Amicus Brief — Rakas v. Illinois

es se IN THE

i) °

ys Supreme Court of the Gnited States

OCTOBER TERM, 1977.

No. 77-5781

FRANK L. RAKAS anp LONNIE L. KING,

Petitioners,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT

OF ILLINOIS, THIRD DISTRICT.

MOTION FOR LEAVE TO FILE A BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT, OF AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.

FRED E. INBAU, Esa.,

FRANK CARRINGTON, Esoq.,

WAYNE W. SCHMIDT, EsqQ.,

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.

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

TABLE OF CONTENTS.

PAGE

Table of Authorities. . 0.0.0. cc ccc ccc cess cccccccce ii

Motion for Leave to File a Brief Amicus Curiae in Support

Of the Respondent. ........2.cccscccccccccccces 1

Interest of the Amicus Curide........cccccccesceses 2

Brief Amicus Curiae in Support of the Respondent...... 5

Argument:

I. The Scope of the Exclusionary Rule Should Not

Be Expanded by According Standing to Peti-

tioners’ Objection to an Allegedly Illegal Search

of Another’s Automobile.................. 5

A. To Grant Standing in Cases Such as This

Would Greatly Expand the Scope of the

PUR THES give ccc cccwsccce 6

B. In a Period of Growing Disenchantment

with, and Doubt About the Efficacy of, the

Exclusionary Rule, Its Expansion, Based on

Standing, Would Be Unwarranted....... 8

C. The Instant Case in Particular Is Not the

Sort of Case That Would Mandate the Ex-

pansion of the Exclusionary Rule........ 12

I 16

TABLE OF AUTHORITIES.

Cases.

Adams v. Williams, 407 U. S. 143 (1972)............ 14

Alderman v. United States, 394 U. S. 165 (1969)....... 6,7

Bivens v. Six Unknown Named Federal Narcotics Agents,

403 U, & SRB COPIED sco 6 ov nh os stapns 9, 10, 11, 12, 13

Coolidge v. New Hampshire, 403 U. S. 443 (1971)..... 9

Linkletter v. Walker, 381 U. S. 618 (1965)........... 12

Mapp v. Ohio, 367 U. S. 643 (1961).........+-....4. 8

Stone v. Powell, 428 U. S. 465 (1976)....8, 9, 10, 11, 14, 15

United States v. Calandra, 414 U. S. 338 (1974)....... 12

United States v. Ceccolini, —....... Ui 4 ae Gx. i.

Ds Pe CPR ee ia he hs ECE reeks 12

United States v. Janis, 428 U. S. 433 (1976). _—.......... 12

Walder v. United States, 347 U. S. 62 (1954). —......... 12

Weeks v. United States, 232 U. S. 383 (1914)........ 8, 10

Other Authorities.

Barrett, Exclusion of Evidence Obtained by Illegal Searches

—A Comment on People v. Cahan, 43 Calif. L. Rev.

TEP Ce cee eiowks 0¢ ek Bagh ie ees cs 9

Burns, Mapp v. Ohio: An All-American Mistake, 19

Ee OB a eer eer ere 9

Cannon, /s the Exclusionary Rule in Failing Health: Some

New Data and a Plea Against a Precipitous Conclusion,

G2 Ry. L.. Rees DOP CIDP oc oc ansd se vcddvasencs 10

Cox, The Decline of the Exclusionary Rule: An Alternative

to Injustice, 4 Sw. U. L. Rev. 68 (1972)............ 9

- . 2 re

a

iil

Effect of Mapp v. Ohio on Police Search and Seizure Prac-

tice in Narcotics Cases, 4 Colum. J. L. and Soc. Prob.

