Helping Prosecutors

Early on St. Patrick's Day in 1962, an armed robber snatched $363 from the Diamond Cab Co. in Baltimore. Hearing cries of "Holdup," two cabbies trailed the gunman to 2111 Cocoa Lane and called police to the house. Mrs. Bennie Joe Hayden let them in; upstairs they found her husband undressed, in bed. One cop found a pistol and a shotgun in a toilet water tank; another found Hayden's clothes in a washing machine. Though the loot was never found, a robbery eyewitness and the pursuing cab drivers identified Hayden's clothes, which were deemed sufficient evidence to convict Hayden and send him to prison for 14 years.

Simple as it seemed, Bennie Joe's case raised questions about the Fourth Amendment guarantee against "unreasonable search and seizure." Last year a U.S. appellate court upheld the Hayden search as reasonable "hot pursuit." But the court also voided his conviction on the ground that a federal rule barred his seized clothes as evidence. For under a 1921 Supreme Court decision (Gouled v. U.S.), federal police were allowed to seize only four kinds of evidence: the loot of a crime; the tools by which it was committed; the means of escape, such as weapons; and contraband, such as counterfeit money. All else was inadmissible as "mere evidence." In 1961, ruling on Mapp v. Ohio, the Supreme Court ordered state as well as federal courts to exclude evidence seized in violation of the Fourth Amendment.

Property or Privacy? As the appellate court saw it, Mapp commanded states to follow the federal mere-evidence rule, which stemmed from the idea that the Fourth Amendment protected a person's private property from seizure. Unless the Government or the complainant could assert a superior interest in the property, said Gouled, the suspect was entitled to keep it. Straining to bypass the rule, courts have since typically barred original tax records or checks as the property of the accused and therefore mere evidence--while admitting photographic copies.

Last week the Supreme Court junked both state and federal use of the mere-evidence rule in a wide-ranging opinion that kept Bennie Joe Hayden in prison and cheered prosecutors across the country. Speaking for the six-man majority, Justice William J. Brennan held that the Fourth Amendment is primarily aimed at protecting privacy, not property. Over a hot dissent by Justice William O. Douglas,* who predicted police abuse, Brennan suggested that the mere-evidence rule did not protect privacy--and it surely prevented police from using the fruits of a reasonable search. Even so, Brennan warned police to maintain Fourth Amendment standards in the seizure of evidence: "Probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." At the same time, he reassured prosecutors and police that the Supreme Court has not forgotten that "government has an interest in solving crime."

* Justice Fortas and Chief Justice Warren concurred but quarreled with the breadth of the majority opinion.

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