This is all about the exclusionary rule [the Supreme Court rule which says if the police obtain evidence illegally, the evidence cannot be used ], but the analysis includes a boarder defense of rights limitation in war time....





Copyright (c) 2002 The Curators of The University of Missouri

University of Missouri at Kansas City Law Review


Spring, 2002


70 UMKC L. Rev. 707


LENGTH: 16467 words




Matt J. O'Laughlin *



... This Comment makes two proposals for legal reform of the Fourth Amendment's exclusionary rule. ... Probably in light of this historical evidence, the Supreme Court has repeatedly held that the exclusionary rule is not a constitutional right and that "the governments' use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. ... In practice, a suspension of habeas corpus will result in a suspension of any Fourth Amendment rights against unreasonable searches and seizures and of Fifth Amendment rights of due process. ... In sum, the historical evidence can undoubtedly be read to support a restriction of Fourth Amendment rights during wartime, or grave threats to public safety, and a fortiori a restriction on the Fourth Amendment remedy of the exclusionary rule. ... While the Court may not wish to do away with all search and seizure protection for aliens, limiting the exclusionary rule to citizens would certainly bring the scope of those rights closer to the intent of the framers. ... Even assuming the Court would find that aliens possess Fourth Amendment rights, that does not necessarily mean the exclusionary rule must be applied. ... 




A. Text and History


The text of the Constitution overwhelmingly reflects the belief of the Framers that constitutional rights would yield to the security of the majority in times of war or where public safety was threatened. Article I, Section 9 of the Constitution provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." n25 In addition, two amendments in the Bill of Rights also explicitly carve out exceptions during wartime. The Fifth Amendment carves out a wartime/public safety exception in providing: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." n26 Similarly, the Third Amendment states "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." n27 One might argue that the enumeration of exceptions to these amendments suggests that other amendments are not to be narrowed during wartime. This argument, however, cannot explain the power to restrict habeas corpus, which can abridge everything from freedom of speech, to the right to  [*711]  counsel, to the right of equal protection under the law. In short, while the Framers placed a high value on individual rights, the text of the Bill of Rights also reveals their view that such rights were not absolute.


An understanding of Civil War and Reconstruction history is essential to the present discussion because of the role that both played in shaping the legal thoughts of those who framed the Fourteenth Amendment, an amendment that colors our understanding of the Fourth Amendment. n28 Additionally, the era stands as an important precedent for the scope of wartime and national security powers of the government when American soil is attacked. This fact is especially significant because in the current war on terrorism, the theater of operations will often take place on American soil. The legal landscape suggests that the framers of the Fourteenth Amendment were comfortable with restrictions on liberty during wartime.


Moreover, an examination of habeas corpus is especially pertinent because its suspension will almost invariably affect Fourth Amendment rights. Specifically, habeas corpus most often guarantees the right to be free from searches and seizures absent a showing of individualized suspicion. n29 In September 1861, for the first time in the history of the nation, President Lincoln suspended the writ. In so doing, he expounded upon its meaning:




This provision plainly attests the understanding of those who made the constitution that ordinary courts of justice are inadequate to "cases of Rebellion"--attests their purpose that in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge. Habeas Corpus, does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the constitution on purpose that, men may be arrested and held, who can not be proved to be guilty of defined crime, 'when, in cases of Rebellion or Invasion the public Safety may require it.' This is precisely our present case--a case of Rebellion, wherein the public Safety does require the suspension. n30




In the context of the Civil War, the writ was suspended to ensure that Union troops, traveling by rail from the North and West, could reach Washington, D.C. n31 Had the writ remained in force, there was a very real danger that a sympathetic judiciary would free Southern sympathizers in Baltimore who had burned railroad bridges and rioted in an attempt to impede the Union's war  [*712]  effort. n32 In fact, this is exactly what happened in the case of Ex Parte Merryman. n33 Union soldiers arrested John Merryman, a Maryland state legislator, for participating in the Baltimore bridge-burnings. n34 Merryman's counsel immediately petitioned Chief Justice Taney, Dred Scott's author, for a writ of habeas corpus. n35 Taney, riding circuit, n36 reasoned that because the privilege was placed in Article I of the Constitution, only Congress had the power to suspend habeas corpus, and therefore Lincoln's suspension of the writ was an unconstitutional assumption of power. n37


The Merryman case, however, was not decided by the Supreme Court, but merely by the Chief Justice, riding circuit. n38 More importantly, President Lincoln ignored the decision. In his address to Congress on July 4, 1861, Lincoln explained his actions:




The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly onethird of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? n39




When Lincoln again suspended habeas corpus in 1862 he further defended his actions, remarking: "Of how little value the [Suspension Clause] will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples." n40 Lincoln then proceeded to list several Southern generals who had been arrested. n41 He continued by noting that not "one of them had then committed any crime defined in the law. Every one of them if arrested would have been discharged on Habeas Corpus, were the writ allowed to operate." n42 Importantly, Congress later ratified his actions in the Habeas Corpus Act of 1863. n43 At bottom, Lincoln was essentially articulating the concept of compelling state interest. If the notion of  [*713]  "compelling state interest" means anything, it must at a bare minimum mean that the survival of the nation is a paramount interest of the people which can supersede the rights of individuals.


