Search and Seizure

In the early 1990s, President Bill Clinton raised hackles among civil libertarians for his advocacy of routine searches of public housing, as well as "roving wiretaps"--the use of a warrant as a basis to tap all of a suspect's phones, rather than the one on which police had probable cause to believe they would obtain information of criminal activity. But reaction to these abrogations of Fourth Amendment rights was relatively limited. There were a number of reasons for this lack of outcry, not least of which was the fact that escalating concerns regarding crime had overtaken the preoccupation with constitutional liberties which had animated a more carefree era.

Times had changed: the drug culture of the 1960s had spawned a much more sinister version, surrounding cocaine and its derivative, crack, in the 1980s and 1990s. Public housing, much of it established during the wave of optimism that characterized the 1960s "War on Poverty," had long since ceased to be regarded as a solution to poverty. People tended to regard housing projects as breeding grounds for crime and drugs, and with the very idea of the welfare state on the decline, sweeping searches of public housing projects seemed justified. Likewise in the area of wiretapping, advocates of law and order could point to the FBI's enormous success in gathering evidence against the Gambino crime family during the late 1980s and early 1990s, an effort which led to the downfall of crime boss John Gotti.

Perhaps typical of the attitude toward search and seizure cases in the 1980s and 1990s was the Court's ruling in Richards v. Wisconsin (1997). The case involved a "no knock entry" into a suspect's hotel room, which represented a departure from the "knock and announce" requirement implied in the Court's 1995 Wilson v. Arkansas ruling. In the case of suspected drug dealer Steiney Richards, the Madison, Wisconsin, police asserted that if they had "knocked and announced" prior to their 1992 arrest of the suspect in his hotel room, he would have had time to flush the evidence down the toilet. The Court agreed, thus limiting its earlier Wilson holding in light of what Justice John Paul Stevens referred to as "today's drug culture."

The "knock and announce" requirement had its roots, like much of U.S. constitutional law, in British common law. By the time of Wilson, the federal government as well as thirty-four states and the District of Columbia had their own "knock and announce" rules. Likewise there were exceptions, as noted in Richards. These included the "Apprehension of Peril" exception, which pertains when officers have reason to believe that announcing their presence would bring harm to themselves or to others (e.g., a shootout); the "Useless Gesture" exception, triggered when the occupants of a dwelling already know that the officer is coming in, and why; and the "Destruction of Evidence" exception, which applied in Richards.

In light of the government's competing needs to support public safety while protecting individual liberties, it is understandable why such exceptions should be made. Nonetheless, the ruling in Richards highlights--at least, in the view of some civil libertarians--the toll which may be taken on individual rights because of "today's drug [and crime] culture." Some proposed legislation resulting from the decision includes mandatory drug testing, which came to the forefront during the 1980s "War on Drugs"; and one of the bills introduced by the then-new Republican majority in Congress in 1995, the Exclusionary Rule Reform Act of 1995--nicknamed the "Take Back Our Streets Act." It reflected the disgust many citizens felt with the continued spread of crime, which many attributed to the lax judicial attitude that had followed in the wake of the Warren Court.