John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, first of all I am always pleased to receive congratulations from my colleague from Pennsylvania with whom I have worked on these matters across the years. May I remind the gentleman that intermediate court decisions are secondary at best to Supreme Court decisions on this subject. And that anybody that is caught red-handed would be brought within the exclusion to the exclusionary rule, known in the Supreme Court case as Washington versus Chrisman, where anything that happens criminally in plain view vitiates the need for any kind of a warrant. Finally, could the gentleman give me one example where H.R. 666 would operate in a different way from the amendment that I have before the gentleman and which is current law?

Mr. CONYERS. And what that means then is that the gentleman's bill itself will soon be rendered unconstitutional. And I think that this proposal, which repeats the fourth amendment, will likely stand.

Mr. CONYERS. Mr. Chairman, I am very happy that the gentlewoman has again put her finger on precisely what is in difference over this H.R. 666. Because we have now, and I think the other side will agree, we have all kinds of exceptions written into the exclusionary rule already. This includes destruction of evidence, imminent danger to law enforcement officers, stop and frisk laws in automobiles, including trunks, which the police can stop. We have the fleeing felons exception. We have the plain view exception, where if we see illegal evidence or a stash of drugs and they are in plain view, or guns, the police officer is perfectly permitted to act. However, what we do not have is an officer using his own objective, reasonable good faith to determine whether he should do something over and above these exceptions. Therefore, the gentlewoman is absolutely correct. In Leon there was a writ given by the magistrate that turned out to be subsequently invalid. In that case, we said that the police officer operated in good faith, and therefore the evidence could be excluded. However, what they are saying is, let us get rid of any warrants at all by the magistrate, and let us let the police officers' own reasonable good faith be the test. In other words, each law officer would become the judge under this exception, which is nowhere to be found in Leon.

Mr. CONYERS. If the gentlewoman will yield again, Mr. Chairman, the whole idea of us not checking with a magistrate in the beginning and getting an OK, or using one of the exceptions, we will have then eviscerated the exclusionary law as it exists, because then there will not be any need. Every officer can use his own judgment. Now whether somewhere in some jurisdiction in some State, some police officer, has been nailed, I cannot tell. All I am saying is, why do we not correct the problem on the front end, instead of waiting for some hapless citizen to have to go into court, and maybe years later it will be determined that the police officer was wrong?

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. May I reacquaint the gentleman, because he is a distinguished member and chair of the committee, of the United States versus Watson, in which it has been held as inviolate law that arrests in public areas where there is probable cause does not require any warrant whatsoever.

Mr. CONYERS. When a person pulls a gun in the presence of a law enforcement officer, I say to the gentleman from Illinois [Mr. Hyde], he does not have to go to a magistrate to determine whether he can arrest him. He is also in imminent danger of his life, in addition. That is two requirements.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. I want to commend the gentleman, because it takes a great deal of courage to go back into the past in very terrible times that were going on in Chicago, the Fred Hampton massacre and others, yourself who fought a very noble fight. But is not it true that in cities like Chicago the police can go to a magistrate at any point 24 hours a day, 7 days a week; they are on duty, that for any reason whatsoever that they needed to go into your apartment or anybody else's, they could get a search warrant and if they had a reason, if they did not have a search warrant, they have all of these other exceptions that could have been used, and none of them apply to you?

Mr. CONYERS. Mr. Chairman, I demand a recorded vote.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from Rhode Island [Mr. Reed]. (Mr. REED asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Chairman, I yield 2\1/4\ minutes to the gentleman from Virginia [Mr. Scott].

Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentlewoman from Colorado [Mrs. Schroeder].

Mr. CONYERS. Mr. Chairman, I am pleased to yield the balance of my time to the gentleman from California [Mr. Mineta]. (Mr. MINETA asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Chairman, I offer an amendment.

