Amicus Brief — Michigan v. Summers

NO. 79-1794

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

PEOPLE OF THE STATE OF

MICHIGAN, Petitioner

V.

GEORGE SUMMERS, Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MICHIGAN

MOTION OF JOHN B. HOLMES, JR. AS DISTRICT

ATTORNEY OF HARRIS COUNTY, TEXAS,

AND AMERICAN LEGAL FOUNDATION,

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

SESH ES

AMICUS CURIAE BRIEF, OF JOHN B. HOLMES, JR.,

AS DISTRICT ATTORNEY OF HARRIS COUNTY

TEXAS, AND AMERICAN LEGAL FOUNDATION,

URGING REVERSAL

JOHN B. HOLMES, JR. DAVID CRUMP, Counsel

CALVIN HARTMAN of Record

District Attorney's Building George O. Jacobs

c/o American Legal Foundation

Of Counsel: 5450 Fieldwood Drive

Gray Miller Houston, Texas 77056

Fulbright & Jaworski (713) 749-3878

Attorneys for Amici Curiae

Richard F. Callaway, Jr.

Butler, Binion, Rice,

Cook & Knapp

Michael C. Kuhn

Bracewell & Patterson

NO. 79-1794

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

PEOPLE OF THE STATE OF

MICHIGAN, Petitioner

V.

GEORGE SUMMERS, Respondent

MOTION OF JOHN B. HOLMES, AS

DISTRICT ATTORNEY OF HARRIS COUNTY,

TEXAS, AND AMERICAN LEGAL FOUNDATION,

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

URGING REVERSAL

John B. Holmes, as District Attorney

of Harris County, Texas, and American Legal

Foundation, movants, hereby respectfully

request leave to file a brief amicus curiae

urging reversal of the judgment of the

Supreme Court of Michigan. The interest of

Amici is set forth in a section entitled

ola

"Interest of Amici Curiae" in the brief

annexed hereto, which section is adopted in

this motion as though set out at this point.

District Attorney John B. Holmes is

the authorized law officer of a political

subdivision of Texas and files this brief

under authority of Rule 36.4 of the Rules

of this court, under which consent is not

required. American Legal Foundation has

sought consent. Such consent has been

Orally given by the State of Michigan,

though no written consent has been received.

Counsel for the accused did not state

whether he would consent when first contact-

ed, and amici have been unable to contact

him further; accordingly, these amici have

filed this motion.

An amicus curiae brief is desirable

because this case presents the issue

whether reasonable, good faith conduct of

law enforcement officers should result in

a

exclusion of evidence whose seizure is sub-

sequently adjudicated unlawful. The

diverse policy arguments underlying the

exclusionary rule, the complex history of

its adjudication and the alternative bases

for disposition presented in this case are

reasons for believing that this important

issue may not be completely developed with-

Out amicus participation. Amici have

continuing experience with and interest in

this issue and may be able to aid the Court

in developing the case fully.

Respectfully submitted,

David Crump

Attorney for Amici Curiae

c/o American Legal Founda-

tion

5450 Fieldwood Drive

Houston, TX 77056

\ (713) 749-3878

TABLE OF AUTHORITIES

CASES:

