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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 02/20/2001
"The Law is a Ass" Installment # 83
Originally written as installment # 72 and published in Comics Buyer's Guide issue # 643, March 14, 1986 issue


"The Law is a Ass"
Installment # 83
Bob Ingersoll

I have come to the conclusion that no one should be allowed to write a comic book, until after he or she has worked for at least a year as a criminal trial attorney. First of all, it would eliminate most of the competition. (I could write X-Men, Teen Titans, American Flagg!, and Hawk... No, let's not get greedy. Those three books should suffice. For now.) But most of all, it would mean the end of a certain myth, not to mention myth-conception, about the law that so many comic book writers, such as Doug Moench in Detective # 559, seem intent on furthering. To wit: the judges of this land are looking for excuses, any excuse, to suppress evidence and will do so, whenever asked, just so long as the request is phrased nicely. Hell, to judge by books like this issue of Detective and virtually every issue of The Vigilante, judges will suppress evidence, even if you don't ask them, just to give themselves something to do of a morning.

Let me put this as simply as I can: judges hate suppressing evidence. Suppressing evidence means that criminals who were caught almost red-handed, about whom there is virtually no question of their guilt, aren't prosecuted. Judges don't like doing this. Believe it or not, they don't like criminals any more than the rest of us. They look for any excuse not to suppress evidence and not to release these criminals. Not only because they don't like criminals, but because, if they release too many of them, it's real hard to get re-elected.

Maybe this will convince you. In my office, I'm one of the more successful attorneys when it comes to suppressing evidence; I've had evidence suppressed. Once.

Still not convinced. I understand. You have years of counter programming to overcome. Such as the judge in Detective # 559, who suppressed evidence stolen by a private citizen and then given to the police, because it was seized illegally. But that was wrong, believe me.

Oh, you don't. How to convince you? I know. Let's look at how suppression of evidence came about, maybe then you'll believe me.

It all started when there was no United States of America. No, I'm not talking about some time in the not-too-distant future, after Ronnie gets finished with us; I'm talking about colonial days. Boy, talk about your renaissance men. Civics, American history, and comics reviews all in one column. What more could you want? No, Doug Moench, leaving you alone isn't one of the options.

Our colonial forefathers were less-than-pleased about some of the things that the British colonizers foisted on them. Chief among their complaints were bills of attainder, unreasonable searches and seizure, excessive taxes, and Twiggy. (The colonists complained so vociferously about this last one, that they were able to keep the "Twiggy Look" out of America until the mid-1960's.) Bills of attainder and taxes have no bearing on the topic at hand, so let's move on to unreasonable searches.

It was not uncommon for British soldiers to enter any house or building at any time, whenever they wanted to and search it for evidence, real or imagined, of crimes against the King. And I mean any time. It was not uncommon for our forefathers to be interrupted and searched, while they were with our foremothers and engaged in the activity that made them foreparents. Needless to say, the forefathers were upset. So upset that they started doing irrational things. Once they even held a tea party in the middle of Boston Harbor. Anyone could have told them that a nice warm, dry parlor is a much better place for a party. And who did they think they were going to get to accept such an invitation, anyway?

The forefathers decided not to take it anymore. (I think the final straw was when England tried to import Cricket over here.) So they revolted. I assume that you've heard of the War of Independence.

The colonists won. (The final score was 28-27. England missed an extra point.)

Several years later the forefathers met to set up the rules which would govern the way in which the United States of America would be governed. They wrote the Constitution. And in order to protect themselves against the sort of things they suffered at the hands of their former British colonial masters, they wrote some prohibitions into the Constitution; a bill delineating individual rights which the government could not abridge. It was called the Bill of Rights. (You were expecting, maybe, the Bayone, New Jersey Traffic Code?)

There are ten amendments in the Bill of Rights, kind of like the Ten Commandments full of "Thou shalt nots" for the government. It is the Fourth Amendment we are concerned with. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (You know how some authors are paid by the word. I think the forefathers must have been paid by the comma.) What all this fancy forefather language means is that the government may not search any person or any building, unless that search is reasonable. And no search is reasonable, unless the state can establish that they had probable cause to conduct the search.

