Amicus Curiae Brief — California v. Krivda
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JUN 30 572
In THE
Supreme Court of the Binited Somes: dh. ,CLERK
Octosznr Team, 1972.
No. 71-651
STATE OF CALIFORNIA,
Petitioner,
vs.
JUDITH H. KRIVDA ax» RODGER T. MINOR,
Respondents.
O8 WHIT OF CENRTIONAMI TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA.
Frank G. Cannixortox, Jn., Enq.
Atax 8. Ganz, Ese,
Americans for Effective Law
Enforcement, Inc.,
Suite 960,
State National Bank Plaza,
1603 Orrington Avenue,
Evanston, Illinois 60201,
Of Counsel : Counsel for Amici Curiae.
Giex Munrny, Esq,
Warne W. Scumur, Exe,
International Association of
Chiefs of Police Inc.,
Eleven Firstfield Road,
Gaithersburg, Maryland 20760.
—— —
TABLE OF CONTENTS.
——- PAGE
MO I og oo doe bacccodeboccdecccns, i
Interest of Amici Curiae................0.ce0ce0e.. 2
Summary of Arguments........................... 4
Arguments :
lL The Deleterious Effects of the Exclusionary Rule
Upon Law Enforcement, Together With The
Growing Number of Crities of The Absolute Ap-
plication of The Exclusionary Rule, Suggest That
a Re-Examination of the Scope of The Rule by
This Court May Be In Order .............._ 5
IL A Study of Police Search and Seizure Proce-
dures, Nationwide, Indicates that the Absolute
Sanctions of The Exelusionary Rule May No
Longer Be Necessary to ‘Police the Police.’... 11
Il. The Seope of the Exelusionary Rule Should Be
Narrowed to Encompass only Willful, Flagrant,
and Substantial Violations .................. 20
I Tas ob dun ciee'e ecko ddcdas a's a ee 25
FRR RS SRR A ATR OD le ae Al
Taste or Avruonries.
Cases.
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971) .......... 7, 9, 11, 18, 20, 21, 22, 23, 24
Chapman v. United States, 365 U. 8. 610 (1961)...... 12
Chimel v. California, 392 U. 8. 752 ea 21
Katz v. United States, 389 U.S. 347 (1967) .......... 3, 16
Linkletter v. Walker, 381 U. 8S. 618 aa 6
Mapp v. Ohio, 367 U. S. 643 (1961) ................ 5
a
ii
People v. Chimel, 68 Cal. App. 2d 436 (1968) ........ 21
People v. Superior Court (Hawkins), 18 Cal. App. 640
SNE céabbunculed bienepeSseersnpetetsad betas ss x
People v. Superior Court (Hawkins), 6 Cal. 3d 757
SEED /dccapasehecedipeverspsoiernévetpeenencves *
State v. Bisacci, 279 A. 2d 675 (N. J. 1971) .......... 6
The Queen v. Wray, 11 D. L. R. 3d 673 (1970) ...... 9
Weeks v. United States, 232 U. 8S. 383 (1914) ........ 5
Articles and Reports.
Bunger, Who Will Watch the Watchman, 14 Am. U. L.
yi Perper rior ts) Perera eT TT ee ee 7
Groom, The Admissibility of Evidence Illegally Ob-
tained, 13 Chitty’s L. J. 54 (1964) ................ 9
Martin, The Exclusionary Rule Under Foreign Law—
Canada, 52 J. Crim. L. 8. & P. 8. 271 (1961) ...... 9
Nedrud: The Criminal Law, 1970, 1971, and 1972
13, 14, 15, 16
COC OOOOH OO OHHH OOOH HOO HEHEHOHEHHEHOOHHHEOHH ES
Vance, Why the Exclusionary Rule Should Be Modified,
5 The Prosecutor 399 (1971) .........---++eeeee 7, 8
Williams, The Exclusionary Rule Under Foreign Law—
England, 52 J. Crim. L. C. & P. 8. 272 (1961) ......
Other. :
Resolution passed by National Association of Attorneys
General on December 15, 1971 ...........---+0+05+ §
Congressional Record, Senate, 92nd Cong. 2d Sess.,
January 26, 1972, § 500 .......--- cece eee ceeeecees
_—
IN THE
Supreme Court of the United States
Ocroser Term, 1972.
No. 71-651.
STATE OF CALIFORNIA,
Petitioner,
vs.
JUDITH H. KRIVDA axp RODGER T. MINOR,
Respondents.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA.
BRIEF OF AMERICANS FOR EFFECTIVE LAW EN.
FORCEMENT, INC., AND THE INTERNATIONAL
ASSOCIATION OF CHIEFS OF POLICE, INC. AS
AMICI CURIAE IN SUPPORT OF THE PETITIONER.
This brief is filed pursuant to Rule 42 of the Supreme
Court Rules. Consent to file has been granted by the Office
of the Attorney General of the State of California, counsel
for the Petitioner, and by Mr. Roger S. Hanson, Esq.,
counsel for the Respondents. Letters of consent of both
parties have been filed with the Clerk of this Court.
Siilicintenenssconmasisanstiantsnmnevrsssarensinnssians
a
INTEREST OF THE AMICI CURIAE.
Americans for Effective Law Enforcement, Inc. (AELE)
is a national, not-for-profit citizens organization incor-
porated under the laws of the state of Illinois. As stated in
its by-laws the purposes of AELE are:
1. To explore and consider the needs and requirements
for the effective enforcement of the criminal law.
2. To inform the public of these needs and require-
ments, to the end that the courts will administer
justice based upon a due concern for the general
welfare and security of law abiding citizens.
3. To assist the police, the prosecution, and the courts
in promoting a more effective and fairer administra-
tion of the criminal laws.
In furtherance of these objectives AELE seeks to repre-
sent in our courts, nationwide, the concern of the average
citizen with the problems of crime and of police effee-
tiveness to deal with crime.
The International Association of Chiefs of Police, Inc.
(IACP) represent over 5,000 chiefs and top executives of
police departments and other law enforcement agencies in
all 50 states and in 85 foreign countries. The [ACP serves
the law enforcement profession and the public interest by
advancing the art of police service. Its aims are to foster
police cooperation and the exchange of information and
experience among police administrators throughout the
world, and tc encourage adherence of all police officers to
high professional standards of performance and conduct.
With regard to police professionalism law-related activities,
the IACP, in 1970 formed the Police Legal Center of the
IACP. This center serves as a hub for legal activity aff
-— ,
ing police work, it coordinates the activities of Police Legal
Advisors and Police Legal Units, nationwide, and publishes
numerous periodicals, documents, and in-service legal train-
ing materials for use both by police officers and executives.
The interest of both amici in the instant case stems from
the importance of the issues involved, the resolution of
which will have a direct and material impact upon the
effectiveness of law enforcement.
With regard to the issue of the legality of the search of
Respondent’s trash, amici wish to associate themselves
with, and express complete support for, the position taken
by the Petitioner, the State of California, namely: that the
search was proper and that the rule of Katz vy. United
States, 389 U. S. 347 (1967), should not be extended to
create a newly-discovered ‘‘expectation of privacy’’ in one’s
abandoned trash. We will not, however reiterate the argu-
ments made by the Petitioner on this issue.
