Amicus Brief — Michigan v. DeFillippo

7 Supreme Court, U. S

ie ALG. yy

ofc 29 1978 = ||

_ MICHAEL RODAK, JR., CLERK

Supreme Court of the United States 2

October Term, 1978

No. 77-1680

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

Gary DEFILLIPPo,

Respondent.

Brief of the National Legal Aid and Defender Associa-

tion as Amicus Curiae in Support of Respondent.

Quin DENVIR,

California State Public Defender,

LAURANCE §S. SMITH,

Deputy State Public Defender,

455 Capitol Mall, Suite 360,

Sacramento, Calif. 95814,

(916) 322-5298,

Attorneys for Amicus Curiae.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Page

Interest of Amicus Curiae and Consent .................. l

ES aE ae nee A 3

SUBJECT INDEX

There Is No Effective Remedy Other Than the

Exclusionary Rule for Fourth Amendment Vio-

lations Accomplished Pursuant to a City Or-

dinance Apparently Designed to Authorize

Them

A. The Scope of Authority Provided Under

D.

the Ordinance Exceeds Constitutional

AED‘ sceniccrucesnnasieignaiiplitiaaddiddaidesnsécenis

The Fourth Amendment May Not Be

Evaded Through “Good Faith” Reliance

by Officers on Unconstitutional Fiat of

the Legislative or Executive Branches ......

1. The Fiats of Town Councils Are

Subordinate to the Commands of the

Constitution, Not Vice-Versa ..........

Michigan’s Position, if Adopted by This

Court, Might Result in the “Last Straw”

Which Could Produce Effective Nullifica-

tion of the Fourth Amendment

ee ee eee eee eee

The Exorbitant Expense of Civil Litiga-

tion, as Well as the Maze of Doctrinal

Obstacles to Effective Relief, Render Such

Litigation Ineffective to Enforce the Com-

mands of the Fourth Amendment; the Ex-

clusionary Rule Is the Only Workable

ITE ° citieihcbisiadaimmstnadiinaininebaneiinabentaaii

Page

The Exclusionary Rule Was De-

signed to Serve the Imperative of

Judicial Integrity by Insulating the

Courts From Participation in Viola-

tions of the Fourth Amendment ......

The Cost of Civil Litigation and the

Ability of Government Officers to

Out-Litigate Private Citizens ............

The Doctrinal Obstacles to Effective

Civil Redress Are in Any Event In-

at

E. Street Detention Is in Fact of Only Mar-

ginal Usefulness in the Control of Crime;

Thus the Social Cost of Application of the

Exclusionary Rule to It Is Minimal ..........

II

There Are Ample Grounds for Decision of This

Case Under Michigan State Law: the Matter

Should Be Remanded to the State Courts For

Determination of Those Grounds

13

14

16

19

TABLE OF AUTHORITIES CITED

Cases Page

Adams v. Williams (1972) 407 U.S. 143 20.00.00... 4

Aguilar v. Texas (1964) 378 U.S. 108 000000000... 6

Alameda-Sanchez v. United States (1973) 413 US.

UNE sdiisbibedidasistiiadscnscaneceaindteatibiiteltabilecdbinibisniiicieateadainninne 6

Alderman v. United States (1969) 394 U.S. 165 .... 16

Beck v. Ohio (1964) 379 U.S. 89 .0000.. eee 7

Bivens v. Six Unknown Named Agents (1971) 403

I SHUEY satecinsvicsvepeilmaninshieniaicipeligt eit ideale atiblceils 14

Coolidge v. New Hampshire (1971) 403 U.S. 443.. 6

Department of Mental Hygiene v. Kirchner (1965)

Re ANS TIIIEITcsicciastiaalencideihndetieeceibciinedaticiengiimananceibadiaakes 23

Elkins v. United States (1960) 364 U.S. 206 .......... 13

Fox Film Corp. v. Muller (1935) 296 U.S. 207 .. 23

Henry v. United States (1959) 361 U.S. 98 _........... 6

Herb v. Pitcairn (1945) 324 U.S. 117 —200...cee ee... 23

Hicks v. Miranda (1975) 422 U.S. 332 ............ 17, 20

Imbler v. Pachtman (1976) 424 U.S. 499 _.......... 9

International Steel & Iron Co. v. National Surety

ee BF | reer aennaar a 23

Lanza v. New Jersey (1922) 260 U.S. 377 ............ 23

Lucas v. People of Michigan (6 Cir. 1970) 420 F.

ee IT ictal nicalalncsbutacetlahcihiatuititesihedieneiidindsttitamaniiieeneiil 18

Mapp v. Ohio (1961) 367 U.S. 643 ........... 12, 13, 20

Monroe v. Pape (1961) 365 U.S. 167 ..0000000.. 14

Moody v. Flowers (1967) 387 U.S. 97 0000... 18

Murdock v. Memphis (1875) 87 U.S. (20 Wall.)

NET. Sdiscniienastinnsaiteieitbnibstecdniapeiiimacetiitdaasaialipapediiciniaii 23

iv.

Page

Norton v. United States (4th Cir. 1978) 581 F.2d

FPO, COE, GBBag seco YB, cee CEFF) ccrcnecsnsnntcns 14, 15

Olmstead v. United States (1928) 277 U.S. 438..13, 14

O’Shea v. Littleton (1973) 414 U.S. 488 -.....0..... 16

Papachristou v. City of Jacksonville (1972) 405

Sa ED wcviensnnseiniinianiniaaeieaneen 8, 21

Pennsylvania v. Mimms (1977) ...... i Sa

Ee GPR sontncrennepninnnndeineinumdianaale 10

People v. Adams (1971) 34 Mich.App. 546 .......... 22

People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.

