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"On page 2 section 4, Search and Seizure;
Right to Privacy, in line 47 after the
period add this new sentence:
"Evidence secured in violation of these
provisions shall not be used against any
person in any proceedings, either civil or
criminal in the courts or before any agen-
cies of the State."
THE 'CHAIRMAN: T.he amendment has
been submitted by Delegate Bothe. Is there
a second to the amendment?
(Whereupon, the amendment was sec-
onded.)
THE CHAIRMAN: The amendment is
seconded by Delegate Bennett.
The Chair recognizes Delegate Bothe to
speak to the amendment.
DELEGATE BOTHE: Mr. Chairman and
fellow delegates:
The Committee on Personal Rights has
proposed a section 4 which in many respects
is analogous to the 4th Amendment of the
United States Constitution. An exception is
that it adopts language designed to guaran-
tee that the right of privacy, which the
Supreme Court has held to be synonymous
with the protection against unreasonable
searches and seizures, extends to areas
which are now in the state of uncertainty.
Because the 4th Amendment was placed in
the Constitution 200 years ago, no one had
known of the various insidious devices by
which one's privacy and personal life could
be invaded that have now come to the fore
in our national life.
If I recall correctly, no questions were
asked of Chairman Kiefer regarding our
proposal for section 4, which rather aston-
ished me, because I think it is one of the
few, if not only places in the proposed new
Constitution where very substantial, very
personal and very real rights are being
advanced to the people of Maryland which
may not be available to citizens in any
other state.
The subject of search and seizure, as
those 80 odd lawyers who are in this room
are aware, is an extremely complex one.
In the ten minutes which I have to explain
my amendment, I could not begin to scratch
the surface of it, and I will not attempt to
do so.
As lawyers and laymen, we all under-
stand that the protection against unreason-
able searches and seizures is the basis on
which the privacy of the individual is con-
stitutionally protected. It is the means by
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which the Committee on Personal Rights
and the Preamble sought to perpetuate it in
the new Constitution.
Originally our Committee had the clause
which I am proposing now as an amend-
ment in the Majority Report. It was deleted
for reasons of which I am not certain. I
am certain, however, that the additional
rights and the security which they were
meant to maintain were deleted along with
it. It is one thing to say that people shall
have security in their houses and effects
and communications. It is quite another to
indicate how these rights are to be pro-
tected.
Now, Amendment 7 would place in the
Constitution of the State the so-called ex-
clusionary rule. It would make that rule
applicable not only to criminal cases, but
to all proceedings, both civil and criminal,
before the courts and the agencies of the
State. And I will hastily tell you that the
Supreme Court has not gone quite that far.
I think eventually they will.
But if we mean to protect the people in
their right of privacy, this is the one means
of doing it. The rest of the section is utterly
without effect if we do not. The exclusion-
ary rule simply means that when evidence
is obtained in violation of the 4th Amend-
ment, or section 4 as we will have it in the
new Maryland Constitution, that evidence
cannot be introduced against a defendant
in a court.
As a result of the exclusionary rule which
the Supreme Court has imposed upon the
states in criminal proceedings, it is true
that some criminals go free because the
constable blundered. There are cases in
which there is evidence in a criminal case
of guilt of an individual which cannot be
admitted, even though it is valid evidence,
because it was obtained illegally. On the
surface of it, this seems to be a very wrong
thing, that a guilty person should go free
because the evidence that was obtained is
evidence that violated his personal rights.
But I say to you that in cases since 1914
when the Supreme Court first announced
and developed the exclusionary rule, it has
been shown that this is the one means by
which the right of the individual to private
domain can be protected; not only the
guilty individual, and they make up a bare
fraction of our total population, but the
entire citizenry of the State and the nation
can only be protected if the law enforce-
ment authorities may not attempt to find
incriminating evidence through the use of
illegal means. And it is not the guilty who
matter in the situation, but the innocent.
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