OS? (PEGs «5 bo an ORS. Ce Ee ee 9

The Exclusionary Rule Regarding Illegally Seized Evi-

dence: An International Symposium, 52 J. Crim. L.,

C..and B. S. BAGBZO2 CAGGE os. os ites Scie eww sine’e 9

Friendly, The Bill of Rights as a Code of Criminal Proce-

dure, 53 Calif. L. Rev. 929, 951-954 (1965)........ 9

Inbau, Restrictions in the Law of Interrogations and Con-

fessions, 52 Nw. U. L. Rev. 77 (1958).........-... 9

Inbau, Thompson and Sowle, Cases and Comments on

Criminal Justice: Criminal Law Administration, 1-84

CHRD. batik Re BAe Hea 9

Lafave, Improving Police Performance Through the Ex-

clusionary Rule (pts. 1 and 2), 30 Mo. L. Rev. 391,

566 CURES. cawd ha ot iv ies chee 9

Lafave and Remington, Controlling the Police: The Judge's

Role in Making and Reviewing Law Enforcement De-

cisions, 63 Mich. L. Rev. 987 (1965).............. 9

Miles, The Ailing Fourth Amendment: A Suggested Cure,

Oo A.D, A. ©, Pee COPE a vas uk sd deskineen 9

Morris & Hawkins, The Honest Politician’s Guide to Crime

Copes.. BI: RSA. 0 ees A bans Bec ee 9

Oaks, Studying the Exclusionary Rule in Search and

Seizure, 37 U. Chi. L. Rev. 665 (1970)............ 9, 10

Plumb, Jllegal Enforcement of the Law, 24 Cornell L. Q.

Pee SOE 66 6s Sana h Geeks oR ke ce ee 9

Rosenblatt and Rosenblatt, A Legal House of Cards,

ce es Se Ree ee rene 9

Satlin, An Alternative to the Exclusionary Rule, 26 JAG

Ri Re CRT avs a hoa bs da ee eae at ere Pr hakes 9

iv

Schaefer, The Fourteenth Amendment and the Sanctity of

the Person, 64 Nw. U. L. Rev. 1 (1969). ........5..

Schlesinger, Exclusionary Injustice, The Problem of

Illegally Obtained Evidence, New York, Marcel Dekker,

Eno, CABFT) 00 dae cwemrnewedd Pendieisawhas halen

Spiotto, Search and Seizure: An Empirical Study of the Ex-

clusionary Rule and Its Alternatives, 2 Journ. Legal

Stadion 243. CAGTS) i 05-4 bc Fins sacks cnedion gees fee

Student Comments: The Tort Alternative to the Exclu-

sionary Rule in Search and Seizure, 63 J. Crim. L., C.

and P..&. 296 CIGD « obec dine eee aren

Vance, Why the Exclusionary Rule Should Be Modified,

The Prosecutor, Vol. 7, No. 5, p. 399.(1971)........

Waite, Judges and the Crime Burden, 54 Mich. L. Rev.

1G) (IGS) cp icwticik cs} Jenn de ceeaedie ees

Wigmore, Using Evidence Obtcined by Illegal Search and

Seizure, 8 A. B. A. J. 479 (1922)... ec cee eee eees

8 Wigmore, Evidence, Section 2184a (McNaughton rev.,

19GE) . cccvccccsvoednvbesvaseebedsenehewsent et

Wingo, Growing Disillusionment with the Exclusionary

Rule, 25 Sw. L. J. S73 (UGTA). ccc ces cscvcccecs

10

IN THB

Supreme Court of the Anited States

OCTOBER TERM, 1977.

No. 77-5781.

FRANK L. RAKAS anp LONNIE L. KING,

Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT

OF ILVINOIS, THIRD DISTRICT.

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS

CURIAE IN SUPPORT OF THE RESPONDENT.

Americans for Effective Law Enforcement, Inc. respectfully

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

support of the respondent in the instant case. This motion is

made pursuant to Rule 42 of the Supreme Court Rules. The

respondent has consented to our filing; the petitioner has not

consented to our request for consent to file. Accordingly, we

are moving the Court directly for leave to file. Letters from

counsel for the petitioner and the respondent have 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 by-laws, the

purposes of AELE are:

1. To explore and consider the needs and requirements

for the effective enforcement of the criminal law.

2. To inform the public of these needs and 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 adminis-

tration of the criminal law.

In furtherance of these objectives, AELE seeks to represent

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

. with the problems of crime and of police effectiveness to deal

with crime.

The interests of amicus in the instant case stem from the

importance of the issue involved, the resolution of which will

have a direct and material impact upon the effectiveness of law

enforcement nationwide. The issue involved in this case is

whether or not standing to object to an allegedly illegal search

and seizure should be accorded to individuals against whom

evidence was seized from the car in which they were pas-

sengers.