In practice, a suspension of habeas corpus will result in a suspension of any Fourth Amendment rights against unreasonable searches and seizures and of Fifth Amendment rights of due process. As is clear from Lincoln's explanation, when the writ is suspended the government is not required to meet the usual evidentiary burden of individualized suspicion that the Fourth Amendment requires n44 before an arrest is made. In nearly every instance, constitutional rights will also be suspended when the writ is suspended. If this is so, what about lesser infringements on constitutional rights, albeit in less drastic times than those of the Civil War? It would seem to follow that lesser restrictions on rights would be constitutional. A fortiori, restrictions on remedies that are not themselves constitutional rights would be permissible.


One of the primary dangers in restricting habeas corpus is wrongful imprisonment. Unlike the situation Lincoln confronted, the use of illegally seized evidence at a criminal trial occurs when the defendant has clearly violated the law. If innocent people may be imprisoned during times of war or when there is a public danger, surely it follows that those known to be guilty of crimes may be imprisoned when public safety is at issue. But what about Chief Justice Taney's assertion in Merryman that only Congress may act to restrict civil liberties?


That question was essentially resolved two years after Merryman. The Supreme Court, in a series of cases known collectively as The Prize Cases, n45 upheld the presidential power to blockade ports and seize ships without a formal declaration of war from Congress. These cases are particularly important because they dealt with the government's power to seize property during wartime; a power that is normally subject to Fourth Amendment constraints. In contrast to Merryman, the entire Supreme Court decided The Prize Cases. The Court observed that "the right of one country not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state war." n46 While the Fourth Amendment normally protects a person's property against unreasonable seizures and  [*714]  destruction of property, this passage indicates that, during war, the enemy has no recourse to actions to recover property or obtain damages for destruction of property. If no right to sue for damages for Fourth Amendment violations exists during wartime, it inexorably follows that enemy defendants should not be afforded the benefits of the exclusionary rule, which, unlike the right to damages, is not a constitutional right.


In the present war on terrorism, some may argue that we are not at war, because Congress has not declared war as required by the Article I, Section 8 of the Constitution. n47 The Supreme Court, however, long ago decided that such a formal declaration is not required for the Executive to wage war. n48 On the subject of what constitutes a war, the Court in The Prize Cases stated "war has been well defined to be, 'That state in which a nation prosecutes its right by force.'" n49 In addition, the Court observed, "war may exist without a declaration on either side." n50 In a passage of legal realism, the Court noted that a "civil war is never publicly proclaimed . . . against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know." n51 As in the Civil War, there has been no formal declaration of war in the current war on terrorism. Congress has, however, made the functional equivalent of a declaration of war in its authorization of the use of force against al-Qaida. n52 As in The Prize Cases, such an authorization should be sufficient for a court to take judicial notice that a state of war exists.


The aftermath of the Civil War provides further historical support for the notion that civil liberties may be restricted even absent a formal declaration of war. The Reconstruction Act of 1867, n53 passed in response to widespread Ku Klux Klan violence in the South, evinced a willingness on the part of the 39th Congress, which drafted the Fourteenth Amendment, to restrict civil liberty in times of national crisis, even though the nation was not at war. Although the Civil War had ended two years earlier, Congress felt the need to impose military rule on the South. After passing the Reconstruction Acts, Congress then restricted the appellate jurisdiction of the Supreme Court to hear the issue, ensuring that it would not be held unconstitutional. n54 According to Democrats, military rule would be the "death-knell of civil liberty." n55 The Reconstruction Acts laid out conditions for the readmission of states into the union; among  [*715]  which was the ratification of the Fourteenth Amendment. n56 In effect, Congress coerced the votes of southerners with the use of military rule. Without this restraint on liberty, it is unlikely the Fourteenth Amendment would have been ratified. These circumstances reveal that the Fourteenth Amendment was, at least in part, conceived through restricting civil liberty.


