The Brethren (23 page)

Black's reconsideration stemmed partly from his experiences as a prosecutor and as a crusading Senate investigator. Over the years, the police had become the underdogs. The rights of the accused had been extended too far. The Court had to take into account the growing crime problem, to reappraise the balance between the needs of society for safety and the rights of the defendant.

Black was not opposed to readjusting the law. Under Warren, the Court simply had gone too far. As crime soared, the Court had brought the country's wrath upon itself. News reports of heinous and violent crime frightened Black. The nation's fear of crime had enabled Nixon, who had exploited that fear, to be elected President The Court had to put on the brakes.

Rather than overrule
Mapp,
Black preferred to create a clear check list of what was and what was not a reasonable search; when evidence could, and when it could not be excluded. A complicated murder case
(
Coolidge v. New Hampshire),
posing several major Fourth Amendment questions, offered that chance.

Edward Coolidge had been convicted of murdering a fourteen-year-old girl in
1964,
after luring her from her home during a heavy snowstorm with an offer of a babysitting job. The facts were gruesome. The girl's body had been found along a highway eight days later when the snow melted. Her throat had been slashed and she had been shot in the head.

The police, without a warrant, had gone to Coolidge's home, where his wife gave them a gun that turned out to be the murder weapon, and some clothes that Coolidge had worn the night of the murder. Shortly after arresting Coolidge, the police, again without a valid warrant, searched and vacuumed Coolidge's car and found dirt and other fine particles that matched those on the murdered girl. Coolidge's lawyers argued that all the evidence should have been excluded from the trial.

At conference, Black indicated that he thought none of it should be excluded. The evidence found with the wife's consent was properly obtained. He also felt that it had been proper to search the car.

Harlan was personally inclined to agree with Black. But the
Mapp
case bound them, since
Coolidge
was a state case, so he announced that he would not join Burger, Black, White and Blackmun unless they were willing to overrule
Mapp,
freeing the states from the exclusionary rule. That was the only logical way.

Black refused. He simply wasn't willing to overrule
Mapp.

Harlan therefore tentatively voted with Douglas, Brennan, Stewart and Marshall to exclude the evidence. Thus, even though there were five members who thought the evidence against him should be admitted, Coolidge would get a new trial and another chance to be acquitted.

Black was exasperated at Harlan's refusal to simply bend the exclusionary rule without overruling
Mapp.
He accused him of allowing the Court to turn professional criminals loose to prey upon society with impunity.*

Black's vehemence hurt Harlan's feelings. He considered airing his own frustrations in an opinion but decided against it. Harlan said that his vote would remain tentative, however, until he saw a draft opinion.

It was obvious to the others that if and when Black and Harlan found common ground—whether to just overrule
Mapp
or to modify the entire exclusionary rule—they would form a new majority with Burger, White and Blackmun. In an effort to keep that from happening in this case, Douglas, the senior Justice in the majority, assigned the opinion to Stewart, whose views were closest to Harlan's.

Stewart, however, was unsure of his own position on the car search. He asked his clerk to research the matter, and the clerk developed a car-search theory. In situations where police stumbled on a car inadvertently or made an on-the-spot arrest, a warrant might not be necessary. But where they expected to find the car when they made the arrest, they should be forced to take the time to get a valid warrant.

White found this doctrine absurd, and he wrote a lengthy dissent. Why should evidence be excluded, he asked, solely because police expected to find it? Besides, in this case there was no indication that the police had expected to find the car there. Even more distressing to White was Stewart's apparent willingness, without explicitly saying so, to undermine a case White had written during the previous term
(Chambers
v.
Maroney),
which had held that police should be allowed to seize whatever they found in plain view when making an arrest The car was surely in plain view.

Harlan sent Stewart a memo. He found the White dissent persuasive. He did not believe he could join that sec
tion of Stewart's opinion.

* Black later published these views in the case
Whitely
v.
Warden.
Harlan drafted but did not publish a rebuttal, because he didn
't
want to attack Black publicly.

Then he called Stewart. Perhaps it was time for the Court to reconsider the entire exclusionary rule and all the Fourth Amendment ramifications. Maybe this was the case in which to do it

Stewart could see his majority slipping away. He encouraged his clerk to write a strong critique of White's view. This began a war of footnotes between the two chambers for Harlan
's
vote. The number of footnotes in Stewart
's
draft doubled to forty.

Stewart's clerk also tailored a section specifically designed to win Harlan back. He built on Harlan's concern that the Court had to be careful not to grant too many exceptions to the Fourth Amendment's warrant requirement. If good motives and probable cause were the sole criteria for a valid search, as White was suggesting, search warrants would not be necessary. The Fourth Amendment clause that required specific warrants would be void.

When Stewart
's
new draft arrived in Harlan's chambers, he took it home to read. The next morning Harlan entered his chambers, as usual, through his clerks' office. "Good morning, chaps," he said brightly. "I read Stewart's draft last evening. It is not a bad opinion." That was that. Harlan was willing to join that key part of the opinion.

Then, suddenly, trouble developed for Stewart from the liberal wing. Brennan had written a dissent from the part of Stewart's opinion that upheld the house search based on the wife's consent. The question of whether someone other than the suspect could grant consent to a police search had never been fully settled by the Court. Stewart wanted to allow the evidence provided by Coolidge's wife to be used in any new trial. Since that included the murder weapon, Coolidge
's
new trial would likely result in another conviction.

