# Petition — United States v. Crews > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0031%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 463 ## Text rr if a bl ‘) ee ’ F ee & 2 NOV LO i978 wf No YR~ EG [Emionnen RODAK, JR., CLERK Iu the Supreme Court of the United States OCTOBER TERM, 1978 UNITED STATES OF AMERICA, PETITIONER Vv. KEITH CREWS PETITION FOR A WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS WADE H. McCRrEE, JR. Solicitor General PHILIP B. HEYMANN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General RICHARD A, ALLEN Assistant to the Solicitor General JEROME M. FEIT FRANK J. MARINE Attorneys Department of Justice Washington, D.C. 20530 — INDEX Ene tne ee eae FARTS Say STE EET ae SAO at POO ES RE TL a NNER EIST ERE [RDS OT OA ROR RCO OR Reasons for granting the petition -................... REESE CERES SSSA A CITATIONS Cases: Brewer v. Williams, 430 U.S. 387 .......... Brown v. Illinois, 422 U.S. 590 -................ Carson v. United States, 332 F.2d 784.... Edwards v. United States, 330 F.2d 849.. Frisbie v. Collins, 342 U.S. 519 -............... Gerstein v. Pugh, 420 U.S. 108 -............... Golliher v. United States, 362 F.2d 594.... Government of Virgin Islands v. Gereau, 502 F. 2d 914, cert. denied, 420 U.S. Te ee Jacobson v. United States, 356 F.2d 685.... Johnson v. Louisiana, 406 U.S. 356 -......... Ker v. Illinois, 119 U.S. 486 _..................... Manson v. Brathwaite, 432.U.S. 98 .......... Neil v. Biggers, 409 U.S. 188 -................... Payne v. United States, 294 F.2d 723...... Stone v. Powell, 428 U.S. 465 ~................... United States v. Barragan-Martinez, 504 re at ie iciecennds United States v. Cales, 493 F.2d 1215...... United States. v. Ceccolini, 435 U.S. 268.... Page ow fNKS 20, 21 18 il 11 8, 14 20 11 12 21 8, 9, 13, 17, 18, 19, 20 II Cases—Continued - ‘Page United States v. Edmons, 432 F.2d 577.... 12 United States v. Falley, 489 F. 2d 33........ 20 United States v. Hoffman, 385 F. 2d 501, cert. denied, 390 U.S. 1081 ..................... 11 United States v. Wade, 388 U.S. 218 ......... 16 United States v. Young, 512 F.2d 321, cert. denied, 424 U.S. 956 _.............2.... 11 United States ex rel. Pella v. Reid, 527 pp cael CAEL SENS SO ee 12 Wong Sun v. United States, 371 U.S. 471.. 18 Constitution and statutes: United States Constitution, Fourth Amend- a os 5, 9, 18, 14, 15, 16, 20 D.C. Code (1973) : OE. Ik SRE Aaa a Rare 2 nn Ge nuation principle, announced in Nardone v. United States, supra, was significantly de- veloped by Justice Brennan’s elaboration in Wong Sun, supra. Recently, in Brown v., Illinois, supra, the Supreme Court discussed even more thoroughly the dimensions, details, and proper application of “attenuation.” There, the Court held that the inculpatory statements of a de- fendant arrested without probable cause or a warrant should be suppressed, even though preceded by Miranda warnings, since these warnings themselves did not provide sufficient attenuation to “purge the taint of an illegal arrest.” Brown, supra at 605. *7 At least one author urges the limited acceptance of in- evitable discovery principles and their application in light of “the policies underlying the exclusionary rule.”” HOFSTRA Note, supra at 162. He would take into account variables such as the “good faith” of the officers. Because we find the theory of inevitable discovery inconsistent with the exclusionary rule, but also because we find the policy factors more ‘appropriately discussed in the context of “attenuation,” see Brown v. Illinois, supra, and not “causation,” we reject this approach. 87a In the majority opinion, Justice Blackmun indicated that the key words in the Wong Sun formulation are found in the question whether the evidence has been developed “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, supra at 488 (emphasis added). He stressed that this question of attenuation must be answered in each case consistent with the “considerations of deterrence and of judicial integ- rity” which undergird the exclusionary rule. Brown, supra at 599. See Elkins v. United States, quoted at note 11, supra. He then delineated and approved the pertinent variables developed by the lower courts in ap- plying the prge principles of Nardone and Wong Sun to the secondary (derivative) fruits of Fourth Amendment illegality : (1) “[{T]Jemporal proximity”; 7.e., the amount of time between the illegality and the obtainment of the disputed evidence ; (2) “[I]ntervening circumstances” ; (3) “[Ajnd, particularly, the purpose and flagrancy of the official misconduct.” Jd. at 603-04, The Brown opinion thus injected precision into the process of assessing attenuation. See id, at 606 (Powell, J., concurring). Too often courts had set out the facts of a case and merely concluded that on the whole attenu- ation appeared—i.e., the fruit had been unpoisoned— without a reasoned analysis of pertinent considerations. See, e.g., Lockridge v. Superior Court, 3 Cal.38d 166, 174, 474 P.2d 683, 688, 89 Cal. Rptr. 731, 736-37 (1970), cert. denied, 402 U.S. 910 (1971). Now, in light of Brown, it is clear that such conclusory decisions must be avoided in favor of concrete application of these three principal variables.