HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/drugs/hr666.analysis

Internet Message Format | 1996-05-06 | 13KB

From: [e-mail] (Samuel Mize)
Newsgroups: alt.politics.usa.constitution
Subject: Intended meaning of HR666 Exclusionary rule reform
Date: 5 Mar 1995 12:03:42 -0600
Message-ID: <3jcudu$[e-mail]>

What do its sponsors believe HR666 does?

I've gone through two days worth of the Congressional Record, reading
the 50 pages of debate surrounding HR666 and its proposed amendments,
pages H1314 - H1341 and H1379 - H1400. (1)  I think I've got a handle
on how the bill was presented on the House floor.

I plan to track down the committee hearings on the bill, too, but that
won't be available for a couple of months.  I'm also hunting up the
committee report on the bill.

======================================================================
GROUND RULES FOR THIS REPORT

First: I'm excluding conspiracy-theory ideas that there is a "hidden
meaning" that nobody mentioned on the floor.  If so, we're all screwed
anyway, and it doesn't matter what they pass or don't pass.

Second: I'm taking, for the INTENT of the bill, the words of people
who are speaking in favor of the bill.  Nobody brought out a meaning
opposed to that presentation of the bill's meaning (2).  A number of
opponents claimed that it "repeals the Fourth Amendment," or that huge
numbers of bad searches will happen as a result of HR666, and similar
hyperbole.  Nobody gave a specific meaning for the text that was
different from the meaning that its proponents were asserting.  Several
of its opponents specified what it does, and what they specified is the
same as what its proponents specified.

The House discussion is summarized below.  A few comments from me are
in [brackets].

======================================================================
HISTORICAL BACKGROUND FOR HR666

Note that I am not a legal scholar.  I am summarizing what the
Congressmen said about these cases.

The fourth amendment outlaws "unreasonable search and seizure," and
gives some specific requirements for search warrants.  It includes NO
enforcement mechanism.  Illegal evidence could be used.  The need for
a warrant in all cases may be inferred, but is not explicitly stated.

In 1914, the exclusionary rule was defined, in Weeks v United States.
It applied ONLY to Federal courts.

In 1961, the exclusionary rule was extended to the States, in
Mapp v Ohio.

In the 1970s, some doctrines were defined that give exceptions to the
strict requirement for a warrant.  These include:

* The plain-view doctrine (if the cop was behaving himself, and the
  evidence was in plain view, the cop can use it).

* The exigent-circumstances doctrine (if the evidence is about to be
  destroyed, or delay would put the officers at great bodily risk).

In 1981, in United States v Leon, the Supreme Court ruled that, even
if a search warrant is later ruled invalid, the evidence gathered
under it may be used, if the police are relying on the warrant in
good faith.

In "the Krull case" (no date given), the Supreme Court ruled that a
search based on an invalid statute can stand, if the police are
relying on the statute in good faith.

In other cases, two circuits of the Federal court system (5 and 11)
have extended this exception to cases without a warrant, where the
officers believed that they were following Fourth-Amendment rules.
No non-warrant case has reached the Supreme Court.

======================================================================
WHAT HR666 DOES

1) Puts the warranted-search "good-faith" exception into the written
rules of evidence.  If the officers have a warrant and have a
reasonable belief that it is a good warrant, the evidence can be used.
The judge decides whether the belief was reasonable.  THIS IS THE LAW
NOW based on precedent and Supreme Court rulings.

2) Extends the good-faith exception to other problems with searches.

Example: a cop, in a state that requires two license plates, made a
routine traffic stop because a car had only one plate.  During the
stop, he saw drugs on the back seat and made an arrest.  Turns out the
car was from a state that only requires one plate, so the original
reason for stopping the car was not valid.  The evidence was thrown
out, and the drug case was lost.

3) Prevents courts from arbitrarily extending the exclusionary rule to
any procedure or policy they take a fancy to, by requiring that the
rule be applied only if there is statutory authority to do so, or a
SC ruling derived from statutory authority.

======================================================================
ARGUMENTS IN HR666's FAVOR

The exclusionary rule was intended to protect the Fourth Amendment by
discouraging cops from violating it.  If the cops believe they are not
violating it, and that is a reasonable belief (e.g., not based on
ignorance), the exclusionary rule has no deterrent effect.

This exception to the exclusionary rule is already the law for
searches done with a warrant.  In two circuits of the Federal courts,
this exception is already the law for searches WITHOUT a warrant, and
has not resulted in a lot of bad warrantless searches.

HR666 puts this exception into the written rules of evidence
("codifies" it), instead of leaving it a court precedent; and, extends
the decision of two circuits to the other circuits that have not heard
such cases.

Right now, some 15 states are under one Federal law, and the rest are
under another Federal law.  HR666 makes Federal law the same in all
states (all circuits of the Federal court).

An officer should not have to be a walking law library, able to finely
divide each of his actions and compare them against existing rules and
case law before taking them.  If the judge finds that the officer
should have known he was violating a rule, the evidence is excluded.
If it is not reasonable that the officer should have known, nothing is
gained by excluding the evidence.

[The following two points are rebuttals to arguments against HR666]

Some examples of heinous searches are being used to drum up opposition
to HR666.  All of these examples involves searches of innocent people,
where no evidence was found.  The exclusionary rule does nothing in
such cases ANYWAY.

