The Rights of the People (28 page)

Oddly, rightward-leaning justices have come to see the suppression of evidence as a method of punishment, not protection, a measure to curb particular officers’ misconduct, not to preserve defendants’ rights. Justice White made this cramped argument in
Leon
, saying, “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” But the officer didn’t have probable cause to get a warrant in the first place; why should he be absolved? And what is to deter the sloppy magistrate? When the judge is
also
wrong, couldn’t he use a little correction? The Court’s solution is to punish the violated citizen for the judge’s error.

The illegal search and the admission of the illegal evidence are parts of a whole, seamlessly coupled, wrote Justice Brennan. “Police and the courts cannot be regarded as constitutional strangers to each other,” he said in his
Leon
dissent. “Because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other.”

Brennan tried to elevate his gaze beyond the intricate question of how to deter police errors. He noted that the original
Weeks
opinion establishing
the exclusionary rule was not aimed at punishing individual officers, but at safeguarding rights by encouraging broad institutional procedures in law enforcement. Nor did he believe the deterrent effect could be accurately assessed; such attempts led the Court into guesswork. He predicted that the majority’s decision in
Leon
, allowing an officer to escape penalty if he does not know he is acting unconstitutionally, “will tend to put a premium on police ignorance of the law.”

Brennan also worried about damaging the constitutional structure by marginalizing the judiciary. He accused the majority of drawing “an artificial line between the constitutional rights and responsibilities that are engaged by actions of the police and those that are engaged when a defendant appears before the courts,” a decision that “rests ultimately on an impoverished understanding of judicial responsibility in our constitutional scheme.” The Fourth Amendment “restrains the power of the government as a whole; it does not specify only a particular agency and exempt all others,” Brennan wrote. “The judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected.”

He bolstered his point with a quote from James Madison’s address to the First Congress on June 8, 1789:

Indeed, the strongest constitutional case for the exclusionary rule may lie in the separation of powers, the Constitution’s ingenious division of authority among the executive, legislative, and judicial branches. Without the judiciary’s tool of suppressing evidence, the foundation of the Constitution is undermined, argues the libertarian conservative Timothy Lynch. “When agents of the executive branch (the police) disregard the terms of search warrants, or attempt to bypass the warrant-issuing process altogether, the judicial branch can and should respond by ‘checking’ such misbehavior,” Lynch writes. “The most opportune time to check such unconstitutional behavior is when prosecutors attempt to introduce illegally seized evidence in court.” He believes that the legislature cannot constitutionally alter the exclusionary rule, because it is a judicial function integral to the judiciary’s warrant-issuing power.
⁴⁷

But judges have been stripping themselves of the power, often by weighing the benefit of suppressing evidence against the risk of releasing people who are presumed guilty. “Some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains,” White wrote for the majority in
Leon
. “The magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.” He referred to studies showing that suppressed evidence freed 0.6 to 7.1 percent of felony defendants.

Brennan replied derisively:

Rights and risks coexist in a complex tension that was reduced to a simplistic observation by Judge Benjamin N. Cardozo: “The criminal is to go free because the constable has blundered,” he declared sardonically as he refused to adopt the exclusionary rule for New York State in 1926.
⁴⁸

His line is often quoted by opponents of exclusion, but it was a “misleading epigram,” in Justice Brennan’s view. Evidence is suppressed not because the constable has blundered, “but rather because official compliance with Fourth Amendment requirements makes it more difficult to catch criminals. Understood in this way, the Amendment directly contemplates that some reliable and incriminating evidence will be lost to the government; therefore, it is not the exclusionary rule, but the Amendment itself that has imposed this cost.” So, we are back to the risks of freedom.

The same argument found support from the retired justice Potter Stewart. “Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the Fourth Amendment itself,” he wrote in the
Columbia Law Review
. “The exclusionary rule places no limitations on the actions of the police. The Fourth Amendment does.… Police officers who obey its strictures will catch fewer criminals.… That
is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power.”
⁴⁹

But is it a price that we are willing to pay in a time of terrorism? Justice Brennan offered a warning: “The task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.”

The lure is almost irresistible, especially in this era. Forsaking privacy to law enforcement seems to offer sanctuary from terror in many forms, not only the terror brought by the suicidal ideologue but by the lone school shooter, the child rapist and pornographer, the purveyor of narcotics.

It was the terror of narcotics that propelled a divided Supreme Court into a rash of rulings that allowed suspicionless, warrantless drug and alcohol testing in various settings. In 1989, the tests were precisely targeted, at U.S. Customs employees
⁵⁰
and railroad workers,
⁵¹
because of the risks those personnel might pose to others. Then that legitimate opening was widened step by step. “Following those rulings, more than forty federal agencies began conducting drug tests under an executive order for a drug-free federal workplace,” the constitutional scholar David M. O’Brien observes.
⁵²
A Justice Department attorney who challenged this dragnet practice lost in the D.C. Circuit in 1992, and the Supreme Court denied review, sweeping away a measure of privacy for government workers by allowing tests of all federal employees, even those not in positions to threaten public safety or enforce narcotics laws.
⁵³
The quaint notion that individualized suspicion was necessary for a search to be “reasonable” had disappeared, and the Fourth Amendment seemed to be evaporating from the landscape like a shallow pool of water in a hot sun.