* 28 At the outset of this discussion, it is important to note that the attenuation exception, unlike the independent source 38a 1, Temporal Proximity Time is to be factored into attenuation determinations. The Brov .. opinion adopts the view that the length of the time between the illegality and the obtaining of evidence has a direct bearing on whether exclusion of that evidence will deter future misconduct. The Supreme Court accepts the proposition that the potential impact of the exclu- sionary rule on law enforcement agents’ behavior dimin- ishes as the connection between the misconduct and the evidence is protracted over time. In other words, the prospect of exclusion far in the future does not provide as much disincentive for misdeeds in the present. See United States v. Ceccolini, supra at 1062. In our case the government points to the time span between the January 9, 1974, arrest of Mr. Crews and the April 23, 1974, in-court identification as a basis for suffi- cient attenuation to avoid exclusion of the evidence. While this expanse may have some dissipating significance, it is obviously quite a brief period in the context of the criminal justice process. Moreover, there are two other reasons why this January-April time interval does not contribute very much to carrying the government’s bur- den to demonstrate the purge.” First, while the initial arrest and the taking of the photograph did occur on January 9, 1974, the illegality in this case did notsend on that date. The eventual re- exception, applies only to secondary, i.e., derivative, fruits, such as the identification testimony here at issue, and not to the initial, immediate products of an illegal search or seizure. A chain of one link cannot be attenuated. * It is vital to bear in mind that the government bears the burden of proof of attenuation of the taint, Brown, supra at 605, as it does for all exceptions to exclusion. See Part III.C., supra. a ee ee 39a arrest and confinement of Mr. Crews and his ultimate appearance at trial were all based on tainted facts (the government demonstrated no independent basis for re- arrest). Thus, the entire course of events was accom- plished in violation of the Fourth Amendment. See Part III.B., supra. Since apparently there was no independent probable cause for official detention and the wrong thus continued, the time between initial arrest and ultimate procurement of evidence must be substantially discounted. See United States ex rel. Gockley v. Myers, 450 F.2d 232, 238 (8d Cir. 1971), cert. denied, 404 U.S. 1063 (1972). Second, time is usually the least influential element of attenuation analysis. A contrary conclusion would place a substantial premium upon investigative and prosecu- torial delay with an eye to dissipation. As will appear from the following sections, the presence or absence of significant intervening events and the character of the offending official behavior are more crucial determinants in the equation. The effect of a time lapse of any dura- tion must be considered in light of the other two factors; otherwise, the deterrent rationale may be disserved. 2. Intervening Events The prosecution points to a number of occurrences be- tween the police impropriety and the production of the contested identification which allegedly dissipated the taint: (1) appellant’s January 16, 1974, appearance in court and the resulting court-ordered lineup; (2) the February 22, 1974, grand jury indictment; (3) appel- lant’s March 8, 1974, arraignment;_and (4) his two pre- trial status hearing appearances on March 26 and April 5, 1974. We cannot conclude that any of these events was an effective attenuator. Nor were all taken together. 40a While there are no clear criteria against which to as- sess such interim occurrences, it is evident that to purge the taint the government must establish a “significant intervening event [which] altered the relationship estab- lished .between petitioner and the officers by the illegal arrest.” Brown, supra at 608 (Powell, J., concurring in part; emphasis added). The intervention of an event— even several “official” events as occurred here—will not be “significant” unless the tainted chain is severed. The event must be of a nature that forecloses the possibility of substantial deterrence from suppression; thus, it must preclude both the appearance and reality of gain from misconduct.