From: Black Unicorn <unicorn@access.digex.net>
Date: Thu, 9 Feb 95 22:28:29 PST
To: dshayer@netcom.com
Subject: The question is moot: (Was: Not crypto, but scary.)
In-Reply-To: <v02110101ab60a4d6d80d@DialupEudora>
Message-ID: <Pine.SUN.3.91.950210010704.5527A-100000@access3.digex.net>
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With all the gafawing about the bill (666) which just flew by, and the 
"Dem's" running off about how the constitution is being dismantled, I 
thought I would cite some case law.

I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).

Justice White:

This case presents the question whether the Fourth Ammendment 
exclusionary rule should be modified so as not to bar the use in the 
prosecution's case-in-chief of evidence obtained by officers acting in 
reasonable reliance on a search warrant issued by a detached and neutral 
magistrate but ultimately found to be unsupported by probable cause.

[...]

The Fourth Amendment contains no provision expressly precluding the use 
of evidence obtained by violation if its commands, and an examination of 
its orgin and purposes makes clear that the use of fruits of a past 
unlawful search or seizure "work[s] no new Fourth Amendment wrong."  The 
wrong condemned by the Amendment is "fully accomplished" by the unlawful 
search or seizure itself, and the exclusionary rule is neither intended 
nor able to "cure the invasion of the defendant's rights which he has 
already suffered."  The rule thus operates as "a judicially created 
remedy designed to safeguard Fourth Amendment rights generally through 
its deterrant effect, rahter than a personal constitutional right of the 
person aggrieved."

[...]

First, the exclusionary rule is designed to deter police misconduct 
rather than to punish the errors of judges and magistrates.  Second, 
there exists no evidence suggesting that judges and magistrates are 
inclined to ignore or subvert the Fourth Amendment or that lawlessness 
among these actors requires application of the extreme sanction of exclusion.

[...]

[The exclusionary rule cannot be expected to deter objectively reasonable 
law enforcement activity...]

This is particularly true, we believe, when an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate and acted
within its scope.  In most such cases, there is no police illegality and this
nothing to deter. It is the magistrate's responsibility to determine whether
the officer's allegations estlablish probable cause and, if so, to issue a
warrant comporting in form with the requirements of the Fourth Amendment.
In the ordinary case, an officer cannot be expected to question the
magistrate's probable-cause determination or his judgement that the form of
the warrant is technically sufficent.  "[O]nce the warrant issues, there is 
literally nothing more the policeman can do in seeking to comply with the 
law."  Penalizing the officer for the magistrate's error, rather than his 
own, cannot logically contribute to the deterrence of Fourth Amendment 
violations.

END.
++++

The bill is really just a restatement.  This has been the state of the 
law for 11 years now.

If the bill fails, the essence of the doctrine that everyone is concerned 
about stands in any event.

The question is moot.

-uni- (Dark)

--
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!