For the most part the government must establish probable cause before the search and to a neutral magistrate--that is they must convince him that it is more probable than not that what they want to search for is in the location they want to search, and if they do the magistrate issues a search warrant. If the government conducts a search which is not supported by probable cause, then it is unreasonable and improper under the Constitution.
The problem came with the question, what do you do, when a search is unreasonable? For years the solution was, if the government violated the rights of a citizen by making an illegal search, then the citizen should sue the government. The idea was that the specter of a multi-million dollar lawsuit hanging over their heads would deter the government and its employees from violating the citizens' rights by making illegal searches.

This didn't work.

The average victim of an unreasonable search was behind bars, where his access to the legal system was limited. For this reason, very few lawsuits alleging improper searches were ever filed. Another problem was that the government had more resources than the aggrieved citizen, so they could win the pretrial battle of bucks (i.e., file every conceivable type of motion and delaying tactic to drive up the pretrial cost of litigation, so that most of the plaintiffs had to withdraw the suit, because they couldn't afford it any longer.) And many people simply didn't file suit, because they didn't figure they could win.

Anyway the citizens didn't use the courts as the forum to redress their trounced upon right to be secure from improper searches. And as the government realized that no reprisal was forthcoming, the constraint against improper searches disappeared. As a result the incident of improper searches went up.

For this reason, in 1914 in the case of Weeks vs. The United States the Supreme Court created a new constraint against improper searches: the Exclusionary Rule. The Supreme Court reasoned that, as the normal methods were not working to keep the government from making illegal searches, then a new, court-created constraint was needed. The court figured that if the government knew it couldn't use evidence, that had been seized improperly, then the government wouldn't seize evidence improperly in the future. So, henceforth evidence which was seized in violation of the Forth Amendment searches would not be admissible as evidence. The Court suppressed the evidence and excluded it.

Since the creation of the Exclusionary Rule all those years ago, almost everyone has hated it, because it let criminals off on technicalities. Especially the government, which couldn't search the way it wanted to anymore. So, since the creation of the Exclusionary Rule, virtually everyone has found ways around it. Ways to twist and expand the concepts of probable cause and reasonableness. Because, if the search is reasonable under the Constitution, then the evidence does not have to be suppressed.

One of the first things the courts did to expand "reasonableness" came only seven years after the Exclusionary Rule was created. In 1921 in the case of Burdeau vs. McDowell the United States Supreme Court ruled that the search and seizure provision of the Constitution governed only governmental action. So if, as happened in Burdeau and in Detective # 559, a private citizen makes an illegal entry, an improper search, and an unreasonable seizure, then gives the fruits to the government, the evidence should not be suppressed. After all, the Exclusionary Rule is meant to curtail improper governmental behavior. If the government didn't do anything wrong, then excluding the evidence will not further the end of curtailing its activities.
This is something I've talked about before, the so-called "Silver Platter Doctrine," which says if a private citizen gives the government the evidence on a silver platter, it's admissible, no matter how the citizen acquired it. The reason I've talked about it before is because it's been around for quite a while now and is rather famous. So, I find it hard to believe that the court would exclude the evidence talked about in Detective # 559, because someone seized it illegally. It can't be as if the judge didn't know about the Silver Platter Doctrine, it's one of the first things they teach in judging school; right after brown penny loafers just don't go well with those black robes.

One more thing that I feel that I must point out: Don't go breaking into someone's house, car, or office to seize evidence, so you can give it to the police and have it used against him at trial. It's illegal. It's breaking and entering, or aggravated burglary, and theft. We're talking major felonies here, which could net you lots of years in the slammer. Really, just because you were public spirited, doesn't mean that the victim of your theft is going to agree. He'll probably press charges. After all, at this point what has he got to lose. You've already guaranteed that he's going to the joint. He'd love nothing better than to have you go with him. Maybe you'd even be cell mates. Then he's have lots of time to talk to you about why he didn't like your breaking into his house.

If you're really lucky, talk is all he'd do.

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