*® Only if there is a broken connection between the violation and the ultimate evidentiary profit can it be assumed that exclusion would not foster deterrence—that admission of the evidence would not encourage illegality. Wong Sun itself involved the most frequently effective intervening event: an act of free will by an individual in giving a statement or other evidence to officials. On the evidence that Wong Sun had been re- leased on his own recognizance after a lawful arraignment, and had returned voluntarily sev- eral days later to make the statement, [the Court held] that the connection between the arrest and the statement had “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341. [Wong Sun, supra at 491.] The basis for finding a defendant’s untainted exercise of free will—i.e., the voluntary choice to furnish evidence— to be a significant intervening event consonant with the deterrence policy was explicated by Justice Powell in Brown v. Illinois, supra at 610: “” This aspect of attenuation is analogous to independent source doctrine. See Part IIIL.C., supra, Ne ae en. we 4la If an illegal arrest merely provides the occasion of initial contact between the police and the ac- cused, and because of time or other intervening factors the accused’s eventual statement is the product of his own reflection and free will, ap- plication of the exclusionary rule can serve little purpose: the police normally will not make an illegal arrest in the hope of eventually obtaining such a truly volunteered statement. [Emphasis added. | See also United States v. Scotten, 428 F.Supp. 256 (D. Nev. 1976), appeal dismissed, 556 F.2d 590 (9th Cir. 1977). Thus, we conclude that an intervening event will not be “significant” for attenuation purposes unless it alters the relationship between the police and the ac- cused in a way that precludes the police from perceiving a reward for taking illegal advantage of the accused. See discussion of United States v. Ceccolini, supra, in note 37, infra. None of the attenuating events proifered by the govern- ment can serve to purge the taint in this case. Appel- lant’s January 16 court appearance with the consequent court-ordered lineup, as well as his February 22 indict- ment, have superficial appeal in the sense that independ- ent governmental authorities interposed their judgment that there was a basis for detaining and trying Mr. Crews. The fallacy of reliance upon the court’s and the grand jury’s decisions, however, lies in the obvious fac- tual underpinning of those determinations: the tainted identifications made by the witnesses at the photo array sessions. The government cannot untaint identifications by conducting its own intervening events which them- ‘selves are flavored with the very same source of impro- priety. The impermissible bootstrap effect is obvious. 42a The identical flaw also infects the arraignment and pre- trial status hearings. In addition, even if these hearings were not so affected, it is not at all apparent that they would constitute independent legal determinations suffi- cient to fracture the deterrent chain. It is difficult to perceive how an arraignment or a simple status hearing could “significantly alter the relationship” originated by official illegality. In any event, the government has not carried its burden in this regard; and it is not within our province to speculate about significant intervention.” Finally, we perceiv? a critical distinction between this case and the one chiefly relied upon by the government, Johnson v. Louisiana, supra. In Johnson, the accused, alleging that “his nighttime arrest without a warrant was unlawful,” id. at 365, challenged his subsequent iden- tification at a lineup on Fourth Amendment grounds. The court, assuming invalidity of the arrest, held that the defendant’s lineup identification could not be a poisoned fruit of that arrest because [p]rior to the lineup . . . he had been brought before a committing magistrate to advise him of his rights and set bail. At the time of the “If Mr. Crews_had returned to official custody of his own volition, any evidence developed as a result would have been purged of the primary taint. Like Wong Sun, appellant would have severed the legal connection between official misbehavior and the evidentiary harvest, for, as Justice Powell noted in Brown, supra at 610, the police are not presumed to anticipate “truly volunteered” evidence, and exclusion accordingly would “serve little purpose.” The government, however, has pointed to no voluntary action by appellant in the chain of events here, and the “voluntary” identification