Tonight, from Boston, The Advocates. Guest advocates Mitchell Ware and J. Daniel Mahoney, and the moderator, Victor Palmieri.

Good evening. Welcome to The Advocates. Each week at this time we look at an important public issue in terms of a practical choice. Tonight s issue deals with the question of protecting the constitutional rights of the accused while still protecting the prosecuting rights of the society. Specifically, the question is this: "Should Courts be able to admit evidence that police have seized illegally"? And advocate J. Daniel Mahoney says, "Yes".

President Nixon said recently, "Some courts have gone too far in the past in weakening the peace forces against the criminal forces". One of these Supreme Court decisions excludes from a trial evidence illegally obtained". With me tonight to urge that this rule be changed is: Deputy Joseph Jordan, chief of detectives at the Boston Police Department, Congressman Michael McKevitt. of Denver and Judge William Erickson of the Colorado Supreme Court.

Advocate Mitchell Ware says, "No".

What I suggest tonight is merely that law enforcement officers obey the law of the land and the Constitution and nothing more. I wonder if that is too much to ask. To illustrate, I have a couple of men, Yale Kamisar, law professor from the University of Michigan, Mr. Renault Robinson, a Chicago police officer, and Jack Day, a judge of the Ohio Appellate Court.

Gentlemen, thank you very much. Before we proceed with the cases, let me tell you a little about tonight's guest advocate, Mitchell Ware. Mr. Ware is a lawyer. He was appointed to the National Commission on Marijuana and Drug Abuse by President Nixon in 1970. He is now a member of the faculty at DePaul University School of Law. Well now for some background on tonight's question. To illustrate tonight's topic we have borrowed a portion of a police training film.

A police officer on duty on Main Street observes a man whom he knows to have been convicted of dealing illegally in narcotics. On the chance that he may be carrying contraband, the officer stops him. When he finds an envelope containing four packets of what appears to be marijuana, he places the man under arrest.

In the case you've just seen, the narcotics seized by the police officer would not be admissible as evidence at the trial. To carry out a legal arrest and search, the officer needed either a valid warrant or reasonable grounds to believe a crime had been committed. Well these are constitutional requirements designed to prevent arbitrary police behavior... and to protect our right of privacy. Now, the officer in the film didn't have a warrant, and since the mere fact that the pedestrian had a criminal record does not constitute reasonable ground to arrest, the officer's actions were improper. Ten years ago, the Supreme Court decided that when police carry out an illegal arrest and search, any evidence seized must be excluded from the trial. Now in applying what is termed "the exclusionary rule" to such evidence, the Court set off a debate which continues to the present day. Chief Justice Warren Burger, among others, has urged modification or abolition of this exclusionary rule. Recently, Senator Lloyd Bentsen from Texas introduced a bill in Congress to accomplish this objective. This evening The Advocates examines that bill which, as a first step, would give judges discretion to admit evidence even if police acted improperly in obtaining it, and thus, despite the fact that the officer in our film had neither a warrant nor reasonable grounds to arrest, the narcotics he found would be admissible under tonight's proposal. In our debate tonight, we focus on the policy issues involved, not the narrow legal issues concerning this specific bill's constitutionality. So Mr. Mahoney, tell us why courts should be able to admit evidence which police have obtained illegally.

A criminal is to go free because the constable has blundered. A room is searched against the law and the body of a murdered man is found. The privacy of the home has been infringed and the murderer goes free. This is the way Judge Benjamin Cardozo described the Supreme Court ruling which prevents evidence of guilt being introduced in criminal trials if obtained by an illegal search: "The purpose of a trial to seek the truth is thwarted. Not only does this exclusionary rule overprotect the guilty, it does little or nothing for the innocent". Consider this. Today, if the police break down your door and find nothing incriminating, it's very difficult for you to recover damages. You would have to sue the police as individuals, and juries tend to sympathize with them. And of course, if they found you hovering over a dead body on the other hand, they couldn't use the evidence against you. Under Senator Bentsen's bill, if they entered your house illegally and found nothing, you could sue the Federal Government for damages. You would be far more likely to collect. If they happened to discover incriminating evidence on the other hand, they could use it in court and you could still sue for the illegal entry. This bill would protect the innocent and remove the unfair protection the guilty now enjoy. This is standard procedure in England and Canada. It should be in the United States too. To discuss the problems the police now encounter under the rule, I will call Deputy Superintendent Joseph Jordan of the Boston Police Department.

Superintendent Jordan, welcome to The Advocates.

Deputy Jordan has spent twenty-five years in the police force and is now Chief of Detectives. Deputy Jordan, can you give ne a practical example of how the exclusionary rule operates in practice.

Yes Mr. Mahoney, I think I can. Some time ago, two of our officers saw an individual whom they suspected committing a burglary. This' individual was in a high crime rate area where several burglaries had been reported. The officers noted him carrying two cartons. They went up to the individual and asked him what he was doing and he indicated he had had a fight with his wife and was leaving home. One of the -officers looked in the cartons and what was in the cartons indicated that it was a lot of women's paraphernalia. The officers further investigated and found out that this individual had had no fight with his wife. They arrested him on reasonable grounds that he had committed a felony. After they got to the station house a short while later, the individual who owned the property came in and reported a burglary in his residence. This case went through the courts and went up to the Supreme Court, and the Supreme Court, on the technical point that the officers looked into the cartons on the street, reversed the decision and remanded the case and this man went free.

Was there any physical abuse of the suspect in this case?

None whatsoever.

What was the follow-up on the case?

This individual, since this incident happened, has been arrested something like seventeen different times.

Has he served any time after this?

Yes, he has.

