Amicus Curiae Brief — California v. Krivda

Supreme Court brief1972

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SUBJECT INDEX

Tmnterest OF AMICUS. ccc vcccscccves x

Summary of the Argument.......... xii

ATGUMONE . cecroccceccosvececcccscers 1

I. THE UNITED STATES SUPREME

COURT LACKS JURISDICTION UN-

DER TITLE 28, SECTION 1257 (3)

TO DETERMINE THE ISSUES PRE-

SENTED IN THIS CASE SINCE

THERE ARE INDEPENDENT STATE

GROUNDS BASED ON THE CALIF-

ORNIA STATE CONSTITUTIONAL

PROHIBITION AGAINST UNREASON-

ABLE SEARCHES AND SEIZURES

AND THE STATE MANDATED EX- °

CLUSIONARY RULE.....-..e.ee0- 1

A. When the California Supreme

Court Rules on a Violation

of Article I, Section 19 of

the California Constitution

Prohibiting Unreasonable

\ Searches and Seizures, the

United States Supreme Court

Lacks Jurisdiction to Re-

view that Decision Since

an Independent and Adequate

State Ground Exists for the

State Court's Holding..... 3

1. The Krivda Decision is

Based on the California

State Constitution.... 3

2. If Decision is Ambiguous

As to Federal or State

| ea 16

II.

Iit.

3. The Issue Presented Has

Been Resolved by Sub-

sequent State Decisions

Since the California Supreme

Court Has Held That Its Ex-

clusionary Rule is a Judic-

ially Declared Rule of

Evidence And Mandated by

the California State Con-

stitution, the Application

of the Rule by the Calif-

ornia Supreme Court Presents

an Adequate State Ground

Precluding This Court From

Determining the Validity or

Application of the Federal

Exclusionary Rule........

A CITIZEN HAS A RIGHT TO BE

FREE UNDER THE FOURTH AMEND-

MENT FROM UNREASONABLE SEARCHES

AND SEIZURES BY THE POLICE OF

HIS DISPOSAL RECEPTACLE.....

The Reasonable Expectation

of Privacy Test..........

Trash Collectors Acted for

the Oo OT a

The Curtilage Doctrine...

THE EXCLUSIONARY RULE IS RE-

QUIRED TO GIVE MEANING AND

SUBSTANCE TO THE FOURTH AMEND-

MENT AND TO ENSURE THE CON-

TINUATION OF JUDICIAL INTEG;

RITY WITHIN THE CONCEPT OF

ORDERED LIBERTY..........22.

A. The Rationale of the Rule

iii

Page

B. Suggested Changes in the

MAM 265.20 bce nnsceeces ese 53

PET ETRE LEONEL EL TTT Tee 63

TABLE OF AUTHORITIES CITED

Abel v. United States, 362 U.S.

BA? CEDPGO) kc ce cece KeeeesGewhee 35,36

A.F. Estabrook Company v. Indus-

trial Accident Commisston, 177

Cal. 767, 177 P. 848 (1918)... 24

Alderman v. United States, 394

U.S. 165 (1969) .ccccveesccceee 23

Batley v. Alabama, 219 U.S. 219

(1911)...... Teer erer eee eee 46

Berger v. New York, 388 U.S. 41

(1967) wc ccccccccccvceceees eee 29

Bielickti v. Superior Court, 57

Cal.2d 602, 371 P.2d 288, 10,11,

21 Cal.Rptr. 552 (1962)....... 12,13

Bivens v. Stix Unknown Federal

Narcotics Agents, 403 U.S.

BOO: CEPUAl wehbe codsBesseres wx, cs

Black v. Cutter Laboratories,

Bae Uslc: BES TAOS Sl i creiccncer 29,26

Boyd v. United Statee, 116 U.S.

616 (1886)........ ecccccces eee 59

Britt v. Supertor Court, 58 Cal.

2d 469, 374 P.2d 817, 24 Cal. ll,

Rptr. 849 (1962). ..cccccccceee 12,13

Byars v. United States, 273 U.S.

27 (1927) wc ccvcvee coccccccccce 41,42

Care v. United States, 231 F.2d

22 (10th Cir. 1956) .cccccceeee - 44,46

Carpenter v. Sigler, 419 F.2d

169 (8th Circ. 1969).......... 27

Clarke v. Neil, 427 F.2d 1322

(6th Circ. 1970)... eeeeeees 33

Cooper v. California, 386 U.S.

SB (1967) .. cc cccccccccccccccce 23

Corngold v. United States, 367 2.42

F.2d 1 (9th Cir. 1966)........ 4344;

Department of Mental Hygiene

of California v. Kirchner,

380 U.S. 194 (1965)........... 2,3

Edelman v. California, 344 U.S.

BST (ADSS) ccccceccccesscescees 24

Elkins v. United States, 364

U.S. 206 (1960)... eeeeeenes 41

Fox Film Corporation v. Muller,

296 U.S. .207 (1935) ..ccccccees 2

Fraser v. United States, 452

F.2d 616 (7th Cir. 1971)...... 27

Gold v. United States, 378 F.2d

588 (9th Cir. 1967)..-.....e0- 33

Herb v. Piteatrn, 324 U.S. 117 ..

SEE ccc bhawsednaabectacesss kSe34

Herndon v. Georgia, 295 U.S.

441 (1935) .c.cccccccccccccccees 24

Hester v. United States, 265

U.S. 57 (1924) ..cccccccccccces 35

Jankovich v. Indiana Toll Road

Commission, 379 U.S. 487 (1965)14,15

Kaplan v. Supertor Court, 6 Cal.

3d 150, 491 P.2d 1, 98 Cal.

Rptr. 649 (1971) ...cccccccceee 22,23

Katz v. United States, 389 U.S.

347 (1967) .cccccvcccccccsecvsee 158,9%

« 10,11,

12,13,

15,16,

18,21,

25,26,

27,31

Vv.

Page

Linscomb v. Goodyear Tire and

Rubber Co., 199 F.2d 431

Foam CAE. 29SS) cccivcacccvececs 35

Mancust v. De Forte, 392 U.S.

SOS CE9CS) cw wcccccecccccececes 26

Mapp v. Ohio, 367 U.S. 643 (1961)21,52

Masstah v. United States, 377

U.S. 201 (1964) ..ccccccccccece 41

Miller v. United States, 357

U.S. 301 (1958) ..ccccccccccces 51

Minnesota v. National Tea Com-

pany, 309 U.S. 551 (1940)..... 16,17

Murdock v. City of Memphis,

S7 U.S. S90 (iB7S) .wcccscccess 1,40

Olmstead v. United States, 277

U.S. 438 (1928)... ccccccees -- 48,49

On Lee v. United States, 343

U.S. 747 (1951) ..cccccccccceee 49,50

People v. Bradley, 1 Cal.3d 80,

460 P.2d 129, 81 Cal. Rptr. 5,6,7,

457 (1969) ..cccccccess eccccces 8,9,10

11,12

13,18,

People v. Cahan, 44 Cal.2d

434, 282 P.2d 905 (1955)...... 14,21

22,55

56,57

People v. Edwards, 71 Cal.2d

1096, 458 P.2d 713, 80 Cal. 4,5,6,

Rptr. 633 (1969) ..ccecccccvece 758,9,-

10,11

12,18

19,21

38,39

People v. Fierro, 236 Cal.

App. 2d 344, 46 Cal. Rptr.

132 PRD é 6066600606460 6 46 oO 8 40

People v. Krivda, 5 Cal.3d 357,

486 P.2d 1262, 96 Cal. Rptr. 3,4,6,

62 CASTE) cocccocececeooseeeeoe 8,9,10,

People v. Martin, 45 Cal.2d

755, 290 P.2d 855 (1955)...... 22

People v. Tarantino, 45 Cal.2d

590, 290 P.2d 505 (1955)...... 40

Piazzola v. Watkine, 442 F.2d

284 (Sth Cir. 1971) .ccccccceee 27

Purvie v. Wiseman, 298 F.Supp.

761 (D.C. Oregon, 1969)....... 36

Rice v. Stoux City Cemetary,

349 U.S. 70 (2955) cocccceccece 20

Sherbert v. Verner, 374 U.S.

398 ERED cocabbcocceesseseocnocoe 46

Smayda v. United States, 352

F.2d 251 (9th Cir. 1965)...... 13

Speiser v. Randall, 357 U.S.

513 (LOSB) eee ewww ewww ewww ennese 46,47

Standard Oil of California v.

Johneon, 316 U.S. 481 (1942).. 18

Stapleton v. Superior Court of

Loe Angeles County, 70 Cal.2d

97, 447 P.2d 967, 73 Cal.

Rptr. 575 (1969)...ccccccececs 40

State v. Chapman, 250 A.2d 203

8.6. Maine B9GD) cccccccesecce 38

State v. Purvie, 249 Ore. 404,

438 P.2d 1002 (1968).....+4+-- 36

State Tax Commiseion v. VanCott,

306 U.S. 511 (1939) ...ccecee% 17,18

Stoner v. California, 376 U.S.

483 C29GGE) sc cccs cece rscccceeocs 32

Terry v. Ohio, 392 U.S. 1 }2,

CROSS) coc see eeoeeovcavocccooce 25,

— ig

vii

United States v. Case, 435

F.2d 766 (7th Cir. 1970)...... 27

United States v. Dzialak,

441 F.2d 212 (2d Cir., 1971).. 36

United Statee v. Eldridge,

302 F.2d 463 (4th Cir-

Depa weeeboosoesesecescecoceceoe 33

United States v. Guadalupe-

Garza, 421 F.2d 876 (9th

Cis. 1970) ccccccccccccccccccce 27

United States v. Jackson, 448

FP.2d 963 (9th Cir. 1971)...... 31

United States v. Mastefeon,

251 Fed.Supp. 937 (D.C.N.Y.

1966), aff'd 383 F.2d 610;

cert. den. 385 U.S. 833....... 41

United States v. Minker, 312

P.2d 632 (3d Cir. 1962)....... 35

United States v. On Lee, 193

FP.24 306 (2d Cir. 1951)....... 29

United Statee v. Stroble, 431

F.2d 1273 (6th Cir. 1970)..... 36

United States v. U.S. Dietrict

Court Eastern Michigan,

No. 70-153, June 19, 1972..... 29

Warden v. Hayden, 387 U.S.

294 (1967) cccccccccccccccccccs 27

Wattenburg v. United States,

388 F.2d 853 (9th Cir.

OL rrr ey TTT rTrrrTerrTrTrrrys: 27,44

Weekes v. United States, 232

U.S. 383 CRORE) ccoccccecesecvce 48,51

Williame v. Kateer, 323 U.S.

