Amicus Brief — Massachusetts v. White

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_ Supieme urt U. 7

FILED

IN THE | JUL 2% 1978

Supreme Court of the Gnited fatates— 1K, JR., CLERK

OcTOBER TERM, 1977

No. 77-1388

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

vs.

CHARLES F. WHITE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS.

MOTION FOR LEAVE TO FILE A BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE IN SUPPORT

OF THE PETITIONER, OF AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.

FRED E. INBAU, Esa.,

FRANK CARRINGTON, Eso.,

WAYNE W. SCHMIDT, Esoa.,

ROBERT SMITH, EsaQ.,

Americans for Effective Law

Enforcement, Inc.,

960 State National Bank Plaza,

Evanston, Illinois 60201,

Counsel for Amicus Curiae.

Of Counsel:

JAMES P. COSTELLO,

JOHN F, FENNIG,

RICHARD J. VITTENSON,

Americans for Effective

Law Enforcement, Inc.

Gunthorp-Warren Frinting Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

EE ee

Motion for Leave to File a Brief Amicus Curiae in Support

heer ces egasabedcecoeccceoccecs

Interest of the Amicus Curiae... .....0.ccccccecccees

Brief Amicus Curiae in Support of the Petitioner........

Argument:

I. Minor Judgmental Errors, Made by Police Officers

Who Were Acting in Good Faith, Should Not

Require Suppression of the Relevant and Proba-

Give Tvememes GF Galt... nc ccccccccccess

EEE Se

TABLE OF AUTHORITIES.

Cases.

Commonwealth v. Hosey, 334 N. E. 2d 44 (Mass. 1975)...

Harris v. New York, 401 U.S. 222 (1971)............

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

Michigan v. Mosley, 423 U.S. 96 (1975)............

Michigan v. Tucker, 417 U.S. 433 (1974).......... 4

Miranda v. Arizona, 384 U.S. 436 (1966)...........

Stone v. Powell, 428 U.S. 465 (1976)...............

U. S. v. Calandra, 414 U. S. 338 (1974).............

U.S. v. Ceccolini, U.S. ....., 22 Cr. L. 3510 (1978)

U.S. v. Janis, 428 U. S. 433 (1976)..............55.

ee ee

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1977

No. 77-1388.

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

vs.

CHARLES F. WHITE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS.

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONER.

Americans for Effective Law Enforcement, Inc. respectfully

moves this Court leave to file a brief, amicus curiae, in support

of the petitioner in the instant case. This motion is made pur-

suant to Rule 42 of the Supreme Court Rules. The petitioner has

consented to our filing; the respondent has not responded to our

request for consent to file. Accordingly, we are moving the

Court directly for leave to file. A letter from counsel for the

petitioner has been filed with the Clerk of this Court. The interest

of the amicus curiae and our reasons for desiring to file are set

forth below.

INTEREST OF AMICUS CURIAE.

Americans for Effective Law Enforcement, Inc. (AELE) is a

national not-for-profit citizens organization incorporated under

the laws of the State of Illinois. As stated in its bylaws the

purposes of AELE are:

2

1. To explore and consider the needs and requirements

for the effective enforcement of criminal law.

2. To inform the public of these needs and requirements,

to the end that the courts will administer justice based

upon a due concern for the general welfare and security

of law abiding citizens.

3. To assist the police, the prosecution, and the courts in

promoting a more effective and fairer administration of

the criminal law.

In the furtherance of these objectives, AELE seeks to repre-

sent in our courts, nationwide, the concern of the average citizen

with the problems of crime and of police effectiveness to deal

with crime.

This case, involving as it does both questions of search and

seizure and the law of confessions and admissions, will have a

major impact on police investigative techniques in the future.

Additionally, this case presents a vehicle for this Court to con-

sider the effect of the obvious good faith of the law enforcement

officers involved in the case.

Accordingly, amicus respectfully moves this Court for leave

to file our brief.

Respectfully submitted,

FRED E. INBAU, Es@Q.,

FRANK CARRINGTON, EsQ.,

WAYNE W. SCHMIDT, Eso.,

ROBERT SMITH, EsQ.,

Americans for Effective Law

Enforcement, Inc.,

Of Counsel: 960 State National Bank Plaza,

JAMES P. COSTELLO, Evanston, Illinois 60201,

JOHN F. FENNIG, Counsel for Amicus Curiae.

RICHARD J. VITTENSON,

Americans for Effective

Law Enforcement, Inc.

rd

IN THE

Supreme Court of the GQunited States

OctTosger TERM, 1977.

No. 77-1388.

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

vs.

CHARLES F. WHITE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS.

BRIEF AMICUS CURIAE IN SUPPORT OF THE

PETITIONER, OF AMERICANS FOR EFFECTIVE

LAW ENFORCEMENT, INC.