Can you give us another example of the operation of the exclusionary rule?

Yes, sir. Today in our city, we have a situation which has developed between two groups of individuals. There is a gang war in effect. These individuals have been shooting each other. We believe that perhaps there are five or six homicides directly attributable to these individuals. The members of our department have been instructed to be especially alert for members of this group. One night two of our detectives observed an individual whom they had prior information this particular night that this man was armed. They stopped him in his motor vehicle and found a clip for a firearm under the seat. They searched the trunk and found the firearm. Following a court case, this motion to suppress was allowed and this man went free.

These men went free too?

What is the general effect of the exclusionary rule on police conduct.

I think it hampers and hinders police, good effective police action. I think that in many cases it confuses the issue, I think not only in law enforcement, but I think in the courts themselves. We get all kinds of interpretations of the exclusionary rule and this leads sometimes to hindering law enforcement.

Thank you Deputy and we'll hear now on cross-examination from Mr. Ware.

You know, I really just can't believe what you've said. You've had police officers who went out and effected two bad arrests which didn't go into good police conduct and you expected those cases to hold up in court?

Yes, sir, I did. I didn't think it was bad conduct, I thought it was very reasonable conduct on the part of the police.

Ware; You thought it was reasonable conduct because they received an anonymous tip to go out and search someone.

They received information plus the fact that we've had several homicides directly attributed to these two groups. I think that's reasonable conduct in terms of

Was your tip anonymous officer?

Which tip?

Your tip that you were to go out and search somebody's car for a weapon.

Not somebody's car, that some individual was armed a member of this group that are killing each other.

They said that an individual was armed at the time that your men went out there, told you who he was and where he was and you stopped him and you said that that was excluded. Let's tell the facts the way the facts are supposed to go. You said you received an anonymous tip didn't you?

I said that first of all we have this situation in our city where one gang is warring with another. There have been several homicides attributed to these groups.

Would you propose we go out and pick up every young man who belongs to any type of group and search him?

No, no, you're missing the point altogether. I'm talking about two specific groups. I'm not talking about John Q. Public, I'm talking about two groups of people whom we know, who we have identified belonging to either faction and we instruct our men --

Did you have specific information on a particular individual, or was this an anonymous tip that someone might be armed at that time?

This was reasonable behavior on the part of the police.

Officer, did the courts issue a warrant saying that it was reasonable, that you had probable cause, and if so, why didn't you have one?

This happened at 2:00 a.m. in the morning.

Let me interrupt for a moment. Mr. Ware, I don't think you've had an answer to your question, I don't think the witness has had a chance perhaps. Was there a tip, was there an anonymous tip which alerted the officers?

There was a tip from an informant, yes, sir. It wasn't anonymous, it was from an informant.

If it was from a reliable informant, I think that it's a different situation. I think we're trying to confuse the facts. But let's go on to something else. Would the judge have issued a warrant based on that information?

Yes, sir.

If the judge would have issued a warrant, why didn't you get one?

It was 2:00 a.m. in the morning. This is a maximum effort we put forth every day.

Don't your judges work until 2:00 a.m. in the morning?

No, they do not.

So after 2:00 a.m. everyone can go out and do anything he wants to do and you can't get a judge to do anything about it?

Sometimes we're fortunate enough--to obtain the services of a judge, but not all the time.

Well, I think what you're saying is that you'd like to have complete authority to go out and arrest anyone any time you feel as though this person should be arrested.

No, sir. That's not what I'm saying at all.

Well what are you saying?

I'm saying that reasonable conduct, reasonable behavior on the police's part --

What did the man do that was unreasonable that caused the police to pick him up except driving his car?

You have missed the whole point evidently. I said that this man was a member of a group of individuals who were shooting another group of individuals. It was a gang war. This man was a member of that group. We had instructed our men that if they saw any of these members of either group, now remember, we're specifying that group, to stop and frisk them for weapons.

Oh, now that's a little different. What about a member of the American Civil Liberties Union? Why don't you just search every member of that group that doesn't agree with police conduct?

This is ridiculous. You're distorting the whole picture.

Well you're talking about groups aren't you?

I'm talking about specific groups, I'm not talking about the American Civil Liberties Union.

Deputy, let me ask you this question to help to clarify. Are you saying that, given the context, you thought this was probable cause to make the arrest, or to make the search?

Yes, sir.

Now, what about that Mr. Ware, very quickly.

How many anonymous tips do you get in your police station a day?

I have no idea.

But you get a lot of them?

I guess so.

Do you search everybody you get a tip on?

No, sir.

So you selected these people to search because you felt they were a group?

They belonged to a specific group, yes.

Gentlemen, that completes this segment of the show. Thank you very much Deputy.

I could hardly believe the cross-examination there. I thought he was going to be asked not only to go and get a warrant from a judge but to write a brief before he went and arrested a man who turned out actually to be carrying a lethal weapon. I'm personally very glad they got that weapon before somebody was killed. My next witness is Congressman Mike McKevitt from Denver, Colorado.

Congressman, welcome to the show.

Thank you, sir.

Congressman McKevitt is a member of the House Judiciary Committee and a former district attorney for four years in Denver. Congressman, is the Bentsen bill a sensible approach to the problem addressed by the exclusionary rule?

I think it's a very sensible approach and I think so for this reason: It will give the trial court the power to determine or to have discretion between serious violations of illegal searches and those which are technical violations in which oftentimes the officer didn't have the twenty-twenty hindsight to determine it would be an illegal search in the first place.

Under the Bentsen bill, if they find a substantial violation they are supposed to exclude the evidence, isn't that correct?

That's correct.

It's only the technical violations where the evidence is allowed in.

