Petitioners Brief — Browder v. Director, Department of Corrections
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Supreme Court of the United States
OCTOBER TERM, 1976
No. 76-5325
BEN EARL BROWDER,
Petitioner,
DIRECTOR, DEPARTMENT OF CORRECTIONS
OF ILLINOIS,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF OF PETITIONER BEN EARL BROWDER
KENNETH N. FLAXMAN
5549 North Clark Street
Chicago, Illinois 60640
Phone: 312-728-3525
Attorney for Petitioner
Of Counsel:
JOHN T. MORAN
JOHN M. KALNINS
THOMAS R. MEITES
FREDERICK H. WEISBERG
TE
Washington. C. e CLB PUBLISHERS « LAW PRINTING CO. e (202) 393.0625
(i)
TABLE OF CONTENTS
Page
ee ee cee ecb eeeeececencece |
ks te ces cb de deh en eeeececccce 2
CONSTITUTIONAL PROVISIONS, STATUTES,
AND RULES INVOLVED ...............--....... 2
STATEMENT OF THECASE .............000-...000. 7
Eg nce cceeeeetesaccccce 7
B. State Court Proceedings ...................... 10
C. Federal Habeas Corpus Proceedings .............. 13
SUMMARY OF ARGUMENT ..............---....., 16
ARGUMENT
I. THE COURT OF APPEALS LACKED
JURISDICTION TO REVERSE’ THE
FINAL ORDER OF THE DISTRICT
Te ed cic sence becenes 19
Il. A COURT OF APPEALS MAY NOT
DECIDE FACTUAL ISSUES DE NOVO ...... 23
Ill. THE BLATANTLY INVESTIGATIVE,
WARRANTLESS NIGHT-TIME ARRESTS
MADE AT PETITIONER’S DWELLING IN
THE ABSENCE OF EXIGENT CIRCUM-
STANCES WERE CONTRARY TO THE
FOURTH s.MENDMENT..............+--05-- 26
A. PETITIONER WAS ARRESTED WITH-
OUT THE “QUANTUM OF INDIVID-
UALIZED SUSPICION” REQUIRED
BY THE FOURTH AMENDMENT .......... 27
B. WARRANTLESS ARRESTS FOR IN-
VESTIGATION ARE CONTRARY TO
THE FOURTH AMENDMENT ............. 30
(ii)
C. PRIOR RECOURSE TO A DISIN-
TERESTED JUDICIAL OFFICER IS
REQUIRED BEFORE POLICE
OFFICERS MAY, ABSENT EXIGENT
CIRCUMSTANCES, SEARCH A
DWELLING TO SEIZE SUSPECTS .......... 35
D. HABEAS CORPUS RELIEF WOULD
NOT BE PRECLUDED BY STONE ».
POWELL, 428 U.S. 465 (1976) ............. 41
1. The absence of “full and fair litiga-
tion” in the state courts ................ 42
2. Stone v. Powell should not be ex-
tended to a case involving flagrant
police misconduct which results in
evidence of inherent untrustworthi-
alt O66 ct nus Ghee b oe kee bd ubes eek 47
IV.A FEDERAL COURT OF APPEALS
LACKS THE POWER TO WITHHOLD ANY
OF ITS OPINIONS FROM PUBLICATION
AND TO A PRIORI DEPRIVE SUCH UN-
PUBLISHED OPINIONS OF PRECEDEN-
PR SR et ee ee 50
PE ch 66h Ue eekn Ad bwadwueedeSchace out an 57
DINE Mowe diet hehiaaien aides et eet ek la
Circuit Rule 35 of the United States Court of
Appeals for the Seventh Circuit .............
TABLE OF AUTHORITIES
Cases:
Ackerman v. United States, 340 U.S. 193 (1950)......... 23
Aderhold v. Murphy, 103 F.2d 492 (10th Cir.
Se va hede died £eeG hes coset die cecesiest » 21
Agnello v. United States, 269 U.S. 20(1925)............ 36
Banks v. Manchester, 128 U.S. 244 (1888).............. 54
Oe A te ee
(iii)
Page
Beck v. Ohio, 379 U.S. 89 (1964) .............0000. 29,30
Berger v. New York, 388 U.S. 41 (1967) ............. 27,37
Bivens v. Six Unidentified Agents, 403 U.S. 388
BER SERRE ee prey ot SEE 34
Boyd v. United States, 116 U.S. 616 (1886) .......... 27,30
Brennan v. Midwestern United Life Insurance Co.,
eo eee 22
Brewer v. Williams, _. U.S. ___, 97 S.Ct. 1232
i Saree dawen Ow be 31
Brinegar v. United States, 338 U.S. 160(1949)........... 33
Brooks v. Norris, 52 U.S. (11 How.) 204(1850).......... 20
Brown v. Allen, 344 U.S. 456 (1953) .................. 49
Brown v. Illinois, 422 U.S. 590 (1975).......... 22,34,46,49
Camara v. Municipal Court, 387 U.S. 523 (1967).......... 39
Carroll v. United States, 267 U.S. 132(1925) ............ 29
Collins v. Miller, 252 U.S. 364(1920) ................. 22
Colorado Springs Amusements, Ltd. v. Rizzo,
RI I i oe Ma 53
Commonwealth v. Ford, __ Mass. ___ , 329 N.E.2d
ear Rn a etd ia 40
Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d
INR EES AER, Rs ER 29
Conboy v. First National Bank, 213 U.S. 14]
I ee he 20
Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 36,38
Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir.
i ne nC ee ee 46
Credit Co. v. Arkansas Centre! Ry. Co., 128 U.S.
NN a Sl aia 20,23
Cummings v. Jones, 104 U.S. 419(1882)............... 20
Davis v. Mississippi, 394 U.S. 721 (1969) ......... 31,33,37,38
DeMarco v. United States, 415 U.S. 449 (1974).......... 25
Dorman v. United States, 140 U.S.App.D.C. 313.
RP We PONTE onc ccc cc cncccncccvccvcuncce 40
(iv)
Page
Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1868) ......... 22
Fallen v. United States, 378 U.S. 139 (1964) ............ 20
Frank v. Maryland, 359 U.S. 360 (1959) ......... feo seet 27
Garrisson v. Patterson, 391 U.S. 464 (1968) ............ 53
Gates v. Henderson, F.2d (No. 76-2065,
GS DF", Peo errr 47
Gatlin v. United States, 117 U.S.App.D.C. 123,
i ae tae ae Se 29
Gerstein v. Pugh, 420 U.S. 103 (1975) ................. 31
G.M. Leasing Corp. v. United States, U.S. ___.
oe BRR aE Oe De a 36
Hahn v. Becker, 551 F.2d 741 (7th Cir. 1977) ........... 20
Hartman v. Lauchli, 304 F.2d 431 (8th Cir.
Ds alin Uitte etre oer Bs oe ce oo 22
Henry v. Mississippi, 379 U.S. 443 (1965) ............ 13,44
Henry v. United States, 361 U.S. 98 (1959) ........ 27,33,37
Herring v. New York, 422 U.S. 853 (1975) ............. 46
Hicks v. Miranda, 423 U.S. 332(1975) ........... 10,34,53
In re Fingerprinting of M.B., 125 N.J. Super.115,
FR ee tan ee 38
In re Puma County Anonymous, 110 Ariz. 98,
RR SA nr aortic nn 29
In re Woods, 20 Ill.App.3d 641, 314 N.E.2d 606
DE EON be hoes cu indauenudedbdéee ne
Independent School District v. Hall, 106 U.S. 428
RE I Te es 19
Johnson v. Louisiana, 406 U.S. 356 (1972) ............. 38
Johnson v. United States, 333 U.S. 10(1948) ......... 30,36
Jones v. United States, 357 U.S. 493 (1958) .......... 29,38
Katz v. United States, 389 U.S. 347 (1967) ............. 39
Kirby v. Illinois, 406 U.S. 682(1972) ............... 35,46
Lankford v. Gelston, 364 F.2d 197 (4th Cir.
SE bk Ded deo SERS EO be boo ceee beer ck kx beck 32
(v)
Page
Lefkowitz v. Newsome, 420 U.S. 283 (1975)............ 42
Liberty Mutual Ins. Co. v. Wetzel, 424 USS. 727 |
6 Rake Sak Oe a a eed dl dc awk Ka ne on 23
Linkletter v. Walker, 381 U.S. 618 (1965) .............. 42
Lynch v. Household Finance Corp., 405 U.S. 538
EN See Cher cee ee 39
McDonald v. United States, 335 US. 45]
ahaa tee Bd od beaded 4b Wee ox «ccc e 36
McMann v. Richardson, 397 U.S. 759(1970)............ 46
McNabb v. United States, 318 U.S. 332 (1943) .......... 3]
Mallory v. United States, 354, U.S. 449(1957) ........... 31
Mancusi v. DeForte, 392 U.S. 364(1968) ............... 36
Marcus v. Search Warrant, 367 U.S. 717(1961).......... 27
Marron v. United States, 275 U.S. 192 (1927) ......... 27,37
Menard v. Saxbe (II), 162 U.S.App.D.C. 284,
ccc ese bccncuccacseseus 32
Monroe v. Pape, 365 U.S. 167(1961) .................. 48
Morrison v. United States, 104 U.S.App.D.C.
352, 262 F.2d 449 (1958) ......................., 39
N.L.R.B. v. Amalgamated Clothing Workers, 430
Pee PUNE, TIPU og d'v'n oe occcuecueccesecce 54
Norton v. Matthews, 427 U.S. 425 (1976) .............. .26
O’Berry v. Wainwright, 546 F.2d 1204 (Sth Cir.
SP Shade dain eee de eae bok kc dese cand 47
Old Nick Williams Co. v. United States, 215 US.
SR 6 Cr rai Ce ee tr A 8s 20
Papachristou v. City of Jacksonville, 405 U.S. 156
citi, ME ETT RE CE Oe ETE 33
People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d
PREM es ee Tey 46
People v. Hinton, 23 Ill.App.3d 369, 319 N.E.2d
se cise eae a tcnaheaee pia) ane 4]
People v. Moreno, 176 Colo. 488, 490 P.2d 575
ee ee ee Pari Fieri rl on a ne ne 40
(vi)
Page
People v. Newell, 48 Ill.2d 392, 268 N.E.2d 17
uae ea hea @ ieee S Peer eee rer rrr err 44
People v. Ramey, 16 Cal.3d 263, 127 Cal.Reptr.
ee ee eee CPD on. 46-445 ou 0 006-082 60 0.06 40
People v. Woglemuth, 43 Ill.App.3d 335, 356
N.E.2d 1139, appeal allowed, No. 49149,
ee GE Xe rrr rr rere 40
Pierson v. Ray, 386 U.S. 547 (1967) ........... 022 eee 34
Pope v. Parratt, F.Supp. (No. CF75-L-105,
i A Or CO 6 6 606.66 00666-0605 0006860 49
Ross v. Moffitt, 417 U.S. 600 (1974) ...........--4445. 49
Rose v. Hodges, 423 U.S. 19 (1975)... ......... ee eee 51
St. Louis, Iron Mountain and Southern Ry. Co. v.
Southern Express Co., 108 U.S. 24(1883)........... 19
Scarborough v. Parquod, 108 U.S. 567 (1883)........... 20
See v. City of Seattle, 397 U.S. 541 (1967) ............. 36
Shadwick v. City of Tampa, 407 U.S. 345
Ee re Pn See ae eee eee ee he eRe e-S 36
Shear v. Richardson, 364 F.Supp. 43 (S.D.IIL
sis hs th hee i de ta he ed bn dwg 54
612 North Michigan Ave. Building Corp. v. Fact-
system, 25 Ill.App.3d 529, 323 N.E.2d 493
(abstract), published in full, 34 Ill.App.3d
Fade PE CAO PENETED oc ccd cdsvccevesoseeves 2
Sosa v. United States, 550 F.2d 244 (Sth Cir.
A RS SEE kia a igs i eg 47
Stanford v. Texas, 379 U.S. 476 (1965) ............... 27,28
State v. Bell, 334 So.2d 385 (La. 1976) ..........---5- 38
State v. Girard, 276 Or. 511, 555 P.2d 445
PP senna dae cue «nadkuCueueuen Ceee eee ten 40
State v. Johnson, 232 N.W.2d 477 (lowa, 1975) ......... 40
State v. Lasley, Minn. 236 N.W.2d 604
Dt cccusacus CebeOdehaeknaakek ee eaes ee eens 40
State v. Perez, 277 So.2d 778 (Fla. 1973) .............. 40
Stone v. Powell, 428 U.S. 465 (1976) ....... yee passim
Strunk v. United States, 412 U.S. 434(1973) ........... 45
tes
(vii)
Page
Swam v. United States, 327 F.2d 431 (7th Cir.
Oe ak a ae a ok 22
Taylor v. McKeithen, 407 U.S. 191 ( I eT 51
Taylor v. United States, 286 U.S. 1 (1932) ............. 36
Terry v. Ohio, 392 U.S. 1 (1968) .............. 29,30,32,33
Tiberg v. Warren, 192 F. 458 (9th Cir. 1911)............ 21
Tollett v. Henderson, 411 U.S. 258 ER ee 44
United States ex rel. Burbank v. Warden, 535
Ft Oe CVUG. BOTUD osc vccccccccceccctsses 29,35
United States ex rel. Noga v. Laird, 474 F.2d
1351 (7th Cir. 1973) (table)...................... 54
United States ex rel. Robinson v. Zelker, 468 F.2d
oo a ees es Cae 4)
United States ex rel. Saiken v. Bensinger, 546
ea CAPO CTUNGED BOTOD ove ccccccccccocccdececs 42
United States ex rel. Williams v. Brantley, 502
Pome Be CPC. BOTS) occ ccc cccccucccveceoce 43
United States ex rel. Wilson v. Warden, ___ F.Supp.
— (No. 75 C 3776, N.D.Ill., March 22,1977) ....... 47
United States v. Augenblich, 393 U.S. 348 (1969) ........ 26
United States v. Dionisio, 410 U.S. 1 (1973) .......... 32,38
United States v. Doe (Schwartz), 457 F.2d 895
SI gS ee te a 32
United States v. Ellis, 547 F.2d 863 (Sth Cir.
AIEEE FIED eee rei ene 53
United States v. Erving, 388 F.Supp. 1011 (D.Wis.
ran lhe ae lS Cas bah a Aine gc ipa Ay a 52
United States v. Greene, 139 U.S.App.D.C. 193,
eo re ee ak 38
United States v. Janis, 428 U.S. 433 (1976) ............. 40
United States v. Klein, 80 U.S. (13 Wall.) 128
rr er Pa pre rer atte 42
United States v. Lefkowitz, 285 U.S. 452(1932)......... 36
United States v. Marion, 404 U.S. 307(1971) ......... 29,32
United States v. Martinez-Fuerte, 428 U.S. 543
A ere PM pte nie a Re 27
( viii)
Page
United States v. Mayer, 235 U.S. 44 (1914) ............. 21
United States v. Ortiz, 422 U.S. 891 (1975)...... 22,27,33,35
United States v. Phillips, 497 F.2d 1131 (9th Cir.
DE, «nly nue CURE Lb eh wee eee es eee ee ae 40
United States v. Robinson, 361 U.S. 220 (1960) ....... 20,21
United States v. Santana, 427 U.S. 38 (1976) ......... 38,39
United States v. Shaefer Brewing Co., 356 U.S.
BOP OEs 6 cueceds sec Rcccuses dah k cee eeeenees 20
United States v. Shavers, 524 F.2d 118 (Sth Cir.
SS Pe, ee MAS RP ee gd ere en ee eA 29
United States v. Shye, 492 F.2d 1131 (6th Cir.
I ta ae anaes aie at inde one Mae ie 40
United States v. United States District Court,
ih) & of Ser reer eee eer re eee 27
United States v. United States Gypsum Co., 333
2 BR ee eee ee ee ee ee 25
United States v. Wade, 388 U.S. 218 (1967) ............ 35
United States v. Watson, 423 U.S. 411 (1976) .. . . 29,37,38,39
United States v. Yellow Cab Co., 338 U.S. 338
Ec. \cnneeestuvue’ oe eee We beteces eueunts 25
Vance v. North Carolina, 432 F.2d 984 (4th Cir.