BEE, SF cxnsinintensintinmntsinniecinenimaeningeaiiaaaae 18

People v. Burt (1883) 51 Mich. 199 20 .. 22

People v. Cummings (1974) 43 Cal.App.3d 1008,

SOD GRRE DUN wwtnitsincissicniamalemmidiaeegaiel 18

People v. DeFillippo (1977) 80 Mich.App. 197 ...... 3

People v. Soloman (1973) 33 Cal.App.3d 429, 108

GR GID cictivnsidsinedinniscmninigalmmmalialn 24

Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579

COPD ~wsisissannnsininientesiasniaiciasiiieimeitiin dee eee a4

Rakas v. Illinois (1978) .... U.S. .... [47 U.S.L.W.

| ET EN RM ee 10, 19

Rizzo v. Goode (1976) 423 U.S. 362 .......... 16, 17, 18

South Dakota v. Opperman (1976) 428 U.S. 364.... 10

Spinelli v. United States (1969) 393 U.S. 410 ........ 6

Steffel v. Thompson (1974) 415 U.S. 452 ........ 17, 18

Stone v. Powell (1976) 428 U.S. 465 ...... 19

Stump v. Sparkman (1978) .... U.S. .... [55 L.Ed.2d

POEL | sntibtvinncnniauiiiieihitiiiiiinadinitiitie die a 9

v.

Page

Tenny v. Brandenhove (1951) 341 U.S. 367 ...... 9, 14

Terry v. Ohio (1968) 392 U.S. 1 oon. 4,5, 11

United States v. Miller (1976) 425 U.S. 435 .......... i)

United States v. Robinson (1973) 414 US. 218 ... 5

United States v. Watson (1976) 423 U.S, 411

Walsh v. City of River Rouge (1970) 385 Mich.

ae 23

Whiteley v. Warden (1971) 401 U.S. 560

Younger v. Harris (1971) 403 U.S. 37 ...... 16, 17, 18

Zurcher v. Stanford Daily (1978) .... U.S. .... [56

Cen scaseeees 9

Miscellaneous

National Commission on Marijuana and Drug

Abuse, Marijuana: a Signal of Misunderstanding

(1972), App. II, table 18, p. 638 00000000 .. 20

Rules

Rules of the United States Supreme Court, Rule 42

Se eatiiseineenneccecccencnccececccesvece<eseces 2

Statutes

Detroit Municipal Code, Sec. 39-1-52.3 0000... 3

oo , 24

United States Code, Title 28, Sec. 2680(h) ........ 14, 15

United States Code, Title 42, Sec. 1893

United States Code, Title 42, Sec. 1983

Page

United States Constitution, Art. I, Sec. 8 ......0...000..... 7

United States Constitution, Art. IIT -................... 16, 24

United States Constitution, Art. VI -......................... 8

United States Constitution, Fourth Amendment........

pee ioe 3, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 22, 24

United States Constitution, Fifth Amendment .......... 6

United States Constitution, Fourteenth Amendment

LS EO Se Ee, ee 24

Textbooks

Hart & Wechsler, The Federal Courts and the Fed-

eral System (2d Ed. 1973), p. 359 -.....200-0.000.... 25

Linde, “Without ‘Due Process’: Unconstitutional

Law in Oregon” (1970), 49 Oregon Law Review,

I, ‘Tins. SEE sachinikdenkelincieeiseneisiahiaieiaiieeiemiesiaeaeieee 25

Paulsen, “State Constitutions, State Courts, and

First Amendment Freedoms” (1951), 4 Vander-

bilt Law Review, pp. 620, 642 —.....0000-2 een. 25

1 Rand Corp., The Criminal Investigation Process

Carers BA, CUE liccicieenttiisinnesintnsitiinisiaapaniniiiniinaiie 20

Silberman, Criminal Violence, Criminal Justice

(1978), Ch. 7, pp. 199-252 0000 20

The Trial of Thomas Paine (1792) 22 How. St. Tr.

ee Se cisatntcaieten date iiceties OEE ESTES vee ere 8

IN THE

Supreme Court of the United States

October Term, 1978

No. 77-1680

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

VS.

Gary DeEFILLIPpo,

Respondent.

Brief of the National Legal Aid and Defender Associa-

tion as Amicus Curiae in Support of Respondent.

Interest of Amicus Curiae and Consent.

The National Legal Aid and Defender Association

is a nonprofit corporation, formed, inter alia, to assist

defender offices in the United States in their efforts

to secure the constitutional rights of indigent defendants

by vigorous and competent representation.

A decision by this court in the instant case could

have a substantial and perhaps devastating impact upon

the rights of all citizens to be free from unreasonable

searches and seizures of their person. Accordingly, the

National Legal Aid and Defender Association is filing

this brief as amicus curiae pursuant to the authority

a

of its governing board and the vote of its Committee

on Briefs Amicus Curiae.

This brief is filed pursuant to Rule 42 of the Supreme

Court Rules. Consent to the filing of this brief has

been given by the Office of the prosecuting attorney

for the County of Wayne, Michigan, counsel for peti-

tioner, and by James Howarth, Esq., counsel for re-

spondent. Letters of consent from both counsel should

be on file with the Clerk of this Court.

~< on

ARGUMENT.

I

THERE IS NO EFFECTIVE REMEDY OTHER THAN THE

EXCLUSIONARY RULE FOR FOURTH AMENDMENT

VIOLATIONS ACCOMPLISHED PURSUANT TO A

CITY ORDINANCE APPARENTLY DESIGNED TO

AUTHORIZE THEM.

A. The Scope of Authority Provided Under the Ordi-

nance Exceeds Constitutional Limits.