With regard to the second issue of this case: assuming
that the search of Respondent’s trash was, in fact, a Fourth
Amendment violation, whether the application of the Ex-
eusionary Rule is constitutionally mandated. Amici, for
obvious reasons, consider this issue to be one of overriding
importance both to law enforcement officials nationwide
and to citizens concerned with the fair and effective en-
forcement of the criminal law. Again, we will not reiterate
the comprehensive arguments on this issue made by Peti-
tioner and other amici in support of Petitioner; rather, we
vill present additional arguments for our contention that a
narrowing of the scope of application of the Exclusionary
Rule to those violations which are willful, flagrant, and
substantial would be beneficial to law enforcement and to
society as a whole.
ae
SUMMARY OF ARGUMENT.
Amici in this brief support the position taken by Peti-
tioner, the State of California. We have collected herein
cases and articles representative of the growing number of
critics of the absolute application of the Exclusionary Rule.
We submit that the Exclusionary Rule has failed the test of
time. Its continued absolute application has weakened our
criminal justice system by turning obviously guilty crimi-:
nals free to commit crime again. This result has produced
a deleterious impact upon the courts, upon law enforee-
ment, and most importantly upon a society already over-
burdened with a rising crime rate.
It is our contention that America’s law enforcement off-
cers have demonstrated their professionalism by their
dedication to lawful and proper conduct. We support this
belief by presenting this Court with an empirical study
indicating that during the twenty-seven month period Jan-
uary, 1970 through March, 1972, appellate courts nation-
wide have found police conduct in cases of warrantless
search and seizure to have been lawful and proper in six
out of every seven cases. With this record this country’s
police do not need to be policed by the absolute sanctions of
the Exclusionary Rule.
Finally, we ask that the scope of the Exclusionary Rule
be narrowed to encompass only willful, flagrant, and sub-
stantial violations. This Court will find, we submit, that the
instant case, on its facts, represents a nof-willful, insub-
stantial violation of the Exclusionary Rule and thereby
provides an excellent vehicle for the narrowing of the scope
of this harmful, and ineffective, rule.
ARGUMENT.
I.
THE DELETERIOUS EFFECTS OF THE EXCLUSIONARY
RULE UPON LAW ENFORCEMENT, TOGETHER WITH
THE GROWING NUMBER OF CRITICS OF THE ABSOLUTE
APPLICATION OF THE EXCLUSIONARY RULE, SUGGEST
THAT A RE-EXAMINATION OF THE SCOPE OF THE
RULE BY THIS COURT MAY BE IN ORDER.
As is well known, the Exclusionary Rule requires the
automatic suppression of reliable and probative tangible
evidence obtained by law enforcement officers if a court sub-
sequently determines that the search or seizure was un-
reasonable. From its inception in 1914' the Rule evolved
through the years until finally in 1961 this Court in Mapp
¥. Ohio, 367 U. S. 643 (1961), imposed the Exclusionary
Rule upon the states for two reasons: (1) to deter unlawful
police conduct and (a) to prevent the courts from partici-
pating in unlawful searches and seizures.
The United States Supreme Court believed in 1961 that
judicial integrity required the results announced in the
Mapp decision. The United States Supreme Court of 1972
now has the opportunity, with the benefit of hindsight, to
re-examine the Exclusionary Rule and the results produced
by its application, nationwide, during the past eleven years.
Criticism of the Rule, from experts in our criminal justice
system, has steadily increased in recent years. The critics
tannot agree with a rule which forces the finder of fact to
wear blinders in the search for the truth. Chief Justice
1, Wecks y. United States, 232 U. S. 383 (1914) held that
widence which had been illegally seized by federal officers could
tot be used in federal courts.
—
6
Weintraub of the New Jersey Supreme Court succinetly
summed up this anomaly when he said:
Truth and justice are inseparable. A deliberately false
judgment debases the judicial process, and no less so
because the false judgment is an acquittal. On a mo.
tion to suppress we deal with evidence of guilt, and the
purpose of the litigant is to conceal that evidence to
the end that he will escape conviction notwithstanding
his guilt. Hypothetically there could be some case in
which the evidence sought to be suppressed would
falsely suggest guilt, but a judge would be short in
realism if he did not understand that the evidence he is
asked to suppress is evidence of guilt and that the judg-
ment of not guilty, which will ensue will likely be false.
To justify so serious an insult to the judicial process
some compensating gain should be incontestable. State
v. Bisacci, 279 A. 2d 675, 676 (N. J. 1971).
With reference to Chief Justice Weintraub’s ‘final
sentence, we submit that the absolute application of today’s
Exclusionary Rule should be re-examined in order to de-
termine if it is, in fact, justified. The primary ‘‘compensat-
ing gain’’ envisioned by the U. S, Supreme Court was the
deterrence of unlawful police conduct ;? yet, we speculate
that not one brief will be submitted to this Court citing
statistics contrary to the conclusion that illegal police con-
duct has not been deterred by the Exclusionary Rule. On
the other hand, one detailed study supports the aforemen-
tioned conclusion. An examination of the Exclusionary
Rule was made by Dallin H. Oaks, then a professor of law
at the University of Chicago.? After scrutinizing all the
2. In Linkletter y. Walker, 381 U. S. 618, 637 (1965) this
Court said ‘‘In rejecting the Wolf doctrine as to the exclusionary
rule the purpose was to deter the lawless action of the police and
to effectively enforce the Fourth Amendent.”’
3. Oaks, Studying the Exclusionary Rule in Search and Seizure,
37 U. CHI. L. REV. 665 (1970). Professor Oaks is now the
Provost of Brigham Young University.
| 7
available data, he. concluded that the data did not provide
any ‘empirical substantiation or refutation of the deterrent
affect of the Exclusionary Rule.’* His own judgment is
that the Exclusionary Rule is ‘‘a failure” as a deterrent.®
Chief Justice Burger has on several occasions criticized
the argument that the Exclusionary Rule deters unlawful
police conduct :
Some of the most recent cases in the Supreme Court
reveal, almost plaintively, an unspoken hope that if
judges say often and firmly that deterrence is the
purpose, police will finally take notice and be deterred.
As I see it, a fair conclusion is that the record does not
support a claim that police conduct has been sub-
stantially affected by the suppression of the prosecu-
tion’s evidence.*
Again in 1971 the Chief Justice commented that the hope
of guiding police conduct **by the exclusion of reliable evi-
dence from criminal trials was hardly more than a wistful
dream’’ and that history has demonstrated that the Ex-
clusionary Rule is ‘‘both conceptionally sterile and prac-
tically ineffective in accomplishing its stated objective.’
Also included among the critics of the Exclusionary Rule
are many of this country’s prosecutors. Carole S. Vance,
District Attorney of Houston, Texas, and then President of
the National District Attorney’s Association, believes that
the Exclusionary Rule is “‘perhaps the most unjust, out-
dated and over-rated legal doctrine in the U. S. today,’’
art ceeeteeeneattemperesenaaneinnensomnusetssiesbateesennsoerenen
4. Id. at 709.
5. Id. at 755.
6. Burger, Who Will Watch the Watchman, 14 AM. U. b.
REV. 1, 11 (1964).
7. Bivens v. Siz Unknown Federal Narcotics Agents, 403 U. S.
388, 415 (1971) (dissenting opinion).
8. Vance, Why The Exclusionary Rule Should be Modified, 7
E PROSECUTOR 399 (1971).
—
8
and that it ‘‘regards the overzealous officer of the law as a
greater danger to the community than the unpunished mur.
derer or narcotics pusher.’”
The National Association of Attorneys General, con-
ecrned about the effects of the Exclusionary Rule, passed
a resolution on December 15, 1971 which, among other
things, declared that ‘‘the Exclusionary Rule provides an
inflexible remedy for violations of an accused’s rights,
without regard to the nature, circumstances or substanti-
ality of the claimed violation or of the rights involved. ...”