471 ERED P ocd cvccsevecseecéooe 17

Work v. United States, 243

F.2d 660 (D.C. Cir. 1957)..... 37,38,

46,47

viii

Page

CONSTITUTIONAL PROVISIONS

California Conetitution, 3,4,6,

Article I, Section 19.....+.+.«-+- 7,8,12,

13,16,

United Statee Conetitution,

Amendment EWeeceseeeeeeseeneee 6,743,

25,29,

51,60,

United States Conetitution,

Article iting beaeaeesebovesense 2

STATUTES

California Penal Code,

Section 830, Ct SOEG--eeeereees 40

California Penal Code,

Section 833, et SOGseseeeeeseee 40

California Penal Code,

Sections 1530-1533.. ee ee 40

California Penal Code,

Section 1538 .Scccccccccececece 23,24

United States Code,

Title 28, Section 1257(3)..... 1

RULE

United States Supreme Court

Rulee, Rule 19 (Revised)...... 19,20

ARTICLES

Pried, Privacy, 77 Yale Law

Pe SIS ChOER ccccccccccce 28

Oaks, Studying the Exclusionary

Rule in Search and Seizure,

37 Chicago Law Review 665

oo | rere Tre esbecececs 55,59

Paulsen, The Exclusionary Rule

and Misconduct by the Police,

52 J. Crim. Law, C. and Pol.

BGhce 255 (1961) ..cccccccccces 62

Traynor, Mapp v. Ohio At Large

in the Pifty States, 1962

Duke Law Journal 319.......... 28,58,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No.71-651

STATE OF CALIFORNIA,

Petitioner,

vs.

JUDITH H. KRIVDA and RODGER T. MINOR,

Respondents.

BRIEF OF CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION, AS AMICUS CURIAE IN

SUPPORT OF THE RESPONDENTS

This brief is being filed with this

Court pursuant to the authority found in

Rule 42 of the Supreme Court Rules.

Consent to file this brief was given by

the Office of the Attorney General of

the State of California, counsel for

Petitioner, and by Mr. Roger S. Hanson,

Esq., counsel for Respondents. Letters

of consent of both parties should be on

file with the Clerk of this Court.

Interest of the Amicus Curtae

The California Public Defenders

Association is a non-profit corporation,

incorporated under the laws of the State

of California in 1969. It was formed to

assist Public Defender Offices in Calif-

ornia in their efforts to secure the

constitutional rights of indigent defen-

dants by vigorous and competent repre-

sentation. The Association represents

approximately 600 defense attorneys from

thirty-four Public Defender Offices

throughout the State of California.

A decision by this Court would have

tremendous impact upon the rights of all

indigent accused within the State of

California. Further, if this Court

rules upon the application of the Exclu-

sionary Rule, the decision would have a

profound effect upon state law since

California adopted its own rule of ex-

clusion in 1955 in People v. Cahan, 44

C.2d 434, 282 P.2d 905. The California

Supreme Court has developed higher stan-

dards to govern violations of its state

constitutional prohibition against un-

reasonable searches and seizures. Since

a decision in this area could seriously

threaten the constitutional rights of

the indigent accused with respect to the

protections afforded by Article I, Sec-

tion 19 of the California Constitution

and the Fourth and Fourteenth Amendments

of the United States Constituti6n, the

California State Public Defenders Assoc-

iation is filing this brief as Amicus

pursuant to the unanimous vote of its

Board of Directors.

xii

Summary of Argument

In People v. Krivda, 5 C.3d 357, 486

P.2d 1262, 96 Cal. Rptr. 62 (1971), the

California Supreme Court based its deci-

sion on California case law, interpret-

ing Article I, Section 19 of the Calif-

ornia State Constitution which prohibits

unreasonable seizures and searches.

Since this holding presents an adequate

state ground for the decision by the

California court, this Court lacks jur-

isdiction to reach any federal consti-

tutional issues. Murdock v. City of

Memphis, 87 U.S. 590 (1875); Jankovich

v. Indiana Toll Road Commission, 379

U.S. 487 (1965).

The request by Petitioner that this

Court narrow the scope of or eliminate

the Exclusionary Rule cannot be granted

since California developed its own,

broader, Exclusionary Rule in People v.

Cahan, 44 C.2d 434, 282 P.2d 905 (1955),

before the decision of Mapp v. Ohio,

367 U.S. 643 (1961). This independent

state development enlarged the exclu-

sionary remedy in California over that

found in the federal system. There-

fore, any action by this Court would be

in derogation of California's Exclusion-

ary Rule, and any holding of this Court

would be gratuitous since the state rule

governs the case.

The California Supreme Court correct-

ly ruled that an individual has a rea-

sonable expectation of privacy as to the

contents of his disposal receptacle. It

oreo ad sand

xiii

is not unwarranted to recognize the

realities of our modern, urban society

where an individual is required to dis-

pose of his personal discards through

the refuse collector. Respondent's

action, in placing the items into his

disposal receptacle, indicated an in-

tent to dispose of the items rather

than abandon them. The California

court recognized this distinction and

correctly held there was a reasonable

expectation of privacy.

The Exclusionary Rule should not be

narrowed or abolished since there are

no effective alternatives to ensure that

the Fourth Amendment continues to have

meaning. Further, the Courts should

not participate in the illegal viola-

tions of an accused's Fourth Amendment

rights. Convictions, based on these

illegalities, debase the courts and

breed contempt for the entire criminal

justice system.

ARGUMENT

a ¢

THE UNITED STATES SUPREME COURT LACKS

JURISDICTION UNDER TITLE 28, SECTION

1257(3) TO DETERMINE THE ISSUES PRE-

SENTED IN THIS CASE SINCE THERE ARE

INDEPENDENT STATE GROUNDS BASED ON THE

CALIFORNIA STATE CONSTITUTIONAL PROHI-

BITION AGAINST UNREASONABLE SEARCHES

AND SEIZURES AND THE STATE MANDATED

EXCLUSIONARY RULE.

Certiorari was granted in this case

with probable jurisdiction noted under

the authority of 28 U.S.C. Section

1257(3) which authorizes this Court to

hear cases where,

the validity of a state statute

is drawn in question on the

ground of its being repugnant

to the Constitution, treaties

or laws of the United States,

or where any title, right,

privilege or immunity is spec-

ially set up or claimed under

the Constitution, treaties or

statutes of, or commission held

or authority exercised under,

the United States. 28 U.S.C.

Seetton 1257(3).

This Court has held that certiorari

should not be granted in a case where

state law is dispositive of the issue.

Murdock v. City of Memphis, 87 U.S. 590

(20 Wall 590) 22 L.Ed. 429 (1875). The

1867 revision of Section 25 of the

Judiciary Act of 1789 by Congress was

held to be indicative of an intent that

the federal courts were not to interfere

with state court decisions based on

state grounds.

(W)here the judgment of a state

court rests upon two grounds,

one of which is federal and the

other non-federal in character,

our jurisdiction fails if the

non-federal ground is indepen-

dent of the federal ground and

adequate to support the judgment.

Fox Film Corporation v. Muller,

296 U.S. 207, 210 (1935).

In 1945, this Court in Herb v. Pitcairn,

324 U.S. 117 (1945) considered this ques-

tion and decided that the Court should

not render advisory opinions since the

"case or controversy" requirement of

Article III of the United States Consti-

tution precluded such a result.

Were (this Court) to assume that

the federal question was the

basis for the decision below,

it is clear that the California

Supreme Court, either on remand

or in another case presenting

the same issues, could inform

us that its opinion was in fact

based, at least in part, on the

California Constitution, thus

leaving the result untouched by

whatever conclusions this Court

might have reached on the merits

of the federal question.

Department of Mental Hygtene of

California v. Kirchner, 380 U.S.

194, at 197 (1965).

It is clear that if an independent and

adequate state ground exists for the de-

cision rendered by the state court, this

Court is not free to review that deci-

sion. It isthe contention of Amicus

that the California Supreme Court rested

its decision in People v. Krivda, 5 C.3d

357, 486 P.2d 1262, 96 Cal. Rptr. 62

(1971), on an interpretation of the

California State Constitution, Article

I, Section 19. The California Supreme

Court's reliance on the California State

Constitution presents an adequate and

independent state ground precluding this

Court from reviewing the propriety of

that ruling.

A. When the California Supreme Court

Rules on a Violation of Article

I, Section 19 of the California

Constitution Prohtbiting Unreason-

able Searches and Setzures, the

United States Supreme Court Lacks

Jurisdiction to Review That Dect-

ston Since An Independent And

Adequate State Ground Exists for

the State Court's Holding.

1. The Krivda Dectston ts Based

on the California State Con-

stitution.

Article I, Section 19 of the

California State Constitution prohibits

unreasonable searches and seizures in

California.

The right of the people to be se-

cure in their persons, houses,

papers, and effects, against un-

reasonable seizures and searches,

shall not be violated; and no

warrant shall issue, but on prob-

able cause, supported by oath or

affirmation, particularly des-

cribing the place to be searched

and the persons and things to be

seized. West's Annotated Consti-

tutton, Article I, Section 19.

The California Supreme Court has on

numerous occasions enunciated rules for

the application of this mandate prohib-

iting illegal searches and seizures. In

its discussion of the "reasonable expec-

tation of privacy" test in the case at

bar, the California court referred spe-

cifically to cases which were grounded

on the authority of Article I, Section

19, as well as the Fourth Amendment of

the United States Constitution. [See

People v. Krivda, 5 C.3d 357, 364,

486 P.2d 1262, 1267, 96 Cal. Rptr. 62,

67 (1971), wherein the court cites

People v. Edwards,! 71 C.2d 1096, 458

P.2d 713, 80 Cal. Rptr. 633 (1969) and

l Defendant's neighbor informed police

that a week before he had seen on defen-

dant's back porch a large plastic bag

containing packages, one of which was

torn and contained a dark green vege-

table substance with a smell unlike

alfalfa and small funny type seed. The

police entered into defendant's open

backyard area without a search warrant.

People v. Bradley,? 1 C.3d 80, 460 P.2d

129, 81 Cal. Rptr. 457 (1969).] Indeed,

in the holding the Court points out that,

It is also clear, as in Edwards,

that defendants' reasonable ex-

pectation of privacy was violated

by unreasonable governmental in-

trusion. (See People v. Edwards,

They saw three trash cans located two to

three feet from the back porch. In one

can, they found a small amount of mari-

juana. The police took the material to

be analyzed. They returned later with-

out a search or arrest warrant and ar-

rested the defendant and his wife in

their house. The police searched the

house after permission to do so was re-

fused. Marijuana and LSD were found in-

side the house. The Supreme Court held

these searches to be violative of the

state and federal constitutions.

20n the information of an untested in-

former that defendant possessed and sold

marijuana, the police went to the defen-

dant's home without a search warrant.

The police saw a marijuana plant growing

in the backyard twenty feet from the de-

fendant's door. The police then entered

the defendant's residence without de-

manding admittance. The defendant was

placed under arrest. The police searched

the home without defendant's consent and

found contraband. The court excluded

the evidence found inside the house but

admitted into evidence the marijuana

plant found outside the house.

eupra, 71 C.2d 1096, 1104-1105.)

We should hesitate to encourage

a practice whereby our citizens’

trash cans could be made the

subject of police inspection

without the protection of apply-

ing for and securing a search

warrant. People v. Krivda, 5

C.3d 357, 367, 486 P.2d 1262,

1269, 96 Cal. Rptr. 62, 69

(1971).