Arkansas v. Sanders, 442 U.S. 752- (1969) --26

Carroll v. United States, 267 U.S. 132

(1925) --------------- ~~ ++ ee 26

Chambers v. Maroney, 399 U.S. 42 (1970)---26

Chimel v. California, 395 U.S. 752 (1969)-26

Coolidge v. New Hampshire, 403 U.S. 433

(1971 ) oe <enwewneccecsmeenaeecwbeeunaan 26

Harris v. New York, 401 U.S. 222 (1971) ---26

Husty v. United States, 282 U.S.694 (1931) 26

Mapp v. Ohio, 367 U.S. 643 (1961) --------- iQ, af

Michigan v. Tucker, 417 U.S. 433 (1974)---15, 25

Preston v. United States, 376 U.S. 364

(1964) ----------------~---------------~- 26

Snyder v. Massachusetts, 291 U.S. 97

(1934) ---------------------------~------ 18

Stone v. Powell, 428 U.S. 465 (1976) ------ 26

Texas v. White, 423 U.S. 67 (1975) -------- 26

United States v. Calandra, 414 U.S. 338

(1974) qemmmwmmwew nem w cn cw ecm meen enue 26

United States v. Ceccolini, 435 U.S. 368

(1978) eee ese ec ee enema acascamenenueca 26

United States v. Peltier, 422 U.S. 531

(1975) ------------------------ -- +e 26

United States v. Rabinowitz, 339 U.S. 56

(1960) ------------------- --------------~- 26

United States v. Tucker, 404 U.S. 443

(1972) -------------------------~--------- 26

United States v. Williams, 622 F.2d 830

(5th Cir. 1980) ------------------- vassin--

Ybarra v. Illinois, 444 U.S. 85 (1979)----1]

SECONDARY AUTHORITY:

N. JOHNSON, L. SAVITZ & M. WOLFGANG, THE

SOCIOLOGY OF PUNISHMENT AND CORRECTION--

Rawitscher & Carnahan, Search and Seiz-

ure and Suppression Proceedings, in

STATE BAR OF TEXAS, ADVANCED CRIMINAL

LAW COURSE O-1 (D. Crump ed. 1979) ----- -23

COUNCIL OF STATE GOVERNMENTS, DEFINITE

SENTENCING: AN EXAMINATION OF PROPOS-

ALS IN FOUR STATES (1976) --------------- 28

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE----------------- 7

SUMMARY OF ARGUMENT-------~--------------- 8

ARGUMENT AND AUTHORITIES----------------- ll

I. IN WILLIAMS V. UNITED STATES, 622

F.2d 830 (5TH CIR. 1980) (EN BANC),

THE FIFTH CIRCUIT RECOGNIZED "REA-

SONABLE, GOOD-FAITH MISTAKE" AND

"TECHNICAL VIOLATION" EXCEPTIONS

TO THE EXCLUSIONARY RULE. THE WIL-

LIAMS POSITION IS WELL REASONED

AND SHOULD BE ADOPTED BY THIS

II. THE EXCLUSIONARY RULE SHOULD NOT

BE APPLIED WHEN THE PURPOSE OF DE-

TERRING ILLEGAL POLICE CONDUCT WILL

NOT BE SERVED------------------------- 14

III. THE PRINCIPLE THAT COURTS SHOULD A-

VOID THE TAINT OF ILLEGALLY SEIZED

EVIDENCE DOES NOT MANDATE THE EX-

CLUSION OF EVIDENCE SEIZED REAS-

ONABLY AND IN GOOD FAITH. TO THE

CONTRARY, IT IS THE EXCLUSION OF

EVIDENCE OBTAINED HONESTLY AND

REASONABLY THAT TAINTS A COURT-------- 17

NO. 79-1794

IN IN THE SUPREME COURT OF THE UNITED STATES

OCTOER TERM, 1979

PEOPLE OF THE STATE OF

MICHIGAN, Petitioner

V.

GEORGE SUMMERS, Respondent

BRIEF OF AMICI CURIAE JOHN B. HOLMES, AS

DISTRICT ATTORNEY OF HARRIS COUNTY,

TEXAS, AND AMERICAN LEGAL FOUNDATION

INTEREST OF AMICUS CURIAE

John B. Holmes is District Attorney of

Harris County (Houston), Texas. He has

responsibility for the prosecution of

crimes within his jurisdiction.

American Legal Foundation ("ALF") is a

nonprofit corporation acting as a public

interest law firm. Among other goals, it

seeks the preservation of a rational

criminal justice system. In connection

with this last objective, ALF is interested

in limitation of the exclusionary rule

ate

to situations in which the purposes of

that rule are served.

It is the position of Amici Curiae

that the search and seizure at issue in

this case was lawful. Amici adopt the

position of the State of Michigan in this

respect. This brief addresses only the

possibility that this Court might consider

that the seizure in question was improper

Or erroneous. In that event, Amici would

urge the court that evidence obtained

through a good faith, reasonable error

should not be excluded.