State court judges can be added to the list of critics,
Directing his concurring opinion to the backlog created by
the Exclusionary Rule, Justice George Brown of the Cali-
fornia Court of Appeal stated:
Many authorities have concluded that the operation of
the rule in practice has done no more than bear out the
prediction of Mr. Justice Spence in the Cahan case to
the effect that the rule would lead to interminable
delays, excessive expense, and great uncertainty. I
have no doubt that it has led to a glut of cases in the
courts caused by a multiplicity of challenges to the
methods by which evidence was obtained at every stage
of most criminal proceedings. While most of these
challenges are unsuccessful, I am convinced that the
amount of court time consumed in the consideration
and disposition of such contentions is so large as to be
one of the principal causes of our current case backlog
and our overworked courts. People v. Superior Court
(Hawkins), 18 Cal. App. 3d 640, 645 (1971)."°
The criticism of the absolute effects of the Exclusionary
Rule is not restricted to this country. Both Canada and
9. Id. at 401.
10. The case was subsequently vacated by the California Su-
i972) Court People v. Superior Court (Hawkins), 6 Cal. 3d 757
9
England have rejected the Exclusionary Rule." A leading
Canadian case is The Queen v. Wray, 11 D. L. R. 3d 673
(1970). At page 674 the Canadian Supreme Court stated:
The admission of admissible evidence relevant to the
issue before the Court and of substantial probative
value may operate unfortunately for the accused, but
not unfairly. It is only the admission of evidence
gravely prejudicial to the accused, the admissibility of
which is tenuous and whose probative force in relation
to the main issue before the Court is trifling, which can
be said to operate unfairly. The trial Judge’s discre-
tion to exclude evidence which is admissible is limited
to those cases where he has a duty to ensure that the
minds of the jury will not be prejudiced by evidence
which has very little probative value and which also
has a great prejudicial effect. Even if the evidence has
been obtained unfairly in the opinion of the trial Judge
it is not his duty to exclude it if its probative value is
unimpeachable.
Brevity requires that we cite only a representative selec-
tion of the authorities calling for a total or partial abolition
of the Exclusionary Rule. An additional list of authors
expressing their disenchantment with the anomalies pro-
duced by this Rule can be found in Chief Justice Burger’s
appendix to his dissenting opinion in Bivens, supra, at 426,
427,
As amici, we would fall short of our purpose in filing this
brief if we did not attempt to espouse the views of he law-
abiding citizen. We can, in this respect, base our comments
upon our continuous contact with citizens’ groups around
the country. The complaint heard most often is that too
many factually guilty defendants are being released by the
ll. See, Martin, The Erclusionary Rule Under Foreign Law—
Canada, 52 J. CRIM. L. S & P. S. 271, 272 (1961); Williams,
The Exclusionary Rule Under Foreign Law—England, 52 J.
CRIM. L. C. & P. S. 272 (1961) ; Groom, The Admissibility of
Evidence IMegally Obtained, 13 CHITTY’S L. J. 54 (1964).
courts. The continued refusal of the courts to accept re.
liable evidence indicative of the guilt of an accused is
dangerously threatening a further lack of respect for and
confidence in our system of criminal justice. To the layman
the release of a guilty defendant as a result of illegally
seized evidence is just another example of an acquittal on
a* 09
We believe that our society has the right to express its
disaffection with the effects of the Exclusionary Rule since
convictions were reversed or highly probative evidence
suppressed in cases involving on the one hand serious, rep-
rehensible crimes committed by the offender and on the
other hand relatively insubstantial **violations’’ by police
officers. A rule which allows criminals of thix sort to be
freed or to have their convictions reversed can he justified
only by clear and convincing evidence that itx benefit to
society outweighs this obvious cost. We submit that any
evidence of the benefits of the Exclusionary Rule fails to
meet this test.
Our position in this case has been succinctly stated by a
former Justice of the Supreme Court of Victoria, Aus
tralia. An address delivered by Honorable Sir Reginald
Sholl to the Philadelphia Bar Association on March 7, 1966
was reported in the Congressional Recor, Senate, 92nd
Cong. 2d Sess., January 26, 1972 at § 509, At §511 this
distinguished Australian lawyer stated;
In your enthusiasm for liberalism at all costs, you are,
perceptibly more than we are in Australia, throwi
il
the baby out with the bath water. It is no good making
individual liberty *o cast-iron, by constitutional guar-
antees, that one’s neighbour can rob one, or rape one’s
daughter, with a better chance of escaping justice than
in other civilized countries. How stands life, liberty,
and the pursuit of happiness, in that situation? It is
indeed an empty freedom, a vain individual liberty,
which is accompanied by a significantly increased risk
to oneself or one’s family of being the victim of crime.
What is the real value of greater individual liberty,
so-called, if it is obtained at the price of making crime
harder to detect and punish, and therefore safer to
commit? What is the real value to a decent law abiding
citizen of being in less danger of possible abuse of
power by the police, but in greater danger of fraud,
theft, violence or death from criminals large and «mall,
organized or unorganized‘
The deleterious effects of the Exclusionary Rule upon
weciety and upon law enforcement appear, to us, to be
patent. We turn now to more specific comments upon police
| ‘practices and the application of the Exclusionary Rale.
Chief Justice Burger, dissenting in Bivens, pointed out
that the Exclusionary Rule is premised on the theory that
the “‘. . . suppression of evidence . . . was imperative to
deter law enforcement authorities from using improper
methods to obtain evidence."’ 403 U.S. at 413. This theory
@f deterrence ix, in effect, a product of the belief that the
courts of this country must ‘‘police the police,"’ via the
Exclusionary Rule, to prevent them from engaging in im-
conduct in the area of search and seizure. This
12
Court in the instant case is being asked to consider 4
narrowing of the ‘‘police the police’’ concept, therefore it
becomes vital to consider modern police behavior in the
search and seizure area with a view towards answering the
question of whether the vast majority of today’s law
enforcement officers have become sufficiently professional in
their search and seizure conduct that the absolute sanctions
of the Exclusionary Rule are no longer necessary to ‘“po-
lice’’ them.
We believe, and we will present evidence in this section,
that the greatest majority of today’s law enforcement
officers do, in fact, desire to observe and engage in proper
search and seizure procedures and that, with few excep-
tions, their attempts to conduct themselves with propriety
in this difficult area have met with success. A consideration
of this aspect of the question is, we submit, highly signifi-
cant to any analysis of whether the scope of the Exclu-
sionary Rule should be narrowed.
With regard to the desire of the police to conform their
behavior to the law in search and seizure cases, Mr. Justice
Tom Clark, dissenting in Chapman v. United States, 365
U. 8. 610 (1961) and calling for more clear-cut rules to
guide the police in search and seizure cases, summed up
what we believe to be the attitude of the majority of our
nation’s policemen :
Every moment of every day, somewhere in the United
States, a law enforcement officer is faced with a prob-
lem of search and seizure. He is anzious to obey the
rules that circumscribe his conduct in this field. 365
U. 8. at 622 (emphasis added).
We agree with this characterization of the attitude of
the modern law enforcement officer but, concededly, mere
desire to obey the rules in and of itself would not be suf-
ficient. A second and more important element—the degree
of success with which this desire is translated into proper
13
searches and seizures must be considered. Such a consid-
eration, in order to demonstrate police professionalism in
the search and seizure area is the purpose of this section.