If standing were to be accorded to the petitioner it would

result in a major, and in our view unwarranted, expansion of

the Exclusionary Rule. We will seek to point out to the Court

reasons why any such expansion would have a direct and

adverse effect on the enforcement of the criminal law.

3

Accordingly, amicus respectfully moves this Court for leave

to file our brief.

Respectfully submitted,

FRED E, INBAU, Esq.,

FRANK CARRINGTON, Esgq.,

WAYNE W, SCHMIDT, Esq.,

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.

IN THB

Supreme Court of the Anited States

OCTOBER TERM, 1977.

No. 77-5781.

FRANK L. RAKAS anp LONNIE L. KING,

Petitioners,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT

OF ILLINOIS, THIRD DISTRICT.

BRIEF AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT.

ARGUMENT.

5,

THE SCOPE OF THE EXCLUSIONARY RULE SHOULD NO?

BE EXPANDED BY ACCORDING STANDING TO PETI-

TIONERS’ OBJECTION TO AN ALLEGEDLY ILLEGAL

SEARCH OF ANOTHER’S AUTOMOBILE.

Amicus will not reiterate the legal arguments made by

Respondent State of Illinois in the instant case, although we

agree with them and wish to associate ourselves with them.

We will confine our argument to the issue which we believe in-

volves the most important policy consideration in this case:

whether the Exclusionary Rule should be expanded to en-

6

compass those whose Fourth Amendment rights have not

directly been violated.

The issue of the continued viability of the Exclusionary Rule,

as such, is not before this Court in the instant case; conse-

quently we will not address our argument to those cases in which

the Rule is applied as a sanction when the party actually

aggrieved by an illegal search seeks to suppress evidence against

him.

We submit, however, that to grant standing to invoke the

Rule to Petitioners Rakas and King would bring about an un-

warranted expansion of the scope of the Rule and that valid

criminal justice policy considerations militate against such an

expansion.

Our argument, which will be brief, can be summarized as

follows:

1. To grant standing in cases such as this would greatly

expand the scope of the Exclusionary Rule.

2. In a period of growing disenchantment with, and of

doubt about the efficacy of, the Rule, such an expan-

sion would be unwarranted.

3. The instant case, in particular, is not such a case as

would demand expansion of the Rule.

We believe that these policy considerations, underlying the

sound legal arguments made by Respondent State of Illinois,

contribute to the necessity for affirmance in the instant case.

A. To Grant Standing in Cases Such as This Would Greatly

Expand the Scope of the Exclusionary Rule.

Mr. Justice White, writing for the majority of the Court

in Alderman v. United States, 394 U. S. 165 (1969), enunci-

ated the rule relating to standing to contest an illegal search

and seizure:

The established principle is that the suppression of the

product of a Fourth Amendment violation can be success-

*~

7

fully urged only by those whose rights were violated by

the search itself, not by those who are aggrieved solely by

the introduction of damaging evidence. 394 U. S., at 172.

Thus, the scope of the suppression doctrine is limited to

those actually aggrieved by the violation of Fourth Amend-

ment rights. This limitation, we submit, is grounded on the

soundest public policy reasons. Any other interpretation of the

Exclusionary Rule would result in a broadening of the scope

of the Rule which would have the most adverse effect upon the

criminal justice system.

Many‘ searches and seizures involve a single party: a lone

bandit ig his getaway car, one in possession of narcotics alone

in hisyapartment, a single individual on the street with an

unlawful firearm on his person and so on. Other searches and

seizures, however, involve multi-criminal operations: holdup

gangs, terrorists and organized crime conspiracies and narcotics

distribution rings are but a few examples.

If the Exclusionary Rule were to be expanded so that

anyone against whom illegally seized evidence might be used

could object to its admission, the number of suppression hear-

ings would be multiplied by a factor of as many individuals

who were party to any griven criminal action and who might

be incriminated.

This would, of course, place an additional burden upon our

already overburdened courts; but, more importantly, any such

expansion would exact a high price from our criminal justice

system.

