Reply Brief — Payton v. New York

FOR ARGUMENE

| Berrene Conn, 0.8. |

IN THE MAR 16 1979

Supreme Court of the United) Mebetow scien

October Term, 1978 eR =

No. 78-5420

THEODORE PAYTON,

Appellant,

vs.

NEW YORK,

Appellee.

No. 78-5421

OBIE RIDDICK,

Appellant,

vs.

NEW YORK,

Appellee.

Appeals from the New York Court of Appeals

REPLY BRIEF FOR APPELLANTS

Wituiam FE. Hevwierster

Davi A. Lewis

Counsel for Appellants

The Legal Aid Society

15 Park Row—18th Floor

New York, New York 10038

(212) 577-3420

ee GY A

TABLE OF CONTENTS

PAGE

I—Appellee presents no valid reason for exempting

entries of the home to arrest from the warrant

FOQUITONNONE oinicescississisids cee 2

II—Appellee’s argument that appellant Payton is not

entitled to suppression of evidence obtained pur-

suant to a statute directly violative of the Fourth

Amendment is without merit .................... label 7

em, sins cinisnkisesissvseisncszcactcabanideapied och ee 14

CITATIONS

Cases:

Acearino v. United States, 179 F.2d 456 (D.C. Cir.

1949) . séttednessiniinasdieaszadcasdamaae 13

Aguilar v. Texas, 378 U.S. 108 CRD sisaesneussens 11

Almeida-Sanchez v. United Haeate 413 US. 266

(1973) saisdineiaseasionalsi Poe cacceb wale. <dtepamt aeenesieain Tanna

Berger v. New York, 388 U.S. 41 (1967) ............... 11

Bivens v. Six Unknown Named Agents, 456 F. 2d

1399 (34 Cle. 197D) |g Bk. cc ee 9

Bowen v. United States, 422 US. 916 (1975) . 8

Camara v. Municipal Court, 387 U.S. 523 (1967) : 3

Commonwealth v. Boswell, —— Mass. , 372 N.E.

94. 997 (1976) nic ec Oe eee ae 3

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ z, 11

Jones v. United States, 357 U.S. 493 (1957) ...00000....... 13

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ........ 13

II

PAGE

Mapp v. Ohio, 367 U.S. 643 (1961) 9

Michigan v. De Fillippo, No. 77-1680 11

Morrison v. United States, 262 F.2d 449 (D.C. Cir.

1958) os | i iper 13

Palmer v. Thompson, 403 U.S. 217 (1971) 12

People v. Vaccaro, 39 N.Y.2d 468, 348 N.E.2d 886

(1976) , | . aes 8,5

Restivo v. Degnan, 191 Misc. 642, 77 N.Y.S. 2d 563

(Sup. Ct. 1948) 6

Spinelli v. United States, 393 U.S. 410 (1969) 11

Stovall v. Denno, 388 U.S. 293 (1967) 7,8

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 11

United States v. Campbell, 581 F.2d 22 (2d Cir. 1978) 5

United States v. Peltier, 422 U.S. 531 (1975) 6, 9-10

United States v. Watson, 423 U.S. 411 (1976) 6

Warden v. Hayden, 387 U.S. 294 (1967) 13

Wood v. Strickland, 420 U.S. 308 (1975) +t 9

Statutes:

N.Y. Crim. Proc. Law, §120.10(1) 6

N.Y. Crim. Proc. Law, §690.05(2) 6

Miscellaneous:

W. LaFave, Arrest: Tue Decision to Take a Suspect

Into Custopy (1965) ...... LL DAS oS 4

Mishkin: Foreword: The High Court, The Great Writ,

and the Due Process of Time and Law, 79 Harv.

L. Rev. 56 (1965) . CR ce oe 8

Note, 47 N.Y.U.L. Rev. 595 (1972) x 10

Oaks, Studying the Exclusionary Rule in Search and

Seizure, 37 U. Chi. L. Rev. 665 (1970) .000000.000000...., 14

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-5420

THEODORE Payton,

Appellant,

vs.

New York,

Appellee.

No. 78-5421

Osre Ruppick,

Appellant,

vs.

New York,

Appellee.

Appeals from the New York Court of Appeals

—EE ee

REPLY BRIEF FOR APPELLANTS

Appellee presents no valid reason for exempting

entries of the home to arrest from the warrant require-

ment.