In order to measure the propriety of police conduct if
search and seizure, nationwide, we have conducted a study
of search and seizure cases decided at the appellate level
in all jurisdictions in the United States in the twenty-
seven month period January, 1970 through March, 1972.
We will describe briefly the methodology of this study in
order to provide this Court with conerete, empirical evi-
dence of the degree to which this country’s law enforce-
ment officers have shown themselves capable of conducting
lawful and proper searches and seizures in the greatest
majority of cases which have been singled out for appellate
review.
(1) Source Material.
The source of cases for our study is Nedrud: The Crim-
inal Law,” which is a monthly survey of all of the reported
decisions in criminal law areas which have been decided
by every state and federal appellate court in the United
States.*
Concerning their source material for cases summarized
in the Nedrud service, the editors state:
Materia, Prepraration-Coverace
The case summaries for each monthly issue are
prepared by the editors from the court opinions pub-
lished in the Advance Sheets of West’s National Re-
12. Nedrud: The Criminal Law, Edited by Duane R. Nedrud
and Marguerite D. Oberto, LE Publishers, Inc., 612 N. Michigan
Ave., Chicago, Il. 60611.
13. This study does not include cases decided by the U. 8.
Court, but all other appellate cases under which police
procedures are judged according to the guidelines laid down by
the U. S. Supreme Court. Additionally it does not include
mtity cases in which the ruling on a search and seizure was
22 ruling on what constitutes obscene matter.
14
porter System (including the New York Supplement
and the California Reporter) for the month preceding
the issue’s mailing date, e.g., the February service in-
cludes the cases reported in the January Advance
Sheets. Because the purpose of this service is to pro-
vide a permanent research source that is national in
scope, the original source material is the National
Reporter System rather than state advance sheets or
slip opinions directly from the courts themselves.
All points of every case, which points are actually
ruled upon by the court, are abstracted and appropri-
ately categorized (so that one case may be cited in
several different sections), except where the court gives
only perfunctory or memorandum treatment to the
questions raised. Also cases which are decided on the
sufficiency or ‘‘weight’’ of the evidence are not re-
ported unless a novel point of fact or law is involved.
Thus for the purposes of our study we have used sum-
maries of all of the reported search and seizure cases de-
cided by appellate courts on every level of the judicial
system in this country, at least insofar as the courts have
considered the issues to be worth detailing in a written
opinion in more than a perfunctory manner. Our study
encompasses the entire spectrum of appellate opinion on
search and seizure in the United States.
(2) The Reasons for Studying Appellate Cases.
We believe that the use of appellate cazes in our study
presents the most comprehensive picture obtainable of
judicial review of police search and seizure procedures.
As a general rule, cases which have reached the appellate
level have had the most thorough judicia) treatment, both
parties will have had the opportunity to present briefs
and to make oral arguments and the appellate judges will
have had the opportunity to review thoroughly the police
behavior, presented in the facts of the case and to review,
-
— «
|
.
.
in the relatively calm and thoughtful atmosphere of the
appellate process, the law of search and seizure as it is
applied to the facts."*
Further, the appellate courts of this country generally
choose to deal with novel or important areas of the law
involved, or areas in which substantial questions of indi-
vidual rights are involved, so that a study of appellate
eases presents a very broad range of issues involving police
procedures.
Additionally, since our study covers every appellate court
in the country the range of judicial opinion on search and
seizure issues is the widest possible. Our study, we believe,
encompasses a truly national sample of the reported deci-
sions of judges who are, by definition, sufficiently learned in
the law to have reached the appellate court level, and who
_ provide a nationwide representation of all possible judicial
views with regard to police search and seizure activities.
Finally, since our study covers all of the reported state
and federal appellate decisions for the period involved, we
are able to see the entire panoply of search and seizure law
in the United States brought to bear on the ability of law
enforeement officers to deal, properly, with search and
seizure problems.
(3) The Types of Cases Studied.
Because we seek in our study to measure police perform-
ance in the search and seizure area, we have chosen to
consider only those cases classified in the Nedrud service
as warrantless searches and seizures. Such searches and
15. This is in marked contrast to the motion to suppress stage
which, in many of our crowded courts are hurried. even per-
funetory, affairs with an overworked prosecutor seeing the case
for the first time as he steps up to try the motion and with judges
making on-the-spot decisions without a thorough review of the
and the facts. See:, c.g., Oaks, supra, at 668.
- Fee imiin = = ———
16
seizures are truly those in which the policeman, on the
street, must make his own decision as to whether to pro-
ceed with a given search or not. These are the cases in
which the officer is acting on his own with no assistance
from a magistrate or prosecuting attorney, cases in which
his activity must stand or fall based on his own judgment,
knowledge of search and seizure restrictions, and his desire
to abide by such restrictions. Such cases, we submit point
out as dramatically as possible how today’s police officer,
dealing in the extraordinarily complex area of search and
seizure and operating under this Court’s admonition that
warrantless searches and seizures are ‘‘per se unreason-
able’’ unless they can be otherwise justified,” have never.
theless been upheld at the appellate level in their warrant.
less search and seizure procedures to a truly astounding
degree.”
The Nedrud classifications of cases studied are as
follows:
1,.1—Arrest and detention—Reasonable Grounds
1.4—Detention: Stop and Frisk
2.3—Search and Seizure Incident to Arrest; Arrest or
Search for one offense, seizure for another.
2.4—Autos, Without Warrant
2.5—Persons and Places, Without Warrant.
These categories, we believe, cover the entire range of
warrantless searches and seizures by law enforcement of-
ficers.
(4) Results of the Study
Of 1,371 cases involving warrantless searches and
seizures by the police which were decided by appellate
16. See; Katz v. United States, 389 U.S. 347, 357 (1967).
17. Some cases involved both warrant and non-warrant pro-
cedures ; however our study only encompasses those cases in which
warrantless procedures were examined.
ee;
courts during the 27 month period covered by the study,
the police conduct of the search and seizure was upheld
as lawful in 1,157 cases and held to be unlawful in 214
eases. Thus six of every seven searches and seizures studied
were upheld by reviewing courts; 84% of police search
and seizure procedures were found to be proper upon ap-
pellate review.
The following is a breakdown by category:
Jan.-Mar.
1970 1971 1972
Arrest & Detention: lawful Unlawful Lawful Unlawful Lawful Unlawful
Reasonable Grounds 153 23 1H4 19 47 5
Detention :
Stop and Frisk NI 9 76 22 25 8
Search & Seizure
Incident
To arrest; arrest or
sarch for one offense.
sizure for another 57 15 47 15 11 2
Search and Seizure
Autos Without Warrant “7 20 154 33 43 6
Persons and Places,
Without Warrant 62 als 88 2 28 1
454 85 549 110 154 mT)
lawful Unlawful
1970 454 ba)
1971 549 110
1972 154 19
1157 214 == 1,371 Total
We believe that these figures speak for themselves and
show an extraordinarily high degree of police profes-
sionalism in the area with which we are concerned herein.
Our contention is that police professionalism in the search
and seizure area is such that the absolute sanctions of
the exclusionary rule are no longer constitutionally man-
dated. When a body of men and women as amorphous as the
440,000 law enforcement officers in the United States is able
to compile an 84% record of proper, warrantless searches
and seizures in cases which have been brought under ap-
pellate judicial scrutiny, we believe that the good faith
and professionalism of the great majority of our law en-
forcement officers has been amply demonstrated.