Mr. CONYERS. Mr. Chairman and colleagues, we have heard continually that those who have brought H.R. 666 to the floor contend that all they want to do is codify existing law with respect to the exclusionary rule. If that is their simple goal, then what is the purpose of the current legislation before us since current Supreme Court decisions are controlling in American jurisprudence in the first place? In other words, why are we doing that? If, however, the sponsors of H.R. 666 content that even with Supreme Court decisions it is necessary for the Congress to put them in statute, I have no exceptions save one. Let us really codify the law as it exists and not use this as an exercise, as a pretext, totally invalidate the fourth amendment protections to innocent and law-abiding citizens. So, Mr. Chairman, I have brought forward this amendment to protect law-abiding citizens. This amendment codifies the key controlling case law on the so-called good-faith exception, which includes both the Leon case as well as the Krull case. In both cases the Supreme Court recognized a good-faith exception for police officers who rely either on an improperly issued search warrant, or as in Krull, an invalid statute as a basis to make a search or seizure of property. The reasoning of the court in these two cases was that police need this type of latitude in exercising their duties and that they should be held harmless for any error that a magistrate commits in issuing a warrant or any error that a legislature makes in passing a statute. Hence the phrase ``good-faith reliance.'' Yet, both Supreme Court decisions that define the good-faith exceptions share a crucial, common aspect, the need for a law enforcement official to rely on a source of authority outside of himself to make the final determination that probable cause exits for search for evidence. Without the requirement of an external source of authority making such a determination, government and law enforcement agencies can simply be a tribunal to themselves as to when and how they will invade the privacy of law-abiding citizens in their homes. We have already seen the results of such carelessness in ill-conceived and disastrous raids in Texas and in Idaho. These cases dealing with good-faith reliance by law enforcement officials were developed by the more conservative Supreme Court appointees during the 1980's as a reaction to, perhaps, a very valid criticism, that the law on the exclusionary rule was too restrictive and confining on police officers. However, following the Leon and Krull cases, Justice Sandra Day O'Connor warned that the Supreme Court has reached the outer limits on the fourth amendment through its good-faith exception and that any further diminishment of the requirement of having an outside, neutral authority issue a warrant could lead to complete chaos and complete violation of our citizens' expectations of privacy in their own homes. Justice O'Connor further warned very perceptively that some in the Congress might want to push the envelope beyond these outer bounds to that, and I quote, ``they would not be perceived to be soft on crime,'' and we are now witnessing her warning and prediction come true in the form of the bill that is before us as passed out of the Committee on the Judiciary. My amendment would simply restate the law on good-faith reliance by police officers to exactly where it currently exists. That reaffirmation would keep the delicate balance struck by the court between assisting the police in their important duties while safeguarding the rights of innocent Americans from improper searches of their homes. Let us remember also that in addition to the good-faith exception, law enforcement already has the right to take whatever action it deems necessary in emergency circumstances under the ``plain view'' doctrine that would not be affected. In fact, if there is a desire to codify the good-faith exception, then my amendment provides us with just such an opportunity. I say to my colleagues, ``Support this amendment if you want to codify the existing Supreme Court decisions.''

Mr. CONYERS. Mr. Chairman, the gentleman has been a law enforcement officer for many years in Michigan. I would just like to ask the gentleman, were the exceptions to the exclusionary rule sufficient while the gentleman was operating as a law enforcement officer? You have the good faith exception, you have the emergency exception, you have a number of provisions that it seems to me would allow any officer, even without a warrant, to be able to operate, and certainly in most cases to get a warrant from the magistrate.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I am pleased to yield 2 minutes to our distinguished colleague, the gentleman from Pennsylvania [Mr. Kanjorski].

Mr. CONYERS. Mr. Chairman, I yield the balance of my time, 1 minute, to the gentlewoman from California [Ms. Lofgren], a member of the Committee on the Judiciary.