Appellee presents a number of arguments designed to

show that the warrant requirement would severely inter-

fere with law enforcement or would otherwise be useless or

counterproductive. Because most of these arguments are

based on certain fallacies, they are insubstantial. More-

over, those arguments which are not fallacious actually

favor the imposition of the warrant requirement. Thus, ap-

pellee’s arguments do not refute the position stated in our

main brief.

The premise underlying each of appellee’s arguments

that the warrant requirement will ‘‘severely interfere’’

with law enforcement is that the requirement will ‘‘lead

police officers to get the warrant as soon as possible’’ (Br.

at 51,55). This premise is false. It is based on the notion

that if the officer waits, rather than getting a warrant im-

mediately, and then some exigency requires him to make an

immediate, warrantless arrest, his actions will be found un-

lawful (Br. at 55). The error in this assumption is evident

enough, however, for the very exigency that requires the

immediate arrest excuses the failure to get a warrant.

Where, for example, officers delay making an arrest pend-

ing a more thorough investigation and then learn that their

suspect has plans to flee the jurisdiction imminently, they

may certainly arrest without a warrant. The police can

3

hardly be expected to allow the suspect to escape, and an

immediate warrantless arrest is entirely reasonable under

the Fourth Amendment, notwithstanding any prior police

decision to delay the arrest. See, e.g., People v. Vaccaro,

39 N.Y.2d 468, 348 N.E.2d 886 (1976); Commonwealth v.

Boswell, —— Mass. ——, 372 N.E.2d 237, 241 (1978). Thus,

the police need not obtain an arrest warrant at the earliest

possible moment, for if they do not and a sudden emer-

gency arises, they are entitled to arrest without a warrant,

even in a home.

Because the remainder of appellee’s arguments depend

on the premise that the police must ‘‘rush to the court-

house’’ (Br. at 61) to get arrest warrants, those arguments

also fail. Appellee argues, for example, that because of the

rush to get the warrant, various intolerable consequences

will result: police will seek warrants before they have

probable cause, magistrates will erroneously approve

them,' and innocent people will be arrested or evidence

suppressed (Br. at 55-56); the magistrate will, because of

the early stage at which the warrant is obtained, become the

1. Like a number of other arguments advanced by appellee, this

one depends on the additional premise that public officials will fail

to do their duty if a warrant requirement is imposed. Elsewhere, for

example, appellee assumes that courts will fail to find exigency when

circumstances required an immediate arrest (Br. at 55) or that

magistrates will not give serious consideration to arrest warrant ap-

plications which they will ‘“rubber-stamp” (Br. at 75-76). Our posi-

tion, however, is that magistrates do their duty conscientiously in

most cases, that they will give warrant applications whatever scrutiny

they deserve, and that they will not suppress evidence where the po-

lice reasonably believed emergency action was necessary. We believe

the Court’s insistence upon the warrant except in certain carefully

defined cases is founded on this very premise. See, Camara v. Munic-

ipal Court, 387 U.S. 523, 528-529 (1967).

4

‘supervisor of the investigation’’ (Br. at 56, 57) ;? the

police will never know whether to pursue their investigation

or to get a warrant (Br. at 58); and the police will make

‘‘unplanned and ill-considered’’ arrests in homes (Br. at

61). As we have shown, however, the police need not rush

to get the warrant. Accordingly, they may prolong their

investigation to ensure that they have probable cause, need

not go immediately to a magistrate after they have it, and

may, as appellee advocates, ‘‘take as much time as is rea-

sonably necessary to plan arrests’’ (Br. at 61). The war-

rant requirement will not force them to make hasty arrests

or to subject themselves to danger in the absence of thor-

ough planning. Thus, the awful consequences of police

haste envisioned by appellee are little more than phantoms

conjured up to avoid the warrant requirement of the Fourth

Amendment.

Indeed, appellee’s emphasis on the need to plan the

entry of homes supports the view that warrants may safely

be required for such entries. Appellee repeatedly asserts

that before making such entries, the police must take time

to assure that they have had dinner and ample sleep (Br.