by the witness cannot sub- stitute. That identification most certainly was within the ambit of official anticipation. See the discussion of United States v. Ceccolini, supra, in Part III.E.8, infra and at note 37, infra. —. es Eee 48a lineup, the detention of the appellant was under the authority of this commitment. [/d.] In Johnson, there could be no question of a taint attach- ing to a probable cause or other postarrest judicial deter- mination, for prior to the arrest the government was lawfully aware that “the victim of an armed robbery had identified Johnson from photographs as having com- mitted the crime.” Jd. at 358. Consequently, the defend- ant did not challenge the sufficiency of the factual predi- cate for arrest; instead he objected to the unexcused failure to obtain a warrant. This procedural failure, even if unconstitutional, could not have had a bearing on the magistrate’s subsequent, independent determination of probable cause founded upon sufficient, untainted evi- dence possessed prior to the unlawful arrest. Because the magistrate’s determination was not dependent upon in- formation attributable to the unlawful arrest, that sepa- rate, neutral judicial event—which might have led to defendant’s release absent reliable, prearrest identifica- tion evidence—“significantly altered the relationship” be- tween the accused and the police. It broke any causal connection between the illegal arrest and the lineup iden- tification. As we have already noted, however, judicial interven- tion which itself is afflicted with the very infirmity it is supposed to prevent—i.e., the taint of an arrest without probable cause—cannot serve the attenuating function of the independent magistrate’s determination in Johnson. All the intervening events alleged by the government in this case were themselves tainted by Keith Crews’ arrest. They could not supplant the illicit source; they could only reinforce it. Therefore, we hold that the courtroom iden- tification of appellant was not purged of the taint by any significant intervening event. A contrary result, from the deterrent standpoint, would be counterproductive. 44a We turn now to the third and final variable in evaluat- ing attenuation. 8. The Nature and Character of the Fourth Amend- ment Violation The government argues that the actions of the police officers in arresting appellant, conveying him to head- quarters, and then photographing him do not constitute 2 purposeful, let alone flagrant, Fourth Amendment viola- tion. To the contrary, the government maintains that “an illegal arrest is the most that this record establishes.” Because our reading of the relevant testimony does not square with this characterization, we cannot find a source of attenuation in the official conduct of this case.” 32 When this appeal was before a division of this court, and again as part of the briefing and oral argument before the en bane court, the parties focused heavily on appellant’s claim that the arrest here was a “sham” or a “pretext”—a pur- ported arrest for truancy to cover the intention to arrest and obtain evidence for armed robbery and assault. Particular attention was devoted to the extreme case of Edmons v. United States, supra (FBI “dragnet arrest” of several individuals for selective service violations when the true purpose was to ob- tain identifications of assailants of fellow agents). See Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961); McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950). Courts are uniform in condemning this practice under the Fourth Amendment and invoking the ex- clusionary rule. “An arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452, 467 (1932). These cases can be said to comprise a “sham” or “pretext” arrest subspecies under the Fourth Amendment. We do not believe it appropriate to classify this case under the sham-pretext line of authority. Although the officers who apprehended Mr. Crews may have had grounds for apprehend- ing him as a potential truant, the fact is that they did not do so. The record does not reflect that appellant was informed he Sra ee oa ee te ions 45a Although “no mathematical weight can be assigned to any of the factors” bearing on attenuation, United States v. Ceccolini, supra at 1062, the character of the official impropriety is the most germane of the attenuating vari- ables and is clearly the dispositive one in the balance struck here.