The reference to pages 1104-1105 of

Edwarde is significant since it is dir-

ected to that section of the opinion

which bottoms the ruling on the State

Constitution, Article I, Section 19, as

well as the Fourth Amendment of the

United States Constitution.

In the instant case it does not

appear that any of the excep-

tions apply to the search of the

trash can. Accordingly, that

search was unlawful under the

Fourth Amendment of the federal

Constitution. It similarly vio-

lated article I, section 19, of

the California Conetitution.

The trial court thus erred in

admitting the evidence found in

the trash can. People v.

Edwardes, 71 C.2d 1096, 1105,

458 P.2d 713, 718, 80 Cal.Rptr.

633, 638 (1969). (Emphasis

added. )

‘

People v. Bradley, eupra, is also cited

as authority for the proper test to ap-

ply when determining whether an

unreasonable search or seizure took

place. The California Supreme Court

based its decision, in part, on Article

I, Section 19 of the State Constitution.

After stating the provisions of the

Fourth Amendment, the court went on to

point out,

(a)n essentially identical guar-

antee of personal privacy is con-

tained in article I, section 19,

of the California Constitution.

People v. Bradley, 1 C.3d 80, 84,

460 P.2d 129, 131, 81 Cal. Rptr.

457, 459 (1969).

Petitioner, in his Opening Brief at 24

and in his Petition for Certiorari at

10, claims the California Supreme Court

misinterpreted Katz v. U.S., 389 U.S.

347 (1967), and improperly applied it to

the case at bar. However, a closer read-

ing of the opinion reveals that the

California Supreme Court was merely

alluding to similar principles in Katz

v. U.S., supra, and used it as authority

for the “reasonable expectation of pri-

vacy” test under the Fourth Amendment of

the United States Constitution. No fur-

ther reference is made to Xatz v. U.S.,

supra, and, in the Court's holding, the

authority relied upon are two California

cases, People v. Edwarde, 71 C.2d 1096,

458 P.2d 713, 80 Cal. tr. 633 (1969),

and People v. Bradley, 1 C.3d 80, 460

which applied the reasonable expectation

of privacy test under the California

State Constitution, Article I, Section

19. Consequently, the only reasonable

conclusion that can be drawn is that the

court was employing a similar test to

that found in Xatz v. U.S., supra, but

mandated by California caselaw under

Article I, Section 19. Consider the

language of the court:

[Wje have held that an approp-

riate test is whether the per-

son has exhibited a reasonable

expectation of privacy, and, if

so, whether that expectation

has been violated by unreason-

able governmental intrusion.

(People v. Bradley, 1 C.3d 80,

84; People v. Edwarde, eupra,

71 C.2d 1096, 1104-1105).

People v. Krivda, 5 C.3d 357,

364, 486 P.2d 1262, 1267, 96

Cal. Rptr. 62, 67 (1971).

It is important to note that the court

cited Edwarde, not Katz, as authority

for its holding. The reference to

Edwarde in Krivda was significant in

that the court, although finding it un-

necessary to apply F£dwarde retroactively,

relied upon the logic in Edvarde .3

3this citation to Edwarde is important

since the Xrivda search preceded the

holding in Edwarde but was after this

Court's decision in Katz. The Califor-

nia court carefully points out that

Edwarde resolved the issue presented

while failing to reach the question as

to its actual application. Apparently,

the court did not want to decide the

retroactivity issue.

—

Further, the court went to considerable

lengths on two occasions to point out

the applicability of the holding in

Edwards.

We would be reluctant to distin-

guish Edwards solely on the basis

that the defendant in that case

was permitted to place his trash

barrels in his backyard for col-

lection. People v. Krivda, 5

C.3d 357, 366, 486 P.2d 1262,

1268, 96 Cal. Rptr. 62, 68 (1971)

at fn. 7.

The fact that the officers did

not examine the contents until

the trash had been placed into

the well of the refuse truck

does not distinguish Fdwards,

for at no time did defendants'

trash lose its “identity” by

being mixed and combined with

the “conglomeration” of trash

previously placed in the truck.

Under such circumstances, we

hold that defendants had a rea-

sonable expectation that their

trash would not be rummaged

through and picked over by po-

lice officers acting without a

search warrant. People v. Krivda,

5 C.3d 357, 366-367, 486 P.2d

1262, 1268, 96 Cal. Rptr. 62,

68 (1971).

The court failed to cite Katz as the

authority for its holding and merely

noted that Xatz contained principles

Similar to those enunciated in Fdwards

and Bradley.

We conclude that the principles

of Edwardes and Bradley, to the

extent they depend upon like

principles in Katz v. U.S.,

supra, may properly be applied

to test the validity of the

search and seizure at issue

herein. People v. kKrivda, 5

C.3d 357, 365, 486 P.2d 1262,

1267, 96 Cal. Rptr. 62, 67

(1971).

Note the language employed by the court

and the issue for which it is cited.

The paragraph deals with the question

of the prospective application of

Edwardes and Bradley. Katz was cited as

an example of the fact that Edwards and

Bradley created no new law, but were

simply a continuation of an historically

developed test that "was put forth at

least as early as Katz." People v.

Krivda, 5 C.3d 357, 365, 486 P.2d 1262,

1267, 96 Cal. Rptr. 62, 67 (1971).

(Emphasis added.) The reference to "at

least as early as Katz" would indicate

that the test may even have pre-dated

Katz, as the California court implied in

Edwardes and Bradley by citing as author-

ity for the "reasonable expectation of

privacy” test the pre-Xatz California

decisions of Bielicki v. Superior Court,4

“tn Bielicki, supra, the police, author-

ized by the owner of an amusement park,

went to the roof of a building in the

park housing a group of pay toilets. A

pipe, installed through the roof of the

building over two of the toilet stalls,

-—

57 C.2d 602, 371 P.2d 288, 21 Cal. Rptr.

552 (1962) and Britt v. Superior Court,?

58 C.2d 469, 374 P.2d 817, 24 Cal. Rptr.

849 (1962). The pointed reference to

"like principles in Katz" would appear

to be a recognition of the parallel dev-

elopment of state principles for the

proper test t6 judge illegal searches

and seizures. The citation of Katz in

this context underscores that Xatz is

merely being offered as an example to

support the fact that Fdwarde and

Bradley established no new constitu-

tional principles. The reference to

Katz is useful since it points out that

the test of "constitutionally protected

areas,” which was often used in cases

prior to Katz, was not the only test to

be employed in determining the validity

of a search or seizure. California,

which had developed its own privacy test

as early as Britt v. Superior Court,

enabled police to look through and ob-

serve the defendant engaging in criminal

activity. The California Supreme Court

held this violative of the defendant's

right to be free from unreasonable

searches and seizures.

5In Britt, supra, a policeman viewed de-

fendants engaging in criminal activity

in the men's restroom. This activity

was viewed through two vents installed

in the ceiling of the restroom. On the

authority of Bielicki, eupra, this was

held violative of the state and federal

constitutions.

supra, and Bielicki v. Superior Court,

supra, merely noted the same test in the

federal courts was used "at least as

early as Katz."

In light of the California Supreme

Court's citation of Edwards and Bradley

as authority to employ California's

privacy test and its citation of Fdwards

alone in support of the determination of

what constitutes a reasonable standard

of privacy, the reference to Katz is

merely gratuitous and not authority for

the holding in Krivda.

The same Justice wrote the opinions

of the court in Edwards, Bradley and

Krivda. It would be odd, indeed, if,

after Edwards and Bradley specifically

referred to Article I, Section 19, of the

California Constitution and were based

on a privacy theory flowing from,both

the California and Federa},Constitutions,

the Court were to turn aro ®nd and base

its decision in Krivda solely on the

federal constitution. This is especi-

ally unlikely in light of the final

holding of Krivda which relies on

Edwards.

The development in California of a

theory based on the reasonable expecta-

tion of privacy test can be traced to

pre-Katz decisions. For example, in his

concurrence and dissent in People v.

Bradley, 1 C.3d 80, 90, 91, 460 P.2d 129,

135, 136, 81 Cal. Rptr. 457, 463, 464

(1969), Justice Tobriner cites Bielicki

and Britt, supra, as well as Katz and

Terry v. Ohio, 392 U.S. 1 (1968) for the

—

proposition that protection against un-

reasonable searches and seizures is not

"delimited by common law definitions of

the curtilage, but extends ‘wherever an

individual may harbor a reasonable "ex-

pectation of privacy.'" It is important

to note here that both Bielicki and Britt

pre-date Katz, and both cases rest on

Article I, Section 19 of the California

Constitution, as well as the Fourth

Amendment of the Federal Constitution.

Bielicki v. Superior Court, 57 C.2d 602,

605, 371 P.2d 288, 289, 21 Cal. Rptr.

552, 553 (1962), and Britt v. Superior

Court, 58 C.2d 469, 470, 374 P.2d 817,

817, 24 Cal. Rptr. 849, 849 (1962).

Language in Britt v. Superior Court, 58

C.2d 469, 473, 374 P.2d 817, 819, 24

Cal. Rptr. 849, 851 (1962), supports the

contention that Krivda is based on the

state constitution, since the court

Specifically held that the search was

impermissible and "hence [the evidence]

was inadmissible under the settled law

of this state.” (Emphasis added.)

These two cases were cited in the

majority decision in Bradley despite

the fact that the 9th Circuit had refused

to follow their logic in Smayda v. U.S.,

goa ¥.20 251 (Sth Cir. 1965). This

Clearly indicates that the California

Supreme Court recognized its independent

right to develop theories in this area

under state constitutional authority.

This conclusion is consistent with the

California court's refusal to follow the

federal limitations on standing, dis-

cussed infra, at 23, and its pre-Mapp

adoption of the exclusionary rule. [See

People v. Cahan, 44 C.2d 434, 282 P.2d

905 (1955).]

The conclusion is inescapable that

this Court lacks jurisdiction to hear

this case. Although the state court re-

lied on "similar provisions in both the

State and Federal Constitutions, the

state constitutional provision ... pro-

vide(s) an independent and adequate

ground of decision depriving this Court

of jurisdiction to review the state

judgment." Jankovich v. Indiana Toll

Road Commission, 379 U.S. 487, 491-492

(1965).

The fact that the California Supreme

Court considered the provisions of the

California Constitution and the federal

constitution together, rather than anal-

yzed them separately, does not imply

that the state ground based on the state

constitution "is so interwoven with the

(federal ground based on the federal

constitution) as not to be an indepen-

dent matter ..." Jankovich v. Indtana

Toll Road Commission, supra, at 490.

This issue was forcefully answered in

Jankovich, supra. In that case the

state court decision relied upon state

and federal constitutional provisions.

The court noted that the Indiana Supreme

Court discussed the Federal Constitution,

United States Supreme Court cases, the

state constitution, a prior state case

interpreting state law, and other state

precedent. This Court stated,

But nothing in the court's opin-

ion suggests that its conclusion

--- flows from a federal rather

than a state source. Indeed, the

organization and language of the

opinion indicates (sic) that, at

the least, state law is an equal

ground of decision.... (T)here

is no intimation that the con-

clusion ... is based less force-

fully on the Indiana Constitution

than on the Fourteenth Amendment.