18
It cannot be said, moreover, that the reason for this
excellent record of successful police compliance with the
rules of search and seizure is, in fact a product of the
Exclusionary Rule, that without the Rule such a record
would not have been compiled. Such an argument, in the
fact of evidence of substantial lawful police conduct, must
be based on the premise that the Exclusionary Rule does
in fact deter all unlawful police conduct.
This argument is tenuous at best. Chief Justice Burger,
dissenting in Bivens, makes a compelling case for the
rationale that the Exclusionary Rule does not in fact deter —
unlawful police conduct. (See, e.g., Oaks, supra.). The
Chief Justice delineated reasons for the non-deterrence
theory, including:
1. The rule does not apply direct sanctions upon in-
dividual officers for misconduct, and law enforce-
ment agencies rarely discipline officers responsible
for the application of the Exclusionary Rule to a
given case."®
2. The prosecutor is actually the one who ‘‘loses”’
the application of the Exclusionary Rule to his case,
and prosecutors are rarely in a position to impose
sanctions upon a police officer for violations."
3. The realities of law enforcement work make it un-
likely that policemen will ‘‘read and grasp the
nuances of appellate opinions that ultimately de-
fine the standards of conduct they are to follow.”
4. The lapse of time between a given police action
and its final judicial evaluation makes it equally
unlikely that a policeman will even become aware
of the final result of an appellate decision as to his
conduct.”!
If then the threat of the Exclusionary Rule is not an
effective sanction to police misconduct, the reason for the
18. 403 U. S. at 416.
19. Id. at 417.
20. Id.
19
very high incidence of proper police conduct, as indicated
by our study, must lie elsewhere. We believe it lies in
police professionalism: an attempt by the majority of
policemen to know, at least in a general way the restric-
tions on their search and seizure activities and a good faith
desire to comport themselves properly within such restric-
tions. We believe that it would do a great disservice to
the law enforcement: officers, who have compiled the record
of successful compliance with search and seizure restric-
tions as is indicated by our study, to postulate this com-
pliance on a grudging subservience on their part to the
Exclusionary Rule. We believe rather that this Court should
consider the apellate search and seizure record of the police
as described herein as evidence of professionalism and
good faith desire to operate as effectively as possible, within
the law.
Certainly, we do not deny that there is, still, a minority
of ‘‘bad’’ policemen who do, on occasion, engage in willful
misconduct in the search and seizure area and who en-
gage in substantial and improper invasions of privacy.
We believe, however, that our study shows that such ‘‘bad’’
ones are clearly in the minority; and we submit that the ab-
solute sanctions of the Exclusionary Rule are no longer
mandated to ‘‘police’’ the entire law enforcement pro-
fession because of the few ‘‘bad’’ members (who, in-
cidentally, would hardly be deterred from their unlawful
conduct by the Exclusionary Rule anyway).
This leads us then to the question of whether the ap-
plication of the Exclusionary Rule should be narrowed to
encompass only substantial, flagrant, and willful violations
of Fourth Amendment rights. We turn to a consideration
of this question, in the context of the instant case, in the
next section.
: aa
III.
THE SCOPE OF THE EXCLUSIONARY RULE SHOULD BE
NARROWED TO ENCOMPASS ONLY WILLFUL, FLAG.
RANT, AND SUBSTANTIAL VIOLATIONS.
We have contended in the first two sections of this argu-
ment that:
a. The Exclusionary Rule has had a definite ad-
verse effect upon law enforcement in this country and
consequently upon the rights of the law abiding mem-
bers of our society to be reasonably free from criminal
harm, and
b. Based on a study of current appellate search and
seizure cases, today’s law enforcement officers are,
in general, sufficiently professional that the absolute
sanctions of the Exclusionary Rule are not Constitu-
tionally necessitated to ‘‘police the police.’’
The instant case provides an excellent vehicle for this
Court to consider the narrowing of the Exclusionary Rule
requested by the Petitioner. Such a narrowing was sug-
gested by Chief Justice Burger in his dissenting opinion
in Bivens. After stating that he could not countenance
doing away with the Exclusionary Rule entirely unless
proper alternatives to restrain and punish unlawful police
conduct were set up, the Chief Justice, nevertheless stated:
Independent of the alternative embraced in this dis-
senting opinion, I believe the time has come to re-
examine the scope of the Exclusionary Rule and con-
sider at least some narrowing of its thrust so as to
eliminate the anomalies it has produced. 403 U. S. at
424. ’
With this in mind it is appropriate to consider the
facts of the instant case. First of all, it seems clear that
the ‘‘violation’’ involved in searching Respondents’ gar-
bage after the garbage collectors had picked it up and |
—
21
segregated it, at the request of the police, was not a will-
ful violation. This is surely evidenced by the fact that of
eleven judges reviewing the police conduct in question in
the instant case, at least six felt that the police conduct
was proper. It would indeed be difficult to accuse the police
officers of willful misconduct when so large a percentage
of reviewing judicial officers believed that there was no
violation at all.
Next the ‘‘violation’’ was not substantial. Had the of-
ficers in this case, upon receipt of the first anonymous tip,
entered Respondents’ house, without further ado, to make
the arrest and search, certainly the amici herein, and, we
suspect, the State of California, would not be before this
Court attempting to justify such police conduct. Such
activities would have constituted a flagrant (and perhaps
a willful) violation and even under the ‘‘narrowing’’ doc-
trine sought in this case the Exclusionary Rule would have
properly been applied. But the officers did not make an
entry based on a mere unsupported tip. Rather, they sought
to gain, through proper independent investigation and
surveillance, sufficient corroborating evidence to establish
probable cause for an arrest, and they only acted after
they felt that they had established such probable cause.
Thus, whereas an entry to arrest based on the original tip
would have obviously been a substantial violation of Re-
spondents’ rights, the police activity which actually tran-
spired is, we submit, a relatively insubstantial violation.
Certainly the police were attempting to follow the rules
of search and seizure under the facts of the instant case as,
22. While it is true that the police made a warrantless entry to
arrest and search after they had examined the garbage, the entry
was made in 1968, prior to this Court’s decision in Chimel v.
California, 392 U. 8. 752 (1969), whieh prohibited extensive
warrantless searches of premises incident to an arrest. At the
time that the police acted in the instant case they were acting
well within the strictures of California law. People v. Chimel, 68
. App. 2d 436 (1968).
we believe, based on the search and seizure study presented
in Section Two of this argument, most policemen do.
Should, then, Respondents be freed because four judges
of seven sitting on the California Supreme Court felt that
the police ‘‘blundered’’? We do not believe that they should,
at least not based upon the non-willful and insubstantial
**violation"’’ of their Fourth Amendment rights which the
facts of the instant case disclose. Thus is presented to this
Court in clear foeus the narrowing the Exclusionary Rule
sought by Petitioner and amici in the instant case.
We believe a holding that non-willful, insubstantial ‘vio.
lations’’, such as occurred in the instant case, should not
automatically invoke the absolute sanctions of the Ex-
elusionary Rule would have a salutary impact on the effec.
tiveness of law enforcement without doing violence to basic
and fundamental civil liberties. What we seck is a balancing
approach in such cases rather than the currently prevailing
absolutist approach taken towards the application of the
Exclusionary Rule. The Exclusionary Rule should not be
done away with compleiely (at least until suitable legisla-
tive alternatives to it can be found); but we believe that it
should only be applied to willful, flagrant, substantial viola
tions and that a decision as to the application of the Ex-
clusionary Rule should be made based on the facts of each
care.
