Court has modified the Exclusionary Rule, for example, to allow the admission of evidence obtained in good faith with a faulty warrant. In addition, police have long been permitted to execute a warrant without knocking if they fear for their safety or that evidence will be destroyed.
But Scheidegger would like to see an entirely different approach.
Mr. KEN SCHEIDEGGER (Director, Criminal Justice Legal Foundation): Criminal trials are supposed to be a search for truth. Suppressing evidence for either side diverts us from the search for truth. And we should be looking for some better way to enforce the Fourth Amendment without having suppression at all.
TOTENBERG: This week, in his knock and announce opinion for the Supreme Court, Justice Antonin Scalia suggested that civil lawsuits against the police are easier to bring today, and that such lawsuits plus modern police regulation and civilian review boards, provide an alternative to excluding illegally obtained evidence from trial. But Ken Scheidegger concedes that lawsuits are still too difficult to bring, and local regulation is still insufficient.
Mr. SCHEIDEGGER: I don't think we're quite there yet to where a civil remedy could be a replacement. But I think we should be trying to move in that direction.
TOTENBERG: In the meantime, the police don't seem to be in as much of a hurry as the Supreme Court to change the existing rules.
Nina Totenberg, NPR News, Washington.
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