Re en re rr ee eee 40
Warden v. Hayden, 387 U.S. 294 (1967) ...........+.-.. 38
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) .......... 54
Whiteley v. Warden, 401 U.S. 560 (1971) .............. 42
Wise v. Murphy, 275 A.2d 205 (D.C.App. 1971) ......... 38
Wong Sun v. United States, 371 U.S. 471 (1972)....... 28,46
Zenith Radio Corp. v. Hazeltine Research Corp.,
Po I ey Serre re rr res ry ee 25
Constitutional Provisions:
United States Constitution, Fourth Amendment ...... passim
United States Constitution, Sixth Amendment .......... 46
United States Constitution, Fourteenth Amend-
Ps a cad eeee nese Char ee eee eee esha sahesee 3
ones
(ix)
Statutes: Page
ee eee eens 2
Se TT Ss deca nckdednachheneessaceeeus 19,56
I a re Oe a eae ae 19,56
UI cs ora aa i ae 3,19
IT rs oe ue eC ee ee te 7
Pub.L. 89-773, 80 Stat. 1323 (November 6,
I Ne ote ee ee ae eae Lean aa a 56
Ariz. Rev. Stat. Ann. §.3-1424 (1973 supp.) ............ 38
Idaho Code § 19-625 (1976 supp.) ..............0...... 38
Ill. Rev.Stat. ch. 38, §122-1 et seq.......... Se eatoreyes 12,43
N.C. Gen. Stat. §15A-271 et seq... ........0.0. 0.0005. 38
Rules:
Federal Rules of Civil Procedure:
Gg eur ee pie oe Ae Te Ce i) 3,20
EE uire teacadeete sue cs Ceca 3,20
Dt tciuvenabekee Geked cue doa e wn 3,6,17,20,21
RT heb tebe soak unen ewe meee 3,4,17,20,21,22
I ieee ie ea oe aa 3,6,22
Rule 4, Federal Rules of Appellate Procedure ....... 5,20,23
Illinois Supreme Court Rule 23, 58 Ill.2d R. 23,
Ill.Rev.Stat., 1975, ch. LIOA, §23.................. 2
Rules of the United States Courts of Appeals
First Circuit, Appendix B to Circuit Rules........... 51
meas Civaule Gibe 2d... cc ccccccccccccccuceces 5]
Third Circuit, Internal Operating Procdure
ID ee ak ce ee ees ee en 51
oo 51,52
PIR SD oo cu cee vawneeueeueds 51,52
MI OE iv cw ccccecccecddsecewegeccecs 51
ee 6,51,52
EE reer erie 51
Ninth Circuit Rule 21
(x)
= Page
ee is ca dvceweeuton 51,52
a a ew eeoan kis 51
Standards and Model Statutes:
A.B.A. Code of Professional Responsibility, Ethical
Consideration 6-2 (1970) ............. caaioeeé és 46
A.B.A. Standards Relating to the Administration
of Criminal Justice, The Defense Function
A ie a le ee hae 6s 45
A.B.A. Standards Relating to Appellate Courts
Fah as i en a ee me eee ye rire nen re 53
A.L.1., A Model Code of Pre-Arraignment Procedure
RE Seu eu tstus 5.5 Cab oc ee wee Ree bn baie 38
Other Authorities:
Advisory Committee Comments to the 1946
Amendments to Rule 73 of the Rules of Civil
RE a 21
Bauer, Arrest in the Soviet Union (1954) ............... 33
Bayley, Preventive Detention in India (1962)............ 33
Carrington, Meador & Rosenberg, Justice on Appeal
Rie BR pi REPENS Bo 78 a as oe a 55
Chafee, Pollak & Stern, The Third Degree (Arno ed.
ial i REA, os RMSE RINT SR ae Sa 34
Comment, 6 S.S.L.R. 56 (November, 1973)............. 54
Commission on Revision of the Federal Court
Appellate System, Hearings—Second Phase
1974-1975, Vol. 1, 1974 Hearings ................. 51
Gledhill, Fundamental Rights in India (1955) ........... 33
Hogan & Snee, The McNabb-Mallory Rule: Its
Rise, Rationale and Rescue, 47 Geo.L.J. 1
EE eee ere eer eee ag ets 32
Hopkins, Our Lawless Police (1931)................... 34
Kamisar, Kauper’s ‘Judicial Examination of the
Accused” Forty Years Later~—Some Comments
on a Remarkable Article, 73 Mich.L.Rev. 15
EN Ni ik PTE GR COOP Aa ao eh le a 34
(xi)
Karlen, Appellate Courts in the United States and
BE CETGR) occ cece cccccsccccncccccce
Lowry, /nternment: Detention without Trial in
Northern Ireland, 5 Human Rights 261
GUT ccc c cae ccnseseverensccsvcectesece
Il May’s Constitutional History of England (Am
5 PPPPOTTV TTT TTT Tere TT
Note, Admissibility of Confessions Obtained Be-
tween Arrest and Arraignment: Federal and
Pennsylvania Approaches, 79 Dick.L.Rev. 309
EE debs 65 6G64 444 ON ORS TAEREEE ROWS 008
Pound, Appellate Review in Civil Cases (1941) ......
President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report:
a rrr ere rer er er rere e er
- Report of the Proceedings of the Judicial Con-
ference of the United States, October 26-27,
PE CTP TT TTT Tere rT TTT ELT
Speech, Honorable Justice John Paul Stevens,
Illinois State Bar Association Centennial Dinner,
Springfield, Illinois, January 22,1977 ..........
Standards for Publication of Judicial Opinions,
Federal Judicial Research Center Series No.
ro) er rrerrrrrrrr Trrrre rere
Wroth & Zobel (eds.), Legal Papers of John Adams
TT rere Teer eT TTT TTT Te ELE
as
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1976
No. 76-5325
BEN EARL BROWDER,
Petitioner,
DIRECTOR, DEPARTMENT OF CORRECTIONS
OF ILLINOIS,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF OF PETITIONER BEN EARL BROWDER
OPINIONS BELOW
None of the opinions in this case has been published. The
opinion of the district court granting the petition for a writ
of habeas corpus appears in the Appendix at App. 111-17.
The order of the district court denying the Director’s motion
to reconsider is reproduced at App. 161.
The opinion of the court of appeals is noted in the table
of “Decisions by Unpublished Opinions” at 534 F.2d 330,
and is reproduced at App. 164-68. The order upon denial
of rehearing appears at App. 169.
tw
Opinions in related state court proceedings are reported
in abstract form only.' People v. Browder, 13 Ill.App.3d
198, 300 N.E.2d 511 (1973) (affirming conviction on direct
appeal) (App. 7-15); People v. Browder, 29 Ill.App.3d 596,
331 N.E.2d 162 (1975) (affirming denial of state post-
conviction relief) (App. 106-09).
JURISDICTION
The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1254(1). The judgment of the court of appeals was
entered on April 28, 1976; rehearing was denied on June
18, 1976. The petition for writ of certiorari was docketed
on September 7, 1976, and certiorari was granted on January
25, 1977.
CONSTITUTIONAL PROVISIONS, STATUTES,
AND RULES INVOLVED
United States Constitution, Amendment IV:
The right of the people to be secure in their persons,
house, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, except upon probable cause, supported by Oath
'Under former Illinois practice, an opinion reported as “abstract
only” would be reported in headnote form only. Compare the abstract
report in 6/2 North Michigan Ave. Building Corp. v. Factsystem, 25
I.App.3d 529, 323 N.E.2d 493 with the opinion as subsequently pub-
lished in full, 34 Ill. App.3d 922, 340 N.E.2d 678 (1973). Abstract
opinions fell into disuse in 1975 when the Illinois Supreme Court
broadened its rules to allow disposition by unpublished order “when the
appellate court determines that an opinion would have no precedential
value, that no substantial question is presented, or that jurisdiction is
lacking.” Illinois Supreme Court Rule 23, 58 Ill.2d R. 23, Ill. Rev. Stat.,
1975, ch. L1OA, §23.
ee ne ee ee ee
or affirmation, and particularly describing the place io
be searched and the person or things to be seized.
United States Constitution, Amendment XIV:
... nor shall any State deprive any person of life, liberty
or property, without due process of law...
28 U.S.C. §2253, which provides in pertinent part:
In a habeas corpus proceeding before a circuit or dis-
trict judge, the final order shall be subject to review,
On appeal, by the court of appeals for the circuit where
the proceeding is had.
Federal Rule of Civil Procedure 6(b):
(b) Enlargement. When by these rules or by a notice
given thereunder or by order of court an“Act is required or
allowed to be done at or within a specified time, the
court for cause shown may at any time in its discretion
(1) with or without motion or notice order the period
enlarged if request therefor is made before the expira-
tion of the period originally prescribed or as extended
by a previous order or (2) upon motion made after the
expiration of the specified period permit the act to be
done where the failure to act was the result of excusable
neglect; but it may not extend the time for taking any
action under Rules 50(b), 52(b), 59(b), (d) and (e),
60(b), except to the extent and under the conditions
Stated in them.
Federal Rule of Civil Procedure 52:
Findings by the Court
(a) Effect. In all actions tried upon the facts without
a jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule
58; and in granting or refusing interlocutory injunctions
the court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its
action. Requests for findings are not necessary for pur-
poses of review. Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge of the credi-
bility of the witnesses. The findings of a master, to the
4
extent that the court adopts them, shall be considered
as the findings of the court. If an opinion or memoran-
dum of decision is filed, it will be sufficient if the findings
of fact and conclusions of law appear therein. Findings of
fact and conclusions of law are unnecessary on decisions
of motions under Rule 12 or 56 or any other motion
except as provided in Rule 41(b).
(b) Amendment. Upon motion of a party made not
later than 10 days after entry of judgment the court may
amend its findings or make additional findings and may
amend the judgment accordingly. The motion may be
made with a motion for a new trial pursuant to Rule 59.
When findings of fact are made in actions tried by the
court without a jury, the question of the sufficiency of
the evidence to support the findings may thereafter be
raised whether or not the party raising the questions
has made in the district court an objection to such find-
ings Or has made a motion to amend them or a motion
for judgment.
Federal Rule of Civil Procedure 59:
New Trials; Amendment of Judgments
(a) Grounds. A new trial may be granted to all or any
of the parties and on all or part of the issues (1) in an
action in which there has been a trial by jury, for any
of the reasons for which new trials have heretofore been
granted in actions at law in the courts of the United States;
and (2) in an action tried without a jury, for any of the
reasons for which rehearings have heretofore been granted
in suits in equity in the courts of the United States. On
a motion for a new trial in an action tried without a jury,
the court may open the judgment if one has been entered,
take additional testimony, amend findings of fact and con-
clusions of law or make new findings and conclusions, and
direct the entry of a new judgment.
(b) Time for Motion. A motion for a new trial shali be
served not later than 10 days after the entry of the judg-
ment.
(c) Time for Serving Affidavits. When a motion for new
trial is based upon affidavits they shall be served with the
motion. The opposing party has 10 days after such service
within which to serve opposing affidavits, which period
may be extended for an additional period not exceeding
20 days either by the court for good cause shown or by
the parties by written stipulation. The court may permit
reply affidavits.
(d) On Initiative of Court. Not later than 10 days after
entry of judgment the court of its own initiative may
order a new trial for any reason for which it might have
granted a new trial on motion of a party. After giving the
parties notice and an opportunity to be heard on the
matter, the court may grant a motion for a new trial,
timely served, for a reason not stated in the motion. In
either case, the court shall specify in the order the grounds
therefor.
(e) Motion to Alter or Amend a Judgment. A motion
to alter or amend the judgment shall be served not later
than 10 days after entry of the judgment.
Federal Rule of Appellate Procedure 4a):
Appeal as of Right—When Taken
(a) Appeals in Civil Cases. In a civil case (including a
civil action which involves an admiralty or maritime claim
and a proceeding in bankruptcy or a controversy arising
therein) in which an appeal is permitted by law as of
right from a district court to a court of appeals the notice
of appeal required by Rule 3 shall be filed with the clerk
of the district court within 30 days of the date of the
entry of the judgment or order appealed from; but if the
United States or an officer or agency thereof is a party,
the notice of appeal may be filed by any party within 60
days of such entry. If a timely notice of appeal is filed
by a party, any other party may file a notice of appeal
within 14 days of tne date on which the first notice of
appeal was filed, or within the time otherwise prescribed
by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal
is terminated as to all parties by a timely motion filed
in the district court by any party pursuant to the Federal
Rules of Civil Proce «re hereafter enumerated in this
sentence, and the fu. .ime for appeal fixed by this sub-
division commences to run and is to be computed from
the entry of any of the following orders made upon a
timely motion under such rules: (1) granting or denying
6
a motion under Rule 52(b) to amend or make additional
findings of fact, whether or not an alteration of the judg-
ment would be required if the motion is granted; (3)
granting or denying a motion under Rule 59 to alter or
amend the judgment; (4) denying a motion for a new trial
under Rule 59. A judgment or order is entered within the
meaning of this subdivision when it is entered in the civil
docket.
Upon a showing of excusable neglect, the district court
may extend the time for filing the notice of appeal by any
party for a period not to exceed 30 days from the expira-
tion of the time otherwise prescribed by this subdivision.
Such an extension may be granted before or after the time
otherwise prescribed by this subdivision has expired; but
if a request for an extension is made after such time has
expired, it shall be made by motion with such notice as
the court shall deem appropriate.
Circuit Rule 35 (formerly numbered Rule 28) of the United
States Court of Appeals for the Seventh Circuit is reproduced -
in the appendix to this brief, infra at la.
QUESTIONS PRESENTED
1. Did the court of appeals have jurisdiction to review the
district court’s order granting petitioner’s application for a writ
of habeas corpus when notice of appeal was not filed until 128
days after entry of that final order, and when nothing had
occurred to toll the time to appeal?
2. Can there be error in a district court’s order denying an
untimely motion to alter or amend judgment, when the district
court lacked jurisdiction to grant that motion?
3. Did the court of appeals exceed the permissible bounds
of appellate review when, without identifying any error that
had been committed by the district court. it reversed outright
On its independent resolution of disputed facts?
4. Can there be “probable cause to arrest” absent grounds
to believe that a particular person has committed an offense,
and when arrests based on the information available to the
police result in the seizure of several suspects to determine
which one, if any, is to be charged with an offense?
5. May law enforcement officials, consistent with the
Fourth Amendment and in the absence of exigent circum-
stances, embark on a warrantless night-time expedition to a
dwelling place and arrest all teen-age males found inside the
residence in order to determine which one, if any, should
be charged with an offense?
6. Does a federal court of appeals have the inherent power
to withhold any of its opinions from publication and to a
priori deprive such opinions of precedential value?
STATEMENT OF THE CASE
Petitioner Ben Earl Browder is a state prisoner serving a
sentence imposed by an Illinois court in 1971. Petitioner
applied to the district court for a federal remedy under 28
U.S.C. §2254 after the state courts had refused to adjudicate
Browder’s claim that his conviction rests on the fruits of a
warrantless, dragnet arrest for “investigation of rape.”
A. The Search and Seizure
Petitioner was one of four black teen-age males arrested
at the Browder residence at about 6:00 p.m. (App. 53) on
January 31, 1971 (App. 24), by four experienced? Chicago
police officers. The arrests were made to “clear up the investi-
gation” (App. 36) of a rape that had been committed two days
before.
2The four officers involved in the arrests had an average of almost
nine years of experience. Conroy had been a police officer for about
five years (App. 52), O'Driscoll for about fifteen years (App. 39), Ahern
for about eight years (App. 25), and Toughey for about seven years.
(App. 68.)