Our position with regard to the selective application of
the Exclusionary Rule would not, of course, leave aggrieved
parties without a remedy. Civil actions in false arrest, in-
vasion of privacy, malicious destruction of property and re-
lief under the Federal Civil Rights Ac{* would remain.
And under the theory advanced by asici herein, the fol
23. This Court in 1971 specifically held the Pederal Civil Rights
wey impatient». ir Vane
to state officers, Bivens v. Biz Unknowe
— of the Pederadl Bercae of Nercotics, MOU. 8
( ).
es .
sanctions of the Exclusionary Rule would remain for willful
and substantial violations. The position which we advocate
does not dispense with the Exclusionary Rule entirely, but
rather would merely permit the courts to weigh, on the one
hand, the application of the Exclusionary Rule, and on the
other the right of society to convict those defendants whose
factual guilt is evident, notwithstanding certain violations
of Fourth Amendment rights, which violations have been
found by a trier of fact to be insubstantial and non-willful.
One final point should be made with regard to our argu-
ment in this brief. Chief Justice Burger in his dissent in
Bivens quite properly expressed his concern that if the
Exclusionary Rule were to be completely overruled, law
enforcement officers might receive the impression that there
were no constitutional restraints upon their conduct." We
believe that the police profession in this country would
come to no such conclusion. The study of appellate review
of police search and seizure procedures which we have pre-
sented in Section Two of this argument indicates a high
degree of desire and a high degree of success by the police
in complying with search and seizure laws and rules. We
do not believe that a narrowing of the application of the
Exclusionary Rule would result in wholesale deviation«
from the rules cireumseribing police conduct. Additionally
we emphasize again that we do not advocate doing away
with the sanctions entirely, but we advocate rather a
balancing test which looks to the extent of the violation
rather than to applying the sanction in the evrrent ab-
solutist manner.
Such a narrowing additionally might well have an ex-
tremely beneficial effect on police internal discipline. At
present any Fourth Amendment violation must result in
the suppression of evidence and police officials are reluctant
to discipline officers for such violations even though vital
24
evidence necessary for a conviction may be lost thereby.”
The narrowing approach suggested herein would have the
effect of exposing those cases of willful and flagrant viola-
tions in sharp focus. To give an example, suppose a given
police officer did not seeure a search warrant for a certain
premises simply because he was too lazy to do so, although
he had ample opportunity and there were no “‘exigent cir.
cumstances’’ to excuse his failure. A warrantless search
under these circumstances would clearly be a willful,
flagrant, and substantial violation, and the Exclusionary
Rule would apply. A police chief or a prosecutor under
these circumstances could properly call for strict dirci-
plinary measures against the offending officer because the
mere application of the Exelusionary Rule under a narrow.
ing doctrine would indicate a willful violation and the off-
cer’s dereliction would be brought out in sharp contrast
with the conduct of other policemen whose behavior, while
technically violative, would not be sufficiently unlawful to
invoke the Exelusionary Rule sanctions.
Chief Justice Burger has pointed out that the Exclusion.
ary Rule is today indiscriminately applied to all Fourth
Amendment violations, and that:
Inadvertent errors of judgment that do not work any
grave injustice will inevitably oceur under the pres
sures of police work. These honest mistakes have been
treated in the same way as deliberate /rvine-type viola-
tions of the Fourth Amendment, Bivens, supra, at 418.
We argue herein that only those ‘inadvertent errors of
judgment that do not work any grave injustice’’ should
be taken out of the Exclusionary Rule; that the record of
the police as described herein in appellate search and
25. See the dissent of Chief Justice Burger in Bivens; ** With
rare exeeptions law enforcement agencies do not impose direct
sanctions on the individual officer responsible for a particular
judicial application of the Suppression Doctrine.’ 403 U. 8. at
6 .
seizure cases certainly gives this Court a basis for so
holding ; and that such a holding, by highlighting the willful
and substantial violations in which the Exeluxionary Rule
would still be applied, would be a useful means of focusing
disciplinary action against the few ‘‘bad cops’’ while at
the same time neither the majority of good law enforcement
oficers nor society would continue to suffer because of
inadvertent, insubstantial and non-willful police errors.
CONCLUBION.
The Exclusionary Rule has, in today’s context, become a
widely criticized anomaly in the criminal justice system.
Designed to ‘‘police the police’’, it has apparently failed
to accomplish this function, while at the same time it has
had a direct deleterous impact upon the effectiveness of law
enforcement.
We have, herein, presented this Court with an empirical
study indicating that during the 27-month period January
1970 through March 1972, appellate courts nationwide have
found police conduct in cases of warrantless search and
seizure to have been lawful and proper in siz out of every
seven—that is, 84% of the cases considered. We believe
that this record bespeaks a high degree of professionalism
om the part of our law enforcement officials, and we argue
that perhaps the American policeman of 1972 does not need
the absolute sanctions of the Exclusionary Rule to **police’’
his conduct.
Finally, the instant case, on its facts, provides a vehicle
for this Court to narrow the scope of the Exclusionary Rule
to those cases in which violations are, in fact, flagrant and
2s
willful. We urge this Court to consider such a narrowing
approach in the interest of society and in the interest of
the effective enforcement of the criminal law.
Respectfully submitted, |
Frank G. Carginoton, Jr., Esq,
Avayw 8. Ganz, Esq.,
Americans for Effective Law
Enforcement, Inc.,
Suite 960,
State National Bank Plaza,
1603 Orrington Avenue,
Evanston, Illinois 60201,
Counsel for Amici Curiae,
Of Counsel:
Grex Murpuy, Esq,
Warne W. Scumivr, Ese,
International Association of
Chiefs of Police Inc.,
Eleven Firstfield Road,
Gaithersburg, Maryland 20760.
Al
APPENDIX.
Cases in which the absolute application of the Exclu-
sionary Rule has resulted in the suppression of probative
evidence of serious crimes and/or the reversal of the con-
viction of the perpetrators of the crimes.
Coolidge v. New Hampshire,
403 U. 8. 443 (1971).
On January 13, 1964, Pamela Mason, a 14-vear old school
girl, left her house on a babysitting assignment. Eight days
later her frozen body was discovered in a snow drift just
afew miles from her home. Her throat had been slashed,
and she had been shot in the head.
The defendant’s car matched the description of a car
which had been seen on the night Pamela disappeared and at
the spot where her body had been found. The defendant,
upon his own admission, was a frequent visitor to a laundro-
mat where she posted her babysitting notice, and a knife be-
longing to the defendant was found in the laundromat. The
defendant’s wife voluntarily produced two shotguns and
two rifles which belong to the defendant and offered them
fo the police. A subsequent examination of the guns re-
vealed that one of the rifles had fired the bullet which was
found in the murdered girl’s brain.
Upon the basis of this evidence, the state Attorney Gen-
eral, who was authorized under New Hampshire law to issue
warrants, issued an arrest warrant for the defendant and
4search warrant for his automobile. Sweepings of dirt and
other fine particles taken from the car matched like parti-
des taken from the clothes of the murdered. girl. These
items were introduced into evidence at trial.
aE, a
A2
After studying the case for more than five months, the
Supreme Court held (5-4) that the search of the anto-
mobile was unreasonable. Although five justices in the
majority could not agree as to why the search was illegal,
they did find that the search warrant was invalid on the
basis that the Attorney General was not a neutral and de.
tached magistrate. Conviction reversed.
Bowers v. Coiner,
309 F. Supp 1964 (8S. D. W. Va. 1970).
The defendant Bowers was convicted in state court for
the armed robbery of a savings and loan company.