At the time of the defendant’s arrest, Detroit Munici-

pal Code section 39-1-52.3 provided:

“When a police officer has reasonable cause

to believe ‘that the behavior of an individual war-

rants further investigation for criminal activity,

the officer may stop and question such person.

It shall be unlawful for any person stopped pur-

suant to this section to refuse to identify himself,

and to produce verifiable documents or other evi-

dence of such identification. In the event that

such person is unable to provide reasonable evi-

dence of his true identity, the police officer may

transport him to the nearest precinct in order

to ascertain his identity.”

(People v. DeFillippo (1977) 80 Mich.App.

197, 200-201 (emphasis added). )’

The ordinance thus gives awesome authority to the

police in their daily contacts with citizens. The power

of inquiry granted the police officer is not limited;

‘A 1976 Amendment added an express provision to make

it a crime to refuse to identify oneself, but the Michigan

Court held that refusal to identify oneself was “implicit” in

the ordinance as it read at the time of the defendant’s arrest.

(80 Mich.App. 197, 201, n. 1.)

—

there is no adherence in the ordinance to the require-

ments of Terry v. Ohio (1968) 392 U.S. 1 and Adams

v. Williams (1972) 407 U.S. 143, that stops be brief

in nature, that they be based upon some objective,

articulable belief that the person stopped is engaged

in criminal activity, and that any search of the person

conducted incident to such a stop be limited to a

protective “patdown” for weapons.

“There is nothing in the Constitution which

prevents a policeman from addressing questions

to anyone on the streets. Absent special circum-

stances, the person approached may not be de-

tained or frisked but may refuse to cooperate

and go on his way. However, given the proper

circumstances, such as those in this case, it seems

to me the person may be briefly detained against

his will while pertinent questions are directed to

him. Of course, the person stopped is not obliged

to answer, answers may not be compelled, and

refusal to answer furnishes no basis for an arrest,

although it may alert the officer to the need

for continued observation.” (Terry v. Ohio (1968)

392 U.S. 1; 34 (Justice White concurring) (em-

phasis added). )

The Terry principle was restated in Adams v. Wil-

liams, supra, 407 U.S. 143, 146: “[4] A brief stop

of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily

while obtaining more information, may be most reason-

able in light of the facts known to the officer at

the time.” (407 U.S. 143, 146 (emphasis added). )

In its brief, Michigan emphasizes only those passages

in Terry and Adams which permit the determination

of identity (Petitioner’s Brief 25, n. 10); petitioner

exdiun

fails to concentrate on the critical language which

specifies that only a “brief stop” is permitted; the

“brief stop” is allowed in order to maintain the status

quo momentarily, thus emphasizing the short permissible

duration of the contact.

Contrary to Terry, the ordinance here appears to

authorize full, custodial arrests on vague “suspicion”

of nothing in particular except a failure to verifiably

identify oneself. Thus, it is intended to permit the

type of full-scale personal search as was conducted

here upon vague grounds not amounting to probable

cause; such searches are only permissible when incident

to a lawful custodial arrest. The ordinance fails sight

of the fact that custodial arrest is only constitutional

where there is probable cause of commission of a spe-

cific offense. (United States v. Robinson (1973) 414

U.S. 218.)

The ordinance also contains a number of other ambi-

guities which provide the potential for further abuse.

In addition to its failure to describe the extent of

the inquiry permitted to the police officer, neither is

guidance provided as to what the citizen must provide

in the way of information in order to escape arrest.

For example, our soldiers are taught that in the event

of capture they must give only their “name, rank

and service number”. If a citizen answered a Detroit

officer in such a manner, what is to prevent the officer

from deeming the response unsatisfactory, and jailing

the citizen? Under the rubric of an “identity inquiry”

police questioning could extend into areas other than

identity and constitute a serious invasion of the person’s

privacy. Being menaced with detention, the citizen re-

sponding to an officer so empowered would be hard

pressed not to provide whatever information was re-

_ =

quested, a situation made the worse by lack of any

requirement that the citizen be advised that he has

Fifth Amendment rights not to answer any question

calling for self-incrimination.

B. The Fourth Amendment May Not Be Evaded

Through “Good Faith” Reliance by Officers on

Unconstitutional Fiat of the Legislative or Execu-

tive Branches.

While noting in their brief that not even an “act

of Congress can authorize a violation of the Constitu-

tion” (Petitioner's Brief at 12-13, Citing Alameda-

Sanchez v. United States (1973) 413 U.S. 266, 272),

it is evidently Michigan’s intent to argue here that

an ordinance of the City Council of Detroit can; or

at least that it can do so free from sanction.

We begin our response to this assertion with the

observation that it has never been held that the execu-

tive branch of state government may take unconstitu-

tional action and then “sanitize” the fruits of an ensuing

search by reliance on the “good faith” of searching of-

ficers. (See Coolidge v. New Hampshire (1971) 403

U.S. 443.) In Whiteley v. Warden (1971) 401 US.

560, 568, it was held that “good faith” reliance on a

radio bulletin was insufficient to insulate a challenge

to an otherwise unlawful arrest. Moreover, if officers

make a search pursuant to a judicial warrant not found-

ed upon probable cause, their good faith does not defeat

a challenge to the search. (Aguilar v. Texas (1964)

378 U.S. 108; Spinelli v. United States (1969) 393

U.S. 410.)

As the Court said in Henry v. United States (1959)

361 U.S. 98, 102, “Good faith on the part of the

exffias

arresting officers is not enough.” Or, as Justice Stewart

said for the court in Beck v. Ohio (1964) 379 USS.

89, 97: “[€] If subjective good faith alone were the

test, the protections of the Fourth Amendment would

evaporate, and the people would be ‘secure in their

persons, houses, papers, and effects, only in the discre-

tion of the police.”