The investigation of that rape had been handicapped by the
inability of the rape victim, Sharon Alexander, to provide other
than a vague description of her attackers: She was able to tell
the first investigating officer only that she had been attacked
by two black teen-age males, one of light complexion, the other
of dark complexion, and that both had worn brown jackets.
(App. 126, 128.)
Two days after the rape was reported, Officers Conroy and
O’Driscoll were assigned to the case. (App. 52, 79.) “Upon
receipt of that assignment” (App. 79), these officers obtained
the assistance of two other officers (App. 41, 69), and traveled
to the Browder residence “on a rape investigation.”” (App. 69.)
These four plainclothes (App. 53) officers, who had neither an
arrest nor a search warrant (App. 73), entered the dwelling, and
found inside petitioner, his brother Tyrone Browder, their
mother, two other teen-age black males, and “a couple of young
ladies and some children.” (App. 59.) The police explained to
Mrs. Browder that they were taking the teen-age black males
“down for questioning” (App. 150), and placed those four
persons under arrest for “investigation of rape.” (App. 24, 30,
81.)
All four arrestees asserted their innocence. (App. 143.)
Petitioner had at first refused to accompany the police officers
to the stationhouse, but acquiesced when he was “led out of
the apartment.” (App. 72.)
The four youths arrested at the Browder dwelling were
transported to a police station where they were exhibited
in a lineup. (App. 29, 70.) Petitioner was the only person in
that lineup who was wearing a white hat. (App. 20-21, 73.)
In addition, he was the only person with a bandage or cast
on his right hand. (App. 20, 25.)
The lineup was viewed by several women who had made
rape complaints. (App. 26.) Testimony was in conflict as to
whether these women had viewed the lineup simultaneously
(App. 19) or at separate times. (App. 23, 26.) There is no
evidence in the record as to the basis, if any, for exhibiting
9
the “suspects” to anyone other than Sharon Alexander.’
Petitioner was pointed out at the lineup by Alexander and
by one Johnnie Mae Johnson. (App. 23.) According to police
testimony (App. 51-52, 76-77), contradicted by petitioner
(App. 84), petitioner then told the police officers that he had
raped Johnson but that he had not raped Alexander. No
attempt was made to obtain a written confession. (App. 82.)
After this evidence had been obtained, petitioner was
formally charged with the rapes of Johnson and Alexander.
(App. 81.) The three other “‘suspects’” were released after
they had been “processed... to make sure that they are not
wanted for something.” (App. 72.)
Conroy and O’Driscoll thereafter completed a police report
setting out the facts of the investigation. (App. 146.) This
report (App. 159-60, introduced into evidence at App. 148),
refers to the arrests of the four male teen-age black males found
in the Browder residence as having resulted from “information
from a known informer that the boy’s that rape a girl (sic) at
3922 W. VanBuren were known by the above names.” (App.
159.) Stan Thomas, a police officer who had not been involved
in the arrests, but who was summoned after the lineup (App.
57), also prepared a report after charges had been filed against
petitioner. (App. 137.) This report (App. 156-58, introduced
into evidence at App. 148), recites that Thomas had spoken
>The opinion of the court of appeals (App. 166) adopts a hearsay
statement contained in a police report (App. 157) for displaying
petitioner to Johnson: “The undersigned also advised by Off. Conroy,
that Off. Wm. James #2775 of the 011th dist. had observed the subject
Ben E. Browder and noted that he fitted the description of ... who
had a cast on his right wrist and that was wanted for a rape committed
on 30 Jan. 1971 .. .” (App. 157.)
The police report had been introduced into evidence by petitioner
(App. 148) only because Stan Thomas, the author of that report,
admitted (App. 136) that he had referred to it before testifying in
the district court. (App. 149.) Thomas did not testify as to what Officer
James may have noticed, and no testimony was presented on this question.
It was therefore incorrect for the court of appeals to have relied on this
hearsay statement.
10
with Sharon Alexander on January 29, 1971 when she told him
that the surname of one of her assailants was “Browder,” “and
that he lived in the 4000 block of W. Monroe Street.” (App.
157) This report also asserts that Thomas had been told by Con-
roy about a conversation between Conroy and petitioner’s
mother during which Mrs. Browder stated that “only one of
her sons seemed possible of such a thing and identified him as
Ben E. Browder.” (App. 157.)
B. State Court Proceedings
The possibility that the lineup identification and the oral
confession had been obtained through exploitation of an un-
lawful arrest was not raised at the state court trial. As the dis-
trict court found (App. 113), there was no conceivable tactical
basis for withholding this claim, and the procedural default
can only be explained as a “negligent or inadvertent”’ mistake
of appointed defense counsel.
Prior to trial, petitioner’s appointed defense counsel* moved
to suppress petitioner’s oral confession, (App. 17-18), and
sought to bar the use of identification testimony. (App. 19.)
Suppression of the confession was sought on the alleged failure
of the interrogating officers to have given petitioner his Miranda
warnings.* Exclusion of the identification testimony was sought
*Petitioner was represented by a trial assistant of the Cook County
Public Defender. At the time of petitioner's trial, the Cook County Public
Defender was organized to provide a “zone defense,” i.e., an indigent de-
fendant would have one attorney at the preliminary hearing courtroom,
another attorney at arraignment, and a third at trial. A “trial assistant”
would be assigned to a judge hearing felony cases. Virtually all “public
defender” cases in that courtroom would be defended by that “trial
assistant.”
‘The form motion to suppress contained a conclusory allegation
that the confession was the product of “mental coercion.” (App. 17,
45.) This assertion was subsequently abandoned. (App. 27.)
on the grounds of suggestiveness in the lineup procedures.
(App. 48-49.)
At the hearing on the motion to suppress identification
testimony, officer Conroy testified that the arrests had been
made on information about “a possible offender by the name
of Browder,” corroborated by a “listing” in police files for
Tyrone Browder (App. 21), petitioner’s brother. Conroy ad-
mitted on cross-examination that four persons had been
arrested at the Browder residence for “investigation of rape.”
(App. 24.) |
Testimony at the hearing on the motion to suppress the con-
fession established that the alleged oral statement had been
triggered by the lineup identification. (App. 28.) Additional
evidence pertaining to the circumstances of the arrest was
adduced at the hearing on this motion, and it became clear
that the four arrests had been made so that the police “could
clear up the investigation.” (App. 36.)
These pre-trial motions were denied. (App. 49-50.) The
case then proceeded to trial, where the defense theory of the
case was that the identification testimony was unreliable
(App. 51), and that the police testimony about the existence
of an oral confession should not be believed. (Ibid.)
In cross-examination of the prosecution witnesses, defense
counsel repeatedly returned to the circumstances of the
arrest, and established that the expedition to the Browder
dwelling had been made without an arrest warrant (App. 73),
without a search warrant (Ibid.). and that, prior to traveling
to the Browder residence, the police claimed to have known
that “the gentlemen would be waiting.” (App. 63.)
Browder testified on his own behalf, asserted his innocence
(App. 84), and denied having made an oral confession. (Ibid.)
In cross-examination, petitioner stated that at the time of the
rape he was at home in the company of his mother and several
other persons. (App. 88.) The defense rested without calling
any other witnesses. (App. 98.) é
In his closing argument, the prosecutor commented upon
the failure of the defense to have presented additional evidence.
12
(App. 99-100.) Defense counsel waived final argument (App.
101), and petitioner was convicted of rape. (Ibid.) The unlaw-
ful arrest issue was not raised in post-trial motions (App.
103-03), which were denied. (App. 104.)
Petitioner sought to raise the unlawful arrest issue for the
first time in his direct appeal to the Illinois Appellate Court.
(App. 9.)® That court held that because “this contention was
not raised in the trial court, either during the trial or in the
motion or argument for a new ftgial (Ibid.), “it cannot now
be raised on appeal.” (App. 11.) Petitioner then applied for
discretionary review in the Illinois Supreme Court (App. 16),
arguing that when “defense counsel inadvertently failed to pin-
point the unlawful arrest as the basis of the motions to suppress
the fruits of the arrest,”’ the waiver rule applied by the appellate
court improperly “denied defendant a fair opportunity to raise
and have adjudicated on direct appeal his Fourth Amendment
claims, when the factual basis for these claims is clear from the
trial court record.” (Ibid.) Review was denied without opinion.
54 Ill.2d 597 (1973).
Petitioner also sought to raise the unlawful arrest issue under
the Illinois Post-Conviction Hearing Act, IIl.Rev.Stat. ch. 38,
§ 122-1 et seq. His application for relief was dismissed with-
out the reception of evidence by the trial court. (App. 4, 48.)
On appeal, the Illinois Appellate Court upheld the decision of
the trial court to refuse to adjudicate the Fourth Amendment
issue, holding that this issue was “res judicata” because it
had been raised, albeit not adjudicated, on direct appeal.
(App. 108.)
While petitioner was again represented by the Cook County Public
Defender on this appeal, trial counsel was not involved in appellate pro-
ceedings.
take See See
13
C. Federal Habeas Corpus Proceedings
On October 21, 1975, following the termination of state
court proceedings,’ the district court granted petitioner’s
application for a writ of habeas corpus on the basis of the
state trial record. (App. 110.) The district court held that
the failure of petitioner’s trial counsel to have raised the
unlawful arrest issue was an “inadvertent or negligent mistake”
which, under Henry v. Mississippi, 379 U.S. 443 (1965) did not
bar petitioner from federal habeas corpus relief on his Fourth
Amendment claim. (App. 113.) On the merits of that issue,
the district court found that petitioner had been arrested
without probable cause. (App. 114.) The illegality of the
arrest was held to have tainted the alleged oral confession
(App. 116) and the lineup identification (App. 115), but
not the in-court identification. (App. 116.) Execution of the
writ was suspended for 60 days to allow a re-trial. (App. 117.)
Twenty-six days after the petition had been granted, the
Director withdrew the state court record from the files of the
district court. (App. 1.) Two days thereafter, and twenty-eight
days after the petition had been granted, the Director filed
a “motion to further stay the execution of the writ of habeas
corpus and to conduct:an evidentiary hearing.” (App. 118.)
This motion was predicated on the fact that the “issue of
probable cause was never litigated’”’ in state court proceedings
(App. 119, 45), and asserted that “from a preliminary inquiry
7Petitioner’s appeal from the denial of state collateral relief was
before the Illinois Appellate Court at the time the habeas petition was
filed. (App. 5, 49.) The district court held that recourse to the state
collateral remedy had not been necessary to exhaust state remedies
(App. 105), but stayed proceedings before it “until such time as the
Illinois court rules or dismisses the case on petitioner's motion for
voluntary dismissal.” (Ibid.) Shortly thereafter, the state appellate
court affirmed the denial of state collateral relief (App. 106), and the
district court took active jurisdiction of the case. (App. 1.)
14
into matters outside the record it appears that one could reason-
ably believe that probable cause did exist.” (App. 119, 44.)
After concluding “that the request for an evidentiary hearing
should not be denied solely because it is untimely,” (App. 120),
and over petitioner’s objection that the “court no longer has
jurisdiction to alter or amend its final order of October 21,
1975” (App. 112), the district court set the motion for a
hearing. (App. 121.)
At the hearing, the Director sought to prove that there had
in fact been probable cause to arrest through the testimony of
three police officers. The first, James Newsome, testified to
the initial police contact with Sharon Alexander (App. 125),
and admitted that Alexander had been able to provide only a
vague and non-specific description of her assailants. (App.
128.) The second witness, Stan Thomas, stated that he had
interviewed Alexander on the day of the rape (App. 129),
and that she had told him that she knew the surname of one
of her assailants to be “Browder,” and that she knew that
he lived in the “4000 block of Monroe.” (App. 130.) Two
days later, on January 31, 1971, Thomas enlisted the aid of
Martin Conroy in the investigation. (App. 132.) Thomas ad-
mitted that he was unfamiliar with the inhabitants of the
neighborhood which contained the “4000 block of Monroe,”
(App. 135.) No explanation was offered for Thomas’ failure
to have acted more promptly on the information that he had
allegedly received from Alexander.
Conroy testified that he had become involved in the investi-
gation on January 31, 1971. (App. 138.) His first act, he
claimed, was to travel to another police station to check the
“Youth Files.” (App. 139.) From these files, Conroy “came
up with the name Browder and address of 4053 West Monroe,
and the first name Tyrone, a 16 year old male Negro.” (Ibid.)
After obtaining this information, and accompanied by his
partner, Francis O’Driscoll (App. 140), Conroy spoke with
Alexander. (Ibid.) According to Conroy, she told him that
one of her assailants was a “teen-ager older than her, like
16, 17, 18 like that, and it was a Browder that lived on
— i ae ————<— ee
15
Monroe.” (App. 146.) Conroy claimed to have then verified
that a Browder family lived at 4053 West Monroe Street.
(App. 141.) After obtaining assistance from two other officers
(Ibid.), and still accompanied by his partner, Conroy went
to 4053 West Monroe Street to arrest “a teen-aged Browder,
like 15, 16, 17, 18.” (App. 146.)
Inside the dwelling at that address, Conroy found two teen-
agers whose surname was Browder. (App. 147.) They both
denied involvement in the offense under investigation (Ibid.),
and they were both arrested “[t]o see which one, if either,
would be the one who would be identified.”” (App. 148.)
Conroy admitted that he did not know which one, if either,
would be identified. (Ibid.) Conroy claimed that the two
other youths found in the Browder residence had voluntarily
accompanied the police officers to stand in the lineup to
insure that it would be fair. (App. 142-43.)
A police report (App. 159-60), which Conroy had helped
prepare (App. 146), and which he had adopted as his own
(App. 148), was introduced into evidence by petitioner.
(Ibid.) This report states that four persons had been arrested
at the Browder residence, and that the arrests were made on
“information received from a known informer.” (App. 159.)
Conroy also repeated his trial testimony (App. 23), that
prior to making the arrests he had spoken with petitioner’s
mother, who—he claimed—had stated that “if it was an assault
on a girl, it wouldn’t be Tyrone, it would be Ben Earl, her
other son.” (App. 142.) Mrs. Browder, who had not testified
at trial, testified in the district court, and denied having made
such a statement. (App. 151.)
After hearing all of the evidence, the district court denied
the motion to reconsider, finding that “the writ of habeas
corpus was properly issued on October 21, 1975.” (App.
161.) Execution of the writ was stayed for five days “pending
prompt filing of notice of appeal and application to the Court
of Appeals for a further stay.” (Ibid.)
On January 27, 1976, the Director filed its notice of appeal,
seeking review of “the orders issuing a writ of habeas corpus
16
entered in this action on October 21, 1975 and January 26,
1976.” (App. 162.) A panel of the court of appeals refused
to stay execution of the writ (App. 163), and petitioner was
released from custody.
Another panel of the court of appeals subsequently reversed
the order granting the petition for writ of habeas corpus.
(App. 168.) The court’s opinion—which was designated as an
“unpublished order’’—recognizes that appellate jurisdiction
was based on a motion to reconsider filed 28 days after entry
of the district court’s order granting the petition. (App. 165.)
The opinion does not identify the error justifying reversal,
but concludes that there had in fact been probable cause to
arrest. (App. 168):
Even though there were slight differences in the testi-
mony of Officer Conroy at the evidentiary hearing from
the arrest report and the trial, the police had probable
cause to believe that the assailant was either Ben Earl
Browder or his brother Tyrone Browder between whom
a resemblance was noted.
Re-hearing and a suggestion that the case be re-heard in
banc was denied without opinion. (App. 169.) Petitioner sub-
sequently requested that the panel’s “unpublished order’ be
reissued as a published opinion. (App. 170-71.) This motion
was denied without explanation. (App. 172.)
SUMMARY OF ARGUMENT
The threshold question in this case is whether the court of
appeals had jurisdiction to review the district court’s order
granting petitioner’s application for a writ of habeas corpus.
The order granting the petition was entered on October 21,
1975; twenty-eight days thereafter, or November 18, 1975,
the Director filed a motion to reconsider. The district court
held a hearing on the motion to reconsider, and the Direc-
tor’s notice of appeal was filed after the district court had
refused to alter or amend its order granting the petition.
