Reconsidering Suspects' Rights

In February 1968, when Lloyd Charles Powell was busted for vagrancy in Nevada, the arresting officer patted him down and found a gun that had been used in a liquor-store shooting the day before in San Bernardino, Calif. Powell, now 29, was convicted of the killing. In August 1970, police in Omaha were angrily investigating the bombing murder of a fellow officer; though they had little to go on, they got a search warrant from a local magistrate, went through the house of David Rice, a member of a Black Panther group, and found 14 Ibs. of dynamite and other bomb ingredients. Rice, now 28, was sentenced to life imprisonment.

Last week lawyers representing Powell and Rice argued before the U.S. Supreme Court that key evidence was used against their clients unconstitutionally. Powell's attorneys claimed that the incriminating gun should not have been used as evidence because the vagrancy statute invoked to arrest him was later ruled impermissibly vague. Rice's lawyers contended that the explosives found in his house should not have been admitted in court because the search warrant was found afterward to have been issued without sufficient cause.

These were no mere dry technicalities, and the atmosphere in the marbled courtroom was unusually expectant during last week's 2 1/2 hours of oral argument as the Justices peppered the lawyers with more than 100 questions. "I am sorry to detain you," said courtly Justice Lewis Powell Jr. of Virginia as he prolonged the questioning of one attorney. "But this is a very important case." Indeed it was. The Burger Court--with its moderate-to-conservative majority now strengthened by John Paul Stevens--is considering whether to cut back two of the most critical and criticized features of U.S. criminal law: the so-called exclusionary rule and habeas corpus petitions. With decisions in Powell and Rice expected by June, the following stories analyze why the rulings may be significant tests of how far the Burger Court will trim the Warren era's expansion of the rights of suspected criminals.

I: Catchall-22

Like fishermen who come back emptyhanded, prosecutors and police endlessly complain about the ones who got away. Especially galling are those who escape because of legal rules: drug pushers caught dirty but without the proper search warrant, Mafiosi discovered through an illegal wiretap, thugs with guns whose car was stopped by cops acting without probable cause. In such cases, the catchall--or lose-all--complication is the exclusionary rule, which provides that evidence seized illegally may not be used in court.

The rule dates back to 1914, when the Supreme Court held that evidence taken illegally from someone cannot be used against him in federal court, otherwise "the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value." In 1961 the court extended the rule to state courts. Whether or not that decision "handcuffed" police, as some loudly complained, it undeniably changed the way local law-enforcement agencies work.

Once cops commonly engaged in such wildly lawless behavior as breaking into homes or smashing up illegal bars or betting parlors. Richard Kuh, a former New York City prosecutor, remembers one police commander of the '50s who "maintained that he had never used a search warrant the entire time he had directed the narcotics bureau." Before the exclusionary rule, says Boston Defense Attorney Joseph Oteri, "the cops could do anything they wanted. They didn't care how they got evidence. The rule has forced them to toe the line, to do good police work."

But there has been a price: the obviously guilty criminals who "walk" because of legal suppression of damning evidence. Manhattan D.A. Robert Morgenthau estimates that 25% of his cases that go to court are dismissed because of the rule, "and that's not counting the cases we throw out ourselves because we know that they are questionable."

Hard Point. Yet even many critics of the rule see no alternative. Says University of Chicago Law Professor Franklin E. Zimring: "It's the worst system you could imagine, except for all the others." One long-discussed modification is to make it easier for a defendant whose rights were violated to recover monetary damages from the offending policeman. But if that becomes common, counters Columbia Law Professor Richard Uviller, "you are not going to see the police searching and seizing anybody." Stanford Professor John Kaplan has another proposal: let courts permit questionably seized evidence if the police department involved can prove that it actively disciplines officers who do not comply with the Fourth Amendment. Still, many wonder whether police brass would ever discipline a cop who bags a kilo of heroin unconstitutionally.

