The Post-Columbo Era: How the courts killed good detective work - how laws limit methods of criminal investigation

National Review, Sept 3, 2001 by William Tucker

Think the cops are having a tough time cracking the Chandra Levy case? Try this one on for size.

Samiya Haqiqi, a 24-year-old law student at Quinnipiac College in Connecticut, drove to New York City on a Friday night in November 1999 to meet her boyfriend for dinner. She intended to break up with him. The next day her car was found abandoned in a Grand Union supermarket parking lot. She has not been seen since.

Suspicion quickly fell on the boyfriend. He claimed she never made the dinner engagement. When police asked further questions, he hired an attorney and invoked his Fifth Amendment rights. Although Haqiqi's relatives urged the Queens district attorney to issue a search warrant for the boyfriend's apartment, the D.A. refused, saying there was no "probable cause." Shortly afterward, the boyfriend moved to Canada.

A year later, the Queens detective bureau announced that Haqiqi was the victim of a "violent crime" and that the boyfriend was the suspect; but nothing happened. Last week, Detective Steven Brown of the 109th Precinct said the boyfriend still remains the principal suspect-but no arrest is imminent. "It's generally more helpful when the suspect cooperates during an investigation," he said. Any physical evidence that would tie the boyfriend to the disappearance is, of course, long gone.

At the heart of the Chandra Levy case is a grim fact of life: We are living in the post-Columbo era. Many traditional aspects of detective work have been abandoned; in fact, much of what detectives once did is now illegal. The only thing that keeps the wheels of justice turning is that most people don't know this. "People only talk to the police because they think it will look suspicious if they don't," says an experienced Manhattan assistant district attorney. "What they don't realize is that the police aren't allowed to draw that negative inference."

Defense attorneys, of course, know it all by heart. That's why you'll always hear them holler that a defendant "wasn't properly represented" when someone is convicted of a crime, particularly a death-penalty case. It's true: If all Americans knew their rights, very few people would ever be arrested for anything.

This situation is the outcome of the 1960s Supreme Court reforms, particularly Mapp v. Ohio (1961) and Miranda v. Arizona (1966). Mapp extended the Fourth Amendment's search-and-seizure protections and search-warrant requirements to the states. Miranda extended the Fifth Amendment's protections against self-incrimination all the way back to the police station, establishing the "right to remain silent." Both decisions were reinforced by an "exclusionary rule," which said that if a defendant's rights were violated in the course of an investigation, the resulting evidence must be excluded from court.

Since that moment, the main strategy of every defense attorney has become to "put the state on trial" by challenging investigative procedures. As a result, absurdities have prevailed. Warrants were voided because of misspellings and typographical errors. Purely voluntary confessions recorded on videotape were thrown out when defense attorneys said their client "couldn't have possibly understood his rights or else he wouldn't have admitted to this crime."

Now something even worse has happened. District attorneys and police departments have become very good at abiding by the new rules; procedural mistakes are rare, and D.A.'s are very circumspect in asking for search warrants. There's only one problem: Now that the police are abiding by the letter of the Supreme Court directives, there are more and more unsolved crimes.

This is the clear and disastrous consequence of the Court's misinterpretation of the Fourth and Fifth Amendments. As the Fifth Amendment now stands, no one has to cooperate with the police. You don't even have to give the police your first and last names. If you are caught in a compromising situation or even standing over a bloody corpse, all you have to say is, "Talk to my lawyer." Your lawyer, of course, will tell you to keep quiet.

But that's not the difficult part. The real problem is that the police are not allowed to draw any negative inference from this refusal to answer questions. In other words, the police aren't allowed to think- and that makes a crucial difference when it comes to asking for search warrants. The Fourth Amendment says that "no warrants shall issue, but upon probable cause." What constitutes probable cause? It can't be a hunch. It can't be just circumstantial evidence: The fact that someone is standing over a bloody corpse doesn't mean he's done anything wrong; he could have just happened by. If the suspect declines to give any explanation of the circumstances, there may be no grounds for initiating an investigation. Detective work quickly hits a stone wall.

Here's how it works in practice. On November 7, 1997, Michael Sullivan, a 54-year-old actor and art-gallery clerk, and Camden Sylvia, a 36- year-old artist and real-estate agent, who shared a Lower Manhattan apartment, mysteriously disappeared. Suspicion quickly fell on their landlord, Robert Rodriguez, who ran a locksmith shop on the building's first floor. Sullivan and Sylvia had long been at odds with Rodriguez over their $300-a-month rent-stabilized apartment. The couple claimed he was not providing them with heat, and had told him that day that they would be withholding their rent.