17
The motion to reconsider was not filed within the man-
datory and jurisdictional time limits of Rules 52 and 59 of
the Federal Rules of Civil Procedure, and it did not toll the
time to appeal from the final order. Notice of appeal, filed
on January 27, 1976, was therefore hopelessly beyond the
30 day limit of Rule 4 of the Federal Rules of Appellate
Procedure, and the court of appeals lacked jurisdiction to
review the final order of the district court.
Another consequence of the untimeliness of the motion
to reconsider was that the district court had lost jurisdiction
to alter or amend its order granting the petition, and there-
fore lacked the power to grant the motion to reconsider.
Thus, an appeal from the order denying reconsideration could
not vest the court of appeals with the power to reverse the
decision of the district court refusing to grant the untimely
motion to reconsider.
Even if the court of appeals did have jurisdiction to review
the decision of the district court, the court below erred when
it considered the case de novo and reversed outright, applying
its independent appraisal of disputed facts to a legal standard
for warrantless arrests which, if allowed to stand, is tantamount
to a repeal of the Fourth Amendment. Because this Fourth
Amendment standard is plainly wrong, there is no need to
remand to the district court for resolution of the factual dis-
putes, even if there had been a timely notice of appeal.
While the absence of a timely notice of appeal would allow
the Court to reverse the decision below without reaching the
Fourth Amendment questions, the same result would be
achieved by disposition on the merits. Stone v. Powell, 428
U.S. 465 (1976) is no bar to habeas corpus relief. First, the
totality of state procedures failed to provide petitioner with
an opportunity for full and fair litigation of his Fourth Amend-
ment claim, the sine qua non of Stone v. Powell. Second,
even if the state had provided petitioner with a “full and
fair opportunity,’ but had nonetheless misconceived the
Fourth Amendment and denied relief, a federal remedy would
be required because of the flagrancy of Fourth Amendment
violation—not present in Stone vy. Powell—which underlies
this case.
The Fourth Amendment standard applied by the court
of appeals allows the police to enter dwellings, at night,
without a warrant, and absent exigent circumstances, in order
to seize several suspects to determine which one, if any, should
be charged with an offense. Allowing arrests when there is
insufficient information to warrant a belief that a particular
person has committed a crime strikes at the central teaching
of this Court’s Fourth Amendment jurisprudence. Legitimizing
multiple suspect, warrantless arrests “for investigation” would
reduce the Fourth Amendment to little more than rhetoric.
This case also presents the question repeatedly reserved by
the Court, i.e., whether a warrant is required to search a dwell-
ing when the se’ «re of a person, rather than ‘“‘papers and
effects” is soug: search warrant plainly would have been
required if the poiice in this case had entered the dwelling
to seize physical evidence, and it should be of no consequence
that a dwelling search is made to seize persons, rather than to
seize “papers and effects.” Requiring recourse to the disin-
terested judicial officer contemplated by the Fourth Amend-
ment would provide the greatest protection against recurrence
of the egregious police misconduct apparent in this case.
In summary, whether this case is resolved on the jurisdic-
tional question or on the merits of the Fourth Amendment
issues, the result is the same: The decision below must be
reversed, and the case remanded to the district court with
instructions to reinstate its writ of habeas corpus.
An additional issue presented by this case arises from the
fact that the decision below was reached in a purportedly non-
precedential “unpublished order.” This is the first case where
the propriety of a circuit rule authorizing such dispositions
is squarely at issue. These rules—which have been adopted with
minor variations in each of the circuits—are based on the
assumption that a court of appeals has the power to determine
which of its adjudications are to have precedential value, and
vest in the court of appeals the power to decide which of its
19
opinions are to be published. These rules have severe short-
comings, are founded on tenuous legal grounds, and exceed
the powers vested in a court of appeals by 28 U.S.C. § 2071.
Until and unless a uniform “no-publication” rule is promul-
gated by this Court and approved by Congress pursuant to
28 U.S.C. §2072, the courts of appeals lack the power to
designate any of their opinions as “not for publication” and
as “‘non-precedential.” Accordingly, the court below should be
directed to release its decision in this case—and, by implication,
its decisions in all other cases decided by “unpublished
orders” —for publication free of any restrictions on citations
in subsequent cases.
THE COURT OF APPEALS LACKED JURIS-
DICTION TO REVERSE THE FINAL ORDER
OF THE DISTRICT COURT.
The respondent in this case, appellant in the court below,
failed to file a timely notice of appeal. The court of appeals
therefore lacked jurisdiction and its decision is a nullity which
must be reversed.
The thirty day period in which an appeal could have been
perfected in this case started to run on October 21, 1975,
when the district court’s final order® of that date (App. 110)
. al in a habeas corpus proceeding lies from the “final
ote" 28 USC §2253. The order of October 21, 1975 was “final
because it “terminate[d] the litigation between the parties on the merits
of the case, leav[ing] nothing left to be done but to enforce by execution
what had been determined.” St. Louis, Jron Mountain and Southern Ry.
Co. v. Southern Express Co., 108 U.S. 24, 28-29 (1883). Had an appeal
been taken from this order, and the decision of the district court affirmed,
that court “would have nothing to do but to execute the decree which it
had already rendered.” /Jndependent School District v. Hall, 106 U.S. 428,
430-31 (1882).
20
was entered on the civil docket.? (App. 1.) Notice of appeal,
however, was not filed until January 27, 1976 (App. 3), 128
days after entry of the final order, and hopelessly beyond the
jurisdictional time limits of Rule 4(a) of the Federal Rules of
Appellate Procedure. '®
In lieu of an appeal, the Director asked the district court
to receive additional evidence and to alter its final order.
(App. 118-19).) This motion, however, was not made until
28 days after entry of the final order, and did not toll the time
to appeal.
Rule 4(a) of the Rules of Appellate Procedure makes clear
that the time to appeal will be only tolled by a timely motion
under Civil Rules 50(b), 52(b), or 59. The motion to recon-
sider in this case sought the type of relief contemplated by
Rule 52(b) (new findings of fact) and Rule 59(a) (entry of
amended judgment). To be timely under either of these rules,
a motion to reconsider must be made within ten days of entry
of the final order.'' Civil Rule 6(b) prohibits a district court
*Rule 4(a) of the Federal Rules of Appellate Procedure provides, in
pertinent part, that notice of appeal shall be filed “with the clerk of the
district court within 30 days of the entry of the judgment or order
appealed from,” and that “a judgment or order is entered within the mean-
ing of this subdivision when it is entered on the civil docket.”
‘There can be no question that a timely notice of appeal is a juris-
dictional prerequisite to appellate review. See, e.g., Brooks v. Norris,
52 U.S. (11 How.) 204 (1850); Cummings v. Jones, 104 U.S. 419 (1882);
Scarborough v. Parquod, 108 U.S. 567 (1883); Credit Co. v. Arkansas
Central Ry. Co., 128 U.S. 567 (1888); Conboy v. First National Bank,
213 U.S. 141 (1906); Old Nick Williams Co. v. United States, 215 US.
541 (1910); United States v. Schaefer Brewing Co. , 356 U.S. 227 (1958);
United States v. Robinson, 361 U.S. 220 (1960); Fallen v. United States,
378 U.S. 139 (1964).
"Rule 52(b) requires that a motion to amend findings of fact or to
make additional findings must be “made not later than 10 days after
entry of judgment.” Rule 59 requires that a motion for a new trial, or
a petition for re-hearing must be “served not later than 10 days after
the entry of the judgment.” At least one court has held the distinc-
tion between “made” and “‘served” to be a distinction with a difference.
Hahn v. Becker, 551 F.2d 741 (7th Cir. 1977). This question is not
presented here, because the motion was filed and served on the same
day.
21
from enlarging this “mandatory and jurisdictional” time period.
United States v. Robinson, 361 U.S. 220, 229 (1960).
Thus, because the motion to reconsider was untimely under
Rules 52 and 59, it did not toll the time to appeal. Notice of
appeal not having been filed until 128 days after entry of the
district court’s final order, the court of appeals lacked juris-
diction to review that order.
The notice of appeal also sought review of the order of
January 26, 1976 denying the untimely motion to reconsider.
(App. 162.) Review of that order could not vest the court of
appeals with jurisdiction in any meaningful sense because the
district court had lacked the power to grant the motion to
reconsider: For almost thirty years, the power of a district
court to receive additional evidence and to alter or amend
a final order has been circumscribed by the time limits of
Civil Rules 52 and 59.'* The motion to reconsider was untimely
under these rules and was a nullity.
The untimeliness of the motion to reconsider is apparent
| on the face of the opinion of the court below. (App. 165.)
From a cryptic footnote in that opinion, it appears that
the court of appeals was holding that while the motion to
reconsider may not have tolled the time to appeal from the
final order, it was nonetheless effective to render non-final
that portion of the district court’s decision that petitioner’s
arrest was without probable cause (App. 166 n. 2):
'2Prior to the 1946 amendments to the Rules of Civil Procedure,
a district court could entertain a petition for rehearing at any time
during the term of court in which a judgment had been entered. See
United States v. Mayer, 235 U.S. 55, 67 (1914). Practice in habeas
corpus proceedings conformed to this procedure. See, e.g., Tiberg v.
Warren, 192 F. 458 (9th Cir. 1911); Aderhold v. Murphy, 103 F.2d
492 (10th Cir. 1939).
The 1946 amendments to the Rules of Civil Procedure abolished
terms of court, and limited the power of a district court to alter or amend
a final order to the time periods of Rule 59. See Advisory Committee
Comments to the 1946 Amendments to Rule 73 of the Rules of Civil
Procedure, 5 F.R.D. 484, 486.
Respondent contends that even if there was no probable
cause for the arrest, the confession would be admissible
under Brown y. Illinois, 422 U.S. 590 (1975). In light
of our decision in the instant case, the court need not
consider that issue nor need it consider whether there
was an untimely appeal as to this issue. (emphasis sup-
plied) |
The habeas corpus statute does not authorize piecemeal
appeals, Collins v. Miller, 252 U.S. 364, 370 (1920), and if
there was an untimely appeal as to one issue, there was an
untimely appeal as to all issues that had been decided by the
district court.
The only way in which the district court could have granted
the post-judgment relief sought by the Director was through
Rule 60(b) of the Rules of Civil Procedure. The Director has
expressly disavowed reliance upon this rule, recognizing we
presume, that there was no basis for Rule 60(b) relief.'? Fol-
lowing this concession, it was the duty of the court of appeals
to dismiss the appeal: “Jurisdiction is the power to declare
the law, and when it ceases to exist, the only function remain-
ing to the court is that of announcing the fact and dismissing
the case.” Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868).
'3In its reply brief (at 3) in the court of appeals, the Director stated
that “respondent’s motion was not filed under Rule 60.” The same
assertion is made in this Court, Opposition to Pet. for Writ of Cert. at 7.
The Director should not be permitted to withdraw these concessions.
United States v. Ortiz, 422 U.S. 891, 898 (1975). To do so, however,
would be futile. First, a Rule 60(b) motion may not be used as a sub-
terfuge for an untimely Rule 59 motion. Hartman v. Lauchli, 304 F.2d
431, 432 (8th Cir. 1962); Swam v. United States, 327 F.2d 431, 433
(7th Cir. 1964). Second, viewed as an appeal from the denial of Rule
60(b) relief, the Director's appeal is utterly without merit: There is no
basis upon which it could even be argued that the district judge had abused
his discretion in “ruling that sufficient grounds for disturbing the finality
of the judgment were not shown in a timely fashion.” Brennan v. Mid-
western United Life Insurance Co., 450 F.2d 999, 1003 (7th Cir. 1971).
23
The Director had three alternatives when the district court
granted the petition: To appeal, to file a timely motion to
reconsider, or to accept the district court’s decision and allow
Illinois to re-try petitioner. The Director chose a fourth course
of action and filed its untimely motion to reconsider. The
effect of this choice may, in hindsight, be regretted, but the
consequences of this choice are inescapable: “When the time
for taking an appeal has expired it cannot be arrested or called
back by a simple order of court.”’ Credit Co. v. Arkansas Central
Ry. Co., 128 U.S. 258, 261 (1888). As the Court stated in
Ackerman v. United States, 340 U.S. 193 (1950);
{The Director] made a considered choice not to appeal...
His choice was a risk, but calculated and deliberate and
such as follows a free choice. [The Director] cannot be
relieved of such a choice because hindsight seems to
indicate to him that his decision not to appeal was
probably wrong. .. Id. at 198.
To find that the court of appeals had jurisdiction to review
the decision of the district court in this case would be to
“twist the fabric’ of Rule 4 of the Rules of Appellate Pro-
cedure “more than it will bear.” See Liberty Mutual Ins. Co.
v. Wetzel, 424 U.S. 737, 746 (1976). Accordingly, the decision
below must be reversed, and the case remanded to the district
court with instructions to reinstate its writ of habeas corpus.
A COURT OF APPEALS MAY NOT DECIDE
FACTUAL ISSUES DE NOVO.
Even assuming that the court of appeals had jurisdiction
to review the decision of the district court, it lacked the power
to reverse outright on its independent appraisal of disputed
facts.
That the court of appeals considered the case de novo with-
out deference to the opportunity of the district judge to have
observed the character and demeanor of the witnesses is
24
apparent on the face of the “unpublished order” (App. 168):
Even though there were slight differences in the testimony
of Officer Conroy at the evidentiary hearing from the
arrest report and the trial, the police had probable cause
to believe that the assialant was either Ben Earl Browder
or his brother Tyrone Browder, between whom a resem-
blance was noted. (emphasis supplied)
Perjury cannot be characterized as a “slight difference in
testimony.” Conroy plainly lied in the district court when he
stated that only petitioner and his brother had been arrested
at the Browder dwelling, and that the two other youths found
inside the home had voluntarily accompanied the police to
the stationhouse. (App. 143.) Conroy’s trial testimony was
directly to the contrary: “At the Browder home there was
Ben Earl, his brother Tyrone, the two boys, | don’t really
recall their names but we arrested them and they stood in the
lineup.”’ (App. 29.) (emphasis supplied)'*
In addition, Conroy’s testimony in the district court bristled
with new details, inconsistent with trial testimony, which were
directed towards justifying the reasonableness of the arrests. '5
“Two of the other officers involved in the arrest testified in state
court that four persons had been arrested. (App. 73, 81.) The third
officer stated that petitioner had been arrested (App. 64), that “[t] here
were four fellows that were taken into the station” from the Browder
residence (Ibid), and that all four had voluntarily accompanied the
police. (App. 67.) Conroy’s arrest report refers to the arrest of four
persons (App. 159, introduced into evidence at App. 148), but later
States that only petitioner had been arrested. (App. 160.)
'SAt trial, Francis O'Driscoll, Conroy’s partner, testified that the
expedition to the Browder home commenced “upon receipt of that
assignment.’ (App. 79) Conroy testified in state court that the arrests
were based on “information about a possible offender by the name of
Browder.” (App. 31.) The apparent source of this “information,” accord-
ing to Conroy’s police report (App. 159, introduced into evidence at App.
148), was “information from known informer.”
In contrast to trial testimony, Conroy testified in the district court
that the arrests had been based on information received from Sharon
Alexander, and that. prior to making the arrests he had spoken with her,
and then spoken to one “Little Man,” who had pointed out the location
of the Browder residence. (App. 140-41.) Accompanying Conroy in
these activities was his partner, Francis O'Driscoll. (App. 140.)
25
In this case, the district judge would have been justified
in rejecting the entirety of Conroy’s testimony. But no matter
how slight the differences in testimony may have been, the
function of appellate courts “is not to decide factual issues
de novo.” Zenith Radio Corp. v. Hazeltine Research Corp.,
395 U.S. 100, 123 (1969). Appellate review of factual issues
is limited by the clearly erroneous test, United States v. United
States Gypsum Co. , 333 U.S. 364, 395 (1948), especially when,
as here, questions of “‘design, motive and intent with which
men act” are at issue. United States v. Yellow Cab Co., 338
U.S. 338, 341 (1949).
