# Amicus Brief — Michigan v. Summers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2374%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1981 - **Citation:** 452 U.S. 692 ## Text 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 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 = S2— --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2374%3A7. Public record. Not legal advice.