If actions of magistrates or executive officers cannot

authorize “good faith” unlawful searches free from the

sanction of the exclusionary rule, then it should follow

a fortiori that the actions of a deliberative body such

as a legislature or council cannot do so. For the legisla-

tive body is not usually faced with the necessity to

act quickly according to the exegencies of a particular

situation; it may take all the time it likes to deliberate

and receive the considered advice of counsel.

1. The Fiats of Town Councils Are Subordinate to the Com-

mands of the Constitution, Not Vice-Versa.

There may indeed be appeal in the argument that

the policeman on the beat should not be required to

be a seasoned constitutional lawyer, weighing during

each street encounter the authority granted him by

statutes in light of the commands of the commerce

clause (Art. I, § 8) and scores of other provisions

which are, in light of the policeman’s training and

duty, quite arcane.

That, however, is not the issue presented by this

case.

The narrow question before this Court is: when

a policeman acts pursuant to a statute or ordinance

the express purpose of which appears to be the authori-

zation of unconstitutional searches and seizures of the

—_—

person,’ may the fruits of such an unlawful search

be used in a court of law during a criminal prose-

cution of the illegally-searched citizen? We believe

that to hold the Fourth Amendment does not apply,

or that the exclusionary rule is not available to enforce

it in such a case, is to hold starkly that one of the

most important constitutional assurances of both govern-

mental integrity and personal liberty is no stronger

than the whim of any town council which desires to

overthrow it.

It is a considerable understatement to say that such

a state of affairs does great violence to the constitutional

precept (Art. VI) that it shall be the constitution

which limits the power of town councils, and not town

councils which limit the power of the constitution.

C. Michigan’s Position, if Adopted by This Court,

Might Result in the “Last Straw” Which Could

Produce Effective Nullification of the Fourth

Amendment.

In recent times, the Court has followed a trend

narrowing the Fourth Amendment by interpretation

which has reached a point which many reasonable

citizens consider to be the precipice of outright nega-

tion.* For example, the “papers and effects” of citizens

which they have been forced by the demands of our

2As this Court unanimously pointed out in Papachristou

v. City of Jacksonville (1972) 405 U.S. 156, 169, “A direc-

tion by a legislature to arrest all “suspicious persons would

not pass constitutional muster”. See also discussion under

sub-part “A”, ante.

®°We are of course reminded here of Erskine’s observation,

made during the trial of Thomas Paine, that arbitrary power

is never introduced into a country all at once; ays it

is introduced in slow steps, lest the e see its a *h.

(The Trial of Thomas Paine (1792) 22 How. St. Tr. 358,

443.)

onion

modern economy to place in the hands of banks are

subject to summary government seizure without notice,

warrant, or even probable cause. (United States v.

Miller (1976) 425 U.S. 435.) A government wishing

to harass and intimidate its people by compiling dossiers

of their associations, habits and beliefs now has only

to visit the corner bank in order to do so.

The right of the people to an unfettered free press

has also been impaired by authority granted by this

Court to conduct surprise raids upon the files of journal-

ists pursuant to search warrant; Zurcher v. Stanford

Daily (1978) .... U.S. .... [56 L.Ed.2d 525]. By clear

implication, other constitutional interests such as the

right to counsel and to the free exercise of religion are

equally jeopardized, in that there appears no impedi-

ment to similar searches of the confidential files of

attorneys or clergymen.

And of course there will be no lawsuit allowed

in any federal court against a prosecutor who inten-

tionally procures the issuance of a warrant to

search such files without probable cause, nor against

a magistrate who willfully issues such a warrant: both

have been cloaked with absolute immunity from re-

sponsibility by decisions of this Court. (/mbler v. Pacht-

man (1976) 424 U.S. 409; Stump v. Sparkman (1978)

.. US. .... [55 L.Ed.2d 331].*

In another decision, it was held that a “waiver”

of whatever Fourth Amendment rights may be retained

by the people may be obtained by leaving the person

giving up those rights totally unaware that he has

the right to do anything but submit meekly to officers’

‘The legislators who enacted this ordinance are also immune

from responsibility in damages. (Tenny v. Brandenhove (1951)

341 U.S. 367.)

colitis

assertions of authority. (United States v. Watson

(1976) 423 U.S. 411.) In South Dakota v. Opperman

(1976) 428 U.S. 364, it was held that a full search

of an automobile may be conducted without probable

cause that it will reveal anything in particular, for

mere “caretaking” purposes. Also, the occupants of

any vehicle may be ordered out of it routinely. (Penn-

sylvania v. Mimms (1977) .... U.S. .... [54 L.Ed.2d

331].)

Most recently, the right of the people to be secure

in their own homes has been greatly compromised

by a holding that the Fourth Amendment has little

to say about the unreasonable search of an auto or

home unless the government then uses the fruits of

that search as evidence against the auto- or home-

owner in a criminal prosecution. (Rakas v. Illinois

(1978) ... U.S. .... [47 U.S.L.W. 4025].) Once Fourth

Amendment interests have been irreparably invaded,

the victim, if he is not prosecuted, is to be left primarily

to state remedies of trespass (.... U.S. .... [47 U.S.L.W.

at 4027]) which may be legally blocked by sovereign

immunity; and which are almost always practically

blocked by the outrageously prohibitive cost to the

private person of engaging in civil litigation.

