A Recent Court Ruling Prompts Some Fourth Amendment Questions

BY RICHARD JACKOWAY

The case against Mark James Knights of Alameda appeared to be airtight. A suspect in the bombing of several Pacific Gas and Electric Co. facilities around Alameda County, he was found with the bomb-making devices, blueprints of one of the vandalized buildings, and a cut lock bearing the PG&E stamp. And, since the dates of the bombings coincided with Knights’ trial dates in a case levied by the utility against him for stealing electric power, it appeared he had a motive.

But 9th U.S. Circuit Court of Appeals Judge Ferdinand F. Fernandez, speaking for the court, ruled Aug. 1 that Knights should go free.

Setting a clearly guilty man free is never an easy decision, Fernandez said. But, he added, the court had no choice, since the police, possibly lacking enough evidence for a search warrant, had asked Knights' probation officer to go into the house and look for evidence. That's how the bomb-making equipment had been found.

This, the court ruled, was a "subterfuge" search, designed specifically to get around the requirements of the Fourth Amendment. (In case you slept that day in civics class, that's the amendment written in response to a regular practice of British troops–busting into prerevolutionary American homes on the slightest pretext.)

Over the ensuing 209 years, and especially in the past 40, courts have ruled often on what the amendment means. The 9th Circuit Court's ruling was meant to close a loophole in which probation officers were being used to get around the constitutional protection by looking for evidence of crimes when the police did not have enough information to get a search warrant.

Fernandez ruled that Knights' drug probation was not the reason for the search of his home:

"Detective [Todd] Hancock, and his cohorts, were not a bit interested in Knights' rehabilitation. They were interested in investigating and ending the string of crimes of which Knights was thought to be the perpetrator.... He was performing his duty as a law enforcement officer and had drawn some very good inferences from the facts, but he was using the probation term as a subterfuge to enable him to search Knights' home without a warrant. In so doing, he crossed the frontier that separates citizen privacy from official enthusiasm."

Knights' Shadow

Why this all matters becomes clear when we recall what little details we know of the apprehension of double-murder suspect Rex Allan Krebs.

The case against Krebs is both well known and shrouded in mystery.

While we are privy to painful details of how college coeds Rachel Newhouse and Aundria Crawford were bound, raped, and murdered, investigators have been cautious about revealing too much of their case against the man accused of killing them.

We know that Krebs became the prime suspect after his parole officer found jewelry belonging to Newhouse. But could that very same search be grounds for Krebs to go free? The very idea of Rex Allan Krebs walking free is so repugnant to so many SLO County residents that the courts this month took the rare option of moving the double-murder trial out of this county. But could we as a people live with his release, even if the decision reaffirmed the basic freedoms this country was founded upon?

That faint possibility is raised by the Knights ruling. And while in the end the Fourth Amendment questions it raised, for a variety of reasons, are unlikely to open the doors of County Jail for Krebs, the ruling raises fascinating questions about American jurisprudence.

What We Think We Know

Because of the fiasco of the O.J. Simpson double-murder trial, lawyers and law enforcement officials have been circumspect about giving out details of the Krebs case. But from public statements, court statements, and published reports, we have some insights into how Krebs was apprehended.

Aundria Crawford disappeared from her SLO home sometime in the night of March 12—13, 1999–the third college coed to vanish in recent years. The news sent the community into near-panic.

Sometime that following week, Krebs' parole officer, David Zaragoza, made what’s been described as a routine parole contact and noticed that Krebs was limping. Not convinced by Krebs' explanation as to why, Zaragoza reportedly met with SLO police officials and then returned to Krebs' Avila Valley home the next day.

While it’s not publicly known what Zaragoza discussed with police, he apparently became aware of enough details of the Crawford-Newhouse cases that when he searched Krebs' house he was able to identify a piece of jewelry allegedly belonging to Crawford.

When the police went back in with a search warrant, they reportedly found blood evidence that linked Krebs to Crawford. Later, during a search of the grounds around the house Krebs was renting, police found the buried bodies of Crawford and Newhouse.

What We Don't Know

Two things are important to emphasize here. First, the actions of the police and parole officers are consistent with routine practices in California and with court rulings up to the state Supreme Court. That’s part of the quandary many have regarding the Fourth Amendment. It is possible, police say, to scrupulously follow the law and still have incriminating evidence excluded at trial.

Second, it's currently impossible to know if the search warrant issued for Krebs' home was based on information other than what came to light in the parole search.

While Zaragoza's role was praised as instrumental in one of the few press conferences police and the District Attorney's Office have held on the case, later, in private conversations, those familiar with the case warned the media not to overstate Zaragoza's importance, adding that other investigators uncovered other evidence that has not yet been revealed.

For instance, while much of the preliminary hearings in the Krebs case so far have been open to the public, the courts have allowed one "mystery witness" to remain anonymous. We don't know if this witness was developed before or after Krebs was arrested. And we don't know if the information this witness has was instrumental in the apprehension of Krebs.