The compromise that the Supreme Court may favor is to allow use of evidence where police acted "in good faith"--that is, in the honest belief that their actions were not prohibited. For many, this broad approach is appealing. Says New York's Kuh: "Perhaps the exclusionary rule should only apply when the officer is in clear violation of the law and not when the case is ambiguous." Adds Berkeley Law Dean Sanford Kadish: "The point has been made--and made hard over the past 15 years--that Fourth Amendment rights must be protected. Now let's try more discriminating remedies to elevate the interests of more effective law enforcement."

II: Body Language

In 17th century England, the reigning Stuarts took increasingly to popping their political foes into the Tower of London and other pokeys, without bothering much with prosecutions or convictions. Fed up in 1679, Parliament drew on earlier common law practices and passed its celebrated Habeas Corpus Act, which provided that anyone keeping someone in custody could be required to "produce the body" and show that he was legally holding it. The Great Writ has since spread to include attacks on all manner of wrongful custody--from improper confinement in mental institutions to a divorced father's spiriting away of his children. Today all 50 U.S. states permit habeas corpus petitions (or their like), and so does federal law. But while the U.S. Constitution bars suspension of the privilege except "in cases of rebellion or invasion," it does not specify the kinds of claims that can or cannot be raised by a habeas petition. The body language is imprecise.

The result has been a constant shifting in the rights that the writ has been used to protect, particularly when federal courts review state convictions. Beginning in 1953 the Supreme Court handed down a series of decisions that have allowed lower federal courts to check over every constitutional claim, even if it had been fully litigated in state proceedings. "The writ wasn't supposed to be an appeal, but it has basically become another level of appellate review," says Columbia's Uviller. Prisoners like Lloyd Powell and David Rice began raining petitions on federal courts. The total last year neared 10,000; 15 years ago, there were just 1,020.

"Sometimes we see as many as ten, 20 or 30 petitions from one man over a period of years," says San Francisco Federal Judge Alfonso J. Zirpoli. Some federal courts have "writ clerks" who do nothing but go over prisoner petitions. Habeas corpus is "an important psychological right," argues Harvard Law Professor Alan Dershowitz, even though "the number of prisoners who succeed is infinitesimal." Nelson Kempsky of California's department of corrections agrees: "Increasing access to the courts has not made it more difficult to run prisons. In fact, it has served as a safety valve."

Many believe that safety valve is creating unacceptable pressure elsewhere, notably in federal-state judicial relations. A federal habeas petition can be brought only after pursuing an appeal up through the top state court. Complains Northwestern Law Professor Fred Inbau: "The right of one federal judge to overrule five or seven state supreme court justices is just nonsensical. We have to call a halt to it." At last week's arguments before the Supreme Court, one lawyer for Convict Rice tried to counter that view; he argued that the "state courts' primary allegiance is to guarantee enforcement of the state's criminal law, while the federal courts' is to preserve constitutional guarantees." Justice Potter Stewart disagreed sharply: "That may have been true in some areas of the country a hundred years ago, but I doubt that it is today."

Fair Chance. Of course the court was not contemplating giving up its power to review state supreme court decisions, but the high bench seems of a collective mind to turn more final authority back to the state courts. Three years ago, Justice Powell wrote a dissent--which three colleagues largely supported--arguing that federal habeas inquiries in state convictions should be limited to the question of whether the prisoner had a fair chance to raise his claim in state court. He further argued that there is now virtually no finality to any criminal adjudication, and the right of a prisoner to attack his conviction should extend only to matters bearing on his innocence.

The Powell view, which seems to be supported by Justices Burger, Rehnquist and Blackmun, apparently needs only one more backer, and Stewart, Stevens and White seem to be strong possibilities. If any or all of them join Powell, two results seem nearly certain. First, the extensive use of habeas corpus will be significantly cut. Second, virtually no habeas challenges seeking application of the exclusionary rule will be allowed, since such evidence is almost always proof of guilt, not innocence.

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