ARGUMENT.

I. Minor Judgmental Errors, Made by Police Officers Who

Were Acting in Good Faith, Should Not Require Sup-

pression of the Relevant and Probative Evidence of Guilt.

Amicus will not reiterate the legal arguments made by the

Commonwealth of Massachusetts in the instant case, although

we agree with them and wish to associate ourselves with them.

We will confine our argument to the pragmatic issue of whether

justice is served by suppressing relative and probative evidence

of guilt when the law enforcement officers involved, acting in

good faith, commit minor errors of judgment, particularly when

4

suppression would have little or no deterrent effect upon future

police conduct.

The instant case is yet another in a line of cases in which this

Court is called upon to review the constitutionality of police

conduct which the lower courts have found to violate a given

defendant's rights through rigid and inflexible application of the

doctrines enunciated in Mapp v. Ohio, 367 U. S. 643 (1961)

and Miranda v. Arizona, 384 U.S. 436 (1966).

This case differs from many others, however, in that both the

exclusionary rule of search and seizure and the Miranda rule of

suppression of confessions are involved, the one following from

the other. If the defendant’s statement to the state police trooper

that there was marijuana in his car had not been barred because

of the Miranda violation, then certainly the search warrant for

the car which the trooper procured, based on those statements,

would have been valid. Thus the lower court appended one

suppression doctrine to another in order to reach its conclusion,

and minor judgmental errors by police officers who were demon-

strably acting in good faith became the basis for the suppression

of proba: ve and reliable evidence of guilt.

We believe that a sounder approach to such situations was

enunciated by this Court in Michigan v. Tucker, 417 U.S. 433

(1974):

Just as the law does not require that a defendant receive

a perfect trial, only a fair one, it cannot realistically require

that policemen investigating serious crimes make no errors

whatsoever. The pressures of law enforcement and the

vagaries of human nature would make such an expectation

unrealistic. Before we penalize police error, therefore, we

must consider whether the sanction serves a valid and

useful purpose. At 446.

We submit that it is in the context of just such a realistic and

balanced approach that the facts and circumstances of the

instant case should be judged.

The record demonstrates that the law enforcement officers

involved in this case were acting in good faith in their arrest and

Cao *

5

handling of the defendant White. He was advised of his Miranda

rights on three occasions: at the scene of his arrest for drunken

driving, upon his arrival at the state police barracks, and at the

time that the marijuana was discovered on his person. All of

this indicates an effort by the police to comply with White’s

Fifth Amendment rights.

Likewise, the police were obviously not intent on violating

White’s Fourth Amendment rights. The State Trooper, after

being told by White that there was marijuana in the car, ceased

questioning him further and took the most prudent search and

seizure course: he procured a search warrant for White’s auto-

mobile.

Thus, it seems clear that rather than having any intention to

violate the Fourth and Fifth Amendment rights of Respondent

White, the law enforcement officers were observing these rights

as scrupulously as they knew how.

In the language from Michigan v. Tucker cited above at 446,

it is stated that it would be unrealistic to require that the police

make no errors whatsoever. Yet, the lower court ordered the

suppression of the marijuana seized from the car based on two

“errors” which it had found the police had made.

First, the officers involved were not able to predict that the

trial court would “second guess” them as to the defendant's

condition of intoxication; nor that the Supreme Judicial Court

of Massachusetts would uphold the trial court by ruling that

White was in too drunken a condition to make a knowing waiver

of his Miranda rights. This fact is underscored by the fact that

the state Supreme Court found the facts in the instant case to be

“not so compelling” as in an earlier case in which that court had

held invalid a purported waiver by a drunken, highly agitated

rape suspect.’ In other words, the condition of intoxication of

defendant White was below the threshold previously set by the

Supreme Judicial Court of Massachusetts for determini ,

whether a waiver was valid or invalid depending upon a given

suspect’s degree of intoxication.

1. Commonwealth v. Hosey, 334 N. E. 2d 44 (Mass. 1975).

6

The second “error” occurred when the state trooper, who was

searching White prior to putting him in the lock-up, found a

marijuana cigarette in his shirt pocket, readvised him of his

Miranda rights and then asked him if he had more marijuana

on his person or in his car. White replied that he did have some

marijuana in his car and that he could name them some

“biggies.”

This, the lower court held, violated the defendant's rights

because he had unsuccessfully attempted to call an attorney and

had done nothing to indicate that he had changed his mind

about wanting a lawyer.

There is nothing in this transaction to indicate that the

trooper acted in an oppressive manner. In fact, the third Miranda

warning, after the finding of the cigarette, the trooper’s desire

not to discuss the matter further with White, and the fact that

the trooper procured a search warrant, indicate that he was still

being observant of the defendant's rights. At worst, the single

question asked by the trooper was a judgmental error.