Now the state of Michigan has come to this Court

to urge that there is nothing wrong in the light of

the Fourth Amendment with an ordinance conferring

the power on police not to just briefly stop on the

street but to fully search and then physically incarcerate

a citizen whose presence on the public street is vaguely

“suspicious” to an officer; though such “suspicion”

is not sufficiently cohate to authorize an arrest for

any definable public offense. Michigan thus seeks to

stretch the inch of reasonable authority granted by

culitien

Terry v. Ohio, supra, (1968) 392 U.S. 1 into an oppres-

sive mile. In the alternative, they argue that even if

there is something wrong with such an enactment, they

should be freely allowed to use the fruits of extensive

personal searches of those they arrest pursuant to it, at

least until someone with the wherewithall to do so

manages to invent a way to get into court and have

the ordinance declared unconstitutional in some binding

manner.

Because of the possibly fatal damage the urged sub-

stantive construction of the Fourth Amendment will

do, and because there is ia practical fact no effective

remedy left other than the exclusionary rule—petitioner

certainly suggests none—both arguments must fail.

D. The Exorbitant Expense of Civil Litigation, as

Well as the Maze of Doctrinal Obstacles to Ef-

fective Relief, Render Such Litigation Ineffective

to Enforce the Commands of the Fourth Amend-

ment; the Exclusionary Rule Is the Only Workable

Remedy.

It is perhaps well to begin this part with a brief

review of the thought which has led this Court to

fashion the exclusionary rule as a means of enforcement

of the Fourth Amendment. That no other effective

means of enforcement has yet been devised, despite

the long lament of those who think the enforcement

of the criminal law against individuals should take

precedence over the enforcement of the constitution

against officers of the government, should be proof

enough of the soundness of this reasoning.

In Weeks v. United States (1914) 233 U.S. 383,

393 the Court stated:

—_ =.

“If letters and private documents can thus be

seized and held and used in evidence against a

citizen accused of an offense, the protection of

the Fourth Amendment, declaring his right to

be secure against such searches and seizures, is

of no value, and, so far as those thus placed

are concerned, might as well be stricken from the

Constitution.”

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

in an opinion which outlines the history and develop-

ment of the Rule, the Court voiced through Mr. Justice

(and former Attorney General) Clark, the continuing

sentiment that the Fourth Amendment was self-execut-

ing:

“Since the Fourth Amendment's right of privacy

has been declared enforceable against the states

through the Due Process Clause of the Fourteenth,

it is enforceable against them by the same sanction

of exclusion as is used against the Federal Gov-

ernment. Were it otherwise, then just as without

the Weeks rule the assurance against unreason-

able federal searches and seizures would be ‘a

form of words’, valueless and undeserving of men-

tion in a perpetual charter of inestimable human

liberties, so too, without that rule the freedom from

state invasions of privacy would be so ephemeral

and so neatly severed from its conceptual nexus

with the freedom from all brutish means of coerc-

ing evidence as not to merit this Court’s high re-

gard as a freedom ‘implicit in the concept of

ordered liberty.” (367 U.S. at 655.)

Given these pronouncements on the fundamental

character of our constitutional charter, it would seem

anomalous that the city of Detroit, through an ordi-

—

nance, could effectively overrule and abrogate the

Fourth Amendment by so little as the enactment of this

ordinance.

1. The Exclusionary Rule Was Designed to Serve the Impera-

tive of Judicial Integrity by Insulating the Courts From

Participation in Violations of the Fourth Amendment.

In Weeks, the United States Marshal, an officer

of the court, improperly secured evidence by an unlaw-

ful search and seizure and the Court held the evidence

inadmissible. The Court held: “To sanction such pro-

ceedings would be to affirm by judicial decision a

manifest neglect, if not an open defiance, of the pro-

hibitions of the Constitution intended for the protection

of the people against such unauthorized action.” (233

U.S. 383, 894.) Of course, the same purpose was

acknowledged in Mapp v. Ohio, supra, 367 U.S. 643,

648-649, 659-660, following the Court’s recognition

of “the imperative of judicial integrity” in Elkins v.

United States (1960) 364 U.S. 206, 222.

The failure of our system of justice to bring to

account those who violate both the Constitution and

the rights of privacy of others may have awesome

consequences. Perhaps the best articulation of this

principle was made by Mr. Justice Brandeis in his

dissenting opinion in Olmstead v. United States (1928)

277 U.S. 438, 485:

“In a government of laws, existence of the

government will be imperiled if it fails to observe

the law scrupulously. Our government is the po-

tent, the omnipresent teacher. For good or for

ill, it teaches the whole people by its example.

Crime is contagious. If the government becomes

a lawbreaker, it breeds contempt for law; it invites

_- =

every man to become a law unto himself; it invites

anarchy. To declare that in the administration

of the criminal law the end justifies the means—to

declare that the government may commit crimes

in order to secure the conviction of a private

criminal—would bring terrible retribution. Against

that pernicious doctrine this Court should resolute-

ly set its face.”

2. The Cost of Civil Litigation and the Ability of Government

Officers to Out-Litigate Private Citizens.

As an alternative to the exclusionary rule in crim-

inal cases, some have suggested a substitute civil action

against the government with a maximum limitation

on recovery. A civil rights action against state officers

exists under 42 U.S.C. § 1893 (See Monroe v. Pape

(1961) 365 U.S. 167), and since 1971 an action

for money damages may be brought against a federal

officer for violation of the Fourth Amendment. (Bivens

v. Six Unknown Named Agents (1971) 403 U.S. 388.)

Such an action is not, however, available here against

the legislative body which clothed the officer with

unconstitutional powers (Tenny v. Brandenhove (1951)

341 U.S. 367), and the officers may use good faith

reliance on the unconstitutional ordinance as a defense

in an action against them.