As I say, in the non-serious violation, the court would have the discretion. It would be under the discretion of the trial judge to do that.

Does the bill provide any remedies for people whose rights are violated by illegal searches and seizures?

I think this is one of the strong parts of the bill, the fact that under the system now, a party who feels he is wronged will be able to bring a suit against the governmental agency, the United States Government in this case, and if he does have a valid claim he will have a much better chance of collecting against the Government than he would if he were to sue against an individual police officer.

Do you believe then that it's a better remedy than the present one which he has only against the officer?

I think so, for several reasons. Principally because of the fact that oftentimes an officer is judgment-proof and oftentimes he will draw the sympathy of a jury as well and the jury would be inclined to rule against the plaintiff in that action.

How do you hook this up to the question of whether the courts should admit the evidence? What does his right to recover have to do with it?

There's two provisions in the Bentsen bill. The hook-up is that you get the deterrent out of the civil action that the proponents of the exclusionary rule claim can only be derived from the exclusionary rule. What was your experience with the exclusionary rule as a district attorney for four years?

I think my principal experience as a district attorney was that there were a lot of cases where they were clearly guilty and they were allowed to go free.

Can you give us some examples?

Well, I think one of the most classic examples, some may disagree, exists particularly on narcotics cases searches where they came in, the officer would have to act quickly under the circumstances because they could clear the area, clear it from a raid standpoint, evidence was thrown out later. Gambling is another case where it came into play. Narcotics, gambling and use of weapons are the three big violations we saw.

Mr. Ware, it's your turn.

Congressman McKevitt, you had an opportunity of seeing an awful lot of law enforcement didn't you, good and bad?

Yes.

When you see a good case, the case gets held up in court, when you see a bad case it get's pitched out. Is that correct?

Well, that's an over-simplification, but you hope that--

Well, if it's a good case you don't have to worry about the exclusionary rule, do you?

No, I think you're over-simplifying that issue there because the problem you run into, you oftentimes I think have a good case in substance and you may have a minor technical violation.

What do you consider a minor technical violation?

You could give any number of examples, but I'm talking about small insignificant situations or small violations which really don't go to the substance of it and yet bar it out of there because of the strictness of the exclusionary rule as a result of Mapp vs. Ohio in 1961, the Supreme Court case.

The illegal search and seizure by a police officer does violate the Constitution doesn't it?

Under the strict interpretation given by the Supreme Court in 1961 and 1914, yes.

And law enforcement officers are there to abide by the Constitution and enforce the Constitution?

Correct.

Now you, in your office as district attorney, did you ever have an opportunity to see the exclusionary rule sustained, where they threw evidence out because of a bad arrest?

You mean on technical violations?

On technical violations, on bad arrests, no probable cause?

You mean where it was actually barred and we lost our case as a result?

Certainly.

Yes, many times.

Did you bring any actions against the police officers?

Well, what you try and do there for example is--

I asked you a question, did you bring any actions against police officers?

I want to answer your question.

Go ahead and answer it.

The action I brought was in the nature of trying to educate the officer even more. But the problem you have here is that you can't expect the officer to have twenty/twenty hindsight and guess ahead what the rulings of the trial court will be in the future.

Now, normally, when you saw the exclusionary rule come into effect, it was a deliberate action on the part of the officer to go some place to arrest someone and stop them and search them. Isn't that correct?

You mean a deliberate action by him?

Certainly, it's a deliberate stop, it's a deliberate search, and if they had properly prepared themselves before that they could have obtained the necessary documents to make it an effective arrest couldn't they?

That's a beautiful theory, except the fact is that an officer is under pressure at all times and particularly under certain circumstances and you can't expect him to have perfect judgment.

Well you mentioned gambling, you mentioned narcotics, they don't stop gambling in one day, in one minute, in one hour, do they?

Oftentimes narcotics raids took place in a matter of thirty minutes.

Okay, sir. But that doesn't mean they are going to stop using narcotics in thirty minutes, does it?

I don't get your point.

Well, can't they come back and get the proper warrant, come back and make the arrest effective with the warrant.

The evidence could be confiscated by that time.

It could be, but it could not be.

Oftentimes they stumble into the situation too. This was the classic case we had oftentimes where we'd discover it, the neighbor would call and they would go into a situation all of a sudden, there they are, they thought that it was a legal search and the court determines that it wasn't.

Let me ask you a little bit of something else on this. If the exclusionary rule were to be abolished, this would give the law enforcement authorities the power to make their own determination, their own judgments on the street as to what they should do. Isn't that correct?

I m not asking that it be excluded altogether, I'm asking that in fact you have a discrimination between the serious offense and the more technical or the less serious offense and give this discretion to the trial lawyer.

Who is to make this discrimination?

The trial judge.

The trial judge is to have the ability to try and discern what's a difficult and serious offense as opposed to a minor offense?

We give this trial judge many discretions already and this would be one more for him.

So this would just be one more thing for the trial judge to try to find out?

Yes.

In your ability to prosecute cases and try them up in Colorado when you were prosecuting attorney, did you have the opportunity of seeing judges in different areas and different jurisdictions?

Yes.

Did you see them deviate from one area to another in their sentencing?

You see a great deal of variation. Judges are human.

There is a good possibility they are going to vary.

Congressman, there are judges on the show tonight, we're going to test that theory. Thanks for being on The Advocates. Mr. Mahoney, it's yours to wrap up the first segment.