The fact of this expansion, and its impact upon the system

was recognized by this Court in Alderman, supra:

. . . We are not convinced that the additional benefits of

extending the Exclusionary Rule to other defendants would

justify further encroachment upon the public interest in

prosecuting those accused of crime and having them ac-

quitted or convigted on the basis of all the evidence which

expresses the truth. 394 U. S., at 174.

8

Common sense dictates that if standing to object to the use of

illegally seized evidence were extended to parties other than

those actually aggrieved by the search and seizure, the bound-

aries of the Exclusionary Rule would be increased immeasurably.

The question then arises whether this extension would benefit

the system.

B. Ina Period of Growing Disenchantment with, and Doubt

About the Efficacy of, the Exclusionary Rule, Its Expan-

sion, Based on Standing, Would Be Unwarranted.

There is surely no more controversial doctrine in the field of

criminal justice today than the Exclusionary Rule. The Rule

mandates that evidence of crime, no matter how relevant and

probative of guilt it may be, must be excluded at the trial of the

individual from whom it was seized if law enforcement officers

violated that individual’s Fourth Amendment rights in searching

for and seizing’ such evidence.

The Rule was imposed in federal cases, by this Court under

its supervisory power over federal courts, in Weeks v. United

States, 232 U. S. 383 (1914); and upon the states, as a doctrine

of Constitutional dimension, in Mapp v. Ohio, 367 U. S. 643

(1961). The primary rationale for the Rule was that suppression

of the products of Fourth Amendment violations would deter

law enforcement officers from committing them.?

We need only summarize the arguments against the continued

viability of the Exclusionary Rule. This Court is well aware of

1. As this is a search and seizure case we will confine our argu-

ment to the Fourth Amendment issues which involve the Exclu-

sionary Rule.

2. Another rationale for the Rule was the “imperative of judi-

cial integrity”, that is, that courts should not permit the government

to profit from the illegal acts and/or the mistakes of its officers. Mr.

Justice Powell analyzed this in Stone v. Powell, 428 U. S. 465 (1976)

and found this theoretical basis for the Rule wanting in cases not in-

volving suppression of evidence in the criminal trial of the party

actually aggrieved. 428 U. S. 465, at 485. He noted standing in

particular as an area in which public policy outweighed the benefits

of expanding the scope of the Rule. [bid at 489. ;

9

them and, indeed, several Justices have expressed disillusion-

ment with she Rule and its impact.*

Literature critical of the Rule, from every aspect of the

ideological spectrum in the criminal justice system abounds.‘

3. See, e.g., Bivens v. Six Unknown Named Federal Agents, 403

U. S. 388 (1971), Burger, C. J., dissenting. Coolidge v. New Hamp-

Shire, 403 U. S. 443 (1971), Blackmun, J., joining in Mr. Justice

Black’s dissenting opinion. Stone v. Powell, Wolff v. Rice, 428 U. S.

465 _(1976), Powell, J., majority opinion; White, J., dissenting

opinion.

4. See, for example Barrett, Exclusion of Evidence Obtained by

Illegal Searches—A Comment on People v. Cahan, 43 Calif. L. Rev.

565 (1965); Burns, Mapp v. Ohio: An All-American Mistake, i9

DePaui L. Rev. 80 (1961); Cox, The Decline of the Exclusionary

Rule: An Alternative to Injustice, 4 Sw. U. L. Rev. 68 (1972);

Friendly, The Bill of Rights as a Code of Criminal Procedure, 53

Calif. L. Rev. 929, 951-954 (1965); Satlin, An Alternative to the

Exclusionary Rule, 26 JAG J. 255 (1972); Inbau, Restrictions in

the Law of Interrogations and Confessions, 52 Nw. U. L. Rev. 77

(1958); Inbau, Thompson and Sowle, Cases and Comments on

Criminal Justice: Criminal Law Administration, 1-84 (1968);

Lafave, Improving Police Performance Through the Exclusionary

Rule (pts. 1 and 2), 30 Mo. L. Rev. 391, 566 (1965); Lafave and

Remington, Controlling the Police: The Judge’s Role in Making and

Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987

(1965); Morris & Hawkins, The Honest Politician’s Guide to Crime

Control, 101 (1970); Effect of Mapp v. Ohio on Police Search and

Seizure Practice in Narcotics Cases, 4 Colum. J. L. and Soc. Prob.