SUMMA..Y OF ARGUMENT

In the event that this court should

decide that the seizure at issue was erro-

neous or unlawful, Amici would urge the

court to adopt the analysis followed by the

Fifth Circuit in United States v. Williams,

-8-

622 F.2d 830 (5th Cir. 1980) (en banc). In

Williams, the Fifth Circuit recognized an

exception to the exclusionary rule in the

event of a "reasonable good-faith mistake"

or a "technical violation."

The main premise underlying the

exclusionary rule is that the rule deters

illegal police conduct. In Williams, how-

ever, the Fifth Circuit correctly con-

cluded that when an officer acts in the

good-faith belief that his conduct is con-

stitutional, and when he has a reasonable,

articulated basis for that belief, the ex-

Clusipnary rule cannot Operate to deter his

conduct. The standard adopted in Williams

requires both a showing of honesty ("good

faith") and an objective proof of articu-

lated reasons for believing the search law-

ful ("reasonableness"), so that neither bad

faith nor ignorance will be rewarded and

the deterrence premise is fully served.

nun

A second premise underlying the exclu-

sionary rule is that a court should avoid

the "taint" of illegally obtained evidence.

This premise, however, does not mandate the

exclusion of evidence seized reasonably and

in good faith. To the contrary, the

criminal process is tainted by the exclu-

sion of such evidence, since it creates a

public perception that meaningless techni-

“ calities control the law, demoralizes

conscientious police officers, produces

unnecessarily haphazard results, suggests

to accused persons that innocence is

irrelevant and forces courts into shift-

ing and inconsistent positions. Thus both

the "deterrence" rationale and the "taint"

rationale support the adoption of a »osi-

tion such as adopted in Williams.

«2B

ARGUMENT AND AUTHORITIES

This brief adopts the position of peti-

tioner State of Michigan that the seizure here

in question was lawful. This factual situation

is different from those in Dunaway v. New

York and Ybarra v. Illinois, 444 U.S. 85

(1979). In the event, however, that this

Court does not accept Michigan's position

on these issues, it is respectfully sub-

mitted that the following analysis should be

adopted.

I. IN WILLIAMS V. UNITED STATES,

622 F.2D 830 (5TH CIR. 1980),

(EN BANC), THE FIFTH CIRCUIT

RECOGNIZED "REASONABLE, GOOD-

FAITH MISTAKE" AND "TECHNICAL

VIOLATION" EXCEPTIONS TO THE

EXCLUSIONARY RULE. THE WILLIAMS

POSITION IS WELL REASONED AND

SHOULD BE ADOPTED BY THIS COURT.

The holding of a majority of the Fifth

Circuit in United States v. Williams was as

follows:

"Sitting en banc, we now hold that

evidence is not to be suppressed

under the exclusionary rule when it

is discovered by officers in the

ai}

course of actions that are taken

in good faith and in the reasona-

ble, though mistaken, belief that

they are authorized."

622 F.2d at 840. The Williams approach encom-

passes two situations. One is the reasonable,

good-faith mistake, in which the officer

makes a judgmental error concerning the ex-

istence of facts sufficent to authorize sei-

zure, and Fe has reasonable and articulable

basis for a belief in the lawfulness of his

conduct. The other is the "technical viola-

tion." In this situation, the officer relies

on a warrant that contains a typographical

error, a statute that is later invalidated

or a Supreme Court or other appellate deci-

sion that is later changed.

The Williams rule is carefully calibra-

ted to serve the purposes of the exclusion-

ary principle to the fullest. It requires,

first, that the judgmental error be an hon-

est one--that is, that it be in "good faith."

5 Du

Secondly, it requires that the judgment be

"objectively reasonable," so that ignorance

or sloppiness will not be rewarded. The Fifth

Circuit stated this latter requirement thus:

"We emphasize that the belief, in

addition to being held in subjective

good faith, must be grounded in ob-

jective reasonableness. It must

therefore be based on articulable

premises sufficient to cause a rea-

sonable, and reasonably trained, of-

ficer to believe that he was acting

lawfully. Thus a series of broadcast

breakins and searches carried out

by a constable--no matter how pure

in heart--who had never heard of

the fourth amendment could never

qualify."

622 F.2d at 841 n.4a. The burden is on the

Government to prove these elements.