I think we ought to remember that the Bentsen bill would exclude evidence where there was a substantial violation by the police in the search procedure. We're only talking about the technical violations, the kind of things that Deputy Jordan was talking about, where it's 2:00 am and you don't have time to go for a warrant, where at some later determination is made that there wasn't probable cause although you are talking about two gangs who had five homicides with each other in a matter of recent weeks. The exclusionary rule as it presently works only protects the guilty. The innocent citizen who is searched by the police and they don't find anything, he gets no protection from the exclusionary rule. The only function, practical function, is to keep evidence of guilt out of criminal trials. I submit that that's a foolish rule.

We're going to have an opportunity to hear from you on rebuttal. Let's hear from Mr. Ware now for the case against this proposition.

Tonight's proposal would allow illegally seized evidence to be used in a court of law. Now the major reason that the patriots of 1776 started the Revolutionary War was to halt these unbridled, unrestrained searches of homes and persons constantly being perpetrated by the Crown, and that's the reason they put this right into the Constitution. What tonight's proposal would mean to the ordinary citizen if we abolish the exclusionary rule is that the police would have the right to decide for themselves if and when to search you. When to search your house, your papers. When to wiretap your phone. They can do it at will and without obtaining any type of search warrant, without any probable cause to believe that a crime has been committed, they can go on as many fishing expeditions as they want and then use anything they might find against you. If they find nothing, you're merely left, with your home torn apart and a bad taste in your mouth, annoyed, frightened and humiliated. Our system of justice should embrace the assumption that all persons should respect the laws and rights of others. Nobody should be encouraged or permitted by the courts to take matters in his own hands. I can't think of a worse thing to do than to open the doors to sanctioning and encouraging illegal and unlawful police behavior. It's this kind of police abuse that causes hostile reaction and further polarizes our already confused society against the police. The irony is this sort of a proposal under the guise of law and order is merely a distortion and perversion of equality, of equal enforcement, of equal justice under the law. I urge you to consider carefully what you are about to hear because when a law affects the most indigent and abused member of our society, it can affect you. You might be next. All we ask is that law enforcement officers respect and obey the law, and do a good job. My first witness is Yale Kamisar.

Welcome Professor Kamisar.

Mr. Kamisar is a professor of law at the University of Michigan. Mr. Kamisar, what's the meaning of the Fourth Amendment?

Well the Fourth Amendment really guarantees the security of a person's privacy against arbitrary intrusion by the police. Now the words of the Fourth Amendment are broad enough and flexible enough that they now cover techniques such as wiretapping and bugging, which were never thought of or dreamt of by the founding fathers. So I would say that today the Fourth Amendment provides in effect that a citizen cannot be arrested, or his home searched, or his phone tapped, or his living room or bedroom bugged or wired for sound on mere hunch, suspicion or whim. The police must have good specific reasons or else they must leave the citizens alone. The Fourth Amendment also has this notion that where possible, v/here practical, and this discussion earlier with the Superintendent, it seems to me that if it is not practical there is no need to get a search warrant, but where it's practical the police officer should go to .a magistrate and present the evidence to him and he should decide whether or not the search should go ahead. The magistrate is sort of a buffer between the police and the people.

What's the exclusionary rule, how does that apply?

Well, the theory of the exclusionary rule is if you have a constitutional provision which is that the police can't operate in. a certain way, then it's only a common sense interpretation to say that if they do operate in that way, they shouldn't be able to use what they did illegally. They shouldn't be able to benefit from their illegality. There is also the notion that if the courts were to allow them to use the illegally seized evidence, they would seem to be accomplices in the police misconduct and they would be giving the impression to the public and the police that they really approve of what the police did because they're letting them use it in their own courts.

If someone effects a search without any probable cause is this a violation of the law?

Well yes, and I was surprised to hear the Congressman say that it wasn't until 1961. It was always against the Fourth Amendment to search or arrest without probable cause. The exclusionary rule only affects the consequence, what you do about it, and it seems to me perhaps the most important point made for our side tonight was the statement that it was only a violation of the Fourth Amendment in 1961. That, it seems to me, illustrates that to many people the exclusionary rule is the Fourth Amendment when of course the Fourth Amendment has been there since 1791.

All right, now on to Mr. Mahoney in cross-examination.

Professor Kamisar, you've written, and I quote: "We are intellectually capable of formulating better alternatives than the exclusionary rule. I merely doubt that at the moment we are politically capable of effectuating them". What alternatives did you have in mind?

Oh, I think that, for example, holding the police officer in contempt and sentencing him for thirty days in jail, or suspending a police officer without pay for searching without a warrant, or prosecuting a police officer because, it's a federal crime for a federal officer to take part in an illegal search procedure. What I meant was these things are paper remedies. They don't happen in the real world.

well, you don't regard the Bentsen rule as a remedy of any sort?

Merely passing a law is not necessarily going to accomplish anything, and as I just said, there are laws on the books right now which make it a crime under which there hasn't been a single prosecution in fifty years under the existing law.

Well that's not true that there have never been any prosecutions of any police officers for police brutality or abuse, that's not true.

We're not talking about police brutality, we're talking about illegal search and seizure alone. That's the issue tonight and I said there hasn't been a single prosecution since 1921 under the federal code which makes it a crime for a federal officer to take part in illegal search and seizure.

Well when we're talking about the Bentsen bill which keeps out any situation where a judge finds that there's a substantial violation, why wouldn't that provide adequate protection?

Well, because we have enough difficulty right now trying to give the police some guidelines as to what is reasonable grounds, what is probable cause. The Bentsen bill throws in new terms, substantial violation, willful violation. Would exclusion of admission affect the outcome? And this would vary so much depending, one judge would always let it in, another judge would always let it out, the police would never know whether they violated the Fourth Amendment but it wasn't substantial or whether they didn't violate the Fourth Amendment in the first place, and it seems to me it would be so confusing and so unclear --

As compared to the present clarity?