The ultimate finding of fact made by the court of appeals—
that “the police had probable cause to believe that the assail-
ant was either Ben Earl Browder or his brother Tyrone” (App.
168)—indicates that in addition to resolving factual questions
de novo, the court of appeals was holding that the Fourth
Amendment permits the warrantless arrest of several persons
at night, from a dwelling, whenever the police believe that
the offender sought will turn up among those arrested.
As set out below, such a standard, if allowed to stand, is
tantamount to a repeal of the Fourth Amendment. But even
assuming the correctness of this novel standard, the appro-
priate disposition of the appeal would have been to remand to
the district court for its resolution of disputed facts and a
determination if, in fact, the “police had probable cause to
believe that the assailant was either Ben Earl Browder or his
brother Tyrone.” As this Court reminded the federal courts
of appeals in DeMarco v. United States, 415 U.S. 449, 450
n.* (1974), “factfinding is the basic responsibility of district
court, rather than appellate courts, and...the Court of
Appeals should not have resolved in the first instance this
factual dispute which had not been considered by the District
Court.
As we demonstrate below, the Fourth Amendment standard
applied by the court of appeals is plainly wrong, and even if
there was a timely notice of appeal, there is no need to remand
aD
26
to the district court for resolution of the factual disputes. In-
stead, the decision below must be reversed, and the case
remanded to the district court with instructions to reinstate
its writ of habeas corpus.
THE BLATANTLY INVESTIGATIVE, WAR-
RANTLESS NIGHT-TIME ARRESTS MADE AT
PETITIONER’S DWELLING IN THE ABSENCE
OF EXIGENT CIRCUMSTANCES WERE CON-
TRARY TO THE FOURTH AMENDMENT.
Introduction
The decision of the court of appeals vests police officers
with the powers of a general warrant—the discretion to search
when and where they choose, and the power to arrest whom-
ever they may suspect. These are precisely the evils which
were proscribed by the Fourth Amendment, and the court
of appeals erred in concluding that petitioner had been law-
fully arrested.
In our view, the court of appeals lacked jurisdiction to con-
sider the legality of petitioner’s arrest because the Director
had failed to file a timely notice of appeal from the district
court’s final order. See ante at 19-23. The Court may there-
fore reverse the decision below without reaching the Fourth
Amendment questions. On prior occasions, however, the
Court has declined to resolve a threshold jurisdictional question
when the same result would be achieved by disposition on the
merits. United States v. Augenblich, 393 U.S. 348, 349-52
(1969); Norton vy. Matthews, 427 U.S. 425, 530-32 (1976).
Petitioner, of course, has no preference for the ground which
is used to reverse the decision of the court of appeals, and
we submit the following argument in the event the Court
27
chooses to reverse on the Fourth Amendment issues in this
case. '®
A.
PETITIONER WAS ARRESTED ABSENT THE
“QUANTUM OF INDIVIDUALIZED SUSPI-
CION”’ REQUIRED BY THE FOURTH AMEND-
MENT.
The “quantum of individualized suspicion” required
by the Fourth Amendment, United States v. Martinez-
Fuerte, 428 U.S. 543, 560 (1976), was intended to
eliminate indiscriminate and discretionary searches and
seizures made under general warrants.'’ The arrests in
this case are precisely the type of seizures which would
have been authorized by a general warrant.
First, the arrests were of indiscriminate quality. While
the police may have intended to arrest “a teen aged
Browder, like 15, 16, 17, 18,” (App. 146), two teen-age
black males, whose surname was not Browder, were
caught up in the dragnet. Second, the arrests were the
product of unfettered police discretion, both as to the
time and place of the arrests, and as to the decision to
arrest all of the teen-age males found within the Browder
residence. These indicia of seizures made as under a
"© As discussed infra at 41-50, habeas corpus relief would not be
precluded by Stone v. Powell, 428 U.S. 465 (1976).
"See, e.g., G.M. Leasing Corp. v. United States, -—U.S.——, 97 S.Ct.
619 (1976); Stone v. Powell, 428 U.S. 465, 482 (1976); United States
v. Ortiz, 422 U.S. 891, 895-96 (1975): United States v. United States
District Court, 407 U.S. 297, 316-17 (1972); Berger v. New York, 388
U.S. 41, 58 (1967): Stanford v. Texas, 379 U.S. 476, 480-86 (1965):
Marcus v. Search Warrant, 367 US. 717, 724-29 (1961); Henry yr.
United States, 361 U.S. 98, 100-01 (1959); Frank v. Marviand, 359
U.S. 360, 363-65 (1959): Marron vy. United States, 275 U.S. 192, 195
(1927); Bovd v. United States, 116 U.S. 616, 624 (1886).
28
general warrant reflect the absence of the “quantum of
individualized suspicion” required by the Fourth Amend-
ment.
In the view of the court of appeals, petitioner and his
brother Tyrone Browder were arrested because they both
resembled a suspect allegedly sought by the police: A dark
complected, teen-age male, of unknown height and weight,
with no other known physical features, whose surname was
Browder and who lived in the “4000 block” of West Monroe
Street in Chicago, Illinois. (App. 165.)'® Only a warrant to
seize “all teen-aged Browders who live in the 4000 biock of
West Monroe Street’? could have been issued on this informa-
tion. Such a warrant is but a short step removed from a
“ridiculous warrant against the whole English nation.”!?
and is virtually identical to a warrant to arrest all “Blackie
Toy’s, operator of a laundry somewhere on Leavenworth
Street,” condemned as “no better than the wholesale or
‘dragnet’ search warrant” in Wong Sun v. United States, 371
U.S. 471, 481 n. 9 (1963).
In this case, it is obvious that if the police had applied for
a warrant they would not have been able to describe with
specificity the person to be seized. As the principal arresting
officer admitted, he did not know which, if any, of the sus-
pects he had placed under arrest would be identified at the
planned lineup. (App. 148.)
In prior cases, the Court has repeatedly held that the Fourth
Amendment means what it says in its requirement that probable
cause be sufficient to particularly describe the person to be
'$The court of appeals mistakenly concluded that petitioner and
his brother Tyrone Browder were of similar appearance at the time of
arrest. (App. 168.) Trial testimony reveals that petitioner was the only
person seized at the Browder dwelling who had his arm in a “bandage
or cast,” (App. 20, 25), a salient characteristic lacking in the physical
description available to the police at the time of arrest.
'9 Stanford v. Texas, 379 U.S. 476, 483 (1965), quoting II May’s
Constitutional History of England, 247 (Am Ed 1864).
29
seized. “[A]n officer may lawfully arrest a person when he is
apprised of facts sufficient to warrant a belief that the person
has committed or is committing a crime.” Terry v. Ohio, 392
U.S. 1, 26 (1968) (emphasis supplied)?° Applying the unam-
biguous language of the Fourth Amendment, virtually every
court which has considered the question has condemned as
unlawful an arrest made solely because the arrestee was one of
several persons who corresponded to a non-specific description
of an offender sought by the police.?! The Seventh Circuit,
both in this case and in a subsequent decision, has held to the
contrary. *?
°See also Carroll v. United States, 267 U.S. 132, 161 (1925) (“reason-
able ground to believe that the accused has been guilty of a felony”):
Jones v. United States, 357 U.S. 493, 502 (1958) (Clark, J., dissenting)
(“Probable cause is reasonable ground of suspicion supported by circum-
stances sufficiently strong in themselves to warrant a cautious man in
the belief that the party is guilty of the offense with which he is
charged.”); Beck v. Ohio, 379 U.S. 89, 91 (1964) (whether, at the time
of arrest, the facts known “were sufficient to warrant a prudent man in
believing that the petitioner had committed or was committing an
offense.”); United States v. Marion, 404 U.S. 307, 320 (1971) (“To
legally arrest and detain, the Government must assert probable cause to
believe that the arrestee has committed a crime.”); United States y.
Watson, 423 U.S. 411, 431 n. 4 (Powell, J., concurring) (“*. .. and, of
course, that the person to be arrested was the offender.”); Stone vy.
Powell, 428 U.S. 465, 538 (White, J., dissenting) (“*. . . reasonable ground
to believe that a crime has been committed and that a particular suspect
has committed it’’).
*!See, e.g., Gatlin v. United States, 117 U.S.App.D.C. 123, 127, 326
F.2d 666, 670 (1963); United States v. Shavers, 524 F.2d 118 (Sth Cir.
1975); In re Puma County Anonymous, 110 Ariz. 98, 103, 515 P.2d
600, 604-05 (1973); Jn re Woods, 20 Ill.App.3d 641, 647-48, 314 N.E.2d
606, 610 (1974); Commonwealth v. Jackson, 459 Pa. 669, 674-75,
331 A.2d 189, 191 (1975).
?2 United States ex rel. Burbank v. Warden, 535 F.2d 361, 366 (7th
Cir. 1976), reversing 404 F.Supp. 656 (N.D.Ill. 1975) (finding probable
cause to arrest because suspect corresponded to description of offender as
a young black male of average size who was considered to be attractive in
appearance).
30
Allowing arrests, as in this case, where there is insufficient
information to warrant a belief that a particular person has
committed a crime is to resurrect the unbridled authority
of the general warrant by “plac[ing] the liberty of every man
in the hands of every petty officer.’”*> Such a standard for
seizures of the person strikes at the “central teaching of this
Court’s Fourth Amendment jurisprudence,” Terry v. Ohio,
392 U.S. 1, 21 n. 18 (1968). If this “demand for specificity,”
Ibid. , is relaxed, then “the protections of the Fourth Amend-
ment would evaporate, and the people would be ‘secure in
their persons, houses, papers, and effects,’ only in the dis-
cretion of the police.” Beck v. Ohio, 379 U.S. 89,97 (1964).
See also Johnson v. United States, 333 U.S. 10, 14 (1948).
For these reasons, the decision below cannot be allowed to
stand.
WARRANTLESS ARRESTS FOR INVESTIGA-
TION ARE CONTRARY TO THE FOURTH
AMENDMENT.
That the arrests in this case were made “for investigation
of rape” is apparent from the state trial transcript (App. 24, 30,
36, 53, 81-82), and was admitted in the district court by the
principal arresting officer (App. 147-48):
Q: All right: Isn’t it true, sir, that the purpose behind
your arrest of the teen-aged Browders was to bring them
down to the station house to place them in a line-up?
Officer Conroy: To see if they could be identified by the
victim. To see which one would be identified.
23 Boyd v. United States, 116 U.S. 616, 625 (1886), quoting the argu-
ments of James Otis against reissuance of writs of assistance in Boston
following the death of George Il in 1761. See Wroth & Zobel (eds.),
Legal Papers of John Adams 141-42 (1965).
3]
Q: At the time you arrested both Browders you didn’t
know which one, if either, would be the one who would
be identified?
A: That is correct, sir.
These warrantless (App. 73) investigatory arrests are con-
trary to Davis v. Mississippi, 394 U.S. 721 (1969), where the
Court held that the Fourth Amendment prohibits the warrant-
less seizure of several persons merely to gather evidence to
decide which one, if any, should be charged. In this case, the
court of appeals sought to distinguish Davis—where the absence
of probable cause had been conceded, 394 U.S. at 726—by find-
ing that the investigative arrests here were based on probable
cause. (App. 168.) But a conclusion that there could have been
probable cause to arrest in this case would expand that
“practical compromise,” Gerstein v. Pugh, 420 U.S. 103, 113
(1975), into a roving commission for investigative arrests,
presaging “‘wholesale intrusions upon the personal security
of our citizenry.” Davis v. Mississippi, 394 U.S. at 726.4
Concluding that a warrantless arrest is permissible when,
as here, several suspects are arrested “‘to clear up an investi-
gation” (App. 36), allows the police to arrest “at large and to
use an interrogating process at police headquarters in order to
determine whom they should charge before a committing magis-
trate on ‘probable cause.’ ’’ Mallory v. United States, 354 U.S.
449, 456 (1957).?5 Such a function for warrantless arrests
is contrary to what the Court said in Gerstein v. Pugh, 420
* Because it is apparent from the-state trial record that petitioner
was seized in a multiple suspect warrantless investigatory arrest, the
district court was justified in granting the petition without an evidentiary
hearing. See Brewer v. Williams, -—-U.S.-—, ——, ——, 97 S.Ct. 1232,
| 235 (1977).
>The court of appeals read Mallory v. United States, supra, as not
prohibiting multiple suspect arrests for investigation. (App. 167.) This
analysis disregards the purpose of the exclusionary rule applied in McNabb
v. United States, 318 U.S. 332 (1943), and re-applied in Mallory, i.e., to
deter arrests for questioning.
32
U.S. 103 (1975): “[A] policeman’s on the scene assessment
of probable cause provides legal justification for arresting a
person suspected of a crime, and for a brief period of detention
to take administrative steps incident to arrest.” Id. at 113-14.
(emphasis supplied) The blatantly investigative arrest sanctioned
by the court of appeals in this case “collides violently with the
basic human right of liberty,” and “can be tolerated only in
a society which is willing to concede to its government powers
which history and experience teach are the inevitable accoutre-
ments of tyranny.”’*6
An arrest is a significant intrusion upon personal liberty.
“It is intended to vindicate society’s interest in having its
laws obeyed, and it is inevitably accompanied by future in-
terference with the individual’s freedom of movement, whether
or not trial or conviction ultimately follows.” Terry v. Ohio,
392 U.S. 1, 26 (1968). “‘Arrest is a public act that may seriously
interfere with the defendant’s liberty, whether he is free on bail
or not, and that may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family, and his friends.”
United States v. Marion, 404 U.S. 307, 320 (1971). Little
reminder is needed that an arrest “is abrupt, is effected with
force or threat of it, and [occurs] often in demeaning circum-
stances.” United States v. Dionisio, 410 U.S. 1, 10 (1973),
quoting from United States v. Doe (Schwartz), 457 F.2d
895, 898 (2d Cir. 1972). In addition, an arrest record may
adversely affect present or future employment. See Menard
v. Saxbe (II), 162 U.S.App.D.C. 284, 290-91, 489 F.2d 1017,
1023-24 (1974). Finally, investigative arrests are the type
of “police excesses [which] bear the seed of untoward counter
reactions of violence.” Lankford v. Gelston, 364 F.2d 197,
204 n. 7 (4th Cir. 1966).
In some societies, arrests are used as “alternative means to
deal with persons who cannot be successfully prosecuted
ls Le cee Alten es betes —
views! ee ee Sere eet ae
~ eet
33
for their activities, though they are a menace to public security
and order.’ Gledhill, Fundamental Rights in India 127
(1955).?” In the Soviet Union, “arrests occur in the form of
‘campaigns’ which represent a concentrated effort by the
regime to solve some pressing political or social problem.”
Bauer, Arrest in the Soviet Union | (1954). See also Lowry,
Internment: Detention without Trial in Northern Ireland,
5 Human Rights 261 (1976). As Mr. Justice Jackson wrote
shortly after his return from the Nuremberg trials:
Uncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbitrary
government. And one need only briefly to have dwelt
and worked among a people possessed of many admirable
qualities but deprived of these rights to know that the
human personality deteriorates and dignity and self-
reliance disappear where homes, persons and possessions
are subject at any hour to unheralded search and seizure
by the police. Brinegar v. United States, 338 U.S. 160,
180-81 (1949) (dissenting opinion)
In our system, crimes may not be solved by a call to “round
up the usual suspects.” This is so because “there is no legal
basis for arresting persons simply as a means of detaining
them while an investigation of their possible involvement in
a crime is conducted.’’** Arresting a person on suspicion,
like arresting a person for investigation, is foreign to our
system, even when the arrest is for past criminality.” Papa-
christou v. City of Jacksonville, 405 U.S. 156, 169 (1972).