When the Court forces a constitutional right into retreat, government officials across the country advance to occupy the new ground: They regulate, investigate, intrude, outlaw, and prosecute until they meet the limits the Court decides to draw. The justices finally penciled in some lines on drug testing. A Georgia law requiring a test of any candidate who wished to run for office was struck down eight to one.
⁵⁴
The practice in Charleston, South Carolina, of testing pregnant women for cocaine and referring positive results to the police for prosecution, was overruled six to three.
⁵⁵

Public school students fared less well. In 1995, the Court approved testing all athletes in Vernonia, Oregon, reasoning that children on drugs could injure themselves and others playing sports, and that athletes were models whose narcotics use led other children astray, undermining school antidrug policies. In addition, “Fourth Amendment rights … are different in public schools than elsewhere,” the majority held. “The ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.”
⁵⁶

Thus emboldened, school officials in Tecumseh, Oklahoma, responded to parents whose parenting had failed. “The mother of a football player caught her son and some of his friends using drugs in her home,” recalled Lindsay Earls, then a sophomore at Tecumseh High School, “so she went to the school board and said, ‘I don’t have control over my son. Is there any way you guys can help me with my son’s drug problem?’ I guess there were a few other parents of kids who were at that party and said, ‘Our kids are out of control. You fix this for us.’ ”

Inviting an arm of the state to monitor your children should have appalled true conservatives touting restrictions on government and the preeminence of family. But no. Parents who distrusted their own teenagers prevailed, and the school board decided to stretch suspicionless drug testing beyond the athletes authorized by the Supreme Court in the
Vernonia
case to all students who participated in virtually all extracurricular organizations that involved travel or competition. That included the choir, the color guard, and the quiz bowl team—the three that Lindsay Earls belonged to.

She was something of the perfect teenager: an excellent student admired by teachers, a responsible youngster who never did drugs, a “Goody Two-shoes,” as she described herself. Practically alone in her school, she also had that internal gyroscope that kept her on course when individual liberty was challenged.

When the policy was announced, she thought it a joke at first. Tecumseh didn’t have much of a drug problem, and most kids didn’t care about the testing, she said, figuring that since they didn’t use drugs, it wasn’t a big deal. Those wanting to continue extracurricular activities willingly brought a parental permission slip and a four-dollar lab fee, and submitted to random urine tests throughout the year. She guessed that kids who did drugs probably thought they’d get lucky—or they just avoided extracurricular activities that might have given them something fun to do besides smoke pot. One girl, who refused to be tested because her mother objected, was kicked out of the choir.

Lindsay objected, too, but took a different tack. While the tests were random and suspicionless, they were not seen that way in the high school’s culture. The arrival of an office assistant in a classroom to summon a few students by name aroused a buzz of suspicion. “There was no other reason for us to be called out of class,” Lindsay said. “It was supposed to be this hush-hush thing, but everyone knew.”

It also carried a dose of humiliation. The students were led immediately to a bathroom by a staff member who waited outside the closed stall to “listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody,” according to court papers from the school board.

A positive test required drug counseling in an effort to help, not just punish, and the results would be turned over to the parents but not to the police. Nevertheless, Lindsay had read the Fourth Amendment, was familiar with the principles, and saw this as an unreasonable invasion. Her mother and father regarded their children’s behavior outside of school as a purely parental responsibility, and this suspicionless, warrantless intrusion into the zone of individual and family privacy violated their sense of the spirit of American freedom. “Dad’s always been pretty strong in telling us to be sure you know your rights,” Lindsay said, a teaching reinforced by his position as a social worker dealing with teenagers, many of them in trouble with the police.

Lindsay’s father contacted the American Civil Liberties Union (ACLU), which found Lindsay’s exemplary record ideal for her to be the lead plaintiff in a constitutional challenge (it always helps if your client is “squeaky clean,” as she put it). So the lawsuit was filed, working its way through the lower courts as Lindsay and her younger sister, Lacey, worked their way through a maze of hostility in their hometown.

Despite her family’s sterling reputation, “a lot of people began speculating on my drug problems and my family’s drug-use problems,” Lindsay said a few years later, when she could smile faintly at their fantasies. “People who didn’t know my family were talking about how the only people who would care are kids who are druggies, that we were complainers, just wanted to cause a fuss.” Lacey was targeted by students who parroted their parents’ unfounded accusations that her sister or father used drugs. Lindsay was derided for her frequent appearances in newspapers and on television, as if she were trying to get publicity rather than preserve her rights—their rights. “One kid sent an e-mail saying, What you’re doing is not a Christian thing to do and blah, blah, blah. He didn’t have very
good reasoning as to why this wasn’t a Christian thing to do, and I didn’t respond to the e-mail, and I pretty much stopped seeing him.” Her close friends stuck with her.