Ted Koppel, who almost always gets it right, got it wrong last week on a "Nightline" show about a new bill that would change something called the "exclusionary rule."
Koppel began his show by saying: "As of now, police aren't permitted to enter your home and search it without a warrant. Within weeks, that may no longer be true."
Not really. The simple fact is that the police can search your home without a warrant now.
Just ask O. J. Simpson.
One of the most important pieces of evidence that the prosecution has in its case against Simpson is the bloody glove that police say was found at Simpson's home.
But police found that glove without a search warrant. And two judges have found that to be legal.
But don't we have a Fourth Amendment that protects us "against unreasonable searches and seizures" and which states that no warrants should be issued except "upon probable cause"?
We do. And that was good enough for everyone from Dec. 15, 1791, when the Bill of Rights went into effect, until 1914, when the Supreme Court invented the "exclusionary rule" as a way of making sure the Fourth Amendment would be followed by police officers.
Basically the Supreme Court said that if police acted improperly in conducting a search, then the evidence they gathered as a result of the search would be excluded from the trial. This applied only to federal cases until 1961, when it also was applied to the states.
But over the years, the court also has come up with a number of exceptions to the exclusionary rule.
A major one states that if the police officer seizes evidence in the good faith belief that he has a proper warrant, the evidence may be used even if the warrant later proves to be improper.
What the House of Representatives did recently was to apply that good faith exception to searches made without warrants, also.
But wait. I thought the Fourth Amendment guarantees us that there won't be searches without warrants.
As it turns out, there are exceptions to this, too.
Police may make searches without warrants if the evidence is in plain view, for instance.
Police don't need a warrant if they are in hot pursuit. (If you rob a bank and run to your home with the police on your heels, they don't need a search warrant to break down your door, no matter what Ted Koppel says.)
Police don't need a warrant to search you if they are in the process of arresting you.
And, according to the California Supreme Court, police don't need a warrant if they perceive that an "imminent and substantial threat to life, health or property" exists.
Consider again the Simpson case:
Police say they saw a small red stain, which they believed to be blood, on Simpson's white Ford Bronco parked outside his walled estate.
Police say this blood was in "plain view." Unable to reach Simpson and believing that he or others might be inside and in "imminent danger," the police climbed his walls and began their search.
In so doing, the prosecution says, they discovered the bloody glove.
Simpson's lawyers have called the police testimony a "well-orchestrated tissue of lies" used to conduct an illegal search. And the defense asked that all the evidence gained thereby be thrown out.
But Judge Kathleen Kennedy-Powell (remember her?) ruled at Simpson's preliminary hearing that the police "were in fact working for a benevolent purpose" in searching the estate without a warrant.
And, at trial, Judge Lance Ito accepted her ruling.
If, however, Judge Kennedy-Powell had ruled that the police believed in good faith they were following an exception to the need for a search warrant, but in fact were wrong, she would have had to throw out the bloody glove and other evidence.
What the House bill, which still must be voted on by the Senate, does for the federal courts is say: Hold on. If the police believe they were acting in good faith, let the evidence remain even if that faith was misplaced. Why punish society by letting guilty people go free just because the police made an honest mistake?
Will some police officers lie about their actions? Undoubtedly.
But we have judges to determine such things.
What the new bill would do is let judges use their judgment.