holding that a deferential standard of review is employed in reviewing a determination of probable cause in a warrantless search situation
How later courts described this case
- holding that a deferential standard of review is employed in reviewing a determination of probable cause in a warrantless search situation
- characterizing § 3553(e) and U.S.S.G. § 5K1.1 as parallel and holding that neither violates right to procedural or substantive due process
- applying clearly erroneous review for trial court’s determinations in eases involving warrantless seizures under the Fourth Amendment
- applying clearly erroneous review for trial court's determinations in cases involving warrantless seizures under the Fourth Amendment
Written by the judges who cited it.
The opinion
MORAN, Chief District Judge,
concurring.
I concur. I do not join, however, in that part of the opinion that adopts a “clearly erroneous” standard of review for probable cause determinations. My reluctance is not because I am persuaded that the standard is incorrect; it is, rather, that the adoption of that standard (or, for that matter, adherence to the past standard) does not in and of itself resolve the existing differences of opinion within the circuit.
The disagreement, as I understand it, relates to the means of describing the deference a reviewing court should extend to the determination of the front line judicial officer. The concept of de novo review may imply almost no deference at all. The clearly erroneous standard may imply a highly deferential review bordering on the perfunctory. If those implications were accurate then both standards would be wrong. Indeed, I am not at all sure that there is any disagreement with the notion that the reviewing court should accord considerable deference but provide meaningful review.
United States v. McKinney, 919 F.2d 405 (7th Cir.1990), covers, in three opinions, the range of concerns. Judge Flaum there argues for a de novo standard in nonwar-rant cases, a standard that he has recognized “can vary from relatively deferential review to comprehensive review.” Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 940 (7th Cir.1989). Emphasizing that constitutional rights are implicated, he questioned the feasibility of a “chameleonic ‘clearly erroneous’ standard” and expressed concerns that adoption of that standard could lead to excessive deference. McKinney , at 411 and 415. Judge Posner pointed out that the scope of review under the clearly erroneous standard is affected by the institutional context and that the review of the legal significance ascribed to conceded facts is necessarily more searching than the review of credibility determinations. He urged that one standard, applied with varying rigor in varying contexts, was more comprehensible than a multiplicity of somewhat amorphous concepts. Id. at 422-423 . And Judge Will, while agreeing that appellate review of the application of law to fact should be deferential, contended that reliance upon a clearly erroneous standard denigrated, psychologically and therefore in practice, the importance of appellate review of determinations implicating constitutional rights. Id. at 425 .
The words of the standard are, in those circumstances, less important than the explanation of their meaning. Is the adoption of the clearly erroneous standard here intended to emphasize deference and minimize appellate scrutiny? That does not appear to be the thrust, but we cannot be sure.
I also agree, although somewhat reluctantly, that it has become the law of this circuit, particularly in light of United States v. Smith, 953 F.2d 1060 (7th Cir.1992), that a government motion is required for a “substantial assistance” downward departure, and that such a require *282 ment does not violate substantive or procedural due process.