78.5, @&6 O38.

In the case at bar, the California

Supreme Court referred to state deci-

sional law for its holding no less

forcefully than it referred to "like

principles" found in Katz. As this

Court observed in Herb v. Pitcairn,

supra, at 126, “[Our power is to correct

wrong judgments, not to revise opinions."

The occasional references to Katz in the

state court opinion in the case at bar

does not lessen the fact that an adequate

and independent state ground exists.

---(I)t is our duty to look beyond

the broad sweep of the language

and determine for ourselves pre-

cisely the ground on which the

judgment rests. This means no

more than that we should not pass

on federal questions discussed in

the opinion where it appears that

the judgment rests on adequate

state grounds. Black v. Cutter

Laboratories, 351 U.S. 292, 298

(1956).

ee iin in iat a tlt ia

It is possible that the state

court employed the decisions

under the federal constitution

merely as persuasive authori-

ties for its independent inter-

pretation of the state consti-

tution. If that were true, we

would have no jurisdiction to

review. Minnesota v. National

Tea Co., 309 U.S. 551, 556

(1940).

This Court has no choice but to dismiss

the present case for lack of jurisdic-

tion.

2. Decision Ambiguous As To

Federal or State Grounds.

Even if this Court were to hold

that the reference to Katz, supra, and

the state decisional law under Article

I, Section 19, is ambiguous, the case

must be dismissed rather than remanded,

since it cannot be affirmatively shown

that a decision of the federal question

was necessary to the determination of

the issue.

(E)ven if the State Court's

opinion be considered ambiguous,

we should choose the interpre-

tation which does not face us

with a constitutional question.

Black v. Cutter Laboratories,

supra, at 299.

It is a well established princi-

ple of this Court that before

we will review a decision of a

state court it must afftrma-

tively appear from the record

that the federal question was

presented to the highest court

of the State having jurisdic-

tion and that its decision of

the federal question was nec-

essary to its determination of

the cause. Williams v. Kaiser,

323 U.S. 471, 477 (1945).

(Emphasis added.)

Although this Court in Minnesota v.

Nattonal Tea Co., supra, and State Tax

Commission v. Van Cott, 306 U.S. 511

(1939), remanded to clear up the ambigu-

ity, the facts are clearly distinguish-

able from those at bar. In Minnesota

this Court relied solely on the state-

ment made by the Minnesota Supreme Court

that five decisions (two were U.S.

Supreme Court cases, one was a federal

case, one was a Wisconsin case, and one

was a Vermont case) directly deciding

the issue, disposed of the question and

it was the state court's duty to follow

them. The state supreme court either

had no state case law supporting the

issue, or it failed to rely on state

precedent in a resolution of the ques-

tion. The California Supreme Court, in

the case at bar, cited its own case law

to justify its holding. Clearly, Calif-

ornia had adequate state authority to

support its decision. Similarly, in

Van Cott, the state supreme court

thought the federal constitution, as

construed by the United States Supreme

Court, required it to hold the respondent

taxable. Relying on that holding, this

Court remanded the decision for clarifi-

cation. Since the California Supreme

Court relied on state precedent in the

instant case, remand is not necessary.

This Court should not indulge in gratui-

tous dissertations on constitutional

law. State courts must be left free and

unfettered to interpret their own consti-

tutions. Therefore, the petition for

writ of certiorari should be dismissed.

6Tf this Court determines that dismissal

is not the appropriate remedy in this

case, it should remand for two reasons:

(a) The California Supreme Court should

Clarify its holding. "(I)t seems con-

sistent with the respect due the highest

courts of the states of the Union that

they be asked rather than told what they

have intended." Herb v. Pitcairn, supra,

at 128.

(b) Under the authority of Standard Oil

of California v. Johnson, 316 U.S. 481

(1942), this Court would have to remand

the case to the California Supreme Court

to decide the prospective application of

Edwards and Bradley and resolve the

question of the application of pre-Katz

cases dealing with the reasonable expec-

tation of privacy test. Before a final

judgment can be entered, this unresolved

state issue must be decided by the state

court.

3. The Issue Presented Has

Been Resolved By Subse-

quent State Decistons.

This Court lacks jurisdiction to

decide this case since the issue pre-

sented has been resolved by California

decisional law. The California State

Supreme Court held in Edwards that indi-

viduals have a reasonable expectation of

privacy with respect to the contents of

their trash cans until it is commingled

with that of the community. Under the

authority of Fdwards, therefore, any

search and seizure in California of a

trash can located inside a defendant's

backyard or located on the sidewalk in

front of his residence is in violation

of the California Constitution.

Rule 19 of the Revised Rules of the

Supreme Court of the United States reads

in part,

1. A review on writ of certiorari

is not a matter of right, but

of sound judicial discretion,

and will be granted only where

there are special and impor-

tant reasons therefor. The

following, while neither con-

trolling nor fully measuring

the court's discretion, indi-

cate the character of reasons

which will be considered:

a) where a state court has

decided a federal question

of substance not thereto-

fore determined by this

court, or has decided it

in a way probably not in

accord with applicable

decisions of this court.

(Emphasis added.)

The United States Supreme Court in

Rice v. Stouzx City Cemetary, 349 U.S.

70 (1955), had occasion to interpret the

language “special and important reasons”

Contained in Rule 19. In considering a

petition filed for a rehearing, this

Court found that a state statute, en-

acted after the litigation was commenced,

was dispositive of the issue presented,

thereby precluding the issue from aris-

ing again. As a consequence, this Court

held that there were no “special and im-

portant reasons” for granting certiorari

on a “federal question of substance” if

this Court's decision would merely "bene-

fit ... the particular litigants. (See

Rice v. Stoux City Cemetary, eupra, at

74.) The time of this Court should not

be spent resolving a problem of scholas-

tic interest only.

"Special and important reasons”

imply a reach to a problem beyond

the academic or the episodic.

This is especially true where

the issues involved reach con-

stitutional dimensions, for then

there comes into play regard for

the Court's duty to avoid deci-

sion of constitutional issues

unless avoidance becomes evasion.

Id., at 74.

The instant case presents the iden-

tical issue, since the state Supreme

Court resolved the question in Edwarde

and Bradley. Any opinion by this Court

would have no impact on future decisions

of the state court, since the issue has

been resolved. Therefore, this Court

should dismiss the petition for writ of

certiorari as improvidently granted.

B. Sinee the California Supreme

Court Hae Held That Ite Ezxclu-

stonary Rule te a Judictally

Declared Rule of Evidence And

Mandated by the California

State Conetitution, the Appli-

cation of the Rule by the

California Supreme Court Pre-

sente an Adequate State Ground

Precluding Thie Court From

Determining the Validity or

Application of the Federal

Exelusionary Rule.

Assuming arguendo that this Court is

able to reach the substantive issue of

the application of Xatz to the facts of

the case at bar, this Court cannot reach

the validity or application of the fed-

eral exclusionary rule as a remedy since

the California state exclusionary rule

presents an independent state ground

precluding federal jurisdiction.

Prior to this Court's decision in

Mapp v. Ohio, 367 U.S. 643 (1961), the

California Supreme Court held in People

v. Cahan, 44 C.2d 434, 282 P.2d 905

(1955), that the exclustonary rule in

California was a “judicially declared

rule of evidence.” Chief Justice

Traynor wrote that the rule was neces-

sary to perpetuate the “concept of or-

dered liberty.” The rule was not justi-

fied solely on the federal theory that

evidence should be excluded to provide

a remedy for a wrong done to a defen-

dant. Rather, the Court held that the

rule in California was compelled be-

cause “the government must not be al-

lowed to profit by its own wrong and

thus be encouraged in the lawless en-

forcement of the law.” People v. Martin,

45 C.2d 755, 761, 290 P.2d 855, 857

(1955). As late as 1971, the California

Supreme Court acknowledged that the ex-

Clusionary rule was required in “order

to give substance to the rights con-

ferred by the provisions of our federal

and etate Conetitutione prohibiting il-

legal seizures.” Kaplan v. Superior

Court, 6 C.3d 150, 161, 491 P.2d 1, 98

Cal.Rptr. 649 (1971). (Emphasis added.)

The court went on to cite the authority

of Article I, Section 19 of the Cali-

fornia State Constitution. If there were

any doubt that the California Supreme

Court was interpreting its own constitu-

tipn, this was laid to rest by the words

of Justice Burke in his concurrence and

dissent, when he pointed out that his

fellow justices were determining the

scope of the exclusionary rule and had

“abandoned further reliance upgn federal

constitutional principles, as defined by

the United States Supreme Court.” Jbid.,

6 C.3d at 162, 491 P.2d at 8, 98 Cal.

Rptr. at 656.

-—

A person need not be a constitutional

scholar to recognize that California has

not only developed its own rules for the

suppression of evidence but broadened

their coverage beyond that afforded by

this Court's interpretation of the fed-

eral exclusionary rule. For example, in

Kaplan v. Superior Court, supra, the

California Supreme Court endorsed once

again the vicarious exclusionary rule

despite the fact that the holding was

contrary to this Court's decision in

Alderman v. United States, 394 U.S. 165

(1969). California has decided to adopt

higher standards for the implementation

of its citizens’ right to be free from

unreasonable searches and seizures.

Penal Code Section 1538.58 was

adopted to implement the California de-

cisions requiring the exclusion of

7This Court, in fact, invited such inde-

pendence. "Of course, Congress or state

legislatures may extend the exclusionary

rule and provide that illegally seized

evidence is inadmissible against anyone

for any purpose." Alderman v. U.S.,

394 U.S. 165, 175 (1969).

"Our holding, of course,does not affect

the State's power to impose higher stan-

dards on searches and seizures than re-

quired by the Federal Constitution if it

chooses to do so." Cooper v. California,

386 U.S. 58, 62 (1967).

8“, defendant may move for the return of

property or to suppress as evidence any

tangible or intangible thing obtained as

a result of a search or seizure ..."

Pa ee ee

evidence. In the case at bar, this

vehicle was used to suppress the evi-

dence found in the defendant's garbage

can. Since California has its own ex-

Clusionary rule and its application is

not in conflict with the federal consti-

tution, there is no federal question

presented for this Court to decide. As

was stated by this Court in Edelman v.

California, 344 U.S. 357, 361-362 (1953).

This is not a case in which there

is serious doubt about the nature

of the ground on which the deci-

sion below rested. (Citatione)

We are thus without power to de-

cide petitioner's claim on the

merits, whatever may be their

appeal. The writ was improvi-

dently granted and must be dis-

missed.

This Court has no jurisdiction to de-

cide the validity of the federal exclu-

sionary rule since the application of

the state exclusionary rule rested on an

adequate state ground. 9

West's Annotated Penal Code, Section

1538.5(a).