at 62-63), to complete their investigation (Br. at 61), to

plan the arrest (Br. at 61), and generally to assure their

2. This particular argument is preposterous on other grounds.

It supposes that the police are under some obligation, once they have

a warrant to arrest, to inform the magistrate of every further step in

their investigation. This is simply not the case. Indeed, appellee

cites no authority to support its position. Nor does it appear that any

such problem has arisen in those jurisdictions where warrants have

long been required for home arrests. And in those places where

police departments have voluntarily sought such warrants, the police

— me Soe rg poses any “‘supervision” of the magis-

rate. See W. Lafave, Arrest: THe Decis

Into Custopy 45-46 (1965). Seo

D

own safety (Br. at 61, 63).3 Since public safety is not

jeopardized by this extensive and time consuming prepara-

tion, there is no basis for concluding that the time required

to get a warrant would create peril.*

A number of appellee’s other arguments not only fail

to support its position but instead support the view that

warrants should be required for home arrests.’ Appellee

argues, for example, that if a warrant is obtained, the range

of issues defendenis can raise at suppression hearings will

be curtailed (Br. at 74-75). This argument hardly helps

appellee, however, fo. ic demonstrates that the warrant re-

quirement is desirable since it actually tends to reduce

litigation and may well result in a decrease in the amount

of evidence actually suppressed. Thus, in this context, there

3. Here appellee contradicts its earlier arguments that the inter-

est at stake is the “need to catch armed criminals . . . as quickly as

possible” (Br. at 51). Clearly appellee recognizes that this “need”

is often qualified and that arrests may frequently be postponed with

no danger.

4. United States yv. Campbell, 581 F.2d 22, 26-27 n.7 (2d Cir.

1978), in which an F.B.I. agent testified that it took four to five hours

to obtain a warrant in the Southern District of New York, should not

be taken as representative. The length of time will, of course, de-

pend on the circumstances of individual cases. In some instances,

it could take much less [People v. Vaccaro, 39 N.Y.2d 468, 472-

473, 348 N.E.2d 886, 890 (1976) (two hours to obtain a search

warrant in New York County)] and in others more.

5. The remainder of appellee's arguments designed to show that

the arrest warrant serves no “protective function” (Br. at 72) are

simply false. As appellee recognizes, police sometimes rely on “‘street

talk,” “hunches,” and informers of questionable reliability in deter-

mining whether to act (Br. at 54). Without a warrant requirement,

officers may be tempted to arrest in homes on such flimsy knowledge.

But the officers may well be reluctant to face a magistrate with the

same information as a basis for a warrant application. And if with-

out further investigation, the officer does go to a magistrate, the

magistrate’s refusal to issue a warrant on less than probable cause

constitutes the very protection of constitutional rights which the

warrant requirement was meant to ensure.

6

need be no concern that the warrant requirement will cause

extensive litigation. Compare, United States v. Watson,

423 U.S. 411, 423-24 (1976); see also United States v.

Peltier, 422 U.S. 531, 542-543 n.13 (1975). Appellee also

argues that ‘‘an arrest warrant requirement will strip those

falsely arrested of their historic right to damages, because

the mere existence of the arrest warrant... will ordinarily

shield the officer from liability’? (Br. at 72). Here, too,

the result appellee laments is in fact desirable, for if police

officers have acted conscientiously to obey the Fourth

Amendment they should be protected, and additional litiga-

tion should not be encouraged. Rather than supporting

appellee’s position, therefore, both of these arguments pro-

vide further reason why warrants should be required for

arrests in the home.®

In sum, appellee presents no valid reasons for exempt-

ing entries of the home to arrest from the warrant require-

ment.

6. Appellee’s argument that the warrant’s command that a person

be brought to court prevents the police from releasing innocent people

is also erroneous (Br. at 73-74). It is true that an arrest warrant

in New York, like a search warrant, constitutes a form of “process”

commanding the officer to do an act. N.Y. Crim. Proc. Law

§§120.10(1), 690.05(2). However, it does not follow that the officer

must always execute that process regardless of intervening circum-

stances. For example, if an officer in New York is ordered by a

search warrant to search certain premises and then learns that the

wrong premises are named in the warrant, he is not required to

search an innocent person’s home because of the warrant’s command.

Similarly, if after obtaining an arrest warrant, the officer acquires

information that convinces him the person named in the warrant is

the wrong person, he need not make that arrest. There is no obstacle

to his returning to court and informing the magistrate that the new

information he has obtained vitiates the probable cause upon which

the warrant was issued. Cf. Restivo v. Degnan, 191 Misc. 642, 646,

77 N.Y.S.2d 563, 567 (Sup. Ct. 1948) (magistrate can recall and

cancel warrants of arrest issued by mistake).

Appellee’s argument that appellant Payton is not

entitled to suppression of evidence obtained pursuant

to a statute directly violative of the Fourth Amend-

ment is without merit.