Congressman John Bingham, the principal author of the Fourteenth Amendment, expressed the sentiment, typical of the Reconstruction Congress, that war and times of great danger to public safety justified restraints on liberty. During debates on the Civil Rights Act, Bingham made reference to the military tribunals in the South:




I would be ashamed, sir, to go to your tribune, and take upon my soul the oath prescribed by the Constitution, if I thought this Government had not the power to establish tribunals of justice within the insurrectionary districts during the time of insurrection and until the duly organized State governments were restored for the protection of life, liberty, and property, to all men alike. n57




Bingham further remarked that "in time of war, whether it be civil or foreign war, the public safety becomes the highest law; and tribunals of States and institutions of States . . . 'go by the board for the time being.'" n58 When peace was restored, however, Bingham believed "justice is to be administered under the Constitution, according to the Constitution, and within the limitation of the Constitution." n59


The framers of the Fourteenth Amendment were also well aware of the threat to national security posed by a terrorist organization. Since the end of the war, the Ku Klux Klan had conducted what can only be described as a reign of terror throughout South. n60 In response to this widespread violence, Congress enacted the Ku Klux Klan Act of 1871, which, among other things, provided for military intervention and suspension of the writ of habeas corpus. n61 As might be expected, "the most sweeping defense of federal power came from the black Congressmen, whose constituents had deluged Congress with pleas for forceful action to 'enable us to exercise the rights of citizens.'" n62 Democrats criticized the new laws as threats to individual liberty. n63 At the Attorney General's urging, President Grant proclaimed a "condition of lawlessness" and suspended the writ in October 1871 in nine counties in South Carolina. n64 Federal troops occupying  [*716]  the region made hundreds of arrests. n65 At least one state government also attempted to restrict habeas corpus against the Klan. n66 These incidents further evince a willingness on the part of the Reconstruction Congress to restrict civil liberty in order to ensure public safety, even without a formal declaration of war or even the informal existence of a state of war. In sum, the historical evidence can undoubtedly be read to support a restriction of Fourth Amendment rights during wartime, or grave threats to public safety, and a fortiori a restriction on the Fourth Amendment remedy of the exclusionary rule.


B. Implications for the Exclusionary Rule


In addition to this historical evidence, current doctrine can be read to allow for a wartime/public safety exception to the exclusionary rule. This Comment assumes that the exclusion of evidence in cases dealing with national security would undoubtedly deter many Fourth Amendment violations. These deterrence benefits, however, do not outweigh the substantial social costs of freeing terrorists. The possibility of another mass murder on the scale of the World Trade Center is simply too great a price to pay for the marginal increase in freedom that might accompany deterrence of Fourth Amendment violations. In addition, the entire nation's attention will be focused on many of these cases. Allowing terrorists to escape justice will surely generate among the American people the "disrespect for the law and administration of justice" about which the Court has been concerned. Public opinion in this area will create hydrolytic pressure for district judges to bend existing doctrine to admit evidence. This same public opinion creates a problem for the judge who wants honestly to follow the law and precedent. While the trial judge must take the heat for allowing the terrorist to go free, the Supreme Court is insulated from such public venom, even though its holdings mandate the result.


In determining the reasonableness of a search or seizure, the Court has balanced individual rights against the interests of the state. n67 Why not balance the rights of the individual against the state in determining whether to apply the exclusionary rule? In fact, such balancing is essentially no different than the balancing that takes place with the cost/benefit analysis that determines the applicability of the exclusionary rule. Over half a century ago, Justice Jackson called for a common sense reading of the Fourth Amendment, which is equally appropriate for the exclusionary rule. In his dissent in Brinegar v. United States, n68 Justice Jackson observed:




If we are to make judicial exceptions to the Fourth Amendment . . . it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnapped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the  [*717]  search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. n69




Such a view appears to be gaining acceptance with the current Court, at least in the context of terrorism.


In City of Indianapolis v. Edmond, n70 the Supreme Court, in holding that a drug interdiction checkpoint violated the Fourth Amendment, stated "the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack." n71 Similarly, in Florida v. J.L., n72 the Court noted that "a report of a person carrying a bomb need not bear the indicia of reliability we demand for a report of a person carrying a firearm before police can constitutionally conduct a frisk." n73 These cases suggest a willingness on the part of the Court to take judicial notice of the extraordinary nature of terrorism and the challenge it has created for the law enforcement community. Carving out an exception to the exclusionary rule here is in fact a substantially more modest proposal than the one advocated by Justice Jackson, simply because such an exception would still leave Fourth Amendment tort remedies intact.


This Comment proposes a simple test that would require courts to inquire whether the evidence revealed that the party was preparing to engage in, or did engage in, an act of terrorism. If so, the evidence should be admissible under the national security exception to the exclusionary rule. The government should establish in a pre-trial hearing, possibly in camera if it deals with sensitive information, that the accused has engaged in such terrorist acts. Applying this test to the introductory hypothetical, the government would simply need to prove that Robert Pollard was engaged in an act of terrorism. In order to circumscribe the searches or seizures that would fall under the wartime/public safety exception, the courts should look to existing legislation that defines terrorism. n74 In this case, federal legislation defines the creation of a weapon of mass destruction as an act of terrorism, n75 and thus the evidence that Pollard was in possession of such a weapon should be admissible. This rule, however, does present a small problem of circularity, if terrorism is simply what the government defines it to be. Ultimately, the judiciary would have to adopt a core definition of terrorism for purposes of the exclusionary rule exception. One possible definition of terrorism might read something similar to the following: "any act of  [*718]  violence directed toward civilians that is intended to generate fear in others not immediately affected by the act."