9It would appear under the authority of

Herndon v. Georgia, 295 U.S. 441 (1935)

that this issue cannot be raised for the

first time on petition for rehearing in

the state courts nor petition for writ

of certiorari in this Court. (See also

A. F. Eetabrook Co. v. Industrial Acci-

dent Commiesion, 177 Cal. 767, 771, 177

P. 848, 849 (1918).

II.

A CITIZEN HAS A RIGHT TO BE FREE UNDER

THE FOURTH AMENDMENT FROM UNREASONABLE

SEARCHES AND SEIZURES BY THE POLICE OF

HIS DISPOSAL RECEPTACLE.

A. The Reasonable Expectation of

Privacy Test.

In 1967 this Honorable Court made ex-

plicit that,

{T]he Fourth Amendment protects

people, not places. What a

person knowingly exposes to the

public, even in his own home or

office, is not a subject of

Fourth Amendment protection.

(Citations omitted.] But what

he seeks to preserve as private,

even in an area accessible to

the public, may be constitu-

tionally protected. Katz v.

United States, 389 U.S. 347,

351-2 (1967).

While the Katz case itself dealt with

electronic bugging ofa telephone booth,

subsequent decisions of both this Court

and the Circuit Courts of Appeal have

made clear that physical searches and

seizures of tangible items are covered

by the test as well. Thus, in Terry v.

Ohio, 392 U.S. 1, 9 (1968), this Court

applied the protection of Katz to an in-

dividual on a public street.

—a

We have recently held that "the

Fourth Amendment protects people,

not places," Katz v. United

States, 389 U.S. 347, 351, 88

S.Ct. 507, 511, 19 L Ed 2d 576

(1967), and wherever an indi-

vidual may harbor a reasonable

"expectation of privacy,” Id.,

at 361, 88 S.Ct. at 507 (Mr.

Justice Harlan, concurring),

he is entitled to be free from

unreasonable governmental in-

trusion.... Unquestionably

petitioner was entitled to the

protection of the Fourth Amend-

ment as he walked down the

street in Cleveland. Id., at 9.

In Mancusi v. DeForte, 392 U.S. 364

(1968), the Katz test was applied to the

warrantless search for union records of

an office which the defendant Mancusi

shared with several other union offi-

cials.

The Court's recent decision in

Katz ... also makes it clear

that capacity to claim the pro-

tection of the [Fourth] Amend-

ment depends not upon a proper-

ty right in the invaded place

but upon whether the area was

one in which there was a reason-

able expectation of freedom

from governmental intrusion.

,, at 368. “

Numerous decisions of the Circuit

Courts of Appeal have analyzed situa-

tions outside the electronic surveillance

area in terms of Katz's reasonable ex-

pectation of privacy test. See, inter

alia, Wattenburg v. United States, 388

F.2d 853 (9th Cir., 1968) (search of

trees thirty-five feet from suspect's

motel); United States v. Guadalupe-

Garza, 421 F.2d 876 (9th Cir., 1970)

(border searches); United States v.

Case, 435 F.2d 766 (7th Cir. 1970)

(eavesdropping from hallway adjacent to

suspect's business premises); Piazzola

v. Watkins, 442 F.2d 284 (5th Cir. 1971)

(police search of college dormitory

rooms where the students had signed a

consent form with the university) ;

Fraser v. United States, 452 F.2d 616

(7th Cir., 1971) (grand jury subpoena

after grant of transactional immunity) ;

Carpenter v. Sigler, 419 F.2d 169 (8th

Cir. 1969) (citizen driving an automo-

bile).

In light of this case precedent, it

seems clear that the reasonable expecta-

tion of privacy test has general appli-

cability whenever there has been intru-

sive action by governmental officers.

Because the old rules of trespass, pene-

tration and property interests were

inflexible and inappropriate to deal with

rapidly changing conditions and technol-

ogy of a modern society, this Court came

to recognize that "the principal object

of the Fourth Amendment is the protection

of privacy rather than property, and

{has] increasingly discarded fictional

and procedural barriers rested on prop-

erty concepts." Warden v. Hayden, 387

U.S. 294, 304 (1967). Commentators have

noted that the former rules resulted in

baad tal ie es al

"some strangely literal turns." Traynor,

Mapp v. Ohio At Large in the Fifty

States, 1962 Duke Law Journal 319, 332.

It was against this background of in-

flexibility that the reasonable expecta-

tion of privacy test emerged.

This emphasis on privacy takes on new

meaning in a modern industrial society.

It is indispensable to our most funda-

mental and cherished values.

We may wish to do or say things

not forbidden by the restraints

of morality, but which are never-

theless unpopular or unconven-

tional. If we thought that our

every word and deed were public,

fear of disapproval or more tan-

gible retaliation might keep us

from doing or saying things

which we would do or say if we

could be sure of keeping them

to ourselves or within a circle

of those who we know approve or

tolerate our tastes. Fried,

Privacy, 77 Yale L. Journal,

475, 483-484 (1968).

One sanctuary for such privacy, long

recognized by this Court, is a man's

home. As the late Justice Frank noted,

A man can still control a small

part of his environment, his

house; he can retreat thence

from outsiders, secure in tHe

knowledge that they can not

get him without disobeying the

Constitution. That is still a

sizable hunk of liberty - worth

protecting from encroachment.

A sane, decent, civilized soc-

iety must provide some such

oasis, some shelter from pub-

lic scrutiny, some insulated

enclosure,y some enclave, some

inviolate place which is a man's

castle. U.S. v. On Lee, 193

F.2d 306, 315-316 (2nd Cir. 1951)

(Dissenting Opinion)

Today's modern, crowded, technologi-

cal world threatens to invade even that

enclave. Wiretapping and electronic

surveillance have been recognized as

such threats. Berger v. N.Y., 388 U.S.

41 (1967); U.S. v. U.S. Dist. Court

Eastern Michigan, No. 70-153, June 19,

1972. This Court took the necessary

steps to ensure that modern technology

would not circumvent the protections

our Forefathers intended by the adoption

of the Fourth Amendment. In the instant

case, this Court is again faced with

that choice - eitlHer permit an encroach-

ment on our right to privacy or recog-

nize the realities of the modern world

and provide the protection envisioned

by the Fourth Amendment.

Living in today's "castle," a citizen

accumulates many items. Some of these

items are innocuous; others are extremely

private, e.g., love letters, old tax

forms, letters from a lawyer or physic-

ian, contraceptives, political or reli-

gious printed matter, medical prescrip-

tions, patent medicines, and bills.

all ee ta ai

Unable to provide storage indefinitely

for all these items, a method for dis-

posal must be found. Governmental or-

dinances and statutés: severely curtail

his options. Unlike his rural cousin,

he is prevented from disposing of these

items by burning or burying them. The

same society which has denied the citi-

zen these traditional methods of dis-

posal has, however, developed a modern

alternative - the refuse collector.

The citizen, either through taxes or

out-of-pocket, purchases this service

for disposal of his personal discards.

Items are placed in a garbage can,

often sealed in a "baggie," to await

collection. City ordinances often re-

quire the homeowner to place the cans

on the sidewalk for collection, with

regulations as to who may collect the

containers, prohibiting unauthorized

persons from tampering with the refuse.

The contents of these containers are

picked up and dumped into the well of

a large truck, thereby losing “identity

and meaning by becoming part of a large

conglomeration of trash elsewhere."

People v. Krivda, 5 Cal.3d 357, 366,

96 Cal. Rptr. 62, 68, 486 P.2d 1262,

1268 (1971).

Respondent and his neighbors have a

reasonable expectation of privacy in

this disposal method which the modern

city has developed to replace the free-

dom of an earlier, simpler life where

the citizen could personally dispose of

his refuse without fear of governmental

intrusion.

Petitioner takes issue with this con-

tention and claims that no reasonable

expectation of privacy existed due to

the risk of exposure once the trash

barrel was Pyiaced on the parkway for

collection.” It is claimed that nosey

neighbors, curious passersby, or domes-

tic animals might disturb the contents,

thereby precluding any expectation of

privacy. However, as the court in

Krivda recognized, a city ordinance

made such tampering illegal, thereby

indicating a recognition by the state

of the intended privacy of a citizen's

refuse disposal. Further, Respondent

manifested a desire for privacy by

placing the seized items in a closed

bag inside the garbage can. In the

method of collection, Respondent's re-

fuse would have been commingled with

his neighbors so as to lose its iden-

tity.

As this Court has stated, "what [an

individual] seeks to preserve as pri-

vate, even in an area accessible to the

public, may be protected." U.S. v.

Katz, supra, at 351-352.

,etitioner's citation to U.S. v.

Jackson, 448 F.2d 963 (9th Cir. 1971)

is inapposite since it involved the

search of a trash can situated along a

public passageway outside a motel room

which the police reasonably believed to

have been vacated.

Next, Petitioner!! contends that Re-

spondent gave the refuse collector such

complete and unrestricted freedom over

the contents of his garbage can that he

accepted the risk that the collector

would consent to a search of it by the

police. Several assumptions are made

in this argument, i.e., the collector

gave consent to the police for the

search rather than simply complying with

police instructions; and the homeowner

automatically gives complete and unre-

stricted freedom over the contents of

his garbage to any collector.

By casting the facts in this light,

Petitioner essentially begs the ques-

tion. It was the police who ordered the

garbage collectors to deviate from their

normal routine, empty the well of their

truck, specially pick up the contents of

Respondent's trash can and return to a

prearranged area for the sole purpose

of inspection. It is not the garbage

collector as a free agent acting in this

case. Rather, it is the collector as

police agent at work. The action is

"cast in the form of a [garbage collec-

tion] to enable the officers to avoid

the requirements of the Fourth Amend-

ment." Corngold v. U.S., 367 F.2d 1, 5

(1966). [See also Stoner v. State of

California, 376 U.S. 483 (1964).] From

this perspective, the question becomes

the action of the police rather than the

possible consent of the garbage collec-

tor to the governmental intrusion. The

Ibetitioner's Opening Brief at 8, 28,

30.

cases cited by Petitioner are distin-

guishable since they revolve around the

independent actions of individuals who

notify the authorities of their find as

in Gold v. U.S., 378 F.2d 588 (1967);

or, there is no question that there is

a voluntary consent to a police search

as in Clarke'v.Neil, 427 F.2d 1322

(1970). In the latter case, the court

never considers the issue of whether the

manager of a cleaning establishment is

acting as an agent of the police since

Appellant never raised that issue, and

the court accepts this failurel2as an

admission that the search was per se

lawful. The holding goes to the viabil-

ity of the "mere evidence rule." (See

Clarke v. Netl, supra, at 1324.)

A second question is raised in U.S.

v. Eldridge, 302 F.2d 463 (1962), where-

in the court holds that the loaning of

a vehicle to a friend was the equivalent

of an unrestricted use, including con-

senting to a police search of the trunk.

The Court specifically noted that the

result might have been "different," “if,

for example, [the police] had explored

Repellant does not contend that the

manager of the cleaning shop had no

authority to consent to the police

search of the premises or that his con-

sent was not voluntarily given. There-

fore the search itself was unquestion-

ably lawful. clarke v. Neil, 427 F.2d

. 1322, 1324 (1970). (Emphasis added.)

