The Cops v. the Courts

The loudest continuing complaint of U.S. police and prosecutors is that "misguided" courts are "handcuffing" effective law enforcement. Most of the fire is aimed at recent Supreme Court decisions that require far stricter standards of police search and seizure -- at a time when U.S. crime is rising five times as fast as the population.

Both the complaints and their origins have been thoroughly probed and weighed by Yale Kamisar, law professor at the University of Minnesota. What the critics "are really bristling about is tighter enforcement of long standing restrictions," writes Kamisar in a Cornell Law Quarterly analysis. The restrictions come straight out of the U.S. Constitution and have been there since the Founding Fathers wrote them in. The only new thing about them is that police can no longer ignore them, as they have been free to do for generations.

Good Burglary Weather. Kamisar notes that the Supreme Court long permitted states to accept or reject the "exclusionary rule," based on the Fourth Amendment, which bans evidence obtained by unreasonable search and seizure. As a result, police were free to operate without search warrants wherever and whenever they thought it desirable. In most states that meant most places most of the time.

As Kamisar points out, the Supreme Court changed all that in 1961 after Cleveland police broke into the home of a woman named Dollree Mapp on a tip that it contained a bombing suspect and "a large amount of policy paraphernalia." Finding neither, the cops put her in handcuffs and searched on until they found "obscene materials," for possession of which she was arrested and convicted.

In sustaining her appeal (Mapp v. Ohio), the Supreme Court ordered every state to obey the exclusionary rule. At the same time, says Kamisar, Minneapolis police were quick to blame the decision for a 10% upsurge in local burglaries. Only after the argument dwindled, and the cops got back to work, did a police department spokesman remember and put into words the real reason for the crime wave. "The burglars had a lot better weather this year--no snow."

Bad Crime Climate. Kamisar reports a similar reaction to the 1957 McNabb-Mallory rule, which forbids federal (but not state) police from using statements produced during prolonged precommitment interrogation. Washington, D.C.'s Police Chief Robert V. Murray has argued ever since 1957 that crime in the capital steadily decreased during the four previous years, and steadily increased thereafter. As it happens, says Kamisar, 1957 marked "the alltime low for crime under the District's modern reporting system." In the full decade 1950-60, "although the national crime rate soared 98% , the District's rate barely rose at all." Although robberies did jump 115% between 1957 and 1962, adds Kamisar, the most likely cause was not Mallory but the capital's worsening economic and educational climate as a result of an overwhelming population burst.

Kamisar feels that rising crime has so overwhelmed many policemen as to make them insist that necessity must overrule the U.S. rule of law. On the other hand, he argues that police "necessity" is often unnecessary. When the California Supreme Court adopted the exclusionary rule in 1955 (People v. Cahan), Alameda County's Veteran Prosecutor J. F. Coakley protested that Cahan had "broken the very backbone of narcotics enforcement." Yet in 1959-60, says Kamisar, California's superior courts convicted 20% more persons of narcotics offenses than during 1953-54.

Low-Charge Rate. Washington's police were equally worried in 1962 about a proposed ban on "arrests for investigation"--pickups of such suspicious characters as a poorly dressed man carrying a bundle through the streets of a wealthy neighborhood late at night on the chance that he may have committed a crime, even though sometimes none has been reported. Washington's Police Chief Murray argued that the ban "will just about put us out of business." Yet of all persons his men arrested for investigation in the two years before, says Kamisar, only 5.7% were ever charged formally and prosecuted. As for the necessity of prolonged interrogation, reports Kamisar, Murray himself argues that "six hours is a reasonable time." Yet California Prosecutor Coakley says that "frequently even 48 to 72 hours is not enough," and Chicago's Police Superintendent Orlando W. Wilson prescribes "whatever period of time may be necessary." If unchecked by the courts, argues Kamisar, the results of such widely varying police definitions of necessity may undermine law and order far more than any court decision.

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