87 (1968); Oaks, Studying the Exclusionary Rule in Search and

Seizure, 37 U. Chi. L. Rev. 665 (1970); Plumb, //legal Enforcement

of the Law, 24 Cornell L. Q. 337 (1939); Schaefer, The Fourteenth

Amendment and the Sanctity of the Person, 64 Nw. U. L. Rev. 1

(1969); Student Comments: The Tort Alternative to the Exclu-

sionary Rule in Search and Seizure, 63 J. Crim. L.. C. and P. S. 256

(1972); Waite, Judges and the Crime Burden, 54 Mich. L. Rev. 169

(1955); Wigmore, Using Evidence Obtained by Illegal Search and

Seizure, 8 A. B. A. J. 479 (1922); 8 Wigmore, Evidence, section

2184a (McNaughton rev., 1961); Wingo, Growing Disillusionment

with the Exclusionary Rule, 25 Sw. L. J. 573 (1971); The Exclu-

sionary Rule Regarding Illegally Seized Evidence: An International

Symposium, 52 J. Crim. L., C. and P. S. 245-292 (1961); Vance,

Why the Exclusionary Rule Should Be Modified, The Prosecutor,

Vol. 7, No. 5, p. 399 (1971); Rosenblatt and Rosenblatt, A Legal

House of Cards, Harpet’s, July 1977, p. 16; Miles, The A iling Fourth

Amendment: A Suggested Cure, 63 A. B. A. J. 365 (1977).

We especially commend to the Court a recent book, Schlesinger,

Exclusionary Injustice, The Problem of Illegally Obtained Evidence,

New York, Marcel Dekker, Inc. (1977).

10

This criticism is premised for the most part on the fact that there

is little or no empirical evidence that the application of the Rule

actually deters illicit police conduct, and the fact of the high cost

to society of the inflexible exclusionary doctrine: the suppres-

sion of the truth in the factfinding process.

With regard to the deterrent or non-deterrent effect of the

Rule, the language of Mr. Justice White dissenting in Stone v.

Powell, supra, is instructive:

... as time went on after coming to this bench, I became

convinced that Weeks v. United States, [citations omitted],

and Mapp v. Ohio had overshot their mark insofar as they

aimed to deter lawless action by law enforcement, personnel

and that in many of its applications the exclusionary rule

was not advancing that aim in the slightest and that in this

respect it was a senseless obstacle to arriving at the truth

in many criminal trials. 428 U. S. 465 at 537-538. (Em-

phasis supplied.)

Recent studies suggest that there is no empirical evidence for

the deterrent effect of the Rule.* We submit, however, that, in

addition to empirical studies, principles of common sense and

logic dictate that the theoretical case for deterrence is shaky.

For a deterrent to be effective, the person subject to that

deterrent must know with reasonable certainty just whet conduct

on his part is liable to the sanction involved. Three conditions,

common to most search and seizure situations, militate against

a law enforcement officer having such certainty:

1. He is generally untrained in the law, with the exception

of what he has learned in the training academy or

picked up on the street;®

5. Oaks, Studying the Exclusionary Rule in Search and Seizure,

37 U. Chi. L. Rev. 665 (1970); Spiotto, Search and Seizure: An

Empirical Study of the Exclusionary Rule and Its Alternatives, 2

Journ. Legal Studies 243 (1973); but cf. Cannon, Is the Exclusionary

Rule in Failing Health: Some New Data and a Plea Against a

Precipitous Conclusion, 62 Ky. L. Rev. 349 (1974).

6. See, Bivens, supra, Burger, C. J., dissenting: “Policemen do

not have the time, inclination or training to read and grasp the

(Footnote continued on next page.)

11

2. The law of search and seizure has developed into such

a convoluted and complex state that judges of different

courts, or even judges sitting on the same court, cannot

agree about it;’ and,

3. Many search and seizure decisions are made by officers

acting under the exigencies (and sometimes the dan-

gers) of “on-the-street” police work; these situations

leave little time for contemplation of abstract Fourth

Amendment principles.