As an independent basis for affirmance in Payton, ap-

pellee argues that even if the statute is held unconstitu-

tional, appellant Payton should be denied all relief (Br. at

81-92). The same result is not sought in Riddick because

appellee deems constitutivnally significant the fact that the

entry in Riddick occurred after Coolidge v. New Hamp-

shire, 403 U.S. 443 (1971) which ‘‘clearly raised the issue

...? (Br. at 86).7. To achieve this, appellee proposes

a four-pronged test which, if accepted, would require the

Court to overrule Stovall v. Denno, 388 U.S. 293, 301 (1967)

and to depart from long adhered-to principles of constitu-

tional adjudication which afford the prevailing litigant the

relief which turns upon the result achieved. Because these

principles are sound and the test proposed by appellee un-

founded and untenable, appellee’s argument is without

merit.

In Stovall, the Court held that Wade and Gilbert were

entitled to the benefit of the rules established in their cases

because that benefit is

an unavoidable consequence of the necessity that con-

stitutional adjudications not stand as mere dictum.

7. Because appellee expressly recognizes the important functions

of the exclusionary rule and the serious difficulties that restriction of

the rule to bad faith situations would cause (Br. at 82-84, 88-89) and

does not challenge the application of the rule in Riddick, we do not

address possible expansion of appellee’s proposed rule which might

affect that case.

8

Sound policies of decision-making, rooted in the com-

mand of Article III of the Constitution that we resolve

issues solely in concrete cases or controversies, and in

the possible effect upon the incentive of counsel to ad-

vance contentions requiring a change in the law mili-

tate against denying Wade and Gilbert the benefit of

today’s decisions.

388 U.S. at 301. And, as the Court has recently reiterated,

Article III remains the principal basis for applying new

constitutional doctrines in cases that establish them for the

first time. Bowen v. United States, 422 U.S. 916, 921 (1975).

No less important, as the Stovall Court perceived, is the

deleterious effect that the likelihood of merely prospective

rulings would have upon constitutional adjudication. 388

U.S. at 301. The spectre of a purely prospective ruling,

particularly in criminal cases, would effectively preclude

important constitutional issues from ever being raised.*

8. As Professor Mishkin has observed,

if parties anticipate such a prospective limitation, they will have

no stimulus to argue for change in the law. Indeed, the recog-

nition of even a substantial possibility of such limitation will

tend to deter counsel from advancing contentions involving

novelty or ingenuity and will lead them to focus on other aspects

of their cases. Under such circumstances, issues involving reno-

vation of unsound or outmoded legal doctrines will either not be

presented for judicial decision or—what may be even more

trounlesome—if reached by the courts, may be decided upon

inadequate argument and consideration.

ishkin, Foreword: The High Court, The Great Writ, and the Due

Foun of Time and Law, 79 Harv. L. Rev. 56, 61 (1965). Of

course, the issue of a statute’s constitutionality might be raised on an

appeal which had been taken because there were other possible

grounds for reversal. However, a constitutional determination in

such a case would be dictum, and since it could not affect the dispo-

sition of the case, the court’s reaching of the constitutional question

would directly contravene this Court's repeated insistence that con-

stitutional questions not be decided unnecessarily. Bowen v. United

States, 422 U.S. 916, 920 (1975).

Ci

9

A non-indigent defendant would not retain an attorney and

incur the costs of an appeal if the attorney advised that

despite a clear violation of his Fourth Amendment rights,

there was no possibility that his conviction could be re-

versed. A public defender or assigned attorney would, in

a world of limited resources, more properly turn his atten-

tion to those individuals who could be aided in some con-

crete fashion.’

In pressing its wish to have the Court engage in such

a drastic alteration of established principles of constitu-

tional adjudication, appellee relies substantially on United

States v. Peltier, 422 U.S. 531 (1977). That reliance is mis-

placed. In Peltier, the Court was concerned with whether

the Fourth Amendment standard announced in Almeida-

Sanchez v. United States, 413 U.S. 266 (1973) was to be

given retroactive application. Indeed, the Court clearly

said: ‘‘where it has been determined, as in a case such

as Linkletter, that an earlier holding such as Mapp is not

9. Moreover, appellee’s assertion that Fourth Amendment prin-

ciples can be developed in civil litigation (Br. at 90) simply ignores

past history and present law. Mapp v. Ohio, 367 U.S. 643 (1961)

was predicated on a finding that remedies other than suppression did

not adequately protect Fourth Amendment rights. Jd. at 651-652.