In Norton v. United States (4th Cir. 1978) 581

F.2d 390, cert. den., ........ a (1978), an

action was brought by a person whose apartment was

forcibly entered without a search warrant by officers

with drawn guns. The action was filed against state

officers (42 U.S.C. § 1983) and federal officers

(Bivens) as well as against the United States under the

1974 amendment to the Federal Tort Claims Act (28

==

U.S.C. 2680(h)). The Court of Appeals held that in

civil actions against the individual state or federal offi-

cers, the officers had the “good faith” defense available

to them, i.e., the officers acted in good faith with a rea-

sonable belief of the lawfulness of their conduct. (581 F.

2d at 390, 393, n. 2.) The Court also found that the

defense was available to the United States. The “good

faith” defense has thus swallowed whole potential civil

actions against officers for Fourth Amendment viola-

tions, for no police officer can be expected to admit

his own bad faith and proof of the contrary would re-

quire E.S.P.

And of course the initiation of a federal civil action

entails many substantial expenditures; though the de-

fendant officers may have a right to government-paid

counsel, the plaintiff does not. The inherent costs are

an overwhelming deterrent to such litigation. Practicing

lawyers experienced in litigation of this nature know

that the attainment of compensatory damages, let alone

the cost of litigation, is generally an illusory hope.

The criminal case admittedly provides a limited for-

um for obtaining redress for those subject to illegal

police searches, but something is better than nothing.

For example, the instant criminal action was the vehicle

for the so-far successful challenge of this impermissible

and unconstitutional ordinance; and it is a fair bet

that further unlawful acts against innocent citizens

pursuant to it have been curtailed due to the desire

of officers to make arrests which will “stick” rather

than arrests which will be “thrown out”.

The defendant in a criminal case, after all, has

a strong motivation to enforce his rights; and he also

has a lawyer to aid him in doing so. This Court

has said that Fourth Amendment remedies should be

eftion

those which individuals are motivated to use. (Alder-

man vy. United States (1969) 394 U.S. 165, 174.)

The low chance for substantial recovery and the

high cost of maintaining civil litigation combine to

motivate citizens not to use it as a means of enforcing

the Fourth Amendment.

3. The Doctrinal Obstacles to Effective Civil Redress Are in

Any Event Insurmountable.

Myriad pitfalls and roadblocks which have been erect-

ed under such rubrics as “standing” and “comity” make

it highly questionable tha’ a binding judicial declaration

of unconstitutionality of this ordinance could ever be

obtained except in the context of the invocation of

the exclusionary rule.

For example, according to a majority of this Court,

even a showing of a consistent, non-isolated pattern

of unconstitutional abuse in the implementation of this

ordinance would not create such a “case or controversy”

under Article II] as would authorize an injunction

against such practices. (Rizzo v. Goode (1976) 423

U.S. 362.) Citizens feeling generally chilled or inhibited

from the exercise of their rights to free passage over

the public ways could be barred from relief on grounds

their claims were “conjectural” or “hypothetical.”

(O'Shea v. Littleton (1973) 414 U.S. 488, 494; Young-

er v. Harris (1971) 403 U.S. 37, 41-42.)

Of course, those like respondent who are so directly

and immediately chilled in the exercise of their rights

as to be the subject of actual prosecution in a state

court would be barred from suing to enjoin such prose-

cution on grounds of unconstitutionality by the doctrine

of comity, as set out in the main holding of Younger

v. Harris, supra. Such persons would be left to vindicate

_ =

their rights in the course of the pending state proceed-

ing; but if Michigan’s anti-exclusionary rule argument

prevails here, there will be no means left of doing

so.

On paper, one could construct a scenario under

Steffel v. Thompson (1974) 415 U.S. 452 whereby

there would be justiciable controversy. Though of

course the law prohibits rich and poor alike from

sleeping under bridges (or, as here, urinating in alleys),

any claims by the rich or “respectable” segments of

society under this ordinance would be subject to attack

under Rizzo and Younger as being unduly hypotheti-

cal. Thus, one would only have to find a plaintiff

willing to publicly disgrace himself by declaring himself

to be an inherently suspicious-looking person who has,

as such, been directly threatened with arrest under

the ordinance. Perhaps the individual so named could

even constitute himself the representative of a class

of other similarly-situated suspicious persons.

Of course, if the plaintiff so selected actually were

arrested or prosecuted by state authorities after suit

were filed, the case would be subject to immediate

dismissal. (Hicks v. Miranda (1975) 422 U.S. 332.)

In order to frame a scenario for litigation of the

validity of this ordinance which will fit under Steffel

and survive attack under Rizzo, Younger, and

Hicks, therefore, one must thus frame a farce. The

situation is quite different than that of the labor picket-

ers in Steffel, who had direct economic motivation

to vindicate their rights, and who did not have to

shame themselves in order to do so.

We do not think the framers of our constitution

envisioned that in order to enforce its provisions, citi-

=— =

zens would have to participate in such a judicial version

of low comedy; comedy which is just as “hypothetical”

as the referenced plaintiff's claims in Rizzo and Young-

er because reality will prevent it from ever being staged.

Finally, if anything additional needs to be said along

these lines, it should be noted that the courts of most

states, including Michigan, adhere to the doctrine that

they are not bound by the rulings of federal courts

below the Supreme Court, even on constitutional issues.

This means, simply, that even if a federal declaratory

judgment of unconstitutionality were obtained, the state

courts would not be bound to honor it and police could

go right on claiming “good faith” — especially those

who were not named as defendants and served with

orders. This has led at times to situations which exasper-

ated federal courts have been moved to describe as

a “judicial runaround.” (Lucas v. People of Michigan

(6 Cir. 1970) 420 F.2d 259, 262; See also, e.g.,

People v. Bradley (1969) 1 Cal.3d 80, 86; 81 Cal.