Well, it's a matter of degree. At least we've had fifty years putting some content in the concepts of probable cause and reasonable grounds. When you throw out new concepts with no background at all it's much worse.

Do you believe that the exclusionary rule generally deters police from making improper searches and seizures?

Well, it's awfully hard to say. It doesn't do a great deal. I would say it's admittedly incomplete. There are many areas of police behavior which obviously it can cover, but I think the answer is to supplement the exclusionary rule, not abandon it.

Well isn't the only justification for it that it would deter?

No, I think the courts have a great symbolic significance. I think, the courts are demonstrating that they take violations of the Constitution seriously enough to do something about it and that indicates to the society that the court has a commitment to the principles of the Fourth Amendment which is a function other than simply deterring the police.

In other words, the courts have a great deal of reverence to the Constitution but they can't be trusted with the discretion they'd get under the Bentsen bill.

We're talking about two different courts, the United States Supreme Court and the average trial judge. Unfortunately, the average trial judge is very close to ringside, close enough to be spouted by the blood and think most people who've studied it say that they are very sympathetic to the police, they have to run for re-election, etc. and they know all about the politics of law and order too.

Do you think that the Bentsen remedy of a civil action against the offending against the Government representing the offending policeman would be effective?

I don't know. I think if it would be effective I'd be all for it, but I think there are all sorts of reasons why the victims of police illegality are afraid to bring actions against the police and those reasons may apply with respect to the Bentsen bill as well as they have in respect to other bills.

Let me take the last question Mr. Mahoney. Can you tell me Professor why England and Canada have found it possible to get along without this exclusionary rule?

Yes, I think I can say, based on the writings I've read about Canada and England, that for one thing the police don't violate citizens rights to the extent that our police do. And for another thing, apparently the juries in Canada especially' have been known to give some very whopping verdicts to express their resentment for police illegality by rewarding the victims very handsomely, and most commentators agree that therefore perhaps they don't need the exclusionary rule.

Professor, thank you very much for being on The Advocates.

We've heard a constitutional lawyer tell you what means are available for showing what the exclusionary rule is. Now we're going to try and find out what happens on the street as a practical matter as I call Mr. Renault Robinson.

Welcome Mr. Robinson.

Mr. Robinson is a Chicago police officer for eight years and he is the executive director of the Afro-American Police Association. Mr. Robinson, what's the practical application of the Fourth Amendment on the streets, in the communities, in the different communities in which you have worked?

Well, being a policeman for eight years I've had an opportunity for most of that time to work in the black community and at the same time to work in a district that abridged the white community where we had double jurisdiction, black and white. And 97% of our activity, and I worked in vice and gambling and narcotics, was always done in the black community. Our Illegal searches and seizures took place in the black community because we got less hollering and less crying about the abuses of it. If, for instance, we did the same thing in the white community they raised holy Cain and of course we couldn't stand the static from that type of thing so we concentrated our efforts in the black community. I think there is where the poor people live, there is where the people who are least able to afford an attorney, there is where the people who least know their rights, that's where people are used to being abused. There's always been a double standard. However, black citizens have lived under this sort of police state mentality for so long that now it's just a matter of survival, whereas white citizens are very concerned about their rights. I think that in my experience as a police officer, if we did the same thing in a white community that we do on a daily basis in the black community, then we wouldn't have to worry about discussing this question because white folks would end this the next day.

What would be the effect of admissibility of this type of evidence in the community.

Well, I think it would make automatically all minority group members automatic victims of the police department. By that I mean blacks, Puerto Ricans or Latins and also very poor whites, special interest groups like hippies or college students with long hair, those that could be considered flower children and what-have-you those who espouse or went along with unpopular causes or had political beliefs that were not along the lines of the government. I think that all of these people would be automatic victims and by removing the harnesses or the shackles from the police that keep them somewhat in line, that they would be able to use their authority to harass people. Now we're presently being able to harass blacks and poor whites and Puerto Ricans now without too much fanfare because it's not normally played up in the news media, but to have a young rich white who is a college student be harassed by the police, in this way brings a howl from his father. So I think that it would tend to unleash the police and to make more of a police state in more of mid-America than it is now.

Do you think the police attitude would change if this exclusionary rule was permitted to be --

No, and let me clarify that right now. We must understand the type of people that are policemen. There are 420,000 policemen in the United States, the average one does not have a high school education, the average one comes from the lower-upper class, and the average policeman is white. They have their bigots and they have their problems with blacks and other minority members and I think if we unleashed this restraint, this slight restraint that we have on them now, they'd be able to act out their prejudices a little bit more, and then they could do it with legal sanction.

Let's go to cross-examination.

Mr. Robinson, in your police experience, what kind of violations are typically, do you typically find people going free on as a result of the exclusionary rule?

That presumes that I know that the people are guilty and I cannot make that assumption. In my experience --

I said violations, charges.

Oh, well, I think that I find that people go free when evidence has been seized illegally in situations involving narcotics, where there is one marijuana cigarette found in a car with five people in there and they want to charge everyone with having it; situations where there is gambling taking place and we've got it from a reliable informant who we never name and that's a standard line used by police officers and we break right into somebody's home and stop the friendly card game where there might be five dollars on the table and we lock everybody up. I see people going free in situations where there is a gun locked in the trunk of a car and the guy was stopped for faulty license plate light and made to stand in front of his car with both hands up and his wife made to get out and his children searched and the seats taken out, and finally they find a gun in the trunk.

You never see anybody you consider to be a criminal going free do you?

I don't make the determination, I'm a police officer, a professional police officer.

But just your practical judgment as to whether --

I don't make that kind of judgment, I'm told to arrest if I feel there is probable cause and let some other authority do that, normally the courts.