FBI agents with a warrant for Bowers’ arrest went to
the apartment of one William Eagle where Bowers was
a frequent guest and attempted to arouse the occupants. |
The lights were on but no activity was seen. An agent went
to a pay telephone across the street and telephoned Mr.
Eagle, the lessee of the apartment. The agent told him that
FBI agents were outside the apartment and that they
wanted to talk to him. The agent could hear the other
agents knocking on the door through the telephone. Mr.
Eagle opened the door, and the agents entered and sub-
sequently arrested Bowers who was sleeping in the bed-
room. The agents seized two revolvers, a .38 and .25
caliber.
The court held that because the agents had neither an-
nounced their authority nor their purpose, the entry and
subsequent search and arrest were in violation of the
Fourth Amendment.
«
People v. Trudeau,
187 N. W. 2d 890 (Mich. 1971).
On November 6, 1967, during an attempted burglary of
a vault at a synagogue in Southfield, Michigan, the ni
=
watchman was killed by blows to his head from a crowbar.
One of the few leads was a heel print left at the scene.
On November 19, 1967 the defendant was arrested inside
a United States Post Office where he had attempted to
break and enter a vault.
Because of the similarity between the two jobs, the
detective assigned tp the murder case attended a prelim-
inary hearing on the Post Office case in order to view the
defendant’s shoes. His shoes were subsequently removed
by two police officers without a warrant and given to the
detective.
At trial, the shoes, the imprint, and their comparison
by an expert were introduced into evidence and the defend-
ant was convicted of second degree murder. The court
held that the removal of the shoes without a warrant
violated the Fourth Amendment. The case was reversed
and remanded for a new trial.
A3
United States v. Davis,
423 F. 2d 974 (5th Cir. 1970).
FBI agents in a rural area of Alabama arrested Davis
and his son pursuant to warrants charging them with the
unlawful flight to avoid prosecution for the larceny of an
automobile. Before the arrest procedures were completed,
the defendant bolted from the house. He ran towards his
house with the agents and his son in hot pursuit. He stopped
at the steps, turned, and brandished a .38 calibar pistol.
In the gunfire that followed, the defendant’s son was
wounded. When order was finally restored, the agents
cared for the son until an ambulance arrived. They then
took Davis to Montgomery.
About three and one half hours later the agents returned
to the scene to retrieve Davis’ weapon. Although it was
r dark, they discovered the pistol immediately apon
A4
alighting from the car because of the reflection of the porch
light on the surface of the gun. The gun was recovered
from the yard, and the agents left.
The court held that the entry into the yard without a
warrant was unreasonable.
Root v. Gruper,
438 F. 2d 361 (8th Cir. 1971).
The victim, Lonny Sutton, called the telephone operator
saying that his wife had shot him and to call an ambulance
because he was dying. The ambulance driver and his assist-
ants found Sntton unconscious from a shotgun wound. On
the way to the hospital they passed the marshal who was
on his way to the scene of the shooting. Sutton was dead
on arrival.
The marshal waited at the residence, which was empty,
until the sheriff arrived. Together they entered the house
and proceeded to the kitchen where they found a shotgun
and shells which were introduced into evidence at trial.
The defendant’s conviction was reversed on the basis that
the warrantless search of the house was unjustified,
United States v. Colbert,
454 F. 2d 801 (5th Cir. 1972).
In Birmingham, Alabama on the evening of October 24,
1970, two officers, who were on call to another destination,
noticed the defendants Colbert and Reese standing empty
handed in front of a nightclub. One of the officers noted
that Colbert fit the description of a man wanted by the
Birmingham police for assault with attempt to commit
murder.
After making their call, the police officers observed the
defendants carrying expense briefcases near the same loca-
tion where they had previously been seen. The defendants
—
began walking towards a parked automobile. The driver of
the automobile, spotting the police officers, made a motion
toward the defendants and sped off. When the officers got
out of their car, the defendants placed their briefcases on
the sidewalk and walked away. The defendants denied
ownership of the briefcases and refused to identify them-
selves. One of the officers opened the briefcases and found
that each contained’a sawed off shotgun of illegal length.
The defendants conviction for possession of an illegal fire-
arm was reversed. The Court (2-1) held that the search of
the briefcases and the seizure of the guns without a warrant
was unreasonable,
A5
United States v. Soriano,
Case No., 72-25-CR-JE (S. D. Fla.).
On December 23, 1971 a reliable informant advised agents
of the Bureau of Narcoties and Dangerous Drugs that one
Anna Betancourt, who resided at 2520S. W. 4th St., Miami,
Florida, was expecting the delivery of a large quantity of
narcotics. Previously, on December 16, 1971, the informant
and Anna Betancourt had purchased a large amount of
milk sugar and Christmas wrapping which were to be used
to cut and wrap the narcotics. On January 4, 1972, the
informant went to the Betancourt residence snd was asked
to leave because narcotics were on the premises. Surveilling
agents then observed a white male and female enter the
house empty-handed and exit a short time later with a large
paper shopping bag. They then drove to another location,
deposited the shopping bag in a trash receptacle, and drove
off. The bag, which was retrieved by BNDD agents, con-
lained numerous glassine bags and Christmas wrapping
paper which by chemical analysis proved to contain traces
f heroin.
The agents prepared an affidavit which recited these
. The affidavit was then presented under oath to United
——
A6
States Magistrate who issued the search warrant and
handed it to the BNDD agent who had presented the
sworn testimony. Unfortunately, the magistrate had failed
to insert the name of the agent to whom it was directed,
Upon a motion to suppress, the court found that probable
cause existed for the search but the failure to insert an
agent’s name on the search warrant was fatal error. Result
—the suppression of 238 pounds of pure heroin. The case
is now on appeal.
Whiteley v. Warden of Wyoming State Penitentiary,
401 U. S. 516 (1971).
In 1965, a hardware store and a bar located in Saratoga,
Wyoming, a remote part of that State, were the subject of
a breaking and entering. The sheriff for that area received
a detailed description of the car belonging to the bandits
as well as part of the license number. In addition the sheriff
received a tip that Whiteley and a companion had probably
committed the burglary. The sheriff obtained an arrest
warrant and then issued a radio alert. Whiteley and his
companion were stopped less than 24 hours later in Laramie,
Wyoming in a car fitting the description of that involved
in the burglary. Whiteley gave the arresting officer a fic-
titious name, but the officer recognized the companion. The
two were arrested, and objects which had been stolen from
the hardware store and the bar were found in the car.
At trial, the companion testified in vivid detail how he
and Whiteley had accomplished the burglaries, and the
stolen items were introduced into evidence. Whiteley was
convicted and the case was affirmed on appeal. Six years
and several habeas corpus petitions latér, the U. S. Supreme
Court held that the search was unreasonable, Conviction
reversed,
Whiteley had previously been convicted of three felonie’
and had served six terms in the state penitentiary.
a ar
_ Von Utter vy, Talloch,
426 F. 2d (1st Cir, 1970).
A confidential informant known to the police as a user of
narcotics, advised that Von Utter would arrive in Province-
town, Massachusetts between March 8th and 10th driving
a white volkswagen two door sedan with Connecticut regis-
tration JJVU and that the car would contain marijuana and
LSD.