Ne en ee Oe

under the floor carpeting or behind the

upholstery.“13 v.s. v. Eldridge, eupra,

at 466. There is language in the opin-

ion which indicates the result might

have changed had there been “collusion”

between the officers and the friend.

In the case at bar, the garbage col-

lectors were acting in concert and at

the behest of the police. Further, the

arrangement which an individual enters

into with his municipality or refuse

collector is not unlimited. First, by

ordinance, Respondent was required to

dispose of his personal refuse by the

use of the sanitation company. [People

v. Krivda, 5 C.3d 357, 366, 486 P.2d

1262, 1268, 96 Calif. Rptr. 68 (1972).]

Presumably, the only power given to the

sanitation company is to remove Respon-

dent's garbage from his home, commingle

it with that of his neighbors, and de-

posit it at specified sites designated

by the city. There is no unrestricted

right to rummage through the contents

of each bag or box, removing what the

collector desires, and disposing of

the remainder. Since Respondent is

under compulsion via city regulation

to dispose of his personal refuse in a

particular manner, the only right the

collector is given is to remove it to

the local dump for destruction. The

California court, after noting the ap-

plicable municipal ordinances, categor-~-

izes the relationship as one of limited

consignment. [See People v. frivda,

\3phis would be the equivalent of the

closed bag within the garbage can.

5 C.3d 357, 366, 486 P.2d 1262, 1268,

96 Cal. Rptr. 62, 68 (1971).] This

limited power surely cannot be construed

to be the equivalent of unfettered con-

trol over an item given to a friend to

do with as he pleases. poem rang

the consent cases are inapposite to the

facts at bar.’

Petitioner next contends that the

refuse receptacle was abandoned, there-

by precluding Fourth Amendment coverage

under the authority of Hester v. United

States, 265 U.S. 57 (1924) and Abel v.

United States, 362 U.S. 217 (1960).

Under the test developed for deter-

mining whether an item has been aban-

doned, the courts have held that “aban-

donment ... is largely a question of

intent.” U.S. v. Minker, 312 F.2d 632,

634 (3rd Cir. 1962). The intention “to

abandon will not ordinarily be presumed,

and this is particularly true if the

conduct of the owner can be explained

consistently with a continued claim.

Proof of abandonment must be made by the

one asserting it by clear, unequivocal

and decisive evidence.” Linsecomb v.

Goodyear Tire and Rubber Co., 199 F.2d

431, 435 (8th Cir. 1952).

Petitioner fails to meet the test set

out in Linscomb v. Goodyear Tire and

Rubber Co., eupra, since no reasons are

giver for the conclusion that the ccon-

tents of Respondent's refuse receptacle

were abandoned.' The record before this

Court indicates the contrary intent. In

our modern society, the discards of one's

very personal life can be disposed of by

only one method, i.e., refuse collection.

l4petitioner cites several cases to sup-

port his inference of abandonment from

Respondent's act of depositing the items

in the disposal receptacle. These cases

are inapposite.

In Abel v. United States, supra, the

search of a waste basket in a hotel room

was upheld since the room was vacated and

hotel employees were free to examine its

contents. In the case at bar, the items

were removed from a closed receptacle in

front of Respondent's occupied home.

In United States v. Stroble, 431 F.2d

1273 (6th Cir. 1970), the seized items

were not found inside a container but

lying exposed beside the trash container.

In State v. Purvie, 249 Ore. 404, 438

P.2d 1002 (1968), the items were seized

in an open container in a hotel room.

In addition, the Court's holding was

based on the finding of no state action.

See Purvis v. Wiseman, 298 F.Supp. 761

(1969), wherein a hearing on a writ of

habeas corpus was granted to determine

if indeed there had been state action,

thereby implying no abandonment.

In United Statee v. Datalak, 441 F.2d

212 (1971), the court fails to distin-

guish between the intent to abandon and

the intent to dispose.

—

In any discussion of the concept of

abandonment, a distinction must be made

between the intent to abandon and the

intent to dispose of personal effects.

In abandoning an item, a citizen not

only gives up any future possessory in-

terest but holds no concern for the ul-

timate placement or destination of the

item. The same is not true in the dis-

posal of personal effects. While giving

up future possessory interest, there is

an interest to have the items come to

rest in a particular place. The situa-

tion is analagous to the mailing of a

letter or package to another party.

The individual gives up his future

possessory interest when he places that

letter in the mailbox or turns the

package over to a carrier. In both,

however, his interest is that the items

be delivered to a particular place.

Respondent paid, either through taxes

or out-of-pocket, to have his personal

effects collected. His interest was

that the items be removed from his

closed container to the well of the

refuse truck, commingled and deposited

at the city dump. he intention is

Clear. Nosey neighbors or anyone else

are to be precluded from sifting

through the remnants of the most pri-

vate area of his life.15

Sthree cases have stated that the plac-

ing of an item in a disposal receptacle

does not establish abandonment. See

Work v. United States, 243 F.2d 660

The argument is advanced that any

Fourth Amendment protections in this

area would make “the garbage receptacle

an inviolate sanctuary for the conceal-

ment and disposal of evidence of crime."

(See Petitioner's Opening Brief at

31.) There is no substance to this

emotional argument, since the police

are free to search any disposal recep-

tacle suspected of containing contra-

band at a citizen's home if they take

their information before an impartial

magistrate and secure a warrant or

establish an exception to the warrant

requirement. The decision would, how-

ever, prohibit as an investigative tool

the whimsical rummaging by police offi-

cers of the effects of the most per-

sonal areas of a citizen's life. This

Court would thus ensure that a dweller

in one of today's congested urban areas

would, like his rural cousin, be as-~-

sured privacy in the disposal of his

personal effects.

(D.C. Cir. 1957); State v. Chapman,

250 A.2d 203 (S.C. Maine 1969); and

People v. Edwarde, 71 C.2d 1096, 458

P.2d 713, 80 Cal. Rptr. 633 (Calif.

S.C. 1969).

B. Trash Collectore Acted as Agente

for the Police.

The California Supreme Court in its

opinion below necesszrily held that the

action of the trash collectors was gov-

ernmental action attributable to the

police. This follows from the fact that

the court repeatedly referred to the is-

sue before it as a "search of defendant, F

trash barrels." Krivda, eupra, at 364.

Since only the trash collectors handled

the garbage cans, the court had to con-

clude that they were acting as agents of

the police and hence that the legal

IWiote the following language also: "The

question remains whether defendants

herein had a reasonable expectation of

privacy with respect to the contents of

their trash barrels.” Krivda, eupra, at

365. "The placement of one's trash

barrels onto the sidewalk for collection

is not, however, necessarily an abandon-

ment of one's trash to the police or

general public.” Id., at 366. "We should

hesitate to encourage a practice whereby

our citizens' trash cans could be made

the subject of police inspection without...

a search warrant." JI[d., at 367. "(T]he

marijuana found in defendants’ trash

barrels was the result of an illegal

search and seizure." JI[d., at 367.

Note, too, that in Edwarde, supra, no

trash collectors were involved, and the

California Supreme Court specifically

held Krivda to be indistinguishable from

Edwardes. Krivda, supra, at 66-67, and

at 66 fn. 7,

basis for the search was the same as

though the police had themselves searched

the cans. Stapleton v. Superior Court

of Loe Angeles County, 70 Cal.2d 97,101,

447 P.2d 967, 970, 73 Cal. Rptr. 575, 578

(1969).

The determination by the California

Supreme Court is binding on this Court.

The nature and scope of the powers of

the police are matters of peculiarly

local concern. While the Federal Con-

stitution sets minimum standards as to

what constitutes governmental action,

the states are surely free to expand

upon the concept for the protection of

their citizens. California itself has

gone far toward articulating and clari-

fying this power. See, e.g., West's

Annotated California Penal Code Sections

830 et seq., 833 et seq., 1530-1533.

The California Supreme Court, in neces-

sarily finding that the trash collectors

were agents of the police, was ruling on

the use and delegation of the police's

power. The court decision was entirely

consistent with a well-established line

of prior state cases holding similar use

of private persons to be governmental

action. People v. Tarantino, 45 Cai.2d

590, 595, 290 P.2d 505 (1955); People v.

Fierro, 236 CA 2d 344, 46 Cal. Rptr. 132

(1965); Stapleton v. Superior Court of

Loe Angeles County, supra, 70 Cal.2d 97,

73 Cal. Rptr. 575, 447 P.2d 967 (1969).

Under such circumstances, the ruling of

the California Supreme Court may not be

disturbed by this Honorable Court.

Murdock v. Memphie, supra, 87 U.S. 590

(1875).

_ <<

A finding that the trash collectors

were acting as agents of the police is

compelled under federal law as well as

state law. The relevant principles

were first set forth in Byars v. Ung ted

States, 273 U.S. 27, 32-33 (1927).}

There a federal agent was asked by state

officers to atCcompany them in the execu-

tion of a state search warrant. The

search turned up evidence of a federal

crime. Because, prior to Elkins v.

United States, 364 U.S. 206, 80 S.Ct.

1437, 4 L Ed 2d 1669 (1960), “state

police were considered as private par-

ties relative to federal prosecutions, "18

this Court was faced with the issue of

whether the search was carried out as a

federal police search, so that the ex-

clusionary rule would apply. Despite

the fact that the state officers had ob-

tained a search warrant without federal

prompting and that the federal agent ac-

companied the four state officers only

Myore recently, in Massiah v. United

States, 377 U.S. 201, 206-207 (1964),

this Court found that statements eli-

cited by a co-defendant, who was cooper-

ating with the police, from an individual

under indictment, violated that indivi-

dual's Sixth Amendment right to counsel.

An essential element in reaching this re-

sult was a finding of governmental action.

The use of the co-defendant by the police

provided this link.

Wrnited States v. Masterson, 251 F. Supp.

937, 940 (D.C.N.Y., 1966), aff'd 383 F.

2d 610; cert. den. 385 U.S. 833.

—

by request of one of them, this Court

held that,

The search in substance and ef-

fect was a joint operation of

the local and federal officers.

In that view, so far as this in-

quiry is concerned, the effect

is the same as though he had en-

gaged in the undertaking as one

exclusively his own. Id., at 33.

Corngold v. United States, 367 F.2d 1

(9th Cir. 1966) is on all fours with the

instant case. There, federal customs

agents suspected defendant was in pos-

session of illegally imported watches.

They located him and two companions at

the TWA cargo loading platform at the

Los Angeles Airport. The agents ap-

proached TWA's ramp manager and asked

him to find out about the boxes Corngold

was shipping, from Corngold's companion.

The ramp manager located the packages

for the agent. When Corngold and his

companions had left, the agents returned,

conducted a "scintillator" test of Corn-

gold's packages, and told the TWA trans-

portation agent they suspected the pack-

age contained watches. After determining

that the TWA agent had authority to open

the package, the customs agents ordered

him to do so. He complied. A number of

Swiss watches Were found. The Court held

the search of the packages was not a

private search. s

[A]t the very least, the search

of appellant's package was a joint

operation of the customs agents

and the TWA employee. When a

federal agent participates in

such a joint endeavor, "the ef-

fect is the same as though he

had engaged in the undertaking

as one exclusively his own."