When the circumstances in this case are viewed in their

entirety, we submit that the “errors” of the policemen, in the

context of their otherwise scrupulous observation of the defend-

ant’s rights, should not require the suppression of the evidence

either on Fourth or Fifth Amendment bases.

The lower court applied a rigid and technical interpretation

to the questions involved, holding the Miranda requirements and

the resulting “fruit of the poisonous tree” doctrine to be absolute.

This Court, on the other hand, has, in recent years, taught that

there must be some flexibility in the balance between the rights

ol the accused and the needs of law enforcement. This balancing

test has been applied in Fifth Amendment cases in which this

Court has weighed the requirements of the Miranda decision

against the realities of the criminal law enforcement process.

2. This statement about “biggies” casts doubt on the lower court’s

holding that White was too drunk to waive his rights. At least he was

lucid enough to realize that he was in trouble and that he might be

able to “buy his way out” by turning informant.

7

For example, statements taken in violation of Miranda may

nevertheless be used by the prosecution to impeach the testi-

mony of a criminal defzada:t who takes the witness stand at

trial, Harris v. New York, 401 U.S. 222 (1971); an adverse

witness could testify against the defendant even though his exist-

ence had been discovered through statements taken from a

defendant who had not been advised of his Miranda rights,

Michigan v. Tucker, supra; ot, renewed questioning of a sus-

pect, who had invoked his privilege not to answer questions, at

a later time and about a different crime, did not violate Miranda,

Michigan v. Mosley, 423 U.S. 96 (1975).

Likewise, this Court has, in recent years, demonstrated a

flexible approach to the application of the exclusionary rule.

For example, illegally seized evidence may be used in grand jury

proceedings, U. S. v. Calandra, 414 U.S. 338 (1974); illegally

seized evidence may be used in civil proceedings, U. S. v. Janis,

428 U.S. 433 (1976); living witness testimony which was a

fruit of an illegal search may be used to obtain a perjury con-

viction, U.S. v. Ceccolini, .... U.S. —....,. 22 Cr. L. 3510

(1978).

There is, then, according to the teachings of this Court, a

flexibility in the law of criminal procedure based upon the need

for a balance between the rights of society and the rights of the

accused, In cases such as this one, in which the good faith of the

police can be demonstrated and in which such errors as they

might have made are minor, we submit that the balancing test

should be resolved in favor of the needs of effective law enforce-

ment and against the suppression of the truth.

This Court in Michigan v. Tucker, supra, not only dealt with

the fact that policemen will of necessity make errors, but further

concluded that:

Before we penalize police error, therefore, we must

consider whether the sanction serves a valid and useful

purpose. Supra, at 446. (Emphasis supplied.)

In the facts and circumstances of the instant case, because

the law enforcement officers were acting in good faith, the

“sanction” (i.e., suppression) will serve no “useful and valid

purpose” (i.e., deterrence of future police misconduct). An

officer who acts in good faith because he believes that his

actions are reasonable will not be deterred in future cases

because that is how a reasonable man would have acted.

Mr. Justice White, dissenting in Stone v. Powell, 428 U.S.

465 (1976), underscored this point:

When law enforcement personnel have acted mistakenly,

but in good faith and on reasonable grounds, and yet the

evidence they have seized is later excluded, the exclusion

can have no deterrent effect. The officers, if they do their

duty, will act in similar fashion in similar circumstances in

the future; and the only consequence of the rule as pres-

ently administered is that unimpeachable and probative

evidence is kept from the trier of fact and the truth-finding

function of proceedings is substantially impaired or a trial

totally aborted. At 541.

The instant case, then, contains three crucial elements: (1)

good faith activity on the part of the police; (2) minor judg-

mental errors which were “second guessed” by the lower courts;

and (3) little likelihood of future deterrence. This is, as we

have noted, precisely the kind of case in which the balance

between the conflicting interests should be resolved in favor of

the needs of law enforcement.

|

CONCLUSION.

The suppression of the evidence in this case came as a result of

minor errors in judgment made by police officers who were

acting in good faith. The facts of the case make it apparent that

little as a deterrent to future police “misconduct” would result if

this Court upholds the suppression of evidence. For these

reasons, we respectfully urge this Court to reverse the judgment

of the Supreme Judicial Court of Massachusetts.

Respectfully submitted,

FrepD E. INBAUu, Esa.,

FRANK CARRINGTON, Esa.,

WAYNE W. ScuMiIDT, Esa.,

ROBERT SMITH, EsQ.,

Americans for Effective Law

Enforcement, Inc.,

960 State National Bank Plaza,

Evanston, Illinois 60201,

Counsel for Amicus Curiae.

Of Counsel:

JAMES P. COSTELLO,

JOHN F. FENNIG,

RICHARD J. VITTENSON,

Americans for Effective

Law Enforcement, Inc.