Studying the record, Stewart
's
clerk found indications that the police had intimidated and coerced Coolidge's wife into cooperating. Police, prosecutors and judges could therefore conceivably read the opinion and conclude that intimidation of non
-
suspects, to secure their consent to searches, was acceptable.

The solution, the clerk decided, was to distort the facts in the draft. "There is not the slightest implication of an attempt on [the police officers'] part to coerce or dominate her, or, for that matter, to direct her actions by the more subtle techniques of suggestion that are available to officials in circumstances like these," his draft stated.

Stewart bought this approach. This way, police and prosecutors would see they could conduct such searches only with voluntary cooperation.

But the in
timidation and coercion of Coolidge's wife had also been noticed by one of Brennan's clerks. He had prepared a dissent pointing out the severe distortion in the Stewart draft. When Stewart's clerk learned of it, he realized that if the Brennan dissent circulated, it might well pick up Douglas and Marshall's votes and leave Stewart with no majority on that portion of the opinion Stewart's clerk appealed to Brennan's clerk to urge Brennan not to flag the problem.

Brennan agreed. Kicking up a fuss with a sharp finger-pointing dissent could lead to a worse resolution.

White replied to the conference in a memo. He was unhappy with the outcome of both
Coolidge
and another exclusionary rule case. Stewart's opinion resolved nothing. He wanted the issue put over for argument in other cases the next year.

Burger replied to White's memo the same day. He agreed with many of White's observations. He wanted these cases reargued. "I have this suggestion however: that to accommodate varying views we pose the reargument questions along the following lines:
(i)
—Should
Mapp
v.
Ohio
be overruled?
(2)
—If
Mapp
v.
Ohio
is not overruled, should the scope of the Exclusionary Rule be narrowed so as to relate its application to the nature of the violation?
I
am not in any sense ‘
wedded' to this formulation of the question."

At the next conference, Harlan, the key vote, said that
Coolidge
was not the case on which to modify the rule. The facts were hopelessly convoluted. They should get rid of the Coolidge case and find a better test. He was sticking with Stewart on this one. Stewart's majority decision was announced June
21.

As the term closed, the exclusionary rule and the Fourth Amendment law stood largely where they had been when the term opened.

Blackmun wasn't having an easy time adjusting to the demands of the Court. At the Eighth Circuit Court of Appeals, he had used his clerks solely for mundane legal research. Blackmun had started to use his clerks the same way on the Supreme Court, but soon expanded their role slightly. On one occasion, he asked a clerk to research a question on jurisdiction and, as was customary, then circulated the resulting memo in his own name. It had barely left Blackmun's hands when a blistering response came in from Douglas, picking the legal research apart for overlooking obvious points. Douglas's memo was almost sadistic.

Blackmun was mortified. He realized that Douglas was right. He vowed to never again let his clerks be in a position to embarrass him in front of his colleagues. His clerks once more received very routine assignments, and Blackmun checked their work carefully.

After the first few weeks of oral argument, Burger sent Hugo Black a note saying that he had heard that by tradition a new Justice got to pick his "maiden" majority opinion. Black explained that the courtesy was often extended to a new Justice to steer him away from controversial opinions and make sure that he got a simple, unanimous opinion as his first task. The Chief said he would defer completing the assignment sheet until he could talk with Blackmun.

With unanimity the criterion, Burger and Blackmun didn't have a wide range of choices. Most of the cases argued the first few weeks had been hotly contested. So Blackmun finally decided to take one such case (
Wyman
v.
James)
that raised the question of whether welfare officials needed a search warrant to inspect a welfare recipient's home. He did the research himself, meticulously inspecting the trial record. He concluded that welfare officials could cut off benefits to persons who refused to allow inspectors into their homes. Likening welfare payments to private charity, Blackmun wrote that the public "rightly expects" some assurance that its funds are being spent in the proper manner. Blackmun saw in the record some evidence that the welfare mother's two-year-old child was being abused. He wrote in a footnote: "There are indications that all was not always well with the infant Maurice (skull fracture, a dent in the hand, a possible rat bite). The picture is a sad and unhappy one." Certainly the search was justified.

Blackmun concluded that if proper notice of a caseworker's visit was given, there was no need for a search warrant
.
If the recipients wouldn't allow the searches, they could forgo the welfare benefits. Caseworkers weren't police. They entered people's homes to assist, not to investigate.

The dissents, first by Douglas, then by Marshall joined by Brennan, were shrill. Douglas thought Blackmun's opinion outrageous. Marshall pointed out that previous Court rulings held that fire or housing inspectors could not demand the right to search businesses without a warrant He charged that the majority was setting one standard of protection against searches for the upper and middle classes, and another, lesser standard for the "lowly poor."

The dissenters, however, couldn't pry enough votes away from Blackmun to deny him a majority. Stewart was unhappy, but it was Blackmun's first opinion and he wanted to join. Black couldn't understand the opinion, but he too went along. Blackmun "will learn," he told his clerks.

Traditionally the two dozen-plus Supreme Court law clerks tried to have a group lunch during the term with each Justice. Blackmun's clerks were apprehensive when he accepted the invitation. Each of Blackmun's clerks had received his own share of abuse about the welfare opinion, and they knew their fellow clerks planned to ask their boss about it at the lunch.