But even if a damage remedy is available for certain Fourth Amend-

ment violations as in Bivens, an officer who acts pursuant to the

specific mandate of a state statute may have a perfectly valid good

faith defense. See, eg., Bivens v. Six Unknown Named Agents.

456 F.2d 1339, 1341 (2d Cir. 1972) (“it is a valid defense that thc

. . . Officer acted in good faith and with a reasonable belief in the

validity of the arrest and search ...). See, also, Wood v. Strickland.

420 U.S. 308, 313-322 (1975). Thus, adjudication of facially uncon-

stitutional statutes in a civil damage suit is not a Ingical possibility.

Indeed, the illogic of appellee’s entire argument on this point is

glaring ; they urge that where officers act on the basis of a statute.

the suppression remedy should be removed since other civil remedie:.

are available while wholly disregarding the fact that the officers

reliance on the same statute will remove all possibility of a civi:

recovery.

10

to be applied retroactively, it has not been questioned that

Mapp was entitled to the benefit of the rule enunciated in

her case. See Stovall v. Denno, 388 U.S. 293, at 300-301.’’

422 U.S. at 542 n.12.

Not only does the Payton case not raise any issue of

retroactive application, the factors which led the Court to

focus its analysis on the good faith of the Border Patrol

officials in Peltier are entirely absent.’° When the validity

of a statute is before the Court for the first time and it is

determined that the statute is violative of the Fourth

Amendment, any inquiry into the good faith of the arrest-

ing officers or their superiors is beside the point. For when

a legislature passes such a statute, it is obvious that the

litigant who is first to challenge its validity has no quarrel

with the police but with the legislature which authorized

them to violate the Constitution. In such a setting the pub-

lic interest served by the exclusionary rule is that of deter-

ring legislators from enacting statutes which violete the

Fourth Amendment. See, Note, 47 N.Y.U.L. Rev. 595,

602-604 (1972). In this respect, the position of a de-

fendant who challenges a statute on Fourth Amendment

grounds is the same as one who challenges the validity of a

search warrant. In either case, the particular officer in-

volved is acting in good faith on the basis of an authoriza-

10. The situation here is different from that in Peltier in one

further respect. As the Court observed, the statute in question there

had been “supported by longstanding administrative regulations and

continuous judicial approval.” 422 U.S. at 541. Indeed, the Court

emphasized that the courts of appeals had for many years uniformly

sustained the constitutionality of the statute facially and also as applied

by Border Patrol officers in circumstances like those in Peltier. Id.

at 540-541. Here, on the other hand, the New York courts had

never even considered the question of the statute’s constitutionality

prior to the Payton and Riddick cases.

11

tion by another governmental officer or body; but where,

as in the case of the invalid search warrant, the authoriza-

tion itself violates the Fourth Amendment, the exclusionary

rule plays an important role in deterring such authoriza-

tions from being made. See, e.g., Spinelli v. United States,

393 U.S. 410 (1969) ; Aguilar v. Texas, 378 U.S. 108 (1968).

Thus, the Court has never refused to apply the exclu-

sionary rule in situations where unconstitutional police con-

duct was expressly authorized by state statute. In Coolidge

v. New Hampshire, for example, evidence obtained pur-

suant to a warrant issued by the state’s attorney general,

rather than by a ‘‘neutral and detached magistrate,’’? was

suppressed even though such warrants were specifically

authorized by a state statute. 403 U.S. at 449-453. And in

Berger v. New York, 388 U.S. 41 (1967) evidence « tained

through electronic eavesdropping under the specific author-

ity of a New York statute was suppressed because the stat-

ute violated the Fourth Amendment. In neither of these

cases was the good faith of the officers relevant." In sum,

11. The issue in this case is markedly different from that in

Michigan v. De Fillippo, No. 77-1680, referred to by appellee (Br.

at 85). In that case, the Michigan ordinance did not command a

direct violation of the Fourth Amendment but arguably violated the

Due Process Clause of the Fourteenth Amendment because it defined

criminal behavior in an unconstitutional manner. If a “good faith”

voices is at all relevant in that context, it is because otherwise a

ice officer might be required to determine whether statutes defining

certain behavior as criminal were unconstitutional. That is a far cry

from cases like this one where the statute in question violates the

Fourth Amendment on its face. See, United States v. Brignoni-

Ponce, 422 U.S. 873, 877-878 (1975) ; Almeida-Sanchez v. United

States, 413 U.S. at 272. Thus, if the police officers in De Fillippo

had probable cause to arrest, it could still be argued that no Fourth

Amendment violation had occurred. Here, that is impossible because

aay arrest statutes either violate the Fourth Amendment or

ey

12

the result sought by appellee in Payton is squarely at odds

with the Court’s prior decisions and established principles

of constitutional decision-making.