Rptr. 457; People v. Cummings (1974) 43 Cal.App.3d

1008, 1019; 118 Cal.Rptr. 289.)

This Court has not heretofore been willing to fore-

close such “runarounds”; saying no more than that

where such a judgment is issued by a three-judge federal

court, which is affirmed on direct appeal to this Court,

the implication is that any conviction under such a

statute would be reversed by this Court. An “implica-

tion” is far less than a promise, though; for the court

went on to say that even this proposition is “not free

from difficulty.” (Steffel v. Thompson, supra, 415 U.S.

at 470.) Here, moreover, there will be no three-judge

court, and thus no direct affirmance by this Court, be-

cause only a local ordinance is involved. (Moody vy.

Flowers (1967) 387 U.S. 97.)

—19—

Clearly, at least as far as the unconstitutional inva-

sions sanctioned by this ordinance are involved, there

is nO way to reach them except by use of the exclu-

sionary rule to suppress the evidence of other violations

which are the hoped-for, if only infrequently realized,

motivation for arrests under it.

E. Street Detention Is in Fact of Only Marginal Use-

fulness in the Control of Crime; Thus the Social

Cost of Application of the Exclusionary Rule to It

Is Minimal.

It has often been argued that each time the exclu-

sionary rule is invoked, a “substantial social cost” is

paid by society. (See, e.g., Rakas v. Illinois, supra,

... U.S. .... [47 U.S.L.W. at 4028]; Stone v. Powell

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

presents a situation which is half comparable to the

instant case in that it involved a collateral attack on

a conviction for murder on grounds the defendant had

been initially arrested pursuant to a vague municipal

loitering ordinance. (This factor had been declared

“harmless error” both on direct appeal and by the

district court on habeas corpus.)

The “social cost” argument of course appears most

compelling when one takes an isolated case of murder

and argues that the exclusionary rule should not be

used to free a killer. But overall, the fact is that

neither the exclusionary rule nor police “investigatory”

stops of “suspicious” citizens found by chance upon

the streets have very much at all to do with the govern-

ment’s ability to control violent crime. This proposition

is proven by empirical research which has been con-

ducted on the subject. In a recently published, elaborate-

ly researched study for the Ford Foundation, it has

_— =

been determined that the exclusionary rule has little

or no impact on prosecutions for violent felonies, but

only affects a significant minority of petty drug cases°

such as that involved here. Moreover, police field inter-

rogation of miscellaneous persons on the street has no

notable tendency to cut crime rates; what cuts crime

is when the police get out of their squad cars and

make themselves known to the “ordinary” citizens on

their beat who then provide them with reliable informa-

tion. When prosecutions fail, it is generally not the

result of Mapp or Miranda, but of the failure of the

police to do a workmanlike job of interviewing witnesses

and retaining evidence of crimes reported to them.

(Silberman, Criminal Violence, Criminal Justice

(1978) Ch. 7, pp. 199-252. See also Rand Corp.,

The Criminal Investigation Process (1975) vol. 1 pp.

vi-ix.) Also of great significance, and consonant with

these findings, even petitieners’ own supporting amici,

the Citizens for Effective Law Enforcement, concede

that their own research discloses no significant relation-

ship between field interrogations and felony arrests.

(Brief of Citizens for Effective Law Enforcement, 8-

10.)

“Law and order” attacks upon the Bill of Rights

and upon prior decisions of this Court which enforce

it are thus in a very substantial way a smokescreen

designed to make the judiciary scapegoats for police

and prosecutorial authorities’ inability to efficiently dis-

charge their own duty. If this Court should allow

‘For example, statistics compiled by the National Commission

on Marijuana and Drug Abuse disclose that a total of 43%

of the “outdoor” arrests yd marijuana were de based

upon “suspicious behavior” ‘/~-¥ —g SF ational

Commission on Marijuana el Abuse arijuana: a

Signal of Misunderstanding (1972) Appendix II, table 18

at p. 638.)

dicen

its own judgment to be obscured by that smokescreen,

the result will not be so much safer streets as it

will be a populace which is oppressed by arbitrary

exercises of police power as well as by the maraudings

of criminals.

The right to use the public streets unmolested by

arbitrary police demands for “identification” is, as was

pointed out in Papachristou, one of a number of “un-

written amenities [which] have been in part responsible

for giving our people the feeling of independence and

self-confidence, the feeling of creativity . . . they have

encouraged lives of high spirits rather than hushed,

suffocating silence”. (405 U.S. at 164.)

Such “amenities” deserve the continued protection

of this Court.

IT

THERE ARE AMPLE GROUNDS FOR DECISION OF THIS

CASE UNDER MICHIGAN STATE LAW: THE MAT-

TER SHOULD BE REMANDED TO THE STATE

COURTS FOR DETERMINATION OF THOSE

GROUNDS.

A comparison of the points and arguments raised

by respondent’s counsel before the Michigan appellate

court with the opinion of that court reveals that there

are many potential independent grounds for decision

of this case under the law of Michigan. These substan-

tial grounds were passed over and ignored by the

Michigan appellate court in a headlong race to decide

the case on federal constitutional grounds.

Principles of federalism and of economy in the ad-

ministration of federal justice lead to the conclusion

—

that state courts ought not to be permitted to touch

off constitutional brouhahas of the type represented

here by merely overlooking or ignoring their own law.

For example, at page three of his state appellate

brief, respondent points out that the Michigan courts

have held that vague laws violate the Constitution

of Michigan as well as that of the United States,

citing People v. Adams (1971) 34 Mich.App. 546,

558.