** The majority opinion in Brown v. Illinois, supra, held “particularly [relevant] the purpose and fla- was being detained and transported to headquarters as a sus- pected truant. To the contrary, he was told that he matched a robber’s description. Further, although the officers stated that appellant was “processed” as a truant, it does not appear that the procedures followed in Mr. Crews’ case conformed to the typical truancy practices also described by the officers. While there is some ambiguity and contradiction, the thrust of the testimony reveals that the photograph was taken for display to robbery victims; and the school was called to determine whether appellant was present on January 3 and 6, the dates of the robberies. It appears that the officers never even super- ficially pursued the truancy matter. Accordingly, we believe that the official misconduct here— the arrest for armed robbery and assault without probable cause—is more suitably analyzed under traditional Fourth Amendment exclusionary rule criteria and thus, more par- ticularly, as a factor bearing on attenuation. In summary, we do not order suppression of the evidence on the theory that the government engaged in a sham. Instead, we factor the degree of official misbehavior into the formula for deter- mining whether the initial taint of illegality has dissipated. *8 Recall that this factor is pertinent only when attenuation is at stake—i.e., when secondarily acquired, derivative evi- dence is challenged. See note 28, supra. If the evidence is an immediate product of an unlawful search and seizure, that evidence is automatically excludable; there is no room for a court to weigh admissibility based on the degree of misconduct. We join Justice Powell in concluding that suppression of im- mediately derived products, no matter what the nature of the source, is a “constraint . .. imposed by existing exclusionary- rule law.” Brown, supra at 612. 46a grancy of the official misconduct,” id. at 604, and Justice Powell’s partial concurrence announced that “the point at which the taint can be said to be dissipated should be related, in the absence of other controlling circumstances, to the nature of the taint.” Id. at 609 (emphasis added) .* As with “temporal proximity” and “significant inter- vening events,” the “nature of the conduct” attenuator has a sound foundation in the deterrent theory of the exclusionary rule, for the “basic purpose of the rule... is to remove possible motivations for illegal arrests.” Brown, supra at 610 (Powell, J., concurring in part; em- phasis added). It is presumed, and soundly so, that offi- cials who have consciously chosen to tread upon Fourth Amendment protections are particularly aware of the connection between their conduct and the evidence pro- duced. Thus, they will be especially susceptible to deter- rence if deprived of the benefit of that evidence. As a consequence, when a Fourth Amendment violation has occurred, the government’s burden to demonstrate attenu- ation is usually a heavy one; and the government’s diffi- culty in doing so will increase in proportion to the offen- siveness and purposiveness of the misconduct. %*The Second Circuit, in United States v. Edmons, supra at 584, pointedly acknowledged that the language chosen in Wong Sun strongly implies that the nature of the transgres- sion plays a vital role in “fruit of the poisonous tree” assess- ments: It has been well said of the statement by Professor Maguire endorsed in Wong Sun that “the sense of pur- posiveness and self-seeking of the term ‘exploitation’ is striking, arid serves as a reminder that the exclusionary rule is a deterrent device.” Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A. L. Rev. 82, 28 (1967). See also Pitler, supra, 56 Calif. L. Rev. at 588-89. ee een 47a Both explicitly and implicitly, there is a widespread case law recognition of this point: the more flagrant the unconstitutionality, the less curable is the taint.*® The majority opinion in Brown v., Illinois, supra, relied pri- marily on the fact that the illegality . . . had a quality of purposefulness. The impropriety of the arrest was obvious... . The arrest, both in design and in execution, was investigatory. [Id. at 605 (emphasis added).] Similarly, in United States v. Edmons, supra, the court found that the arrests at issue “violated the Fourth Amendment . . . because law enforcement officers . . . deliberately seized the appellants . . . for the purpose of displaying them to the agents who had been present at the scene of the crime.” Jd. at 583 (emphasis added). The court held that “in applying the exclusionary rule as a deterrent device, account should be taken of the degree of police misconduct.” Jd. at 585. Finally, the District of Columbia Circuit, in suppressing a confession and lineup identification testimony, leaned heavily upon the circumstance that “the manner in which |the defendant’s] ease was handled by the police clearly demonstrate[d] that it was one for investigation.” Gatlin v. United States, supra at 128, 326 F.2d at 671 (1963) (emphasis added). The courts, therefore, have specifically con- demned deliberate seizures for investigation. The facts of this case bring it squarely under the au- thority of the controlling principles of these cases con- demning the evidentiary fruits of investigatory arrests. One of the officers who initially detained appellant con- ** Indeed, even critics of the scope of the exclusionary rule acknowledge its utility in cases of intentional official miscon- duct. See Michigan v. Tucker, 417 U.S. 438, 447 (1974). 