HR666 does not make it significantly easier to succeed at an illegal
search.  It is fairly simple to dummy up probable cause and get a bad
search warrant (by telephone, 24 hours, in big cities).  Under current
precedents, this provides the same exception to the exclusionary rule
that HR666 would provide for non-warranted searches.  Given a bad
warrant, it is up to the defendant to prove that the warrant was not
used in good faith.  [On this point, I'm providing some clarification.
The point WAS made on the floor, but not so clearly.             -SM ]

======================================================================
COHERENT ARGUMENTS AGAINST HR666

[I'm leaving out the hysterical claims that HR666 would repeal the   ]
[Constitution, legalize searches that it doesn't legalize, etc.      ]
[These claims were not supported in the section of the Record I      ]
[reviewed.                                                       -SM ]

The requirement to get a search warrant forces at least SOME level of
objective review of the probable cause involved.  An exception to the
exclusionary rule that is appropriate in this case, and is not
appropriate without such review.  It is so easy to get a search
warrant (by telephone, 24 hours, in big cities), that the requirement
to get a warrant is not a difficult hurdle for the police.

In both Supreme Court precedents, the officer if relying in good faith
on another authority: for the correctness of the warrant, or for the
validity of the law.  HR666 changes the meaning of good faith, from
the officer's good-faith reliance on another authority, to the
officer's good-faith belief that his actions are legal.  This is an
appropriate criterion for deciding not to PUNISH the officer, but is
not an appropriate criterion for deciding whether to treat the results
of the search as if the search were legal.

According to research, the exclusionary rule affects about one percent
of cases (including cops and prosecutors dropping evidence because it
would be excluded).  In half of these cases, the defendant is
convicted ANYWAY.  The exclusionary rule, as it stands, is not a
problem, and does not need to be corrected.

======================================================================
PERSONAL NOTES FROM SAM MIZE

NOTES RE PRIOR POSTINGS
-----------------------

I have now accepted the "evidence-validates-warrant" reading as a
correct English reading of the text.  I still don't think it's the
intended meaning; research continues.

I earlier thought that an invalid warrant is considered no warrant,
and has no effect; this was incorrect.  Bad warrants, both in current
precedents and in HR666, affect the presumed validity of a search.

CONCLUSIONS
-----------

Having reviewed this data, I'm not particularly up-in-arms about
HR666, but I don't think it's a good or necessary bill.

I'll post more data when I've reviewed the committee testimony.

I am, however, upset about some of the hysterical claims that were
made about HR666 in the firearms-and-militia-oriented alternative
press.  We need to be more careful.  As Orson Scott Card has said (on
a different subject), "the Truth never needs the support of a lie."
I want us to be truth-tellers.  I DON'T want us to appear to Congress
to be a bunch of uninformed, inflammatory cranks.

I DO think we need some better protection of our Fourth-Amendment
rights to be secure from unreasonable search and seizure.  Mr.
Gingrich has promised hearings on the abuses of the BATF and other
agencies, at least in Waco and Ruby Ridge.  If these hearings result
in trashing the BATF, they're a band-aid.  If they result in some
better protection for our Fourth-Amendment, from ALL agencies of the
Federal government, they will have been worthwhile.

Frankly, the exclusionary rule, as a defense of our Fourth-Amendment
rights, sucks rocks.  In any instance of a harassment search -- where
the so-called "cops" are not really expecting to find evidence -- the
exclusionary rule provides NO protection at all.  We're seeing a lot
of harassment searches today, especially of gun-owners.  Who tomorrow?

I would recommend that we lobby Congress to HOLD these hearings, and
to make some real protection come out of them.

Finally, note that I refer to so-called "cops" -- referring to the
scum who intentionally violate our rights.  I believe that real cops
-- the huge majority of law enforcement officers in America -- hate
what these scum do.  The police have worked under the exclusionary
rule, even though it's inconvenient sometimes, because they believe in
the Constitution, and in protecting our rights.  They will work with
us to rein in the scum-in-uniform -- the so-called "cops" who are
making them all look bad.

Samuel Mize - [e-mail]

======================================================================
FOOTNOTES:
----------------------------------------------------------------------
(1)  Three general observations about plowing through the Record:

* I wouldn't wish this activity on my dog's enemy.

* You thought the signal-to-noise ratio was low on the INTERNET...

* It's amazing how resolutely, appallingly stupid some representatives
  choose to appear.

  Example: "This amendment doesn't gut HR666."  Explanation.  "I still
  don't see how this guts HR666." Simpler explanation.  "I still don't
  believe this guts HR666."  Explanation that an autistic
  four-year-old would understand.  "I still don't think ..."

  The representatives pulling this (on the amendment to replace HR666
  with the Fourth Amendment, and on other things) would have seemed
  intelligent if they had made a principled stand against HR666.

  By claiming to not understand, over and over, they just seem to be
  extraordinarily stupid.
----------------------------------------------------------------------
(2) With one exception.  In day 2, while considering the amendment to
exclude BATF from the exclusionary rule exclusion (stay with me here),
Mr. Dingell claimed that HR666 would make a warrant "presumptively
valid if there was any property which was seized pursuant to the
warrant."

There is a sentence in the bill which can be read in two ways: that
finding evidence suggests that the search was OK, if a warrant was
used; or, that using a warrant suggests that the search was OK.

I would have expected the evidence-validates-warrant interpretation to
be a major point of contention on the floor, so I suspect the INTENT
of the bill, and the way most members read the bill, is that use of a
search warrant is evidence that the rules based on the fourth
amendment were "reasonably" followed.  I will dredge the committee
hearings for more specifics on this intent.  If I am right about the
bill's intent, the language should be clarified (if the bill is kept).

In either case, it is only considered EVIDENCE, not proof.

Note, however, that the "problem" interpretation -- that finding
evidence indicates that the search was reasonable -- legalizes a
SUBSET of the "non-problem" interpretation.  Non-warrant searches are
specifically excluded from this one clause.

Personally, I think the "non-problem" interpretation is unnecessary.
The "problem" interpretation looks reasonable at first glance (where
there's fire, there was smoke), but is not justified.