At page four, respondent went on to ask the court

to construe several terms of the ordinance:

“What does it mean to ‘identify’ oneself prop-

erly under the ordinances? What is ‘reasonable evi-

dence’ of one’s ‘true identity’? . . . Is some sort

of document required? A document issued by

whom? . . . Is it now required that all who cross

the boundaries into the city of Detroit carry ‘veri-

fiable documents’ such as a passport? . . .” (Ibid.

p. 4.)

At pages 8-9 of the state appellate brief, it is sug-

gested that the ordinance may be void under what

would appear to be a state substantive due process

doctrine. “The police power does not encompass the

authority to make nonculpable conduct a criminal of-

fense. See City of Detroit v. Bowden (1967) 6 Mich.

App. 514.” At page 13, a State Supreme Court decision,

issued long before the Fourth Amendment was ever

applied to the States (People v. Burt (1883) 51 Mich.

199, 202) is cited for the proposition that arrest is

forbidden without probable cause to suspect a crime.

Finally, at pp. 18-22, respondent devotes an entire

segment of his brief to an argument that the ordinance

is void as being pre-empted by the exclusive authority

— =

of the governor to declare states of emergency. (Walsh

v. City of River Rouge (1970) 385 Mich. 623.)

Had any of these arguments been given favorable

consideration by the Michigan Court of Appeal, the

result would have made review by this Court unneces-

sary. Now, even though certiorari has been granted,

there would be nothing to prevent the state court

from determining those issues should this case be re-

turned to it following reversal on the (federal) merits.

Were this to occur, any exposition by this Court on the

constitutional issues seemingly presented could be ren-

dered purely hypothetical. In terms of Michigan’s inter-

ests, there would then be only a “profitless reversal,

which can do the plaintiff in error no good.” (Murdock

v. Memphis (1875) 87 U.S. (20 Wall.) 590, 635.)

As the court said in Herb v. Pitcairn (1945) 324

U.S. 117, 125-126:

“We are not permitted to render an advisory

opinion, and if the same judgment would be ren-

dered by the State Court after we corrected its

views of federal laws, our review could amount

to nothing more than an advisory opinion.” (See

also, Lanza v. New Jersey (1922) 260 U.S. 377,

387; Fox Film Corp. v. Muller (1935) 296 U.S.

207, 210; Department of Mental Hygiene v. Kirch-

ner (1965) 380 U.S. 194, 197.)

In International Steel & Iron Co. v. National Surety

Co. (1936) 397 U.S. 665, 666, it was held that if

a state court might have rested its decision on state

grounds but did not do so,* application of the “inde-

*There is language in the opinion of the Michigan appellate

court, reproduced at p. 21 of the appendix, which would

support a colorable argument that the state court did base

(This footnote is continued on next page)

oe

pendent state ground doctrine” is not mandatory. This

does not mean, however, that in the exercise of sound

discretion, this Court cannot request a state court to

clarify whether a case before it truly presents a federal

question in a posture which is ripe for decision by this

Court as a “case or controversy” under Art. III.

The most needed thing for the Michigan courts

to do here is to construe the terms of this ordinance,

for a narrowing construction could both obviate re-

spondent’s “vagueness” attack upon it and leave it

clear that respondent’s arrest was not authorized by

the ordinance. For example, California has a partly

comparable statute, California Penal Code section 647

(e), which requires that a person seen loitering at

night identify himself when articulable circumstances

exist to indicate that the public safety requires such

identification. Section 647(e) does not permit police

to place a citizen under custodial arrest for the purpose

of ascertaining his identity. In People v. Soloman

(1973) 33 Cal.App.3d 429, 108 Cal.Rptr. 867, it

was held that this statute did not authorize arrest

for the reason that an officer deems the explanation

given by the citizen to be unsatisfactory or implausible.

(Cf. Brief of State of California, pp. 9-13.) Were

the Detroit ordinance read the same way, this case

might never have come before this Court.

its decision on state grounds in that a decision of the Michi

supreme court [Pinkerton v. Verberg, 78 Mich. 573, 584,

44 N.W. 579 (1889)] decided prior to the incorporation

of the Fourth Amendment into the Fourteenth by this Court,

is cited for the proposition that the search here is unlawful.

The argument in the text is thus not intended to contradict

or foreclose respondent should he seek to demonstrate that

the decision below was decided on independent state grounds;

rather, it is as an alternative should such an argument not

be made or should it be made and fail.

—

We are in full agreement with Professor Linde, who

argues that since the decision by a state court of

State law is an element of the process due in a state

judicial proceeding, federalism requires the state court

to resolve dispositive questions arising under its own

law before reaching a federal claim. Linde, “Without

‘Due Process’: Unconstitutional Law in Oregon” (1970)

49 Ore.L.Rev. 125, 134.

Throughout most of this nation’s history, it has been

the state courts which have served as the primary

guarantors of individual rights. (Hart & Wechsler, The

Federal Courts and the Federal System {2d Ed. 1973}

359.) While it may or may not be true that “If

our liberties are not protected in Des Moines, the

only hope is in Washington” (Paulsen, “State Constitu-

tions, State Courts, and First Amendment Freedoms”

(1951) 4 Vand.L.Rev. 620, 642, we think this Court

should insist that the courts in Des Moines and Detroit

Should be required to examine the matter of protection

of local citizens’ liberties under local law before trun-

dling sets of litigants off to Washington through deci-

sions based on what may be needlessly sweeping federal

grounds.

This Court should exercise its discretion to vacate

and remand to the Michigan courts for clarification

along these lines.

Respectfully submitted,

Quin DENvir,

California State Public Defender,

LAURANCE S. SMITH,

Deputy State Public Defender,

Attorneys for Amicus Curiae.

Service of the within and receipt of a copy

thereof is hereby admitted this .................... day

of December, A.D. 1978.