The Williams opinion states, "The Su-

preme Court and this circuit have all but

explicitly adopted the technical violation

exception facet of the good-faith exception,

and each has rendered several decisions that

implicitly, at least, support the good-faith

mistake facet ... ." 622 F.2d at 841. It

st t=

is submitted that the Williams rule is fully

consistent with this Court's decisions. The

Williams opinion carefully analyzes relevant

Supreme Court authority to prove this point,

and that analysis of those decisions is adop-

ted by this brief.

II. THE EXCLUSIONARY RULE SHOULD

NOT BE APPLIED WHEN THE PURPOSE

OF DETERRRING ILLEGAL POLICE

CONDUCT WILL NOT BE SERVED.

The exclusionary rule is not a require-

ment of the Constitution. Rather, it is mo-

tivated by the thought behind Justice Clark's

famous dictum that "There is no war between

the Constitution and common sense," and by

the need for a mechanism to enforce the fourth

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

Since common sense was thus invoked to cre-

ate the exclusionary rule, common sense

should not be disregarded by extension of

the doctrine beyond its purposes. .

Such an extension would occur unless a

reasonable, good-faith mistake exception

~t4~

were recognized. As this Court stated in

Michigan v. Tucker, 417 U.S. 433, 477 (1974),

"The deterrent purpose of the ex-

Cclusionary rule necessarily assumes

that the police have engaged in

willful, or at the very least neg-

ligent, conduct which has deprived

the defendant of some right. By re-

fusing to admit evidence gained as

a result of such conduct, the courts

hope to instill in those particu-

lar investigating officers, or in

their future counterparts, a Jgrea-

ter degree of care toward the rights

of an accused. Where the official

action was pursued in complete good

faith, however, the deterrence ra-

tionale loses much of its force."

The Williams approach avoids upholding "will-

ful" misconduct by its good faith requirement.

It avoids upholding even "negligent" blund-

ers by requiring objective reasonableness.

It is submitted that the Williams approach

thus safeguards the deterrence purpose of

the exclusionary rule to the fullest extent.

The case at bar is an example of the

counterproductive application of the exclu-

sionary rule beyond its purposes. A large

amount of heroin was seized from the premi-

~15-

ses of an accused shown by a search warrant

affidavit to be a seller of heroin. The se-

quence of events, in outline, was that offi-

cers went to execute the warrant, detained

the accused briefly, searched his residence,

found heroin, arrested him and seized more

heroin from his person in a custodial search.

The decision of the Michigan Supreme Court

is that if the officers had not detained the

accused initially at the scene, but had in-

stead run after and caught him a few blocks

away once the heroin was found in the house,

the resulting arrest and custodial search

would have been lawful. The distinction that

thus frees an accused proven unequivocally

to have committed a serious crime is so elu-

sive that it is no more likely to be under-

stood by the officer in the field than it is

to command public respect. Furthermore, the

principal basis of the Michigan Court's de-

cision is Dunaway v. New York, which was not

=16<

even decided until five years after the

seizure at issue and could not possibly have

affected the officers' conduct.

III. THE PRINCIPLE THAT COURTS

SHOULD AVOID THE TAINT OF

ILLEGALLY SEIZED EVIDENCE

DOES NOT MANDATE THE EXCLU-

SION OF EVIDENCE SEIZED

REASONABLY AND IN GOOD

FAITH. TO THE CONTRARY, IT

IS THE EXCLUSION OF EVI-

DENCE OBTAINED HONESTLY

AND REASONABLY THAT TAINTS

A COURT.

A second premise that is sometimes said

to underlie the exclusionary rule is that

courts should avoid the taint of illegally

seized evidence. Courts are nondemocratic in-

stitutions without enforcement mechanisms.

If their orders are to prevail in unpopular

as well as popular causes, they must have

public respect. Thus Mapp v. Ohio, 367 U.S.

643 (1961), states that the exclusionary

rule gives "to the courts, that judicial in-

tegrity so necessary in the true administra-

tion of justice." Although the Fifth Circuit

he

in United States v. Williams did not base its

decision on analysis of this purpose, it too

Supports the Williams approach, because when

a court admits evidence that an officer has

obtained through good faith conduct reasona-

bly undertaken, the court is not by any

stretch of the imagination "tainted" thereby.

