United States v. Charles J. Spears, Also Known as "Blackie," and Donald Meeks, United States of America v. Kim Curran

FLAUM, Circuit Judge,

with whom CUMMINGS, CUDAHY, and RIPPLE, Circuit Judges, join,

dissenting from denial of hearing en banc.

I would grant an en banc hearing, and regret that the panel, in its rush to extinguish United States v. McKinney, 919 F.2d 405 (7th Cir.1990), has decided to reach an issue of importance without urging by the parties and without the benefit of either briefing or argument. The majority opinion in McKinney sets out in detail the justification for employing an intermediate “substantial basis” standard of review; I therefore add only a few thoughts here.

Although my intention is not to analyze the panel’s opinion point-by-point, several matters deserve attention. First, the panel laments the fact that “considerably less attention has been paid” to the Court’s use of the term “substantial evidence” in Massachusetts v. Upton, 466 U.S. 727, 728 , 104 S.Ct. 2085, 2085-86 , 80 L.Ed.2d 721 (1984), than to its use of “substantial basis” in Illinois v. Gates, 462 U.S. 213, 238-39 , 103 S.Ct. 2317, 2332-33 , 76 L.Ed.2d 527 (1983). Op. at 270. This should come as no surprise. Gates was the watershed fourth amendment probable cause case, one in which the Court articulated its doctrine with the utmost precision; Upton , in contrast, was a brief and unargued per curiam decision that sought only to correct a state supreme court’s misapplication of Gates . There is also the matter that Upton used the term “substantial basis” as well, see Upton, 466 U.S. at 733 , 104 S.Ct. at 2088 , a detail that the panel apparently chose to disregard, but one which might explain the nearly universal reliance upon the Gates “substantial basis” formulation.

Also worth noting is the panel’s claim that employing the McKinney standard would “return to the ‘elaborate set of legal rules’ the Court eschewed in Gates.” Op. at 270. In my view this criticism misfires. What the Court eschewed was the pre- Gates substantive standard that informed a magistrate’s probable cause determination, 462 U.S. at 235 , 103 S.Ct. at 2331 (criticizing “the complex superstructure of evidentiary and analytical rules that some have seen implicit in ... Spinelli ” [v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969)]), not an “elaborate” (if one can fairly call an intermediate standard of review elaborate) standard of appellate review. Gates said that the standard of review should not be de novo, id. 462 U.S. at 236 , 103 S.Ct. at 2331 , but conspicuously did not say it should be clear error; as appellate judges we should not presume that the Court meant to say something (significant) that it quite easily could have said but did not. McKinney, 919 F.2d at 409-10 .

At a more fundamental level, I suggest that the clear error standard serves to undermine, rather than preserve, the structure established in Gates and United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). This structure actually has two levels, corresponding to different strata of legal authority in the warrant process. At the first level, police officers take legal direction from magistrates; at the second, magistrates take legal direction from us, for we are — in effect, because the Supreme Court necessarily speaks in generalities in this area — the ultimate expositors of the nitty-gritty features of the fourth amendment. Leon’s good faith exception works at the first level by giving the government an appropriate break when police officers reasonably rely upon warrants erroneously approved by magistrates. The panel, however, does Leon one better by adopting what can only be dubbed a “super” good faith rule at the second level to cover magistrates that err reasonably, but not egregiously. The problem is that Leon was premised at least in part upon the notion that magistrates, in approving warrants, will comply with the substantive dictates of Gates in most instances. Were it any other way, why employ magistrates as front-line judicial officers? (Also, why continue to maintain, Justice Scalia’s lonely view in California v. Acevedo, — U.S. -, 111 S.Ct. 1982, 1992 , 114 L.Ed.2d 619 (1991) (Scalia, J., concurring), notwithstanding, that warrant- *283 less searches are presumptively unconstitutional?) And recall that we ultimately determine whether the magistrates are complying with Gates , and correct them when they do not.

It is this dialogue — conveyed via meaningful appellate review of the magistrates’ probable cause determinations — that serves Leon by promoting accuracy and uniformity among magistrates as to their application of the fourth amendment. One of today’s decision’s more unfortunate consequences will be its severe curtailment of this dialogue, and potentially adverse effect upon the thoroughness of justice meted out by magistrates. One could argue, I suppose, that the panel’s decision may well serve what I see as the design of Leon and Gates : in the new “unregulated” marketplace of probable cause that the clear error standard may herald, more magistrates will inevitably comply with the dictates of the fourth amendment. There is, however, a catch. The compliance rate will rise not necessarily because magistrates will make decisions that comport with the substantive law of the circuit, but rather because of grade inflation; in other words, what would pass under the clear error standard might not under the McKinney standard. I doubt that is what Justice White had in mind in Leon. See Malley v. Briggs, 475 U.S. 335, 345-46 , 106 S.Ct. 1092, 1098-99 , 89 L.Ed.2d 271 (1986) (White, J.) (“It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressure, will fail to perform as a magistrate should.”).

By holding schooled magistrates to virtually the same standard that we hold lay police officers, I think that we weaken the fabric of Gates and Leon , approach forsaking our responsibility as appellate judges to interpret and uphold the constitution, and implicitly countenance a potential deterioration of the quality of justice at probable cause hearings. It may be that the label we place upon our standard of review will make little difference to most of our decisions, including the case sub judice. However, I firmly believe that the degree of scrutiny we enunciate sends a critical and constant message to the bench, bar and other actors in the criminal justice system. The proper signal could promote a more considered application (and practice) of the law in this significant area; the wrong signal could have a less salutary effect.

I respectfully and regretfully suggest that today’s decision does not enhance the status of this Circuit’s fourth amendment jurisprudence. Those who now scuttle more searching appellate review in this crucial area deem it an extravagance and “needlessly complex.” See, e.g., McKinney, 919 F.2d at 420-21 (Posner, J., concurring). It might be more prudent, however, to heed Justice Stewart’s caveat: “[i]n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.” Coolidge v. New Hampshire, 403 U.S. 443, 455 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564 (1971).