48a ceded that from the start the focus upon Keith Crews was initiated by suspicion of his involvement in the Wash- ington Monument robberies. Indeed, the police told Mr. Crews straightaway, upon the initial stop, that he matched the culprit’s description. Detective Ore, who was in charge of the robbery investigation, admitted that he was summoned to the scene to view a robbery suspect; that Mr. Crews was taken to the station and _photo- graphed because he matched the robber’s description; that the ongoing intent was to display such photographs to the victims; and that they called appellant’s school to discover whether he had attended on the days of the two robberies. The scenario which emerges from this testi- mony is unambiguous: appellant Crews was intentionally subjected to an investigatory arrest for the very purpose of obtaining identification evidence. See note 33, supra. The remarkable parallels to the offending police ac- tivity in Brown v. Illinois, supra, are noteworthy. In that case, as in this, {t]he impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly ac- knowledged, in their testimony, that the purpose of their action was “for investigation” or for “questioning.” . . . The detectives embarked upon this expedition for evidence in the hope that something might turn up. [J/d. at 605 (footnote omitted) .] '**! % The severe constitutional perils inherent in “investiga- tory” seizures of citizens already had been described by the Supreme Court in Davis v. Mississippi, 394 U.S. 721 (1969): Investigatory seizures would subject uniimited numbers of innocent persons to harassment and ignominy incident to involuntary detention. Nothing is more clear than that —-. > ii oD Shek Kt 49a Further, we agree with the authorities which have ob- served that the importance and necessity of suppressing evidence are substantially enhanced when the evidence unlawfully obtained s the specific goal the police set out to achieve: | When the police, not knowing the perpetrator’s identity make an arrest in deliberate violation of the Fourth Amendment for the very purpose of exhibiting a person before a victim and with a view toward having any resulting identifica- tion duplicated at trial, the fulfillment of this objective is... an exploitation of “the primary illegality” .... The government “exploits” an unlawful arrest when it obtains a conviction on the basis of the very evidence . . . which it hoped to obtain by its unconstitutional act. |Ed- mons, supra at 584 (emphasis added).] See also United States v. Bacall, 443 F.2d 1050 (9th Cir.), cert. denied, 404 U.S. 1004 (1971). The present case, therefore, stands in marked con- trast to the recent Supreme Court decision in United States v. Ceccolini, supra, relied upon by the dissenters. the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed “arrests” or “investi- gatory detentions.” [/Jd. at 726-27 (footnote omitted) .] It would not matter that the police did not engage in wide- spread arrests of all youths who fit the general description in this case. Actually, our inability to know whether or not there were others, or how many others were treated similarly to appellant, strengthens the argument for proscr.oing the known incident, for it is the unknown, innocent individuals whose rights can only be safeguarded by the deterrence achieved in cases such as this. See Elkins v. United States, supra at 217-18. 50a There, a uniformed police officer, taking a break from assisting at a school crossing, visited a friend at a flower shop where she was employed. He observed an envelope on the cash register with money sticking out of it. Upon opening it (apparently on impulse), he discovered policy slips. He asked his friend, the employee, to whom the envelope belonged, whereupon she gave the defendant's name. The officer reported the incident to detectives on the force who then informed the FBI. Four months later an FBI agent interviewed the employee. Over a year later defendant testified before a grand jury that he had never taken policy bets; thereafter, the flower shop employee testified to the contrary. Defendant was then indicted for perjury. At the perjury trial, the District Court suppressed the flower shop employ