Given these conditions, we can postulate that, in a large num-

ber of instances, unless the case is so clear that an officer knows

with certainty that his conduct is illegal (a rarity in search and

seizure law) he will act in the good faith belief that his conduct

is reasonable, and necessary, thus negating in large measure any

deterrent effect of a later suppression of the evidence.

Mr. Justice White, dissenting in Stone v. Powell, supra, de-

scribed some of the numerous variables which confront police

officers in search and seizure situations and then concluded: “In

any of these situations, which occur repeatedly, when the officer

is convinced that he has probable cause to arrest he will very

likely make the arrest.” 428 U. S., at 538-539.

Against this background of very realistic doubt as to a mean-

ingful deterrent effect of the Exclusionary Rule must be weighed

the cost to society of its application. This was summed up by

Mr. Justice Powell in Stone v. Powell, supra:

The costs of applying the Exclusionary Rule even at

trial and on direct review are well known: the focus of

the trial, and the attention of the participants therein, is

(Footnote continued from preceding page.)

nuances of the appellate opinions that ultimately define the standards

of conduct that they are to follow.” 403 U. S. 388, at 417.

7. Ibid. “The issues that [search and seizure] decisions resolve

often admit of neither easy nor obvious answers, as sharply divided

couris on what is or is not ‘reasonable’ amply demonstrate. Nor can

judges, in all candor, forget that opinions sometimes lack helpful

clarity.”

12

diverted from the ultimate question of guilt or innocence

that should be the central concern in a criminal proceed-

ing. Moreover the physical evidence sought to be excluded

is typically reliable and often the most probative informa-

tion bearing on the guilt or innocence of the defendant.

* * * * *

Application of the rule thus deflects the truthfinding

process and often frees the guilty. 428 U. S., at 489-

490. [Footnotes omitted.]

The lack of deterrence—cost to society dichotomy ia the Exclu-

sionary Rule controversy has been the basis of numerous deci-

sions of this Court which have refused to expand the scope of

the Rule beyond the trial and direct appeal of the individual

actually aggrieved by the Fourth Amendment violations. We

submit that given the speculative nature of the Rule’s deterrent

effect and the acknowledged corrosive effect of its application in

our criminal justice system, the granting of standing to Peti-

tioners Rakas and King would be a totally unwarranted expan-

sion of the scope of this much-discredited doctrine.

C. The Instant Case in Particular Is Not the Sort of Case That

Would Mandate the Expansion of the Exclusionary Rule.

A major criticism of the Exclusionary Rule is its inflexibility.

Mr. Chief Justice Burger, dissenting in Bivens, supra, precisely

described this anomaly of the Rule:

Although unfortunately ineffective, the Exclusionary

Rule has increasingly been characterized by a single, mono-

lithic and drastic judicial response to all official violations

8. Linkletter v. Walker, 381 U. S. 618 (1965), the Exclusionary

Rule is not to be applied retrospectively; Walder v. United States,

347 U. S. 62 (1954), government may use illegally seized evidence

to impeach a defendant’s credibility; U. §. v. Calandra, 414 U. S.

338 (1974), illegally seized evidence may be used in grand jury

proceedings; U. S. v. Janis, 428 U. S. 433 (1976), illegally seized

evidence may be used in civil proceedings; U. S. v. Ceccolini, ........

Se yee , 22 Cr. L. 3063, 3070 (1978), living witness testimony

which was a “fruit” of an illegal search i j

conviction. . a

13

of legal norms. Inadvertent errors of judgment that do not

work any injustice will inevitably occur under the pressure

of police work. These honest mistakes have been treated in

the same way as deliberate and flagrant /rvine-type viola-

tions of the Fourth Amendment. 403 U. S., at 418.

Our contention in the previous section was that now is not the

time to expand the scope of the Exclusionary Rule; however, if

such expansion is contemplated by extending standing, we sub-

mit that the distinction between wilful and flagrant violations on

the one hand and “honest mistakes” on the part of law enforce-

ment officers on the other should be of critical importance.

The facts of the instant case indicate that the officers were

acting in complete good faith. Indeed, the officers’ actions in this

case could be considered an example of alert and effective police

work.