Byars ... As Justice Frankfurter

said in Lustig v. U.S., 338 U.S.

74, 78-79 ...

"It is immaterial whether

a federal agent originated

the idea or joined in it

while the search was in

progress. So long as he

was in it before the ob-

ject of the search was

completely accomplished,

he must be deemed to have

participated in it all.”

Corngold, supra, at 6.

The instant case is covered by the

principle and facts of Byars, Massiah

and Corngold. The search constituted

police action as a matter of federal law.

Consider the extent of involvement of

Officers Gates and Marsden in controlling

the conduct of the refuse collectors.

The officers required the collectors t»

empty their truck, drive at once to 1901

Norden, empty the trash barrels there,

drive one block north, stop and allow

the officers to sift through the trash.

The whole procedure was unlike the nor-

mal routine. Nothing indicates that,

but for the police commands, the collec-

tors would have treated the Krivdas'

trash any differently from any other

trash barrel. Nor is it likely that the

trash collectors would have observed

anything illegal since "the contraband

was concealed in paper sacks within the

barrels." Krivda, supra, at 366. On

these facts the search is precisely like

that in Corngold, supra. The search

cannot be classified as a private search

because the police controlled the con-

duct and the scope of the search of the

Krivdas' trash can.

C. The Curtilage Doctrine.

The protections afforded by the

Fourth Amendment have not been restricted

to the interior of houses, but have been

extended to open areas immediately adja-

cent. Wattenberg v. U.S., 388 F.2d 853

(9th Cir. 1968). Under this doctrine,

usually referred to as curtilage, a close

analysis of the facts is necessary to de-

termine if the area in question is cov-

ered. The Tenth Circuit in Care v. U.S.,

231 F.2d 22, 25 (1956) enunciated the

test to be used.

Whether the place searched is

within the curtilage is to be

determined from the facts, in-

cluding its proximity or annex-

ation to the dwelling, its

inclusion within the general

enclosure surrounding the dwell-

ing, and its use and enjoyment

as an adjunct to the domestic

economy of the family.

In the case at bar, the contents of

Respondent's garbage can were sifted and

—

examined by the police after an elabor-

ate ruse to obtain them. It would ap-

pear from the facts that the garbage

cans were kept on the front porch of the

respondent's house since that is where

they were taken to after the garbage

collector had gone. People v. Krivda,

5 C.3d 357, 360, 486 P.2d 1262, 1263,

96 Cal. Retr. 62 , 63 (1971). The

police gained access to the cans by ask-

ing the collector to remove the trash in

the well of his truck, pick up Respon-

dent's cans and empty them, and then re-

turn to the police so that the police

might examine the garbage. By this

method, the police avoided seizing and

searching the can themselves. In order

to analyze fairly the actions of the

police, this ruse must be viewed as such

and the garbage collector as their agent.

Since everything the garbage collector

did was at the invitation and direct or-

der of the police, the issue becomes

whether the police had a right to search

Respondent's garbage can without a war-

rant. Further, a local municipal ordin-

ance required Respondent to place his

garbage can on the public sidewalk if

he wanted it to be collected. [See

People v. Krivda, 5 C.3d 357, 366, fn.

7, 486 P.2d 1262, 1268, 96 Cal.Rptr.

62 , 68 (1971).] As a result, the

trash can was on the public sidewalk

rather than on the porch of the house

where it was customarily kept. Since

a person's constitutional protections

cannot be limited by the employment of

a municipal ordinance 19 Respondent's

case should be analyzed by placing him

in the same position as others without

the ordinance, i.e., as if the garbage

cans were searched while on the front

porch of Respondent's residence.

Applying these facts to the test

enunciated in Care v. U.S., supra, it is

clear that Respondent's garbage can

falls within the curtilage of his home.

It is on the front porch of the house

which makes it in "proximity or annexa-

tion to the dwelling" and within the

“general enclosure surrounding the

dwelling" and the cans were used as an

“adjunct to the domestic economy of the

family" since no family in this day and

age can do without one. Therefore, the

cans on the porch come within the pro-

tected area of the Fourth Amendment.

The facts of this case are stronger

than those found in Work v. U.S., 243

F.2d 660 (D.C. Cir. 1957), wherein the

circuit court held,

Gailey v. Alabama, 219 U.S. are. 239

(1911).

"It is apparent that a constitu-

tional prohibition cannot be

transgressed indirectly by the

creation of a statutory presump-

tion any more than it can pe

violated by direct enactment."

[See also, Sherbert v. Verner, 374 U.S.

398 (1963) and Speiser v. Randall, 357

The trash receptacle in which

the phial was found was in close

proximity to the house. It was

an adjunct to the domestic use

of the home by appellant. It

was within the curtilage or gen-

eral enclosure surrounding the

dwelling. Id., at 662.

Since any governmental incursion of the

curtilage is covered by the Fourth

Amendment, the actions of the garbage

collectors as agents of the police

clearly must meet the warrant require-

ment. Therefore, the search of the

garbage cans and the seizure of their

contents was unconstitutional since

it was carried out without a warrant.

U.S. 513 (1958) which are analagous,

since both disallow a diminution of

a constitutional right by adoption of

a state statute.

Ill.

THE EXCLUSIONARY RULE IS REQUIRED TO

GIVE MEANING AND SUBSTANCE TO THE POURTH

AMENDMENT AND TO ENSURE THE CONTINUATION

OF JUDICIAL INTEGRITY WITHIN THE CONCEPT

OF ORDERED LIBERTY.

A. The Rationale of the Rule.

In any consideration of the viability

and scope of the Exclusionary Rule, it

should be remembered that it serves a

twofold purpose, i.e., to deter law en-

forcement officers from engaging in un-

constitutional searches and seizures by

removing their incentive to do so, and

to relieve the courts from being com-

pelled to participate in such illegal

conduct. [See Weekes v. U.S., 232 U.S.

383 (1914).]) The latter purpose is

often overlooked in the haste of critics

to narrow the scope of or to eliminate

the Exclusionary Rule completely. There

is good reason for this avoidance since

any change in application or scope would

come into direct conflict with the

second, and perhaps, most important

reason for the rule.

In a government of laws, existence

of the government will be imper-

illed if it fails to observe the

law scrupulously. Our Government

is the potent, the omnipresent

teacher. For good or for ill,

it teaches the whole people by

its example. Crime is contagious.

If the Government becomes a law

breaker, it breeds contempt for

law; it invites every man to

become a law unto himself; it in-

vites anarchy. To declare that

in the administration of the

Criminal law the end justifies

the means - to declare that the

Government may commit crimes in

order to secure the conviction

of a private criminal - would

bring terrible retribution.

Against that pernicious doctrine

this Court should resolutely set

its face. Olmetead v. U.S., 277

U.S. 438, 485 (1928), (Brandeis,

J. dissenting).

The respect for the “imperative of

judicial integrity” has been reduced by

some commentators to a a. played by

ed fY ii

the state and the accus owever,

this aspect of the rule cannot be so

lightly dismissed for the integrity of

the system plays a very real role in the

viability of the republic. 21

see Bivens v. Siz Unknown Federal

Narcotics Agente, 403 U.S. 388, 414

(1971), where in dissent the statement

is made chat “the Exclusionary Rule

does not ineluctably flow from a desire

to ensure that government plays the

‘game’ according to the rules.”

2l*of course criminal prosecution is more

than a game. But in any event it should

not be deemed to be a dirty game in

which ‘the dirty business’ of criminals

is outwitted by ‘the dirty business’ of

law officers. The contrast between mor-

ality professed by society and immoral-

ity practiced on its behalf makes for

In a democratic system, if the citi-

zens have no respect for the government

and its institutions, it is only a mat-

ter of a few steps to the disintegration

of that society. In an age when our in-

stitutions are under attack as they have

never been before, it is scarcely the

time for the government to set into mo-

tion forces which will undermine the

confidence of citizens in their system.

When an individual's liberty hangs in

the balance, the government must act in

accord with its own rules or else it

compromises its right to require its

citizens to follow its rules. The

society is faced with the anomaly of the

state punishing, usually rather harshly,

the individual citizen who breaks the

law - based on a conviction which was

gained as a direct result of the lawless-

ness of the government itself. This

brings internal conflict which places

great stress on continued respect for

the government.

It is not only the integrity of the

courts to which this problem is addressed,

but also the integrity of the Constitu-

tion which protects each individual with-

in our society.

contempt of law. Respect for law can

not be turned off and on as though it

were a hot-water faucet.” On Lee v.

United States, 343 U.S. 747, 758, 759

(1951), (Prankfurter, J., dissenting).

SE ———————

The tendency of those who execute

the criminal laws of the country

to obtain conviction by means of

unlawful seizures ... should find

no sanction in the judgments of

the courte which are charged at

all times with the support of the

Constitution and to which people

of all conditions have a right to

appeal for the maintenance of

such fundamental rights. Weekes

v. United States, 232 U.S. 383,

392 (1914). (Emphasis added.)

If a society expects its citizens to up-

hold the law, it can expect no less from

its government. The concern for the

plight of the police within our system,

outlined in the briefs of Amici, is com-

mendable, but it ignores the fact that

our police will lose more respect if

they earn convictions of citizens with

“unclean hands,” resulting from illegal

acts. Our police deserve better than

that. As this Court observed in Miller

v. United States, 357 U.S. 301, 313

(1958), “the history of the criminal law

proves that tolerance of shortcut methods

in law enforc2ment impairs its enduring

effectiveness."

A large number of the cases coming

before our trial courts today (in which

violations of the Fourth Amendment are

alleged) involve marijuana and dangerous

drug complaints against persons under 25

years of age. It is important that

these young people perceive that the

system is a fair and just one. When

they come in contact with the court and

observe that, if the officer has vio-

lated their constitutional rights the

state is precluded from using the evi-

dence against them, they cannot help

but respect that system. It is graph-

ically brought home to them that the

Bill of Rights is not simply words put

to paper at che founding of the repub-

lic, but is a reality in this complex

twentieth century. They find that the

decision of the court,

founded on reason and truth,

gives to the individual no more

than that which the Constitu-

tion guarantees him, to the

police officer no less than that

to which honest law enforcement

is entitled, and, to the courts,

that judicial integrity so nec-

essary in the true administra-

tion of justice. Mapp v. Ohio,

367 U.S. 643, 660 (1961).

The Attorney General of Illinois in

his Amicus brief speaks in terms of the

rule “punishing society." Amicus Brief

of the State of Illinoie, at P-4. How

is society punished by a rule that en-

sures that the state respects its citi-

zens' constitutional rights and does not

benefit by any violation of those rights?

How does the rule punish society when it

underscores the fact that the Bill of

Rights is not merely rhetoric but a liv-

ing, breathing document that speaks to

each individual and disallows the state

to profit from its own wrongdoing?