It is submitted, furthermore, that to

the extent there is validity to this princi-

ple, it is the exclusion of honestly and rea-

sonably seized evidence, not its reception,

that actually taints a court.

A. Public Impression of Criminal Law as a

Mass of Technicalities.

The first way in which exclusion in

this instance taints the courts is by crea-

ting a public impression that the criminal

law is a mass of dysfunctional technical-

ities. This danger was articulated by

Justice Cardozo in the case of Snyder v.

Massachusetts, 291 U.S. 77, 122 (1934),

as follows:

ait.

"There is danger that the criminal

law will be brought into contempt--

that discredit will even touch the

great immunities assured by the Four-

teenth Amendment--if gossamer pos-

sibilities of prejudice to a de-

fendant are to nullify a sentence

pronounced by a court of competent

jurisdiction in obedience to local

law, and set the guilty free."

Although the error in Snyder was exclusion

of the defendant from proceedings and an

improper remark of the trial judge, rather

than an illegal seizure, the reasoning

applies equally to the instant situation.

A non-technican is likely to see little dis-

tinction in the difference, if indeed any,

between the (lawfully seized) heroin in

Summers' house and the (unlawfully

seized) heroin on his person.

B. Haphazard Results on Guilt or

Innocence.

Secondly, exclusion of evidence reas-

onably and honestly seized taints the

criminal justice system by causing hap-

hazard adjudication of guilt and innocence.

-19-

Inconsistent results are sometimes unavoid-

able under the Constitution, but they

should not be encouraged when unnecessary.

An incident that occurred in Harris County

(Houston), Texas, several years ago illus-

trates the danger that can result. The

District Attorney of Harris County pre-

sented seventy-three drug possession cases,

some of which were appropriate for no-bills

because of seizures that would require

Suppression and some of which were appropriate

for true bills because of searches deemed

valid. The grand jury, however, no-billed

all cases in both groups, in part because

it was apparently unable to rationalize

differential treatment of the Suspects on

the basis of distinctions in the police

conduct involved.* The haphazard a3ju-

dication that this grand jury impliedly

condemned would not be removed entirely by

adoption of the Williams approach, but it

~26-

would be lessened.

The instant case is an example. The

Williams rule is needed here to prevent the

inconsistency of acquittal of this accused

and conviction of a hypothetical "Summers"

who engaged in exactly the same conduct,

but who was caught a few blocks away by

police who first found heroin in his house

rather than detaining him briefly.

D. Demoralizing Effect on the Honest

Police Officer.

Third, exclusion of evidence reason-

ably and honestly seized taints the courts

by demoralizing the conscientious police

officer, making him less likely, not more

likely, to understand and follow fourth

amendment decisions. Despite dictum in

Dunaway v. New York, supra, to the effect

that a "Single, familiar standard" of

* Interview with James Larkin, Assistant

District Attorney of Harris County,

Texas, in Houston, Nov. 24, 1980.

o3j-

probable cause guides police officers,

that standard immediately dissolves into

ambiguity in a concrete factual situation.

The variety of probable cause judgments

is infinite. It is overlaid by a bewild-

ering array of doctrines such as plain

view, stop and frisk, inventory, exigent

circumstances, consent, and reasonable in-

vestigation. Procedural considerations

such as standing and burden of proof like-

wise influence a variety of causes. An

officer rapidly learns that the treatment

of these doctrines varies even within the

same courthouse from trial judge to trial

judge in unpredictable ways. The officer

will see a seemingly reasonable search

Struck down in one case and a borderline

one upheld in another. As one prominent

Texas criminal defense lawyer has put it,

“In determining the balance, guide-

lines have been spelled out by the

Supreme Court. A great deal of dif-

~29=

ficulty arises in applying the many

guidelines to a particular set of

facts. . . . Some magistrates, jud-

ges or justices believe the exclu-

Sionary rule should be abolished,

while other judges believe that the

exclus: onary rule should not apply

where tne officer acts in good

faith (good faith v. bad faith).