27 As quoted in Bayley, Preventive Detention in India 75 (1962).
28 President’s Commission on Law Enforcement and Administration
of Justice, Task Force Report: The Police 186 (1967); See, e.g., Henry
v. United States, 361 U.S. 98 (1959); Terry v. Ohio, 392 U.S. 1 (1968);
Davis v. Mississippi, 394 U.S. 721 (1969); United States v. Ortiz, 422
U.S. 891 (1975).
34
Legitimizing investigative arrests reduces the Fourth Amend-
ment to “little more than rhetoric,”*? and undermines the
integrity of the fact finding process at any subsequent criminal
prosecution. Investigatory seizures are planned “in the hope
that something will turn.” Brown vy. Illinois, 422 U.S. 590,
605 (1975). To insure that “something will turn up,” prompt
presentment statutes are ignored* so that the police may
convince a suspect to “waive” his Miranda rights.*' This is
precisely the factual setting of Brown vy. Illinois, 422 US.
590 (1975). The result is little different than that condemned
more than forty years ago in the Wickersham Commission
Report on coercive interrogation procedures. Chafee, Pollak
and Stern, The Third Degree (Arno ed. 1969).
In addition to producing, as in this case, an oral confession
of disputed authenticity, investigative arrests will often result,
as here, in corporeal identification procedures held prior to
C.J., dissenting) The decision below first eliminates any deterrent from
exclusion of the fruits of investigative arrests. See Brown v. Illinois, 422
U.S. 590 (1975). Second, the decision below, by finding “probable cause”
for investigative arrests, creates a “good faith” defense to any action
for money damages. Pierson v. Ray, 386 U.S. 547 (1967).
See Note, Admissibility of Confessions Obtained Between Arrest
and Arraignment: Federal and Pennsylvania Approaches, 79 Dick.L.Rev.
309, 341-42 (1974); Hopkins, Our Lawless Police 65 (1931) (“And the
winnowing process—the delayed appearance in court, the incommunicado,
the third degree—is a further extension of an unlawful series implied or
necessitated by the initial illegality.”)
3\See Kamisar, Kauper’s “Judicial Examination of the Accused”
Forty Years Later-Some Comments on a Remarkable Article, 73
Mich.L.Rev. 15, 28 (1974):
Allowing the police to give legal advice to, and obtain “waivers”
from suspects outside the presence of any judicial officer is trouble-
some enough....The problem is aggravated when, even though
feasible, no stenographic transcript (let alone an electronic record-
ing) of the “waiver transaction” need be made; when—as most
lower courts have held—the police officer's disputed and uncor-
roborated recollections of the “waiver” event suffice. . . .
ty lee eM Od a 1b a Kt Ret MO ett le et
Aa) nee gh lala ania is suis Sah ty lili
ee ee, ee ey anne
35
the formal “initiation of adversary judicial criminal pro-
cedures.” Kirby y. Illinois, 406 U.S. 683, 689 (1972). The
result is that counsel is not available to be a witness to any
unfairness in the identification procedure—an important role
stressed by the Court in United States v. Wade, 388 U.S. 218,
231-37 (1967).
The decision of the court of appeals in this case does not
encourage the “development of rational alternatives” to the
exclusionary rule. See Stone v. Powell, 428 U.S. 465, 500
(1976) (Burger, C.J., concurring). To the contrary, the decision
below encourages “police use of unnecessarily frightening
or offensive methods of surveillance and investigation,”
activities prohibited by the Fourth Amendment. United States
v. Ortiz, 422 U.S. 891, 895 (1975). Accordingly, the decision
below must be reversed, and the case remanded to the district
court for reinstatement of its writ of habeas corpus.
C.
PRIOR RECOURSE TO A DISINTERESTED
JUDICIAL OFFICER IS REQUIRED BEFORE
POLICE OFFICERS MAY, ABSENT EXIGENT
CIRCUMSTANCES, SEARCH A DWELLING TO
SEIZE SUSPECTS.
A search warrant plainly would have been required if the
police in this case had entered the Browder residence to seize
physical evidence. “The search of a private dwelling without
a warrant is, in itself, unreasonable and abhorrent to our
In petitioner’s appeal from the denial of state collateral relief, the
Illinois Appellate Court rejected our argument that Kirby y. Illinois,
Supra, requires counsel at a post-arrest lineup held when, as here,
formal charges should have been, but were not, filed. (App. 108.) The
same result has recently been reached by the Seventh Circuit, United
States ex rel. Burbank v. Warden, 535 F.2d 361, 370 (7th Cir. 1976).
36
laws.”°? The police had ample opportunity to seek a warrant,
and there were absolutely no circumstances requiring prompt
action. Had recourse been made to “a magistrate to pass
on the desires of the police before they violate the privacy of
the home,” McDonald y. United States, 335 U.S. 451, 456
(1948), the blatantly investigative arrests and the night-time
invasion of the Browder dwelling would not have occurred.
Even a court clerk,** presented with the facts set out in
Conroy’s report (App. 159), would have ruled that “informa-
tion from a known informer” could not justify the night-time
search of a dwelling to seize four suspects to determine which
one should be charged for an offense committed two days
before. Even if the police could have articulated facts to show
that the offender sought was “‘a teen-aged Browder, like 15,
16, 17, 18” (App. 146), a disinterested judicial officer would
not have authorized a night-time search of the Browder
33 Agnello v. United States, 269 U.S. 20, 32 (1925); United States
v. Lefkowitz, 285 U.S. 452 (1932); Johnson v. United States, 333 US.
10 (1948); Mancusi v. DeForte, 392 U.S. 364 (1968); See v. City of
Seattle, 397 US. 541 (1967); GM. Leasing Corp. v. United States
—U.S.——, 97 S.Ct. 619 (1976).
“There was no need for prompt action because the search and seizure
was based on information which the police claimed to have received on
January 29, 1971 (App. 129-30), but which was not acted upon until
two days later. (App. 135.) This delay conclusively shows the absence of
exigent circumstances. G.M. Leasing Corp. v. United States, -—U.S.—-,
00-00, 97 S.Ct. 619, 631-32 (1976).
Nor had the officers perceived any need for prompt action. Officer
Conroy claimed to have telephoned the Browder residence in advance,
and “‘knew the gentlemen would be waiting.” (App. 63.) Thus, the police
perceived “no probability of a material change in the situation during
the time necessary to secure [a] warrant.” Taylor v. United States, 286
U.S. 1, 6 (1932). Accordingly, there were no exigent circumstances to
excuse the need for a warrant. See Coolidge v. New Hampshire, 403 US.
443, 460-64 (1971).
3SCf. Shadwick v. City of Tampa, 407 U.S. 345 (1972) (court clerk
may issue warrants for ordinance violations)
pate tide td 5d
Oe Pl Altadena git Rnatcare tei tm angedal le
ees
ee ae
37
residence to seize “all teen-aged males whose surname is
Browder.”’ Such a warrant would have contravened the require-
ment of the Fourth Amendment* that a warrant particularly
describe the things to be seized so that “nothing is left to the
discretion of the officer executing the warrant.” Marron y.
United States, 275 U.S. 192, 196 (1927). Just as “[t]he fact
that packages have been stolen does not make every man
who carries a package subject to arrest nor the package subject
to seizure,” Henry v. United States, 361 U.S. 98, 104 (1959),
so too the fact that a teen-aged male whose surname is Browder
may have committed an offense does not subject to arrest all
teenagers whose surname is Browder: The police must have
reasonable grounds to believe that a particular teen-aged
Browder has committed that offense. See ante at 28-30.
In this case, any application for a warrant would have been
refused, and the police advised to continue their investigation.
See Unit-d States v. Watson, 423 U.S. 411, 455 n. 22 (1976)
(Marshall, J., dissenting). In some jurisdictions, upon a showing
that the offender sought was one of several persons, the police
could have made recourse to a “narrowly circumscribed pro-
cedure” as suggested by the Court in Davis v. Mississippi, 394
%“The Fourth Amendment commands that a warrant issue not only
upon probable cause . .. but also ‘particularly describing the place to be
searched, and the persons or things to be seized!’ Berger v. New York,
388 U.S. 41, 55 (1967).
38
U.S. 721, 728 (1969).3’ But the unresolved question of
whether such a procedure is consistent with the Fourth Amend-
ment, United States v. Dionisio, 410 U.S. 1, 11 (1973), is not
presented in this case; as in Davis v. Mississippi, supra, “it is
clear that no attempt was made here to employ procedures
which might comply with the requirements of the Fourth
Amendment: the detention at police headquarters of peti-
tioner and the other young Negroes was not authorized by
a judicial officer...” /d. at 728.
This Court has repeatedly reserved the question of whether
a warrant is required to search a dwelling when the seizure
of a person—rather than “papers and effects”—is sought.*
37 An investigative detention pursuant to such a “narrowly circum-
scribed procedure” is a significantly less intrusive invasion of privacy
than a night-time dwelling search and arrest.
The model statute set out in Article 170 of the ALI, A Model Code
of Pre-Arraignment Procedure (1975) allows a judicial official to issue
a “nontestimonial identification order” upon a particularized showing
of need. Sec. 170.2. This order is to be served on a week-day between
8:00 a.m. and 8:00 p.m. (Sec. 170.5(2)), and may be challenged prior
to an appearance. (Sec. 170.3(k).) In addition, a change in the “time,
place or method” of appearance may be requested. (Sec. 170.4.) Each of
these rights, and a specific warning that the suspect need not respond to
any interrogation (Sec. 170.3(k)) is included in the order to appear.
(Sec. 170.3.)
Similar procedural safeguards are to be found in the statutes and
court decisions adopting such “narrowly circumscribed procedures.”
See, e.g., Ariz. Rev. Stat. Ann. §13-1424 (1973 supp.); Idaho Code
§19-625 (1976 supp.); N.C. Gen. Stat. §15A-271 et seq.; Wise v.
Murphy, 275 A.2d 105 (D.C.App. 1971) (in banc); Jn re Fingerprinting
of M.B., 125 N.J Super. 115, 309 A.2d 3 (1975); United States v. Greene,
139 U.S.App.D.C. 193, 429 F.2d 193 (1970). Cf. State v. Bell, 334 So.2d
385 (La. 1976) (accused free on bail, may only be ordered to appear for
a lineup upon finding by court that appearance would be “just and reason-
able.”’)
See, e.g., Jones v. United States, 357 U.S. 493, 499-500 (1958);
Coolidge v. New Hampshire, 403 U.S. 443, 480-81 (1971); United States
v. Watson, 423 U.S. 411, 418 n. 6 (1976); United States v. Santana,
427 U.S. 38 (1976). Cf. Warden v. Hayden, 387 U.S. 294 (1967); John-
son v. Louisiana , 406 U.S. 356 (1972).
es Pe a
eS Se ee
eth te tele so
39
Each item, of course, is specifically enumerated in the Fourth
Amendment, and it should be of no consequence that a
dwelling search is made to seize persons, rather than to seize
“papers and effects.”°? As the Court has noted in a different
context, “the dichotomy between personal liberties and
property rights is a false one. Property does not have rights.
People have rights.” Lynch v. Household Finance Corp., 405
U.S. 538, 552 (1972). This is especially true with respect to
the Fourth Amendment, which “protects people—and not
simply ‘areas’—against unreasonable searches and seizures.”
Katz v. United States, 389 U.S. 347, 353 (1967).
In Camara v. Municipal Court, 387 U.S. 523 (1967) the
Court held that “the purposes behind the warrant machinery
contemplated by the Fourth Amendment,” Id. at 532, prohibit
warrantless dwelling entries to search for building code viola-
tions. /d. at 534. As in Camara v. Municipal Court, supra,
allowing police to enter dwellings to search for and to seize
persons in the absence of an emergency vests the police with
“precisely the discretion to invade property which we have
consistently circumscribed by a requirement that a disinterested
party warrant the need to search.” /d. at 532-33.
In this case, the search of the Browder residence was an essential
prerequisite to the seizure of the four “suspects.” The physical descrip-
tion of the offender sought was too vague to allow an arrest on sight,
as in United States v. Watson, 423 U.S. 411 (1976), and the police could
not have maintained surveillance of the home until the suspect sought
emerged. Compare United States v. Santana, 427 U.S. 38, 45 (1976)
(Stevens, J., concurring).
In these circumstances, what was said in Morrison v. United States,
104 U.S. App.D.C. 352, 355, 262 F.2d 449, 452 (1958) is applicable
here:
The police entered the house to make a search. It was, to be sure,
a search for a person rather than the usual search for an article
of property, but it was a search....The government urges
that... we apply the rules governing arrest. But the search was
a factual prerequisite to an arrest; it was the first objective of the
entry; the officers did in fact search the house. They entered to
make a search as a necessary prerequisite to possible arrest.
40
The lower federal courts which have considered this question
have in general held that exigent circumstances on a warrant
is required before police may enter a dwelling to arrest, follow-
ing the reasoning of the unanimous in banc court of appeals
for the District of Columbia in Dorman vy. United States, 140
U.S.App.D.C. 313, 435 F.2d 385 (1970). The state courts
have reached similar results.*!
At the present time, the only practical incentive for law
enforcement officials to adhere to the standards of the Fourth
Amendment is the deterrent sanction of the exclusionary
rule. But merely excluding the fruits of an unlawful arrest
from use at trial has an uncertain effect in deterring future
police misconduct. United States v. Janis, 428 U.S. 433, 450
n. 22 (1976). This is especially true when, as here, the totality
of state procedures postpone adjudication of the Fourth
Amendment issue until the prisoner has exhausted state
remedies and reaches the federal courts. See Stone v. Powell,
428 U.S. 465, 493-94 (1976), discussed infra at 40-50. Finally,
exclusion of the fruits of an unlawful arrest provides no redress
for persons who are arrested in a dragnet, but, as here, are
released after “processing.” In contrast to the limited reach
of the exclusionary rule, the warrant clause of the Fourth
Amendment, by its very operation, deters wrongful police
conduct and protects Fourth Amendment rights generally.
See. e.g, Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970):
United States v. Shye, 492 F.2d 1131 (6th Cir. 1974); United States
». Phillips, 497 F.2d 1131 (9th Cir. 1974).
*" See, e.g., People v. Ramey, 16 Cal.3d 263, 127 Cal.Rep. 629,
545 P.2d 1333 (1976); People v. Moreno, 176 Colo. 488, 490 P.2d
575 (1971); State v. Lasley, -—Minn.——, 236 N.W.2d 604 (1975);
People v. Wolgemuth, 43 Ill.App.3d 335, 356 N.E.2d 1139 (1976),
appeal allowed, No. 49149, March Term, 1977, 66 Ill.2d; Strate v.
Girard, 276 Or. 511, 555 P.2d 445 (1976); Commonwealth v. Ford,
~—~—Mass.——, 329 N.E.2d 717 (1975); State v. Johnson, 232 N.W.2d
477 (lowa, 1975). Contra, State v. Perez, 277 So.2d 778 (Fla. 1973).
ws a
4|
In order to provide the greatest protection against recurrence
of the egregious police misconduct apparent in this case,** the
Court should hold that prior recourse to a disinterested judicial
officer is required whenever there are no exigent circumstances
and law enforcement officials wish to enter a dwelling to arrest.
Such a holding would require that the decision of the court
of appeals be reversed.
D.
HABEAS CORPUS RELIEF WOULD NOT BE
PRECLUDED BY STONE vy. POWELL, 428
U.S. 465 (1976).
For several reasons, Stone v. Powell, 428 U.S. 465 (1976)
is no bar to habeas corpus relief in this case. First, the totality
of state procedures failed to provide petitioner with “an oppor-
tunity for full and fair litigation of [his] Fourth Amendment
claim.” /d. at 494. Second, even if the state had provided
petitioner with a “full and fair opportunity,” but had none-
theless misconceived the Fourth Amendment and denied relief,
a federal remedy would be required because of the flagrancy
* Requiring warrants in the circumstances of this case will also
improve the reliability of the fact-finding process: When an arrest
is made under a warrant, adversary judicial proceedings have com-
menced, and a suspect is entitled to counsel at a post-arrest lineup.
United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir.
1972); People v. Hinton, 23 Ill.App.3d 369, 319 N.E.2d 313 (1974).
