THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, September 29, 1996 TAG: 9609280016
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Opinion
SOURCE: PERRY MORGAN
LENGTH: 72 lines
Evidence taken in an unlawful search cannot be used in court. That's the simply stated exclusionary rule of law that, in practice, often produces eye-popping results.
President Clinton some months back rebuked a federal judge in New York for excluding as evidence 80 pounds of cocaine that was being stowed in a drug courier's car by suspects who saw police and ran away. The judge recanted the thinking, or lack of it, that led to his conclusion that the suspects might have been fleeing out of generalized fear of police rather than from their own action in stashing the drugs.
Now comes another case from New York with a decision that causes dismay among parents of schoolchildren, and hand-wringing among those who exalt the exclusionary rule.
The new case began when a security guard noticed a suspicious bulge in the leather jacket of a student entering a high school in the Bronx. Another account said the guard thought he could see the handle of a gun. In any event, the student ran when approached and, during the chase, another guard reached inside the student's jacket and removed a .45-caliber semiautomatic handgun. It was loaded.
Following a disciplinary hearing, the student was suspended. But not lawfully. Four appellate judges ruled unanimously that the guard's suspicion that the student had a gun, which he did have, was not a ``reasonable'' suspicion. It wasn't reasonable because the student had persuaded a lower court that his jacket was so thick that the bulge within it could not have been perceived as a gun. Therefore, the appellate judges said, the gun had been excluded properly from criminal action against the student. For the same reasons, the judges added, the gun should have been excluded as evidence in the hearing that led to the student's suspension. This they annulled and cleared from the student's record.
Boiled down, the decision seemed to say that the student had a legal right to carry a loaded, hidden gun among his fellows unless he had been found out by means other than eyesight and intuition. The decision also could be read as a tip that gun-toters in public schools should take care to wear heavy jackets.
No such sourness sounded in New York Times commentary on the case. With passing reference to a city ``plagued with school violence,'' The Times hoped further appeal of the case will yield a little more leeway for school guards. That hope, though, was almost smothered by intense concern for students' right to privacy. Between that right and the need for school safety, The Times hoped for a better ``balance.''
Maybe what's needed is a little common sense. Rights do have to be reconciled, but they needn't be frozen in judicial ambivalence. If courts wish, the individual rights to privacy can be trimmed in favor of the rights of all to safety.
The notion that judges must always do delicate clockwork and hairline adjustments in constitutional cases is only a notion. Sharp turns, as well as shadings, are part of constitutional interpretation.
Warrantless wiretaps, once allowed by the courts, are no longer permitted. The same court that disapproved stomach-pumping to recover drugs swallowed by a suspect later permitted involuntary taking of blood samples in a drunken-driving case.
All this suggests that, with no great straining, a court could find it reasonable for a school guard to suspect a bulge within a student's jacket might be a gun.
The Fourth Amendment's ban on unreasonable searches sprang from gross abuses that finally led to riots in the colony of Massachusetts. As Jethro K. Lieberman notes in The Enduring Constitution, the English crown used general warrants to ransack homes and businesses. ``These writs,'' Lieberman wrote, were both universal and perpetual: They never expired and anyone was authorized to search.'' From guarding against abuse of that proportion to solicitous regard for a student going armed in a public place is a mindless stretch. MEMO: Mr. Morgan is a former publisher of The Virginian-Pilot. by CNB