# Reply Brief — Payton v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 573

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0430%3A6. Public record. Not legal advice.