More fundamentally, we don't know what impact if any the 9th Circuit Court ruling could have on Krebs.

Taking the Fourth

While the Krebs defense team, which apparently will be a new group of public defenders based in the as-yet-to-be-determined county where the trial will be held, could try to use the Knights ruling in an effort to set Krebs free, court-watchers say such a strategy would be difficult for several reasons.

First and most important, in California the state Supreme Court trumps the 9th U.S. Circuit Court of Appeals. Simply stated, trial judges are required to follow the rulings first of the U.S. Supreme Court, then the state Supreme Court, and then the 9th Circuit Court of Appeals.

The U.S. Supreme Court has not ruled on this issue, and the California Supremes have repeatedly upheld probation searches as legal, arguing that the parolee has given up some of his or her Fourth Amendment rights as a condition of parole.

So Judge Barry LaBarbera, who will hear pretrial motions before the venue is changed, is required to follow the state rulings and give no weight to the Knights ruling. In addition, Knights was a probationer, not a parolee–a subtle difference in the law but of the type that often can turn a decision.

None of this, however, precludes the defense from challenging that ruling on constitutional grounds. In fact, such a strategy is not unlikely, given that Krebs is facing the death penalty and his lawyers are required to exhaust any possible avenue in a vigorous defense.

The prosecution has another advantage. Over time, and particularly in the past five years, the courts have included what is called a "good-faith" clause in implementation of the Exclusionary Rule. That allows even illegal searches to be admissible if law enforcement was operating under good faith that the search was legal. With several state Supreme Court rulings to back it up and a U.S. Supreme Court increasingly willing to accept good-faith exemptions, Krebs would be unlikely to prevail.

Expect the Unexpected

Little in all of constitutional law is as uncertain as court rulings about the Fourth Amendment.

Judge Harold J. Rothwax is as close to an expert on Fourth Amendment law as you can come, and here’s how he describes it in his book "Guilty": "If you're looking for the major culprit in the malaise-ridden judicial system, for the kink in the works that practically guarantees justice will not be done, look at the convoluted way the courts have interpreted the Fourth Amendment."

Rothwax argues that the courts have too arbitrarily interpreted defendants' protections under the Fourth Amendment and most specifically under the Exclusionary Rule, which could come into play in the Krebs case.

"Say what you will about justice," Rothwax said, "the hallmarks of the Exclusionary Rule are irrationality, arbitrariness, and a lack of proportion. Whenever it is applied, a criminal goes free–no matter how serious the crime or minor the police intrusion."

As devotees of TV’s "Law and Order" know, the Exclusionary Rule is often referred to as the "fruit of the poisoned tree." Under this accepted judicial practice, not only are items found in an illegal search precluded from evidence, but so is all information developed from the illegal search. If the parole officer's search of Krebs' home were deemed a violation of the Fourth Amendment, not only would the jewelry be disallowed as evidence, but very likely so would the blood evidence turned up in the subsequent search.

For defenders of civil liberties like Hank Alberts, who heads the local chapter of the American Civil Liberties Union, the Exclusionary Rule is key to protecting liberties. "The Exclusionary Rule embodies the principle that ours is a government of laws that respect the fundamental constitutional rights of all," Alberts said.

Alberts is particularly disturbed by the good-faith exception.

"Creating a new excuse for a constitutional violation would dramatically dilute the Fourth Amendment," Alberts said.

Practical Implementation

Even Alberts, however, admits that it would be difficult for the public to accept a ruling that set Krebs free on what some would call a technicality.

Which brings us to proportionality.

Remember the Contract With America? The document that swept Republicans into Congress in 1994 was popular in part because it was tough on crime and on the Exclusionary Rule. Backers argued that it’s unfair to let a demonstrably guilty person go free because of the mistakes of law enforcement. The Contract argued for the good-faith exemption and backers went further.

Noting that the Fourth Amendment does not specifically call for the exclusion of evidence found in illegal searches, reformers have been pressing for courts to recognize the proportionality of the violation to the crime, as is done in some European systems. In fact, the United States is the only country that has the Exclusionary Rule. It would make more sense, they add, for the "all or nothing" mandatory exclusion to be replaced by a theory of "reasonableness" whereby judges would have latitude to decide whether the infraction is serious enough to warrant exclusion of the evidence.

Alberts counters that such an exclusion "undermines the integrity of the criminal justice system and destroys the only meaningful remedy for a regrettably common constitutional violation."

The trial of Rex Allan Krebs remains months away. Whether any of these issues are raised is dependent on many factors unknowable by those outside the defense and prosecution teams. But the Fourth Amendment issues, whether in the Krebs trial or elsewhere, will continue to challenge our notions of civil liberties versus society's interest. Æ

Richard Jackoway is managing editor of New Times.