Because of the differences of opin-

ion of the judges and justices as

to what is reasonable, the decisions

dealing with search and seizure

appear to be in a constant state of

change."

Rawitscher & Carnahan, Search and Seizure

and Suppression Procedures, in ADVANCED

CRIMINAL LAW COURSE O-1 (D. Crump & State

Bar of Texas ed. 1979). If the decisions

induce this reaction in a criminal law

scholar, they must resemble a roulette

wheel to the officer who risks his life in

a good faith, reasonable effort to ferret

out crime, only to be told that his action

was "illegal" and must be deterred by

Suppression. Research confirms what common

sense suggests: police misconduct is most

common in situations in which police

- i

officers perceive that they are unlikely

to obtain justice in the court system.*

Thus, confronted with this maze, an officer

is likely to revert to a practice of act-

ing first and asking questions later,

particularly if he knows that there will be

no recognition of his good faith or reason-

ableness.

In the instant case, before Dunaway

v. New York, it is likely that virtually

all police officers would have acted as

these officers did. "Protecting the scene"

is instinctive. The danger is obvious that

someone may be removing evidence when he

is observed departing just as police arrive

* Cf. N. JOHNSON, L. SAVITZ and M. WOLF-

GANG, THE SOCIOLOGY OF PUNISHMENT AND

CORRECTION 11 (1962) (reporting study

concluding that "absence of effective

legal means" to accomplish lawful ends

or safeguard their dignity induces

police officers to engage in illegal

conduct).

~Piw

from a scene at which a magistrate has

adjudicated probable cause to believe

criminal activity is ongoing. Furthermore,

having the premises owner present during

a search is good police work. The owner

may be able, for instance, to supply a key

to a coor that would otherwise need to be

destroyed. These officers are now implied-

ly told, however, that such conduct was

"wilful" or "at the very least, negligent,"

to use the words of Michigan v. Tucker.

This message can only engender disrespect

for the courts in those who strive to

enforce the law.

D. Appearance of Shifting and Inconsis-

tent Appellate Decision-Making.

Fourth, the present administration of

the exciusionary rule places appellate

courts in ostensibly shifting and incon-

sistent doctrinal positions. This Court,

for example, has withheld suppression when

the illegality has been attenuated by inter-

- To

vening events, the defendant has lacked

standing, the challenge has arisen in a

habeas corpus action, use of the evidence

was before the grand jury, use was for

impeachment, or the resulting arrest was

used to increase the sentence in another

case.* On occasion, doctrinal justifi-

cation fails to prevent the appearance of

a zig-zag course.** These difficulties are

* United States v. Ceccolini, 435 U.S.

368 (1978); Stone v. Powell, 428 U.S.

465 (1976); United States v. Peltier, 422

U.S. 531 (1975); Michigan v. Tucker, 417

U.S. 433 (1974); United States v. Calandra,

414 U.S. 338 (1974); United States v.

Tucker, 404 U.S. 433 (1972); Harris v. New

York, 401 U.S. 222 (1971).

** Decisions on searches of automobiles

taken to other locations are an

example. Compare Carroll v. United

States, 267 U.S. 132 (1925); Husty v.

United States, 282 U.S. 694 (1931);

Preston v. United States, 376 U.S. 364

(1964); and Chambers v. Maroney, 399

U.S. 42 (1970) with Coolidge v. New

Hampshire, 403 U.S. 443 (1971); Texas v.

White, 423 U.S. 67 (1975) and Arkansas v.

Sanders, 442 U.S. 753 (1979). Cf£.

United States v. Rabinowitz, 335 U.S. 56

(1960) (overruling prior authority on

search-incident scope); Chimel v.

California, 395 U.S. 752 (1969) (overruling

Rabinowitz).

=2¢ +

the natural result of practical efforts

with conflicting policy, but they create a

nagging suspicion that interpretive prin-

ciples cannot be reconciled with a reason-

able view of the fourth amendment.

