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THE LAW IS A ASS for 11/27/2001
"The Law is a Ass" Installment #123
Originally written as installment # 112 and published in Comics Buyer's Guide issue # 714, July 24, 1987 issue
This week's column was rather straight forward. A basic primer on the Fourth Amendment and Search and Seizure law, dished out so I could make a point about the "Silver Platter Doctrine." Or, at least, so I thought at the time.
As I explain in the actual column, this one was one of those mouse schemes that Robert Burns liked to talk about. (Yes, a literary reference. If you're not familiar with the actual quote, I'll wait while you go to the Bartlett's on your bookshelf--or in your local library--and look it up. Just remember, the proper quote uses the word "schemes," not the word "plans.") Anyway, as I explain in the column, somehow Don and Maggie, my editors at Comics Buyer's Guide never received the column, so didn't print it. (Something of a puzzlement, as it was the first part of a two-part column and the second part did print.) But now, finally, thanks to the good folks at World Famous Comics these two columns are printed in their proper order.
And if you think this week's column was bad, he said in his best literary hook mode, along with being printed out of order, wait until you see what else happened to me because of next week's column.
"The Law is a Ass"
Installment # 123
The following column comes straight from The Twilight Zone. I wrote on or about May 4, 1987. It was the first of a two part column on suppression of the evidence. (The column I did on What is... the Face # 2 was the second part). When the second part appeared without the first part having appeared first, I knew something was wrong. (We lawyers are trained in deductive reasoning like that.)
I checked with Don. He never received the column, which would go a long way toward explaining why it never saw print.
I know I wrote the column, I found a copy of it in my files. I even vaguely remember writing it. However, every other record I keep on my writing indicates that this column never existed. My journal doesn't note that I did any writing in the first week of May. I can't find any postage indicating that I mailed the column. In short, except for the fact that I actually possessed my copy of it, the column never existed. It just was, without my having written it.
Anyway, here the column is. However, to enjoy it properly, you have to engage in a little audience participation. Just turn your minds back and pretend it's May 4 again. Winter has just ended. Spring is in full bloom. Your basement, like mine, is probably flooded. Are you there?
Good, now sit back and read a little piece of history that maybe never was.
Do do do do. Do do do do.
Pay attention; there's going to be a quiz. Those of you who get the answer wrong will have to stay after class. In Jon Sable, Freelance # 50, Maggie the Cat stole some evidence from a crime boss and gave it to Sable. Sable, in turn, gave it to the police. The police, in their infinite wisdom, responded, "All you've done is waste my time, Sable. Illegally obtained evidence is inadmissible." Question: is that statement true or false?
The answer is False.
I can see a few puzzled looks out there. Obviously many of you still get your law training by reading Vigilante and watching the re-runs of Hardcastle and McCormick. You believe that evidence is suppressed as often as the New York Yankees hire new managers. I guess a brief review is in order.
Before there was a United States of America, there were thirteen British colonies. You may have heard of them: Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, Happy, Sleepy, Doc, Bashful, Grumpy, Sneezy, and Dopey. The colonists had no rights under British law. Soldiers could enter any house at any time for any reason and search for evidence of crimes real and imagined. The soldiers seemed to specialize in imagined crimes. Persons were arrested but never charged with a crime and forced to languish for years in jails waiting for a trial which never came. A few malcontents complained.
You may have heard of the complaint, too. It was called the American Revolution.
After the Revolution, in order to prevent any of the abuses which they suffered under the crown, the former colonists created the Constitution, a frame work for a central government set up to tell the government what it couldn't do. (Back then, before there was a government, you could do that sort of thing. Try it now and...)
After a great deal of debate, the Constitutional Convention added the Bill of Rights to the Constitution. The Bill of Rights is the first ten amendments to the Constitution. It enumerates specifically what personal rights are sacrosanct and what the government can not do to abridge those rights. Unfortunately, the right to refuse Gilligan's Island was not enumerated. One could only wish that our forefathers had been a little more foresighted.
The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," (I don't know why the founding fathers had such a love affair with the comma. That was just the style back then. Kind of like writing the letter S so that it looked like an F.)
For well over one hundred years, the Fourth Amendment existed without the Exclusionary Rule, the rule which makes evidence taken during an unreasonable search and seizure inadmissible at trial. Basically, the amendment depended on the good faith of the government not to violate it for its enforcement. In much the same way--and with much of the same success--that Blanche DuBois depended on the kindness of strangers. Then, in 1914, the Supreme Court of the United States realized that not everyone scrupulously adhered to the Fourth Amendment. Abuses actually occurred. So did sunsets, but not as often.
The Supreme Court ruled that a right without a means to enforce it is no right at all. To remedy this, it enacted by judicial fiat the Exclusionary Rule, as a means of enforcing the Fourth Amendment.
The Exclusionary Rule says the government cannot be allowed to profit, when it breaks the rules with an unreasonable search, so any evidence seized can not be admitted. To use a somewhat simplistic analogy (I like simplistic analogies. If more law school professors used simplistic analogies, I might have passed a few more courses.), the Exclusionary Rule is like calling back a touchdown pass for a holding penalty. The scoring team would not have achieved its goal, but for the fact that it broke the rules. So, rather than allow it to prosper from cheating, the team is penalized by having the play nullified. The Exclusionary Rule was established to enforce compliance with the Fourth Amendment.
In 1961 the Supreme Court ruled that the Exclusionary Rule was applicable on the states through the Fourteenth Amendment of the Constitution. Now, when state or local police conduct unreasonable searches and seizures, the evidence is not admissible at trial.
The key word in this Civics lesson isn't "search" or "seizure" or even "illegal" as in "illegal search and seizure." No, the key word is "unreasonable." Note that, "unreasonable," not "illegal." Evidence is inadmissible only when the government acts unreasonably in acquiring it. If a search is illegal but the government is blameless in that illegality, then a rule designed to force the government compliance with the Fourth Amendment has no purpose. Therefore, if the government doesn't have a hand in the unreasonable acquisition of evidence, the Exclusionary Rule does not apply. Not even if the evidence was acquired illegally by someone else.
An example: If Maggie the Cat breaks into someone's house and steals secret papers, and if said papers prove that someone is guilty of several crimes, and if Maggie then hands those papers on a silver platter to the police, and if the police had nothing to do with Maggie's acts; then the evidence will not be excluded even though Maggie seized it illegally. Why? Because the police didn't act illegally. And they didn't act unreasonably in accepting this gift offered to them on a silver platter.
See? Illegally seized evidence can be admissible, when there is no state action involved. This principle is called "The Silver Platter Doctrine." I trust the reason is obvious.
I trust, also, that no one will repeat this mistake and say all illegally seized evidence is inadmissible.
I do so hate repeating myself.
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