You make an awful lot of judgments but you never have any judgments as to whether anybody is really a criminal, that's all up to the courts is it?

I'm not told to do that. I'm told to, in my mind, if I feel that certain things have been violated if I feel that I'm to bring them before another authority and allow them to make that judgment. I'm not trained that well, I don't have that many hours of law.

Well why shouldn't these courts be allowed to distinguish between serious and technical violations as the Bentsen bill would provide?

Because I think that that's just an excuse to say that we're going to have a police state for everybody except those very rich and very wealthy who escape everything anyway. I think everybody else would automatically become victims because most poor people and people who are not educated enough to understand the law are victims anyway.

Well the President's crime commission has found, after talking to the major civil rights leaders in the country and many others, that there is a declining degree of police force being used against private citizens. You disagree with that finding?

Well, I disagree with a lot of things the President's commission has said. First of all, they studied the police extensively and they never mentioned the fact that there is a very close collusion between police and politics, and how they could study the police and not come up with that.

I'm not asking you to recite the report.

I'm saying I doubt the validity of the President's commission.

Everything they said, including that.

I didn't say that.

Well I asked you about one thing they said, I'm not asking you for a general judgment, I'm asking you whether you agree with their finding when they talked to the major civil rights leaders in the country and a number of other people that there is a declining rate of police physical abuse of citizens. They say it's declining.

No, I don't agree with that. Every commission report that's been written since 1919 has substantiated police brutality, every one. I don't know which report you are talking about because I've read all of them and have copies of them, and they all say that there has been substantial physical abuse of minority citizens.

I'm talking about the Task Force Report by President Nixon's Crime Commission.

Why don't you ask one last question.

Who are likely to be the victims of any criminals who may get turned out? Let's assume that some of these people are criminals who get turned out, narcotics, gambling, weapons, violations. Who are more likely to be their victims? Black or white citizens?

Well, you have to split it up into categories. For minor gambling and narcotic violations, black are most likely, and other minority members, to be the victims. If we look into crimes that are not normally investigated so much like financial crimes, you are most likely to be the victim and the taxpayer is most likely to be the victim. The billions of dollars that go uncovered and the unleashing of the crime syndicate that s never attacked with as much fervent vigor as the small minority members are the ones. So we have two victims. I'm a victim to a certain extent of mugging, and you're a victim to a certain extent of financial crimes.

Officer, I'm afraid I have to interrupt. Thank you very much for your appearance.

I'd like to call Judge Day.

Welcome, Judge.

The Honorable Judge Day is from the Ohio State Court of Appeals and he is a former head of the National Association of Defense Lawyers and the vice chairman of the American Bar Association's Criminal Law Committee. Judge Day, what's the relationship or function of the Fourth Amendment to society?

The Fourth Amendment is that part of our Constitution, one fundamental part of our Constitution, which makes the difference between what we call a good society and an intolerable one. For example, it is unthinkable that in a democracy a citizen should not be free at home from intervention by the police or the State without probable cause and that he should not be secure in his papers. That may be good enough, that lack of freedom, in a totalitarian society, but not in ours.

Now, you know an awful lot about civil liberties, can you tell me the importance of the exclusionary rule?

The exclusionary rule is the thing that gives life and moment to the Fourth Amendment. It is a beautiful set of promises without some kind of sanction, and with the sanction it becomes more than a promise and has substance.

You've had an opportunity to see good police work as opposed to bad police work. Can you tell me how good police work affects the exclusionary rule?

Good police work would take away most of the complaints about the effects of the exclusionary rule, it would take away all the arguments practically of the opponents. If police would concentrate on becoming professional, in understanding the law, in doing adequate investigations, in becoming dedicated to the enforcement of the law, all of the law for all of the citizens all of the time, there would be very little to complain about with respect to the sanctions of the exclusionary rule because it would never come into play, there would be no occasion for it.

Now, you know something about certain agencies and how they enforce the law, can you tell us a little bit about the FBI, and how they come out when they have to face the exclusionary rule.

Well the FBI, is an extraordinarily competent police force as is the Illinois Bureau of Investigation. The FBI, has a charge and conviction rate, by conviction I mean both plea and trial dispositions, that would run some place close to 88-90%. I am told on good authority that the I.B.I., that is the Illinois Bureau of Investigation, convicts or gets pleas in about 97% of those persons with charges.

Judge, do you want to see the judicial discretion enlarged?

I would not want to see it enlarged.

And is the Bentsen bill a good alternative to the Bill of Rights?

The Bentsen bill is no alternative to the Bill of Rights. It's an invasion of the Bill of Rights by weakening and diluting the promise of the Fourth Amendment.

Mr. Mahoney.

Let's get down from generalities to a specific case. I have in mind Miller against the United States. The police arranged for somebody to carry some marked money into a known narcotics peddler. He'd had a previous conviction; the man came out, they searched him, he had no money and he had heroin. So, they went and knocked on the door, the man opened the door from inside, then he tried to close the door, they had announced they were police, they pushed their way in and found the marked money. The Supreme Court said that they should have not only announced that they were police, but announced that they were there to make an arrest, and therefore reversed the two lower courts and threw out the conviction. Do you agree with that determination?

I would have to know more about the facts on that Mr. Mahoney. All I have is an advocate's statement of them and I must say I'm not much impressed with that normally because an advocate states the case in his own way.

Well are you familiar with this area generally, this is one of the leading Supreme Court cases?

I'm familiar with the area in a general way, yes.

Are you familiar with this case?

No, I'm not, specifically.

Well, that takes care of that line of questioning.

