Policing the evidence. Too many searches are unwarranted

IF there has been a ``Reaganization'' of the United States Supreme Court, it has been most evident in the area of criminal justice - particularly in regard to apprehending those accused of felonies. Law-and-order conservatives have long predicted that this President's appointments to the high court would ultimately lead the way to negating many judicially engineered liberal interpretations of the Constitution of the 1950s and '60s. Some feel these rulings overly protected criminals at the expense of the general public, especially victims of crimes.

Centrally targeted by the political right has been the 70-year-old ``exclusionary rule'' and parts of the Miranda warnings that earlier courts had expanded in their rulings. The former bars from trial evidence improperly gathered by police and prosecutors. The latter outlines a series of rights that must be spelled out for the accused when taken into custody by authorities.

In the last few years, both the exclusionary rule and Miranda rights have been twisted and turned by the high court, and narrowed and excepted in some circumstances. But contrary to predictions, they remain intact and are still very much at the foundation of Fourth Amendment law.

Much more in peril, however, is the constitutional requirement that police obtain a judicial warrant - based on ``probable cause'' that a crime has been committed - in order to search premises and seize potential evidence.

The rationale of several recent decisions is not so much that warrants are not required for searches but that certain police and private intrusions do not actually constitute a search.

At the heart of the matter is the issue of how much privacy an individual is entitled to expect.

The trend of the court now seems to indicate that privacy is less than sacrosanct in terms of constitutional protection and that public expectation of it may be overrated.

For instance, the Supreme Court recently ruled that police may inspect - without a warrant - trash left at the curbside to dig out possible incriminating evidence. And a 6-to-2 majority further held that such inspections do not constitute a violation of the Fourth Amendment's ban on unreasonable searches, because people have no reason to believe that their discarded garbage is private.

The court's dwindling liberal cadre - now mainly the twosome of Associate Justices William Brennan and Thurgood Marshall - objected, holding that even a police sniffing out of something so odoriferous as garbage constitutes a search, requiring judicial sanction.

Justice Brennan wrote in dissent that a ``search of trash, like a search of a bedroom, can relate intimate details about sexual practices, health, and personal hygiene.''

``A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it,'' he added.

Lest one think the high court is preoccupied with rubbish, the justices have also addressed themselves to a variety of warrantless searches, ranging from student lockers and workers' desks to land and aerial searches of businesses and backyards.

Interestingly, the court has stressed that schoolchildren and employees alike do enjoy constitutional protections, perhaps even privacy rights. It has also said, however, that there are times and circumstances in which individual rights must be subordinated to broader public protections.

On this basis, the justices allowed the searching of a student or his locker by a teacher and justified at times an employer's rifling through the file cabinets or desk of a subordinate.

``The operational realities of the workplace ... may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement officer,'' reasoned Associate Justice Sandra Day O'Connor in a case involving a government employee last year.

This decision could well influence future rulings on the legality of drug testing of public employees.

Meanwhile, the Supreme Court seems of two minds over the issue of warrantless searches of private homes and businesses. It has sanctioned, for example, such intrusion on open areas, such as fields, but given greater protection to private homes.

A relatively new issue is aerial surveillance without a warrant. Two years ago, the justices said that the Fourth Amendment did not extend to open areas that can be viewed from a hill or an airplane by the naked eye.

And next term, the court will decide whether police must first acquire a warrant before using helicopters to view backyards in search of illegal marijuana patches. The Florida Supreme Court has said such a probe is illegal without prior judicial sanction.

University of Michigan legal scholar Yale Kamisar - a search-and-seizure specialist - says heightened public fear about crime, particularly drug-related offenses, has prodded recent trends toward legal limitations on the rights of the accused.

``Americans are looking for a scapegoat. And it may be the Fourth Amendment,'' Professor Kamisar explains.

A Thursday column

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