In this case, a narrow margin of votes

separates the Michigan Court majority from

the dissent. Several doctrines (e.g.,

attenuation of taint or prevention of evi-

dence destruction) might reasonably be used

to justify the seizure. The Michigan

dissenters' reasoning could also be so

used. But the real reason the evidence

should not be suppressed is that in this

individual case, regardless of shifting

doctrine, the officers acted reasonably

and honestly. Forthright recognition of

a reasonable, good-faith mistake exception

would go far to remove the appearance of

ad hoc decision making.

= >

E. Effect on the Accused: Irrelevance of

Guilt or Innocence.

Fifth, the exclusionary rule sometimes

taints the criminal justice system by in-

ducing the accused to believe that his

guilt or innocence is not important. One

popular author has written that "innocence

becomes less relevant" as the criminal

justice system progresses. F. LEE BAILEY,

THE DEFENSE NEVER RESTS 1 (1968). Dis-

Pparate treatment creates cynicism in an

accused. It has been identified by prison

wardens in some states as a greater cause

for prison unrest than food, overcrowding

Or conditions of incarceration. COUNCIL

ON STATE GOVERNMENTS, DEFINITE SENTENCING:

AN EXAMINATION OF PROPOSALS IN FOUR STATES

10 (1976). While this finding was stated

in the context of sentencing disparity,

the same kind of prisoner cynicism is

likely to be generated when disparity is

oite

caused by the exclusionary rule.

F. Untruthful Fact Presentation to Jurors

by Officers of the Court.

Finally, the exclusion of reasonably

and honestly seized evidence taints the

criminal justice system by presenting an

untruthful impression to the trier of fact.

A conscientious defense lawyer is likely

to argue to a jury that the government has

not presented sufficient evidence in a

trial from which evidence has been sup-

pressed. He is likely to follow with

criticism of the government for prosecuting

a case without the type of evidence that

is "missing." The prosecution is pre-

vented from asserting the existence of the

evidence or explaining its suppression.*

* The "open door" or reply doctrine would

allow prosecution response if defense

counsel referred by name to the specific

item suppressed. But through the exercise

of minimal skill, counsel can make a gen-

eral enough reference to prevent response

and still get the point across.

=-29=

If the seizure was flagrantly improper,

Suppression may be defensible; however,

a juror is likely to feel that he has been

unfairly tricked when he learns that the

truth has thus been hidden from him by

officers of the court notwithstanding a

reasonable, good-faith search. Similarly,

it is understandable that many attorneys

avoid the criminal defense practice because

they do not wish to be the tools of such

deception.

In the context of the instant case,

one need only imagine the accused on trial

for possession of the (lawfully seized)

heroin found in his house. His defender

would argue that nothing connected the

accused physically with any contraband.

Jurors might well acquit the accused, only

to find that the (unlawfully seized) heroin

in his pocket was concealed from them by

an officer of the court with the court's

a3G«

Own assistance. Such a procedure can

only taint both courts and attorneys in

the minds of jurors.

CONCLUSION

For all of these reasons, it is

Submitted that neither the protection of

courts from taint nor the deterrance of

illegal police conduct is advanced by the

exclusion of evidence seized reasonably

and in good faith.

The conduct of the seizure in this

case should be adjudicated lawful, and the

judgment of the Michigan Supreme Court

should be reversed on this ground. In the

event that this Court should, however,

adjudicate that the seizure was not lawful,

the Court should adopt the reasonable,

good faith exception from Suppression

recognized by the Fifth Circuit, and

-3l1-

should reverse and remand the judgment on

that ground.

Of Harris County, Texas

Harris County Courthouse

Houston, Texas 77002

by:

Assistant District Attorney

David Crump, Counsel of Record

for Amici

c/o American Legal Foundation

5450 Fieldwood Drive

Houston, Texas 77056

(713) 749-3878

Of Counsel

CERTIFICATE OF SERVICE

I, David Crump, hereby certify that I

have accomplished service of this brief and

motion prior to filing by depositing ina

United States post office, postage first

class prepaid, three copies each to the fol-

lowing, in accordance with Rule 28.3 of the

Rules of this Court, on , 1980:

Timothy Baughman, Assistant State's

Attorney

Frank Murphy Hall of Justice

1441 St. Antoine

Detroit, Michigan 48226

Gerald M. Lorence

2655 Guardian Bldg.

Detroit, Michigan 48226

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