Besides being unfounded in sound constitutional doc-

trine, the four-pronged rule appellee proposes is simply

unworkable. First, determining whether a given statute

is ambiguous would be extremely difficult. Many statutes

clear on their face may not be clear when they are applied

to particular factual situations, and trial courts would have

justified difficulty in deciding whether such statutes are

‘‘ambiguous’’ within the meaning of appellee’s proposed

rule.” Even more cumbersome is the proposal that the

exclusionary rule should apply when the ‘‘statute was

designed to evade Fourth Amendment requirements’’ (Br.

at 89). Under the best of circumstances, ‘‘it is extremely

difficult for a court to ascertain the motivation, or collection

of different motivations, that lie behind a legislative enact-

ment’’ [Palmer v. Thompson, 403 U.S. 217, 224 (1971)],

and such a complex inquiry should not be thrust upon local

trial courts attempting to hold suppression hearings in

routine criminal cases.

The final branch of appellee’s proposed rule is the least

manageable of all. Appellee suggests that suppression

should be denied only when no one in the law enforcement

hierarchy ‘‘could have any reasonable doubt about the

statute’s validity’’ (Br. at 89), bnt what creates such a

12. For example, where a statute simply states that police may

enter homes to arrest, without mentioning warrants, the statute is

unambiguous on its face. But the silence of the statute with regard

to warrants renders it less than clear on that score, and the legisla-

ture cannot certainly be said to have authorized warrantless entries.

Thus the criterion of “lack of ambiguity” is itself fairly ambiguous.

On we ow

13

‘‘reasonable doubt’’ is not clear.’® In the instant case, for

example, Mr. Justice Harlan’s statements in Jones v.

United States, 357 U.S. 493, 499-500 (1957), cases such as

Accarino v. United States, 179 F.2d 456 (D.C. Cir. 1949) and

Morrison v. United States, 262 F.2d 449 (D.C. Cir. 1958),

as well as this Court’s creation of the ‘‘hot pursuit”’ ex-

ception in Warden v. Hayden, 387 U.S. 294 (1967), and the

treatment of the issue as a substantial constitutional ques-

tion in Lankford v. Gelston, 364 F.2d 197, 205-206 (4th Cir.

1966) should have caused doubt about the viability of the

statute prior to the entry into Payton’s apartment." In-

deed, the holdings of a single court, or even a persuasive

law review article, might cause doubts about the validity of

legislation. But the inquiry about when such a doubt arose,

or should have arisen, is a morass into which courts should

not be required to venture.

In conclusion, the momentous departure from sound

principles of constitutional adjudication sought by appellee

and the consequences which would ensue are simply not

worth the price of denying Mr. Payton the relief which has

13. Here lee abandons the premise adopted from Peltier

that it is the officer’s subjective good faith which is in question, and

recognizes that there is a responsibility throughout the government

for constitutional police behavior.

14. Appellee also implies that courts should rule on the merits

of constitutional challenges to statutes, and apply the exclusionary

rule, wherever the statute could be found unconstitutional by analogy

with settled rules (Br. at 90). This conflicts with appellee’s con-

tention that the exclusionary rule should not apply in the Payton

case, for in Payton, the argument that the warrant requirement should

apply proceeds by direct analogy to firmly settled Fourth Amendment

principles. Thus, if as appellee suggests, courts may apply the ex-

ev, rule in analogous cases, the exclusionary rule must apply

ere.

14

always been afforded litigants in the same posture. As

even Professor Oaks has recognized,

The advantage of the exclusionary rule—entirely apart

from any direct deterrent effect—is that it provides an

occasion for judicial review, and it gives credibility to

the constitutional guarantees. By demonstrating that

society will attach serious consequences to the viola-

tion of constitutional rights, the exclusionary rule in-

vokes and magnifies the moral and educative force of

the law.

Oaks, Studying the Exclusionary Rule in Search and Sei-

cure, 37 U. Chi. L. Rev. 665, 756 (1970).

Conclusion

For the reasons previously stated, the judgments in

both Payton and Riddick should be reversed.

Respectfully submitted,

WruamMm FE. Heivierstrern

Davw A. Lewis

Counsel for Appellants

March, 1979