42
of the Fourth Amendment violation—not present in Stone vy.
Powell—which underlies this case.*?
The absence of “full and fair litigation” in the
state courts.
The sine qua non of Stone v. Powell, 428 U.S. 465 (1976)—
that “the state has provided an opportunity for full and fair
litigation of a Fourth Amendment claim,” /d. at 494—is plainly
lacking in this case. Because appointed trial counsel failed to
raise the Fourth Amendment claim “in the trial court, either
during the trial or in the motion or argument for a new trial”
(App. 9), the state courts refused to adjudicate that issue,
*31f, as we have argued (ante at 19-23), notice of appeal was not
timely filed, the order granting the petition has become a “final judg-
ment” for retroactivity purposes. Linkletter v. Walker, 381 U.S. 618,
622 n. 5 (1965). The question of whether Stone v. Powell, supra,
is to be afforded full retroactive effect has yet to be considered by any
of the courts of appeals, see United States ex rei. Saiken v. Bensinger,
546 F.2d 1292, 1295 (7th Cir. 1976), and absent a cross-petition for
certiorari should not be considered for the first time in this case. We
note, however, that retroactive application of Stone v. Powell would
undo the grants of relief in Whiteley v. Warden, 401 U.S. 560 (1971),
Lefkowitz v. Newsome, 420 U.S. 283 (1975), along with countless other
cases. Such retroactive application would be contrary to United States
v. Klein, 80 U.S. (13 Wall.) 128 (1872).
rae oe)
43
either on direct appeal or in state collateral proceedings.“
The result, as recognized by the Director in the district court
(App. 119, 45), is that the “issue of probable cause was never
litigated” in state court proceedings.
The state courts did not rely on any tactical basis for the
failure of trial counsel to have raised the Fourth Amendment
issue, but merely followed the state practice of refusing to allow
an inquiry into the “judgment and discretion” of trial counsel.
“On direct appeal, the Illinois Appellate Court rejected petitioner's
attempt to raise the Fourth Amendment issue as plain error. (App. 9-11.)
Petitioner challenged this application of the state waiver rule in his peti-
tion for review to the Illinois Supreme Court (App. 16), arguing that
when “defense counsel inadvertently failed to pinpoint the unlawful
arrest as the basis of the motions to suppress the fruits of the arrest,”
the waiver rule applied by the appellate court improperly “denied de-
fendant a fair opportunity to raise and have adjudicated on direct appeal
his Fourth Amendment claims, when the factual basis for these claims
is clear from the trial court record.” (Ibid.) Review was denied without
opinion. 54 Ill.2d 597 (1973).
Petitioner also sought to adjudicate the Fourth Amendment issue in
the state courts through the Illinois Post-Conviction Hearing Act,
Ill.Rev.Stat. ch. 38, §122-1 et seq. The trial court dismissed the petition
without the reception of evidence. The Illinois Appellate Court affirmed,
holding that there could not be “any further consideration” of the
unlawful arrest issue because it had been raised, albeit not adjudicated,
on direct appeal (App. 108):
Petitioner having argued in his direct appeal that his arrest was
illegal and that all things flowing therefrom should have been sup-
pressed is now barred from any further consideration of that issue
in post-conviction proceedings by the doctrine of res judicata.
This “doctrine of res judicata” renders the Illinois post-conviction pro-
cedure ineffective to protect a prisoner's rights. See United States ex
rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1975).
i
44
People v. Newell, 48 IUll.2d 392, 397, 268 N.E.2d 17, 19
(1971).*5 In these circumstances, Henry v. Mississippi, 379
U.S. 443 (1965) requires that
{[P]etitioner could have a federal court apply settled
principles to test the effectiveness of the procedural
default to foreclose consideration of his constitutional
claim. If it finds the procedural default ineffective, the
federal court will itself decide the merits of his federal
claim, at least as long as the state court does not wish to
do so. /d. at 452.
This is precisely what happened in this case. On considera-
tion of petitioner’s application for a writ of habeas corpus,
the district court found that “tno reasonable tactical basis
is apparent to justify tie failure to object [to the illegality
of the arrest].”” (App. 113.) Then, after finding that the
procedural default was ineffective to foreclose consideration
of the Fourth Amendment claim, the district court turned
to the merits of that issue. (Ibid.)**
The district court’s finding that there was “‘no reasonable
tactical basis” for the failure of trial counsel to have raised
the Fourth Amendment claim at trial has never been challenged
by the Director, and therefore need not be reconsidered here.
*SThis rule is illustrated in the disposition of petitioner's claim, ad-
vanced in the state post-conviction proceeding, that trial counsel was
incompetent in failing to call alibi witnesses, a defect in the defense case
which was vigorously argued to the jury by the prosecution. (App.
99-100). The trial court refused te hold a hearing on petitioner’s averment
that he had told trial counsel about these witnesses prior to trial. (App.
107.) The Illinois Appellate Court affirmed, holding “that the failure
to call the alibi witnesses was a matter of trial tactics and does not
demonstrate incompetency of counsel.”’ (Ibid.)
“Cf. Tollett v. Henderson, 411 U.S. 258, 268 (1973) (After plea of
guilty , federal habeas corpus relief on claim of unconstitutional discrimina-
tion in selection of grand jurors requires proof of such discrimination
and a showing “that his attorney's advice to plead guilty without having
made inquiry into the composition of the grand jury rendered that advice
outside the ‘range of competence demanded of attorneys in criminal
cases.’ "”)
45
Strunk v. United States, 412 U.S. 434, 437 (1973). But a
belated claim of error in this regard would be without merit.
Prior to trial, defense counsel sought to suppress the oral
confess.on and to bar the use of identification testimony.
(App. 17-18, 19.) While these motions did not raise the
illegality of petitioner’s arrest as a basis for suppression, the
facts pertaining to the arrest should have been known to
counsel from conversations prior to trial with his client,*’
and from a pre-trial investigation.** Even without any trial
preparation whatsoever, evidence adduced at the hearing on
the pre-trial motions demonstrated the non-frivolity of a
claim that petitioner had been unlawfully arrested and that
the confession and testimony about the lineup identification
were the tainted fruits of that arrest.*®
Trial strategy adopted by defense counsel was to convince
the jury that the identification testimony was unreliable,
and to urge the jury to reject as not credible police testimony
about the existence of an oral confession. (App. 51.) For
reasons that are at best obscure, trial counsel repeatedly re-
turned to the circumstances of the arrest during his cross-
examination of prosecution witnesses at trial. (App. 58-59,
63, 67, 72-73, 81-82.) But this evidence was used neither
as the basis of a renewed motion to suppress, nor as a means
of evoking sympathy from the jury: After the prosecution had
*’The motion to suppress the oral confession reveals that counsel at
least knew where and when petitioner had been arrested. (App. 17, 41.)
“See A.B.A. Standards Relating to the Administration of Criminal
Justice, The Defense Function §3.6(a) (1972).
“Testimony at the hearing on the pre-trial motions revealed that
petitioner had been arrested on the basis of information about “a possible
offender by the name of Browder” (App. 21), that this information
resulted in the arrest of all the teen-age males found at the Browder
residence, including tw. persons whose surname was not Browder
(App. 29), that the arrestees had all been charged with “investigation
of rape,” (App. 30), and that the arrests had been made so that the
police “could clear up the investigation.” (App. 36)
46
made its closing argument, defense counsel waived final argu-
ment. (App. 101.)*°
In this case, it might well be that the performance of trial
counsel could provide a basis for habeas corpus relief under
the Sixth Amendment. See Cooper yv. Fitzharris, 551 F.2d
1162 (9th Cir. 1977).5' But the Court need not decide in this
case whether the failure of trial counsel to have raised the
Fourth Amendment issue would justify relief irrespective of the
merits of that claim—even if petitioner did receive the effective
assistance of counsel required by the Sixth Amendment, the
non-tactical failure of trial counsel to have raised the obvious
Fourth Amendment claim, coupled with the refusal of the
state courts to excuse that default, deprived petitioner of the
“opportunity for full and fair litigation of a Fourth Amend-
ment claim,”’ required by Stone v. Powell, 428 U.S. at 494.
Stone v. Powell should not be extended to allow a state
to first furnish an indigent accused with trial counsel who fails
to recognize an obvious Fourth Amendment claim and then to
deny the accused an opportunity to adjudicate that claim
because, through negligence or inadvertence, counsel failed to
raise the issue at trial. Such would be the situation in this case
Cf. Herring v. New York, 422 US. 853, 858 (1975) (“Closing argu-
ment for the defense is a basic element of the adversary fact-finding
process in a criminal trial.”)
S!“If the right to counsel guaranteed by the Constitution is to serve
its purpose, defendants cannot be left to the mercies of incompetent
counsel.” McMann vy. Richardson, 397 U.S. 759, 771 (1970).
Counsel, of course, has a duty to remain abreast of developments
in the law, Ethical Consideration 6-2, A.B.A. Code of Professional Re-
sponsibility (1970), and we note that in two other Illinois cases from
the same time period which have reached this Court, trial counsel did
in fact seek to suppress intangible evidence as the tainted fruit of an
unlawful arrest. See Brown v. Illinois, 422 U.S. 590 (1975); Kirby v.
Illinois, 406 US. 682 (1972). Cf. People v. Bean, 121 Ill.App.2d 332,
257 N.E.2d 562 (1971) (reversing conviction of Kirby’s co-defendant
on the basis of Wong Sun vy. United States, 371 U.S. 471 (1972) )
oor
a ae ee ee eee oe Me 2
is cant eres ercnnteticne: ctemeninnirettntn’s de rhe.
47
if the Court is to hold that habeas corpus relief may be with-
held from petitioner. As the lower federal courts have held,*?
Stone v. Powell should not be extended to reach such a result.
2.
Stone v. Powell should not be extended to a case
involving flagrant police misconduct which results
in evidence of inherent untrustworthiness.
Even if petitioner has received a “full and fair opportunity”
to litigate his Fourth Amendment claim in the state courts,
Stone v. Powell, 428 U.S. 465 (1976) should not be extended
to preclude a federal remedy for flagrant violations of the
Fourth Amendment which result in evidence of inherent
untrustworthiness.
The cases consolidated in Stone vy. Powell arose from
attempts by two prisoners to collaterally attack their state
court convictions, based on “typically reliable” physical
evidence, 428 US. at 490, which had been seized as the result
of good faith violations of the Fourth Amendment. Respondent
Powell had been arrested for violation of a vagrancy ordinance
which was later held to be unconstitutional. /d. at 470-71.
In the search incident to Powell’s arrest, the police discovered
a handgun. /d. at 469. This weapon was used to show that
Powell had committed a murder. /d. at 470. Respondent
Rice complained of the admission into evidence against him of
“dynamite, blasting caps, and other materials useful in the
construction of explosive devices,” /d. at 472, which had been
2 See, e.g., Gates v. Henderson, -—F.2d—— (No. 76-2065, 2d Cir..
January 12, 1977); O'’Berry v. Wainwright, 546 F.2d 1204, 1213 (Sth
Cir. 1977); Sosa v. United States 550 F.2d 244, 249 (Sth Cir. 1977);
United States ex rel. Wilson v. Warden, -—F Supp.—— (No. 75 C 3776,
N.D. Ill., March 22, 1977).
——
48
found in plain view when police officers were executing a search
warrant. /d. at 472. This warrant was subsequently held to have
been issued without probable cause. /d. at 473-74.
In these situations, the Court held that application of the
exclusionary rule would have only a minimal impact towards
deterring police lawlessness, and would not further the “im-
perative of judicial integrity,” because the police had acted in
a good faith belief that their conduct was lawful. /d. at 485
n. 23.
In contrast to the fact situations before the Court in Stone
v. Powell, this case arises from a warrantless night-time invasion
of a dwelling—the “evil in its most obnoxious form”*? ad-
dressed by the Fourth Amendment. There was no emergency
justifying the invasion of the home, nor was there probable
cause to seize any particular person found within that house.
The purpose of the warrantless search and seizure is clear—to
see which, if any, of the persons seized would be identified
at a lineup. As we have previously demonstrated, this search
and seizure is reminiscent of the indiscriminate and dis-
cretionary seizures that would be made under the general
warrants emphatically proscribed by the Fourth Amendment.
See ante at 27-41.
Nor did the search and seizure in this case result in “the
most probative information bearing on the guilt or innocence
of the defendant.”’ 428 U.S. at 490. Unlike the “typically
reliable” physical evidence in Stone v. Powell, Ibid., the
search and seizure in this case resulted in an oral confesssion
of disputed existence, and an eyewitness identification made
at an unnecessarily suggestive lineup. *
~ S3Monroe v. Pape, 365 US. 167, 210 (1961) (Frankfurter, J., dis-
senting).
Petitioner denied that he had made an oral confession. (App. 84.)
The police admitted that no attempt had been made to obtain a written
confession. (App. 82.)
Petitioner was the only person in the lineup wearing a white hat.
(App. 20-21, 73.) In addition, he was the only person with a bandage
or cast on his right hand. (App. 20, 25.) Testimony was in conflict as
to whether the lineup had been viewed by eyewitnesses simultaneously
(App. 19) or separately. (App. 23, 26.)
a ee o-
ee
49
The plainly unlawful search and seizure in this case requires
“significantly different judicial responses” than in Stone vy.
Powell. See Brown y. Illinois, 422 U.S. 590,610 (1975) (Powell,
J., concurring). The police conduct in this case is such that
“the deterrent value of the exclusionary rule is most likely to
be effective, and the corresponding mandate to preserve judicial
integrity ... most clearly demands that the fruits of official
misconduct be denied.” /d. at 611. If, under the facts of this
case, the state courts so misconstrue the Fourth Amendment
as to deny relief, warrantless investigatory arrests would be
encouraged by police knowledge that the state courts will
not bar the use at trial of anything that “turns up” in those
arrests. Brown v. Illinois, 422 U.S. at 602, 605. This Court’s
certiorari jurisdiction does not provide an effective mecha-
nism to correct the state courts’ errors. Review in this Court
“depends on numerous factors other than the perceived cor-
rectness of the judgment we are asked to review,” Ross y.
Moffitt, 417 U.S. 600, 617 (1974), and a state need not
assist an indigent prisoner in seeking review in this Court.
/d. at 618. Under the circumstances of this case, even if the
“search and seizure claim was erroneously rejected by two or
more tiers of state courts,” Stone vy. Powell, 428 U.S. at 491,
“further review of the Fourth Amendment claim will likely
contribute to the deterrent purpose of the exclusionary rule
more than it will increase the societal costs which always
attend the rule.” Pope v. Parratt, ——F.Supp.—-—, —— (No.
CF75-L-105, D.Neb., April 18, 1977).
Enforcement of the Fourth Amendment’s proscription of
general warrants is too important to be delegated to the ex-
clusive province of the state courts, subject only to the possi-
bility that a pro se prisoner will be successful in invoking this
Court’s discretionary jurisdiction. The core of the Fourth
Amendment is of sufficient importance so that what Mr.
Justice Frankfurter wrote in Brown vy. Allen, 344 U.S. 456
(1953) is applicable here:
The State court cannot have the last say when it, though
on fair consideration and what procedurally may be
50
deemed fairness, may have misconceived a constitutional
right. /d. at 508.
For these reasons, even if petitioner has received the “full
and fair” opportunity required by Stone v. Powell—which
petitioner clearly did not receive—federal habeas corpus relief
should not be withheld as a remedy for the flagrant police
misconduct apparent in this case.
IV.
A FEDERAL COURT OF APPEALS LACKS
THE POWER TO WITHHOLD ANY OF iTS
OPINIONS FROM PUBLICATION AND TO
A PRIORI DEPRIVE SUCH UNPUBLISHED
OPINIONS OF PRECEDENTIAL VALUE.
This is the first case to reach the Court where the propriety
of a circuit rule authorizing dispositions in unpublished orders
which may not be cited as precedent in subsequent cases is
squarely at issue.*> In this case, after the court of appeals had
announced its decision in an “unpublished order,” petitioner
requested that the opinion be released for publication. (App.