The robbery took place at about 8:30 p.m. on February 4,

1975, clearly during nighttime hours. (R. 138.) About 15

minutes later Officer Sollers received a radio call describing the

getaway car as a blue Plymouth Road Runner with a certain

license plate. (R. 114, 120, 123, 192.) Some ten minutes later

he spotted a purple Plymouth Road Runner with a different

license plate approximately four and a half miles from the

robbery scene. (R. 120-121, 191-192, 207-208.) Two males,

wearing ski-masks had committed the robbery; two males and

two females were in the automobile that Officer Sollers saw.

(R. 113-114, 121-125.)

Proximity in time and space were clearly established; with

regard to the description of the automobile, an experienced

police officer could have considered two things:

1. Witness’ descriptions of the color of a getaway car

often vary significantly depending upon the perception

of colors, and, especially at night, under artificial light-

ing, a purple car could well have appeared blue.

9. Citations to the trial court transcripts will contain the pre-

fix “R”.

14

2. It is extremely common for robbers to wire (or other-

wise temporarily affix) one set of license plates over

their real plates in order to confuse pursuers.

Thus, it was certainly reasonable for Officer Sollers to believe

that the subject car might be the getaway car.*° He followed

the car until it stopped at a lounge and observed the occupants

leave the car and enter the lounge. (R. 113, 115.) He then

called the Sheriff's Office, another indication that the officer

was doing everything in his power to establish that the car was,

in fact, the getaway car.

Officer Sollers learned from the Sheriff's Office that one of

the male suspects, wearing a blue shirt, matched the limited

description given of one of the robbers. (R. 116.) Other officers

were called to assist Officer Sollers by the dispatcher, and Officer

Sollers then stopped and searched the car after it left the lounge.

The fact that other officers were summoned to assist is further

evidence of the good faith belief of the police that they were

dealing with armed robbers; good police practice demands that

an officer be assisted if possible when dealing with potentially

dangerous and armed men.

Based upon his observations and other information made

available to him, it appears clear that the officer’s good faith

belief that a crime had been committed, and that at least two of

the persons to be stopped committed it, was reasonable. His only

other option would have been to “shrug his shoulders and allow

a crime to occur or a criminal to escape,’ which the law does

not require him to do.’*

10. Whether there was, in law, probable cause to stop and search

the car has not been determined because of the lower court’s ruling

that Petitioners had no standing to object to the introduction of the

rifle. Our analysis of the facts is being made for the purpose of

Gemonstrating good faith rather than to attempt to establish probable

cause in the legal sense.

11. Adams v. Williams, 407 U. S. 143, at 145.

12. “Neither officers nor judges issuing arrest warrants need

delay apprehension of the suspect until unquestioned proof against

him is accumulated. The officer may be shirking his duty if he does

so.” Stone v. Powell, 428 U. S. 465, at 539, White, J., dissenting.

15

From the foregoing analysis, we submit that there can be no

question that the stop and search was not a wilful or flagrant

Fourth Amendment violation.

It is precisely in such cases that the rationale for the Exclu-

sionary Rule fails. As Mr. Justice White pointed out in his

dissenting opinion in Stone v. Powell, supra:

When iaw 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

presently administered is that unimpeachable and proba-

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

finding function of proceedings is substantially impaired

or a trial totally aborted. 428 U. S., at 539. (Emphasis

supplied, )

Thus, given the facts and circumstances of the instant case,

any extension of the scope of the Exclusionary Rule by accord-

ing standing to the petitioners would be unwarranted and would

do little or nothing to safeguard Fourth Amendment rights.

16

CONCLUSION.

Any increase in the number of persons accorded standing to

contest an allegedly illegal search and seizure would drastically

expand the scope of the Exclusionary Rule. The Rule is in-

effective in good faith cases such as this, and it exacts too high

a price from society by suppressing the truth and freeing the

guilty. Consequently, such an expansion would be unwarranted.

For the foregoing reasons we urge this Court to affirm the

judgment of the Appellate Court of Illinois.

Respectfully submitted,

FRED E. INBAU, Esq.,

FRANK CARRINGTON, EsQ.,

WAYNE W. SCHMIDT, EsqQ.,

ROBERT SMITH, EsgQ.,

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.