The police, who had obtained a search warrant for the
automobile, approached the defendant as he emerged from
a drugstore and advised him that they had a warrant to
search his car. The defendant stated that there would be
no need—that he would do it himself. He then reached into
the glove compartment, seized some contraband, and fled
on foot. The police gave chase, apprehended him, and
placed him under arrest. They then searched the car and
found a quantity of narcotics. His 1968 conviction in state
court was overturned more than three years later on a
tabeas corpus petition to the Federal court. The court
weld (1) that the affidavit for the search warrant was in-
idequate since the informant’s tip was too vague to be of
any value and (2) the search could not be justified as being
intident to a lawful arrest.
United States vy. Sokolow,
450 F. 2d 324 (5th Cir, 1971),
A police officer, investigating the theft of cigarettes,
dbserved the Suspect’s car back up to Sokolow’s garage.
The officer saw the cigarettes in the back seat of the car
ind arrested the suspect. He then noticed a large number
if room air-conditioners (29) located in the garage and
proceeded to an adjacent motel to question Sokolow about
he air-conditioners. After being advised of his rights,
olow stated that he had purchased the air-conditioning
units from a local appliance dealer and produced receipts
to that effect. The officer examine«! the receipts and noticed
some discrepancies. Sokolow and the officer then walked
to the garage where the officer recorded the serial numbers
on two of the units.
A8 ,
An N, C. I. C. check of the ser‘al numbers revealed that
the units had been stolen, and the appliance dealer advised
that Sokolow’s ‘‘receipts’’ were estimates and not receipts,
Sokolow was arrested and subsequently convicted. The
Court of Appeals, however, ignored many of these facts and
held tha! the taking of the serial nwmbers without a search
warrant was an unreasonable search and reversed the con.
viction.
United States v. Kaye,
432 F. 2d 647 (D. C. Cir. 1970).
Agents of the FBI, who were investigating the theft of
Government property, searched the defendant’s premises
pursuant to a search warrant and seized several items
which were later admitted into evidence.
The affidavit asked for a search warrant for ‘‘the entire
premises of 3618 14th Street, N. W., Washington, D. C., a
two story brick building used for the sale and service of
TV’s, stereos, records and with a large sign reading
Fredrick L. and Company.’’ The search warrant issued
by the court was captioned ‘‘[e]ntire premises, 3618 14th
Street, N. W.’’ and authorized the search of ‘‘the premises
known as 3618 14th Street, N. W.’’
The entire building was leased to defendant. The de-
fendant’s store and shop occupied the first floor and base-
ment, and the second floor was occupied as the defendant's
living quarters, Although there was no question about the
existence of probable cause to search, the court held that the
search warrant did not authorize the search of the second
floor apartment regardless of the language in the support-
ze
ing affidavit which might be construed more broadly. The
language was the same except for the description ‘‘a two
story brick building’’ which was included in the affidavit
and not the warrant.
State v. Madden,
465 P. 2d 363 (Aug. 1970).
_ James Beck was’riding his bicycle along Camelback Road
in Phoenix shortly after 3:00 a.m. on October 18, 1967,
“when a Cadillac pulled alongside of him and forced him off
“the road. Sev eral assailants emerged from the car, grabbed
feck around the neck and body, forced him inte an irriga-
tion ditch, and robbed him of his watch, wallet, checkbook,
money and keys. The victim called the police and an emer-
gency bulletin was sent out on the police radio.
At 3:18 a.m. the Cadillac was seen and stopped by the
police. The defendants were taken into custody and the
car was garaged. About a half an hour after defendants
were arrested, the vehicle was searched and the stolen items
found.
The court held that the warrantless search of the auto-
mobile was not justified. Reversed.
State v. Brown,
260 A. 2d 716 (R. I. 1970).
A police officer observed a red Ford convertible, oc-
cupied only by the driver, turn into the driveway of an
fice building and extinguish its lights. The automobile was
strange to that area. The officer next observed the auto-
mobile occupied by four persons backing out onto the
highway. The driver stopped, alighted from the automobile
and approached the officer. When the other occupants
started to advance on the officer, he made them get back
into the car. At that¢time he observed a duffle bag stuffed
ith objects, a pry bar and check- -making machine.
A10
The occupants were taken to the police station for ques.
tioning. Approximately 30 minutes after they were ini-
tially stopped, the police chief walked out to the car where
in addition to the above objects he saw two pairs of gloves
on the front seat and a walkie-talkie protruding from under
the seat. In the interim the police had received a report
of a breaking and entering of the office building at the
location where the car had been stopped.
The Rhode Island Supreme Court complimented the
police officer for good police work and stated that while
a search of the car would have been permissible when the
suspects were stopped, the search 30 minutes later was not.
Conviction reversed.
Hair v. United States,
289 F. 2d 894 (D. C. Cir. 1961).
In Hair, police officers were called to investigate a house-
breaking, robbery and rape. During the course of this
investigation, the victim made a photographic identifica-
tion of Hair and Burroughs, and a tentative identification
of Blakeney. The police immediately went to Hair’s house
to place him under arrest. As they approached the house,
about seven or eight feet from the door, Blakeney opened
the door, began to step out, and then turned and ran up
the stairs. The officers, without giving notice of their
identity or purpose, immediately entered and gave chase.
Blakeney dived through a window and escaped. He was
subsequently apprehended and identified by the victim.
While passing throngh Hair’s house, the officers observed
several items which matched the description of the stolen
goods. Based upon this observation, they obtained a search
warrant and seized these items which were introduced in
evidence of Hair’s trial. On appeal, the United States
Court of Appeals for the District of Columbia reversed
Hair’s conviction on the ground that the failure by th
oe All ,
police to stop and announce their identity and purpose
before entering Hair’s house tainted the evidence seized
and therefore it was improper to admit those items in
evidence at Hair’s trial. Judge Bazelon wrote the opinion
of the court. Judge Miller dissented.
Woods v. State,
466 S. W. 2d 741 (Texas 1971).
A woman who lived alone was awakened in her bedroom
by the defendant. He threatened her with a knife, robbed
her, and raped her while she was forced to lie on her
stomach with a pillow over her head. With the aid of a
night light she saw the knife and also noticed that the de-
fendant was wearing leather boots.
As soon as the defendant left, the woman called the police
who searched the area and found boot tracks outside the
house. The police traced the tracks from the woman’s
house to the vicinity of the defendant’s house. After knock-
ing and entering, the officers observed the defendant stand-
ing with boots on. He was questioned and told to go outside
and place his boots in the boot tracks. Later, the boots were
confiscated and defendant was taken before a magistrate.
One of the officers returned to defendant’s house, conducted
& warrantless search, and found the knife used in the
rape.
Defendant’s rape conviction was reversed with the court
holding that the arrest and search, without a warrant, were
illegal.
State v. Barwick,
483 P. 2d 670 (Idaho 1971).
A man was returning to his camper when he was at-
tacked by two men. He was struck to the ground, jumped
on, and choked by defendant whom he later positively iden-
tified. Defendant took the man’s billfold and ran off.
sieneeniaa
Al2 f
The victim notified police and as they were cruising the
area, they noticed a car traveling with a flat tire, The
police proceeded to follow the vehicle as it rapidly accel.
erated and then slowed down. The officers stopped the
vehicle and the defendant got out and walked back to the
patrol car. While the defendant was attempting to find his
driver’s license, the officer noticed blood on his hand. The
defendant was then arrested for vagrancy. The defendant
was advised of his Miranda rights after which the police
asked him if they could search his automobile and he con.
sented.
While defendant was out on bond for the vagrancy
charge, he was arrested for robbery. The defendant’s con.
viction was subsequently overturned and the evidence was
suppressed by the Idaho Supreme Court which found the
initial arrest illegal.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.