170-71.) This motion was denied without explanation. (App.
172.)
Prior to this case, recurring problems in “not for publication
rules’—which have been adopted by all of the courts of
‘> A comprehensive amicus brief, which does not duplicate our argu-
ments, has been filed on this issue by the Chicago Council of Lawyers.
$1
appeals®**—have evaded review.*’ At least one of ‘these
problems, i.e., whether “unpublished opinions” ar. truly
non-precedential, has injured petitioner in this case. As we
pointed out in our petition for re-hearing in the court of
appeals, is it at least arguable that the panel discussion is
contrary to prior decisions of the Seventh Circuit. (Pet. for
Re-hearing, No. 76-1089, 7th Cir., 2-3, 9-11.) Given the “non-
precedential” status of unpublished opinions, there was little
incentive for the in banc court to convene, and in fact the
court denied re-hearing without ordering a response.
It is also conceivable that among the unpublished opinions
of the court of appeals there is additional precedent contrary
to the panel opinion in this case. But there is no index of un-
published opinions available to the public,** and even if we
© First Circuit, Appendix B to Circuit Rules; Second Circuit Rule
.23; Third Circuit, Int. Op. Proc., Rule D; Fourth Circuit Rule 18; Fifth
Circuit Rule 21; Sixth Circuit Rule 11; Seventh Circuit Rule 35; Eighth
Circuit Rule 14; Ninth Circuit Rule 21; Tenth Circuit Rule 17; DC.
Circuit Rule 13.
S7See Taylor v. McKeithen, 407 U.S. 191 (1972) (reversal without
opinion remanded with “virtually [an] express directive to the Court
of Appeals that it write an opinion,” /d. at 195 (Rehnquist, J., dis-
senting) ); Rose v. Hodges, 423 U.S. 19 (1975) (intra-circuit conflict
between decisions reached in published and unpublished decisions, the
Court refusing to “respect that prohibition” of citation of unpublished
decisions. /d. at 23 n. 2 (Brennan, J., dissenting) )
There may well be “some kind of intracourt index of unpublished
opinions, indexed according to the subject matter and so forth.” Testi-
mony of Honorable Robert Sprecher, Judge, Seventh Circuit, in Com-
mission on Revision of the Federal Court Appellate System, Hearings -
Second Phase 1974-1975, Vol. 1, 1974, at 536. If such an index exists,
it is not available to the public.
52
could have found a favorable unpublished opinion, citation
would have been prohibited by the local rule.*” |
The unpublished opinion rules are based upon guidelines
developed by an ad hoc “group of distinguished lawyers, law
teachers, and judges” brought together in 1972 by the Federal
Judicial Center “for the purpose of commencing a study in
depth of the appellate systems of the United States, both state
and federal.” The committee determined that the efficiency
of intermediate appellate courts would be increased if opinion
writing was simplified, and recommended that the highest court
in each judicial system promulgate a uniform rule for the dis-
position of appeals by intermediate reviewing courts In un-
published, and non-itable opinions. See Standards for
Publication of Judicial Opinions, Federal Judicial Research
Center Series No. 72-3 (1973).
This Court has declined to promulgate a uniform rule.°
The result is that “undesirable variations [have been intro-
duced] within the system.” Standards for Publication of
Judicial Opinions, supra, 9. In the Fourth and Tenth Circuits
unpublished opinions may be cited as precedent. Rule 21
Circuit Rule 35(b) (2) (iv) prohibits citation of unpublished orders
“fe]xcept to support a claim of res judicata, collateral estoppel or law
of the case... (a) in any federal court within the circuit in any written
document or in oral argument; or (b) by any such court for any purpose.
See United States v. Erving, 388 F.Supp. 1011, 101° D.Wis. 1975)
(refusing to consider decision in unpublished order, even when “InJo
other relevant decision of the United States Court of Appeals for the
Seventh Circuit has been cited by counsel, nor am I aware of any.”)
© Preface to Standards for Publication of Judicial Opinions, Opinions,
Federal Judicial Research Center Series No. 72-3 (1973). “Those who
attended the first conference named themselves the Advisory Council
on Appellate Justice and selected as Chairman Maurice Rosenberg, Nash
Professor of Law at Columbia University.” /bid.
*' The rules promulgated by each circuit are in response to a recom-
mendation of the Judicial Conference. See Report of the Proceedings
of the Judicial Conference of the United States, October 26-27, 1972,
p. 33.
®2 Fourth Circuit Rule 18(d) (iii); Tenth Circuit Rule 17(c).
53
of the Fifth Circuit provides that unpublished Opinions are
non-precedential, but a panel of that court has recently held
that a decision in an unpublished opinion “precludes the
matter as far as this panel is concerned, and that any mean-
ingful consideration of the argument could be given only by
the Court sitting en banc.” United States y. Ellis, 547 F.2d
863, 869 (Sth Cir. 1977) (Roney, J., concurring). In the
remaining circuits, decisions by unpublished order may not
be cited, and are “non-precedential.”’ Thus, when, as in this
case, a panel reaches a result which is arguably in conflict with
prior decisions, there is little, if any, incentive for the in banc
court to convene to correct such a “non-precedential”
departure from prior decisions.
Allowing the citation of “unpublished opinions”—the
approach of the Fourth and Tenth Circuits—has recently been
adopted in the A.B.A. Standards Relating to Appellate Courts
(1977), §3.37(c). One danger in this approach is that unpub-
lished opinions will become “like unexploded land mines.
ready to do damage.”’ Karlen, Appellate Courts in the United
States and England , 100 (1963). :
The alternative approach—that of prohibiting citation—is
contrary to Hicks v. Miranda, 423 U.S. 332 (1975): Assuming
that a court has jurisdiction over a case, any adjudication is
an adjudication on the merits, and is entitled to precedential
effect. Jd. at 344. While it has been vigorously suggested that
Hicks be reconsidered,®* the Court has declined to do so. The
result is that only when the Court’s jurisdiction is discretionary,
as in acting upon petitions for review by certiorari, does a
disposition have no precedential value. Unlike the discretionary
certiorari jurisdiction of this Court, the courts of appeals
lack the power to decide which cases to decide on the merits.
Garrisson v. Patterson, 391 U.S. 464 (1968). The presumed
existence of such a power is at the heart of the “no-citation”
rules, which must fall in light of Hicks v. Miranda, supra.
*See, e.g., Colorado Springs Amusements, Ltd. v. Rizzo. 428 US.
913 (Brennan, J., dissenting from denial of certiorari).
54
Nor should the power to determine which of its opinions
are to be published rest in the court issuing that opinion. First,
this is akin to a copyright on judicial opinions, rejected in
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), and in Banks
y Manchester, 128 U.S. 244 (1888). Second, there is the
possibility that unpublished opinions will be used “to avoid
making a difficult or troublesome decision or to conceal
divisive or disturbing issues.” N.L.R.B. v. Amalgamated
Clothing Workers, 430 F.2d 966, 972 (Sth Cir. 1970) (Brown,
C.J., cautioning against such use).® In addition, as Mr. Justice
Stevens has observed:
Such a rule assumes that an author is a reliable judge of
the quality and importance of his own work product.
If I need authority to demonstrate the invalidity of that
See also the comments of the editors cf the Selective Service Law
Reporter commenting about the refusal of the district judge in Shear
vy. Richardson, 364 F.Supp. 43, 44 n. 1 (S.D.IIl. 1973) to permit the
citation of United States ex rel Noga v. Laird, an unpublished opinion
noted in the table at 474 F.2d 1351 and reported in 6 S.S.L.R. 3277:
... Shear presents serious questions about the wisdom of non-
publication rules and their non-citation corrollaries. It would seem
that such provisions strike at the very core of a common law judicial
system, which necessarily depends in large measure on the develop-
ment of law through case-by-case adjudication. Rules which place
limits on the growth of case law should be subjected to careful
scrutiny and viewed with disfavor. Furthermore, in using such
devices, which in effect restrict the applicability of court decisions
to the individual parties involved, courts abandon their public
function and are reduced to making private rules.
Invocation of these rules may also, as here, permit a fudge to dis-
regard another judge’s or even his own Court of Appeals decision
without distinguishing or in any other way dealing with it except
to point to its non-publication. This violation of the principle of
stare decisis seems undesirable especially as the basis for such rules
is generally judicial convenience and the need to conserve judicial
resources.
Finally, it might be argued that judicial decisions subject neither
to public scrutiny nor to judicial evaluation may be less soundly
based than those which are, as well as inconsistent with democratic
principles. (6 $.S.L.R. 56-57, November 1973.)
;
’
'
|
‘
55
assumption, I refer you to a citizen of Illinois who gave
a brief talk in Gettysburg, Pennsylvania that he did not
expect to be long remembered. Judges are the last persons
who should be authorized to determine which of their
decisions should be long remembered. (Address to Illinois
State Bar Association’s Centennial Dinner, January 22,
1977, p. 9.)
Professor Rosenberg, who chaired the committee that pro-
posed the Standards for Publication of Judicial Opinions
which are the basis for the various circuit rules, has recently
joined with two other scholars in writing against such a policy.
Carrington, Meador & Rosenberg, Justice on Appeal (1976).
In addition to noting the problems caused by a no-citation
rule, /d. at 36-39,
...@ second reason for our rejection of it is even more
central to the theme of this book. It is that non-
publication inevitably reduces the visibility of the cor-
recting function of the appeal. Over time. it must
depreciate the basic function, leaving trial courts and
administrative agencies more on their own, and increasing
general anxiety about the integrity of the legal process
at all levels. Visibility is too important to too many of
Our imperatives to be abandoned in favor of the limited
benefits of non-publication. /d. at 39,
To “lighten the burden of library overgrowth,” (/d. at 39).
these scholars propose two series of law reports—one for com-
prehensive opinions, the other for short memorandum decisions
Id. at 40. “[S]omeone other than the authors of the memo-
randa, perhaps an Official Reporter of stature (in the tradition
of Edward Coke) should have the power to publish in
permanent form memorandum decisions which have been
improvidently classified by the court.” /d. at 41.°°
**A similar suggestion was made by Dean Pound more than thirty
years ago: “A qualified and responsible reporter, having no interest ex-
cept to make the reports useful to the public and the profession, could
select occasional memoranda worth publishing. ... [I] f the courts and
the bar were given control of reporting, as the bar has long had control
in England, a troublsome problem of the law and of the profession in
America, the multiplication of reports, would be solved.” Pound,
Appellate Review in Civil Cases, 391 (1941).
56
In addition to these shortcomings, the unpublished opinion
rules exceed the rule making powers which a court of appeals
may exercise pursuant to 28 U.S.C. §2071. In contrast to the
“rules for the conduct of [that court’s] business’’ authorized
by 28 U.S.C. §2071, the unpublished opinion rules have an
impact upon the district courts, other courts of appeals, and
upon the public in general.
In 1966, Congress amended 28 U.S.C. §2072 to vest this
Court with the power to promulgate uniform rules of practice
and procedure for the courts of appeals. Pub. L. 89-773, 80
Stat. 1323 (November 6, 1966). If the solution to the problem
of “library overgrowth” is to be adoption of a rule allowing
a court of appeals to decide which of its op 1ions may be
published and have precedential value, then such a rule can
only be promulgated by this Court, subject to the approval
by Congress required by 28 U.S.C. § 2072.
Unless and until such a uniform rule is promulgated and
approved, the courts of appeals lack the power to designate
any of their opinions as “not for publication,” and as “non-
precedential.” Accordingly, the court below should be
directed to release its decision in this case—and, by implica-
tion, its decisions in all other cases decided by “unpublished
orders”—for publication free of any restrictions on citation.
57
CONCLUSION
For the reasons above stated, it is respectfully submitted
that the decision of the court of appeals be reversed, and the
case remanded to the district court with instructions to rein-
State its writ of habeas corpus. In the alternative, the case
should be remanded to the district court for resolution of the
disputed questions of fact resolved in the first instance by the
court of appeals.
In addition, the court of appeals should be directed to
release its decision in this case for publication free of any re-
Strictions on citation.
Respectfully submitted,
KENNETH N. FLAXMAN
5549 North Clark Street
Chicago, Illinois 60640
(312) 728-3525
Attorney for Petitioner
Of Counsel:
JOHN T. MORAN
JOHN M. KALNINS
THOMAS R. MEITES
FREDERICK H. WEISBERG
June, 1977
la
| APPENDIX
Circuit Rule 35 of the United States Court of Appeals for
the Seventh Circuit
Circuit Rule 35. The following rule is the Plan for Publi-
cation of Opinions of the Seventh Circuit promulgated
pursuant to resolution of the Judicial Conference of the
United States:
(a) Policy. It is the policy of this circuit to reduce the
proliferation of published opinions.
(b) Publication. The court may dispose of an appeal
by an order or by an opinion, which may be signed or
per curiam. Orders shall not be published and opinions
shall be published.
(1) “Published”’ or “publication” means:
(i) Printing the opinion as a slip opinion;
(ii) Distributing the printed slip opinion to all federal
judges within the cirucit, legal publishing companies,
libraries and other regular subscribers, interested Uni-
ted States attorneys, departments and agencies, and the
news media;
(iii) Permitting publication by legal publishing com-
panies as they see fit; and
(iv) Unlimited citation as precedent.
(2) Unpublished orders:
(i) Shall be typewritten and reproduced by copying
machine;
(ii) Shall be -distributed only to the circuit judges,
counsel for the parties in the case, the lower court
judge or agency in the case, and the news media, and
shall be available to the public on the same basis as
any other pleading in the case;
(iii) Shall be available for listing periodically in the
Federal Reporter showing only title. docket number,
date, district or agency appealed from with citation
of prior opinion (if reported) and the judgment or
Operative words of the order, such as “affirmed,”
“enforced,” “reversed,” “reversed and remanded,”
: and so forth;
2a
(iv) Except to support a claim of res judicata, col-
lateral estoppel or law of the case, shall not be cited
or used as precedent (a) in any federal court within
the circuit in any written document or in oral argument
or (b) by any such court for any purpose.
(c) Guidelines for Method of Disposition.
(1) Published opinions:
Shall be filed in signed or per curiam form in appeals
which
(i) Establish a new or change an existing rule of
law;
(ii) Involve an issue of continuing public interest;
(iii) Criticize or question existing law;
(iv) Constitute a significant and non-duplicative
contribution to legal literature
(A) by a historical review of law;
(B) by describing legislative history, or
(C) by resolving or creating a conflict in the law;
or
(v) Reverse a judgment or deny enforcement of an
order when the lower court or agency has published an
opinion supporting the order.
(2) Unpublished orders:
(i) May be filed after an oral statement of reasons
has been given from the bench and may include only,
or a little more than, the judgment rendered in appeals
which
(A) are frivolous or
(B) present no question sufficiently substantial to
require explanation of the reasons for the action taken,
such as where
(aa) a controlling statute or decision determines
the appeal;
(bb) issues are factual only and judgment appealed
from is supported by evidence;
(cc) order appealed from is nonappealable or this
court lacks jurisdiction or appellant lacks standing
to sue; or
3a
(ii) May contain reasons for the judgment but ordi-
narily not a complete nor necessarily any statement of
the facts, in appeals which
(A) are not frivolous but
(B) present arguments concerning the application
of recognized rules of law, which are sufficiently sub-
stantial to warrant explanation but are not of general
interest or importance.
(d) Disposition is to be by Order or Opinion.
(1) The determination to dispose of an appeal by un-
published opinion shall be made by a majority of the panel
rendering the decision.
(2) The requirement of a majority represents the
policy of this circuit. Notwithstanding the right of a
single federal judge to make an opinion available for
publication, it is expected that a single judge will ordi-
narily respect and abide by the opinion of the majority
in determining whether to publish.
(3) Any person may request by motion that a decision
by unpublished order be issued as a published opinion.
The request should state the reasons why the publication
would be consistent with the guidelines for disposition of
appeals as set forth in this rule.
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.