It was one of the ones Judge Burger cited recently and I thought you might have run across it.

Well, he's cited several things recently without much support, I'm willing to talk about that if you want.

Mr. Mahoney, how about the case your own witness put. I thought that was a very good case, the case that Deputy Jordan put where he had two rival gangs, known record of homicide and, you take it from there.

Well, what about that case? Do you think that in that case the police conduct was improper.

It's conceivable that the courts made a mistake in that one case. They may have had probable cause, and if they did then the conviction should have been sustained, at least so far as the problem with the evidence is concerned it should have been. But that doesn't mean, by saying that I don't mean to say that courts make mistakes regularly, nor do I mean to say that they never do. We can't expect a perfect performance.

Aren't these distinctions that they try and impose on police, that you should search this man in the other case he posed, the burglary case; you can't search this man on the street because that's not incident to an arrest, you've stopped them there for an initial detention. If you'd made the same search after you arrested him in the police department, that's what the Supreme Court of Massachusetts said, it would have been okay. I mean, aren't those unrealistic and arbitrary restrictions to put on police? How can they be expected to master them?

Well, I think that they can be expected to master them by becoming professionals and knowing what the law is. As long as they had the man in custody, they had time to get a warrant as far as that goes, and they could have taken the matter before a magistrate, cleared what they thought was the factual situation which made probable cause, and then they would not have had the problem of the sanction of exclusion.

Judge, why do you think both the President and the Chief Justice of the United States feel that this exclusionary rule goes too far in favor of the criminal?

Because I think they are very conservative men and do not understand, either of them, that the Constitution really represents what the public is supposed to expect from its government.

Doesn't it corrupt the judicial process to let guilty people go free because reliable evidence can't be introduced?

Of course it does, and it corrupts the judicial process to have illegal police activity infringing on the rights of citizens day after day without any deterrents.

Well, don't you agree that the Bentsen bill would provide deterrents as a kind of civil remedy?

I think it would not. The Bentsen bill has so many ambiguities in it, so many necessities for further hearing, so many chances for the discretion of the judge --

Well, we are here on a principle --

Are you going to let me answer the question, or are you going to answer it?

Your Honor, let me take care of your problem. Go right ahead.

The Bentsen bill says that substantial departures from legality shall be cased by the trial court.

You haven't read the bill, that's not what it says on this aspect the bill.

Just hold on a minute, let me finish the sentence and maybe you'll understand. Now, there are six possibilities which are included as among those things which the court must consider in determining whether or not there has been a substantial deviation from legality. Now, these things include such things as the extent to which suppression might deter the willfulness for example, and all of these involve new judicial determinations on the basis of the lower court's discretion. And, we have already a great deal of flexibility in the handling of these matters in the lower court's determining of probable cause. But the difference is that we have a history of determinations of probable cause, this has become a word of art so that judges are more familiar with what they are doing -- and incidentally, we would not be overburdening our already overburdened courts with long hearings on such ambiguities as intent and capacity to deter and substantial departures from the norm.

Judge Jack Day, thank you very much for coming on The Advocates.

I think Judge Day has shown very clearly that among the many deprivations of rights there is none that is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart as taking away the right to be free from unreasonable search and seizure. If I can quote the Constitution, "The right of the people to be secure in their persons and effects against unreasonable searches and seizures shall not be violated". That's the Fourth Amendment and I don't think we want to change it.

Mr. Ware, thank you. Mr. Mahoney, your turn for rebuttal.

I'd like to call next Justice William Erickson of the Colorado Supreme Court.

Welcome Justice Erickson.

In addition to serving as a member of Colorado's highest court, Justice Erickson is chairman of the Counsel of the section of Criminal Law of the American Bar Association and a former director of the National Association of Defense Lawyers in Criminal Cases. Judge, how does the exclusionary rule affect the trial process?

The trial process is being frustrated to a large extent by the exclusionary rule. The focus has been transferred by the exclusionary rule from the issue of guilt or innocence to the technicalities of the Fourth Amendment. For example, heroin is heroin, a gun is a gun, gambling paraphernalia doesn t change. Physical evidence is immutable, it's not like a confession. A confession is suppressed and not allowed to be introduced into evidence because it comes about by the accused having his will overborne by police pressures. But this is a question of evidence of undoubted reliability and probity value being excluded largely because the police have not been able to understand, if you will, the technicalities of the Fourth Amendment, and it's very difficult to understand how they can when they have to act under emergency conditions and then find those emergency conditions and the circumstance surrounding the arrest, the search or the seizure, questioned by a trial court who has great difficulty in making a decision as to whether or not there has been any violation of the Fourth Amendment. Perhaps it's then reviewed by a Supreme Court of that particular state, or the Court of Appeals, and then finally, many years later, the Supreme Court of the United States may be called upon and we'll find differences of opinion at each level.

Well Judge, let me ask you this. Does the exclusionary rule operate to protect the innocent or the guilty?

It protects only the guilty, because, as you so aptly put it, so the constable blundered so the guilty goes free. The fact is this, the innocent has no remedy. If the police officer uses more force than he is allowed to use or doesn't obtain a warrant, the result is that the evidence is not obtained and therefore nothing happens. If evidence is obtained and it's illegally obtained it's only the guilty that's protected.

Mr. Ware.

Judge, what do we do with the ordinary citizen who gets arrested about a hundred times more than the man that has something on him and he's thrown against the wall and no evidence is found on him. What's his remedy?

Well, the remedy is under the Civil Rights Act at the present time and that's been effectively used, as you may know.

Effectively used, Judge?

Yes.

How many times have you seen the Civil Rights Act used?

Well, I knew of cases in Louisiana where substantial verdicts were obtained. I know of cases in Colorado.

