[url]www.delawareonline.com/newsjournal/local/2002/05/14billwouldallowd.html[/url]

Bill would allow Delaware police to make 'good faith' searches

By MARY ALLEN
Staff reporter
05/14/2002

James Dorsey has the Delaware Constitution to thank for his release from prison after serving more than two years in connection with murder and weapons charges.

The state Supreme Court ruled in 2000 that police lacked probable cause when they searched Dorsey's car and found two guns, including one used to kill a man who lived in Dorsey's Wilmington boarding house.

The court ruling threw out the evidence from the search, and prosecutors later dropped all charges against the 76-year-old New Castle man.

But now Gov. Ruth Ann Minner and some legislators want to amend the constitution to prevent people from winning their freedom because a search warrant was faulty.

The amendment, triggered in part by the Supreme Court's ruling in the Dorsey case, would allow prosecutors to use the evidence seized if police acted in "good faith" in applying for a search warrant later found by a judge to have been issued in error.

The bill - Senate Bill 286 - is one of five in Minner's anti-terrorism package and would need to be approved by two consecutive General Assemblies to succeed and alter the constitution. It has passed the Senate and should come to a vote in the House soon.

Supporters said the change is needed to make sure criminals aren't freed on technicalities. It also removes a barrier for police and prosecutors who intended to abide by the law but encountered a judge or magistrate who erred. Delaware magistrates who preside in the Justice of Peace Courts are not required to be lawyers.

"If the evidence is valid, if the evidence is collected properly, it should be used in court, period," Minner said earlier this month. Attorney General M. Jane Brady also supports the bill, according to prosecutor Stephen P. Wood, who testified in favor of the bill in the Senate.

But critics said the legislation sacrifices civil liberties in the name of fighting terrorism. They said it adds no police powers to specifically combat terrorism.

Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, said the bill gives law-enforcement officers a way to evade consequences when they conduct illegal searches.

"They don't need this in order to be effective," she said. "This is just a shield for them when they're not effective."

Stephen B. Potter, Dorsey's defense attorney, said the anti-terrorism tag on the bill is a "scam."

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"Dip this thing in the word called 'terrorism' and you can get anything passed," he said. "It has nothing to do with terrorism."

Minner defended the bill, saying it would protect police officers working under stress to investigate a terrorism threat. That it can be applied to other police work is a bonus, she said.

"The whole object of fighting crime is fighting terrorism," she said.

The effort to amend the constitution results from the state Supreme Court ruling in October 2000 in Dorsey's case.

In a rare divided opinion, the court found the guns were collected in a search that lacked probable cause, or justification.

The justices ruled 3-2 that Dorsey's state constitutional right to be free from unreasonable searches contained no exception for police who acted in "good faith," or who sincerely meant to do the right thing.

Federal law already allows evidence collected by invalid warrants to be admitted in court if police obtained the warrants in good faith. The U.S. Supreme Court has ruled that states can offer their citizens more rights than are available in the federal Constitution.

The Delaware Supreme Court used Dorsey's case to do that. Its ruling established that Delaware's Constitution provides additional protections against unreasonable searches beyond those in the federal Constitution.

Matthew Denn, Minner's legal counsel, said rules allowing tainted evidence to be excluded from trials are intended to prevent police misconduct. But the bill is written to apply in cases where police have acted honestly. "If the police are behaving exactly as they should, we don't believe it serves any useful purpose," to exclude evidence, Denn said.

Defense attorney Potter sees it differently. "This bill says 'greater good' means the police can go wherever they want and do whatever they want to do," he said.

The debate over the so-called "exclusionary rule" is not limited to Delaware, according to John Henry Hingson III, an Oregon attorney and past president of the National Association of Criminal Defense Lawyers. He lectures extensively on state constitutions and this topic.

Hingson named 12 states, including Delaware, Pennsylvania and New Jersey, where the state's top courts have rejected the idea that police acting in good faith should be given an exception to rules barring introduction of evidence in court.

Denn put the number between nine and 11, depending on the reading of court decisions.

Legislatures in at least three states - Michigan, California and Florida - have passed constitutional amendments like the one pending in Delaware, Hingson said.

But Denn estimated lower courts in about 40 states already decide cases by following the federal exception for good faith. Delaware did, he said, until the state Supreme Court took up the topic, examined the state Constitution and ruled in Dorsey's case.

[b]US Constitution = toilet paper[/b]