_ —

B. Suggested Changes in the Rule.

The argument is put forward that be-

cause the police have refused to follow

the law and respect the Constitution,

the individual citizen's constitution-

ally guaranteed right to be free from

unreasonable ‘searches and seizures

should be eliminated. This reasoning

suggests that rules of proper behavior

should be changed because the police re-

fuse to follow them. If this were taken

to its logical conclusion, the laws

against bribery of a public official

would be removed from the statute books

because in recent exposures in New York

City it has been charged that many po-

lice accept bribes. A premium is

placed on disrespect of the law by the

enforcers of the law. The lesson to the

police is clear. If they ignore consti-

tutional limitations on their power long

enough, the courts will simply change

the rule to fit their behavior. A most

curious rule for any society; and a most

dangerous rule for a democratic society.

It is further suggested that the

scope of the rule be narrowed to cover

only those violations of the constitu-

tion which are blatant; that where there

are “inadvertent errors of judgment” the

violation be overlooked. [See Bivene v.

Siz Unknown Federal Narcotice Agente,

supra, at 418.] However, the state does

not follow that rule with regard to its

citizens’ violation of the rules of the

criminal law. Citizens are prosecuted

every day for “inadvertent errors of

judgment" and they are fined and

sentenced for those “errors."22 Why

should the government be excused when

its citizens are not? Should there not

be equality under the law?

The idea of a “rationally graded

response” to the violation of the Fourth

Amendment is the equivalent of holding

that a little bit of illegal activity is

all right. This concept would strike at

the heart of our criminal justice sys-

tem. Further, it would encourage the

police to “search now, justify later."

Many commentators call for clearer,

more definitive rules in this area, and

then advocate a vague and indefinite

standard for a police officer on the

beat to follow. For example, the sug-

gestion is made that the proper test

would be whether “no reasonable cause

[existed] to believe there was reason-

able cause." Amicus Brief of State of

Illinoie, at 11. If the police are hav-

ing difficulty at the present time de-

termining whether they must secure a

search warrant and whether they have

established probable cause for foregoing

the warrant, consider the difficulty of

deciding whether a cause is reasonable

or not. The end result of such a rule

would be to search and hope the court

would later find it reasonable. At

least under the present rule, the

22Por example, under California law, a

person can be convicted for offenses

ranging from speeding to involuntary man-

Slaughter due to his "error of judgment."

_——

officer knows that if he errs, the evi-

dence cannot be used.

It is perhaps worth repeating

that although this court may now be

faced with the choice of justi-

fying a warrantless search or

letting a guilty man go free,

that choice did not face the

customs officers. They could

have secured a warrant, or, if

probable cause for search was

lacking, continued their inves-

tigation until information es-

tablishing probable cause was

obtained. Corngold v. U.S.,

367 F.2d 1, 8 (9th Cir. 1966).

There is no data which has been pre-

sented to this Court which would justify

the elimination or drastic narrowing of

the scope of the Exclusionary Rule.

Even the author of the most thorough em-

pirical study of this aspect of the rule

came to the conclusion that his data did

not provide any "empirical substantia-

tion or refutation of the deterrent ef-

fect of the Exclusionary Rule. "23

There is graphic evidence that the

Fourth Amendment does not work without

it. People v. Cahan, 44 C.2d 434, 282

P.2d 905 (1955). The experience of the

23oaks, Studying the Exclusionary Rule

in Search and Seizure, 37 Chicago Law

Review 665, 709 (1970).

California courts should not be dismissed

lightly. In his discussion concerning

the merits of the rule, former Chief

Justice Roger Traynor of the California

Supreme Court was "compelled to reach"

the conclusion that “other remedies have

failed to secure compliance with the

constitutional provisions on the part of

police officers with the attendant re-

sult that the courts under the old rule

(allowing admission) have been constantly

required to participate in, and in effect

condone, the lawless activities of law

enforcement officers." People v. Cahan,

44 C.2d 434, 445, 282 P.2d 905 (1955).

The real danger in narrowing the

scope of the Rule or eliminating it en-

tirely is the impact it would have on

Our criminal justice system.

When, as in the present case, the

very purpose of an illegal search

and seizure is to get evidence to

introduce at a trial, the success

of the lawless venture depends

entirely on the court's lending

its aid by allowing the evidence

to be introduced. It is no an-

swer to say that a distinction

should be drawn between the gov-

ernment acting as law enforcer

and the gatherer of evidence and

the government acting as judge.

‘([NJo distinction can be taken

between the Government as prose-

cutor and the Government as judge.

If the existing code does not

permit district attorneys to

have a hand in such dirty business

it does not permit the judge to

allow such iniquities to suc-

ceed.' (Citation) Out of re-

gard for its own dignity as an

agency of justice and custod-

ian of liberty the court should

not have a hand in such "dirty

business." People v. Cahan,

44 C.2d 434, 445, 282 P.2d 905

(1955).

In the Amicus Brief filed hy the

Americans for Effective Law Enforcement,

data is presented which allegedly proves

that the police are following the edicts

of the court governing the Fourth Amend-

ment at least 84% of the time. On the

other hand, the Amicus Brief filed by

the State of Illinois argues that the

rule should be eliminated because the

police ignore the rule or are not aware

of the guidelines set out by the court

for police conduct. These arguments

cancel each other out. With such incon-

clusive and inconsistent data at hand,

certainly judicial conservatism would

dictate that the Exclusionary Rule

should not be eliminated or narrowed

without more substantial corroboration.

Throughout the discussion of the

problem, the tendency for those who are

critical of the rule is to speak in

terms of the "honest" citizens as op-

posed to the "criminals" or the

"guilty."24as one commentator has noted,

%see Petitioner's Opening Brief at 42.

PREF BOTs

It is seriously misleading, how-

ever, to suggest that wholesale

release of the guilty is a con-

sequence of the exclusionary

rule. It is a large assumption

that the police have invariably

exhausted the possibilities of

obtaining evidence legally when

they have relied upon illegally

obtained evidence. It is more

rational to assume the opposite

when the offer of illegally ob-

tained evidence becomes routine.

Traynor, Mapp v. Ohio at Large

in the Fifty States, 1962 Duke

L. Journal 319, 322 (1962).

This kind of dichotomy between the

"honest" citizen and the "criminal" can

only lead to emotional responses rather

than rational ones. It should not be

forgotten that it is the person with un-

popular views, for example, who tests

the constitutional right to free speech;

it is the person who is prosecuted for

the violation of some offense who tests

the validity of the words that proclaim

procedural due process in our society.

As long as the discussion emphasizes

that “honest, upright citizens" are on

the one side and the law violator on the

other, the only conclusion that can be

arrived at is that these rights that

protect the outcasts and unpopular with-

in our society should be eliminated.

“

The understandably impatient law-

abiders, who approve official

retribution without restraint

against wrongdoers, do not visualize

themselves as the objects of

oppressive government action in

any near future. Not for them

are the warnings of history.

Traynor, Mapp v. Ohto At Large

in the Fifty States, 1962 Duke

L. Journal 319 at 319 (1962).

It is only a short step to the abolition

of all our rights under the Bill of

Rights if constitutional problems are

placed in this framework since the only

persons who directly test the protec-

tions are the pariahs of our society.

Such a danger was recognized by this

Court in Boyd v. U.S., 116 U.S. 616, 635

(1886).

It may be that it is the obnox-

ious thing in its mildest and

least repulsive form; but ille-

gitimate and unconstitutional

practices get their first foot-

ing in that way, namely, by

silent approaches and slight

deviations from legal modes of

procedure. TId., at 635.

A number of alternatives have been

suggested by the critics of the Exclu-

sionary Rule.25 However, there is no

see Oakes, Studying the Exclustonary

Rule in Search and Seizure, 37 University

of Chicago Law Review 665 (1970), wherein

it is suggested that criminal or tort

liability, internal or external review

procedures, the Civil Rights Act, and con-

tempt of court proceedings are possible

alternatives to explore.

ne PERS IN OE AOPBE BINT RAE CNRS TE DRAM si MI:

eee.

evidence that any of these aiternatives

are effective. One problem is central

to all these recommendations, i.e., the

absence of any pressure to prosecute

vigorously these alternatives. At least

with the present rule, an individual who

is charged with an offense will test the

validity of the search or seizure if it

violates the rules laid down by the

courts. A salutary effect of this is

that search and seizure issues are liti-

gated and the boundaries and protections

of the Fourth Amendment become rules of

law enunciated by our courts.

Consider, for example, two ramifica-

tions of the alternatives suggested. It

is often argued that some type of tort

remedy should be developed to replace

the Rule. In a criminal justice system

where plea bargaining plays a pre-

eminent role, it takes very little imag-

ination to perceive that if the remedy

is an effective one, the remedy will

enter into the negotiation. If there

has been an arguable violation of the

Fourth Amendment, the officer's self-

interest would be served by obtaining

some kind of an agreement out of the ac-

cused that he not pursue the tort remedy

in return for the lowering of the charge

or dismissal of the complaint. This

would, in turn, encourage over-charging

of offenses to give the officer as much

maneuverability as possible in these

negotiations. The practical result of

the theoretical idea of benefiting those

individuals whose rights have been vio-

lated - the further corruption of the

system with contempt for the police,

courts, and all involved felt by those

who are brought into the system. The

further loss of respect for our institu-

tions by those in the society with whom

it comes in contact would exacerbate the

problems facing criminal law today.

Further, it is unrealistic to believe

that the individual who has been found

in possession of contraband, albeit by

illegal police action, and has been sen-

tenced, would turn around and sue the

same individuals who are now his jailers

for a violation of his Fourth Amendment

rights during the arrest. The tempta-

tion of the police to discourage such a

suit would be great and the methods of

intimidation subtle but effective. Once

again, the result would be the further

corruption of our police, a growing dis-

respect for the state and its institu-

tions, and an empty remedy for a citizen

whose rights have been violated by the

state.

It is folly to expect the powerless

within the society to pursue remedies

against the authorities since the poor

often lack the resources, energy, time

and knowledge to make alternatives com-

plete remedies. At least at the present

time, defense attorneys and public de-

fenders who represent the indigent can

raise these issues.

The courts of this land are still the

foremost protectors of the constitutional

rights of its citizens. If the Fourth

Amendment is to have any meaning, it is

Clearly necessary that there be some

a al a

reasonable amount of judicial attention

to questions concerning police practices.

It is cleay, that the Exclusionary Rule

does this. For that reason alone, it

should not be altered or abolished. Let

us keep the Constitution as our blue-

print for freedom and justice, not re-

duce it to the status of a document of

value only for its historical interest.

2ee Paulsen, The Exclustonary Rule and

Misconduct by the Police, 52 J. Crim.

Law, C. and Pol. Sci., 255, 26P (1961).

CONCLUSION

Amicus respectfully requests this

Court to dismiss the Petition for writ

of Certiorari as improvidently granted

since the decision rendered by the

California Supreme Court rests on inde-

pendent state grounds.

Respectfully submitted,

SHELDON PORTMAN

ROSE ELIZABETH BIRD

Attorneys for the

California Public

Defenders Association

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.