How many cases a year, Judge?

I can't give you the number of cases.

One case a year, two cases a year?

I can't give you an exact number.

With a hundred violations a week at least.

I don't believe you have the evidence of a hundred violations a year and I can give you specific cases.

Let's hear something a little more practical, Judge. What is -- is a screwdriver, or a pair of pliers, or a tire iron, described as burglar tools in some of your cases?

Oh yes.

And, if we were to suspend these exclusionary rules that you're talking about, a police officer could stop any car, anywhere, any time, and find a screwdriver, a pair of pliers or a burglary tool and arrest those people and charge them with possession of burglary tools, couldn't they?

That would still be subject to exclusion under the Bentsen bill and the whole question is whether a search and seizure is reasonable, it's the reasonableness of the police conduct, whether there is substantial deviation.

Well what's more reasonable about police conduct than to stop somebody and search their car? They do it now and this is admitted in evidence.

I can't agree with you. They don't admit it into evidence. If the exclusionary rule is to have the deterrent effect that it's intended to have, such things wouldn't occur. We heard Officer Robinson describe the efforts put forth by the Chicago police --

Let's get to your testimony. Do you see any type of violations that occur in your courts?

I think any judge, or any defense lawyer, has occasion to see violations of the Fourth Amendment, or failures to comply with the requirements that have been laid down in a series of decisions that not all judges understand.

How do you explain the high conviction rate by the FBI, the I.B.I., the Ohio State Police, and so forth, when they are subject to the same exclusionary rule as your police officers?

I think you'll have to admit that the FBI is a very efficient organization.

Well why can't they all be efficient?

Because they don't have the training and they can't all be lawyers and accountants --

Wouldn't it be better, Judge, to train them adequately than to violate someone's basic constitutional rights?

There's no question about it, but we still find cases where the FBI, is the subject of criticism.

But in the interim you'd rather violate people's rights, while we're trying to train them?

Not at all. I think the rights of the people are more protected under the Bentsen bill than they are at the present time. It only provides safeguards for society, it's only society that suffers when evidence that has probity value is relevant and is not going to the reliability of the truth-finding process is excluded.

This bill seems to me to have an awful lot of judicial discretion in it, that's judicial discretion isn't it Judge?

That's correct.

And that's giving more authority to judges like you for discretionary purposes.

It's better to have it in a judge than in a police officer.

Well, now wait a minute. We're giving the police officer discretion under the Bentsen bill, aren't we? We're giving him the alternative to stop whoever he wants, search whoever he wants, whenever he wants and then take it to you for judicial review where he might not have been able to get a warrant at first to arrest those people or search those people.

Mr. Ware, that's the last question. The judge has the last word.

I don't read the Bentsen bill that way. The action of the police officer is reviewed and it's still subject to suppression if there has been a substantial deviation.

Judge Erickson, thank you. Well Mr. Mahoney, that wraps up the cases. You have one minute to summarize.

You've heard a number of misconstructions of the Bentsen bill tonight. Judge Day, for instance, went into the six factors that bear upon whether evidence comes in. None of those factors are in Section 2 of the bill which gives the civil right to recover in the event of any illegal search or seizure whether or not substantial. So the Bentsen bill gives a more complete remedy and we have experience in Chicago, where with a Bentsen-type bill, we had eighteen defendants who had criminal charges recover $126,000 in the result of cases of the type that would be authorized under the Bentsen bill. That's a good deterrent without excluding evidence that lets criminals go free, that lets people go free like the burglar we heard about here tonight, the narcotics peddler. These people are not just people hailed in off the street by some sort of police dragnet. They are criminals. We've heard a lot also about the Preamble, about the Bill of Rights of the Constitution. Let's remember the Preamble. It says: "We're also trying to establish justice ensure domestic tranquility and to promote the general welfare". I submit the Bentsen bill would help very much in all of those areas.

Mr. Mahoney, thank you very much. Mr. Ware, you have a minute.

I think it's important to remember that this is unbridled authority that we're giving to the police officer. And it can be exercised not only by the fit police officer, but by the most unfit and ruthless police officer. We have to make sure that we have a buffer between his type of activity. What we want is good police work, nothing more. If we get good police work we've shown that we don't have to worry about the conviction rate, but the persons that are going to be victimized if we permit this type of thing are going to be consistently the young, the poor, the black, the uneducated. I submit that all we need is good, effective, efficient law enforcement.

Thank you very much Mr. Ware. All right ladies and gentlemen, now once again it's time for you at home to act, to express your views on tonight's question. Should courts be able to admit evidence that police have seized illegally? What do you think? When you send us your yes or no vote on a letter or postcard and we'll tabulate your views, we'll make them known to the Congress, the White House, to others concerned with the issue. Every one of your votes is important. Remember that address: The Advocates, Box 1972, Boston 02134.

Well recently the Advocates debated the question 'should Congress make strikers ineligible to receive public aid?' Let's find out how our audience felt about this question.

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And now, let's look ahead to next week.

(film) Thirty-four states allow some form of gambling, ranging from Nevada, where casinos are legal, to New York, as seen here, which recently established off-track betting on horse racing. Gambling is big business, and being mostly illegal is a tremendous drain on law enforcement facilities. Those who support existing laws, however, feel that personal tragedy and corruption inevitably follow when gambling is easily available. Should gambling be legalized? A question next time for The Advocates.

Thanks now to our advocates and to our very distinguished witnesses. I'm Victor Palmieri, will you be with us again next week at this same time? Thank you and goodnight.

The Advocates as a program takes no position on the issue debated tonight. Our job is to help you understand both sides more clearly. This program was recorded.