Mr. CONYERS. Mr. Chairman, I would like to review the important factor of judicial review under the proposed amendment. As currently drafted, the Barton substitute is totally silent on the issue of judicial review, creating what could be a serious legal quagmire. One potential uncertainty concerns the applicability of the political question doctrine, which is designed to restrain the judiciary from inappropriate interference in the business of other branches of the Federal Government. We will not have to worry with that doctrine anymore because we are inviting the judiciary to come into the legislative business of Government, and we are not even giving any direction as we amend the Constitution of the United States to create this exception. Many scholars have indicated that the political question doctrine is unlikely to limit judicial intervention in the present case. An additional area of confusion relates to judicial limitations concerning standing. While a taxpayer may not be able to show sufficient injury to have standing to bring suit in Federal court that would allow him to challenge congressional failure to comply with the balanced budget amendment, standing may be far more compelling if sought by a Member of Congress or an entire House of Congress or an entitled recipient who has been denied benefits as a result of the questionable impoundment of funds. This is certain to be a thicket of confusion and tangled litigations and appeals.

Mr. CONYERS. Mr. Chairman, I yield myself 2 minutes. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from Wisconsin [Mr. Obey].

Mr. CONYERS. Mr. Chairman, I am delighted to yield 4 minutes to the gentlewoman from Texas [Ms. Jackson-Lee], a member of the Committee on the Judiciary.

Mr. CONYERS. Mr. Chairman, I rise in opposition to the Barton amendment because it is a prescription for delay rather than action, for ambiguity rather than specificity, for abdication to the courts rather than responsibility that lies here in this Chamber. It could turn economic recessions into depressions, it fails to define very important terms, and it creates a minority reign over our fiscal and economic policy. First and foremost, it refuses to allow us to look under its hood the way any family would if it were buying a car before making a decision. There are no numbers, no projections, no nothing. One Republican Member yesterday, in a moment of unexpected candor, analogized the secret budget-cutting plan to the San Francisco 49ers football team, saying that they could not make their game plan public. Well, to continue the analogy, I guess the American people would be the San Diego Chargers, or, in other words, their adversary to whom this secret budget cannot be disclosed. In the name of responsibility, none of us should support a budget amendment with a secret plan. Second, this amendment is an attack on Social Security as sure as we are in this Chamber. Currently, Social Security is off budget. This amendment, in one of its rare instances of clarity, says clearly that Social Security outlays and receipts are on budget, and if they are on budget, they are up for grabs when the budget balancing occurs. If you buy the hortatory resolution passed by the Republicans, then you are going to be in for a big surprise if you think that Social Security is not on the table. This amendment refuses to put an ironclad protection into the text of the amendment that we on this side of the aisle are insisting upon. Then, with unfunded mandates being considered already on the floor, the constitutional amendment to balance the budget is the mother of all unfunded mandates. We are going to get unfunded mandates coming down by the dozens, and it will pass the responsibilities but not the resources to the States. Republicans will not put that protection in the amendment as well. So the other side has all the tools needed to balance the budget now. They are now the majority. They need not wait 7 years and two Presidential elections to balance the budget. What tool or what power is missing today? In the words of former Governor Weicker, this amendment is like a quarterback on a football field in the middle of a huddle, going into the stands and then yelling, ``OK, team, score a touchdown.'' Let us not wait for the Constitution to do it for us years down the road. Let us do it for ourselves. We are still left with a troubling lack of definitions on outlays and receipts, on standing, and on what role the courts would play. Here we are bringing in the judiciary, and they have no institutions whatsoever on how they would indeed balance an unbalanced budget. So the Republicans now are clearly scared of the big buckle, the buckle in the Congress, the buckle among several States, the buckle that could occur among the American people. Mr. Chairman, let us put those numbers on the table. Let us get on with the real business of deficit reduction, like the $500 billion already achieved by Congress in the previous 2 years and the new administration, because we can make a difference by not supporting what I think is a very flawed plan for the great document called the Constitution that controls the laws of this country. Mr. Chairman, I ask the Members, please do not support this amendment. Mr. Chairman, I reserve the balance of my time.