Petitioners Brief — United States v. Johnson

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UNITED STATES OF AMERICA, PETITIONER

RAYMOND EUGENE JOHNSON

ON WIT OF CEitTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

Rex E. Lee

Solicitor General

N D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ELLIOTT SCHULDER

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the exclusionary rule requires the sup-

pression of evidence obtained following a warrantless

entry into respondent’s house in the course of arrest-

ing him on probable cause, where the entry occurred

prior to both this Court’s decision in Payton v. New

York, 445 U.S. 573 (1980), and the decision of the

Ninth Circuit in United States v. Prescott, 581 F.2d

1343 (1978).

(1)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statement 2

Summary of argument 8

Argument:

The decisions requiring warrants for arrest en-

tries into suspects’ homes should not be applied

to suppress evidence obtained as a result of arrest

entries antedating those decisions ......................- 11

A. A decision resolving a previously unsettled

Fourth Amendment issue should not be ap-

plied retroactively 14

B. The arresting agents were not acting in viola-

tion of existing constitutional standards 19

C. The fact that respondent’s case was pending

on direct review when Payton and Prescott

were decided does not justify suppression of

the evidence against him 84

Conclusion 38

TABLE OF AUTHORITIES

Cases:

Alderman v. United States, 394 U.S. 165 18

Almeida-Sanchez v. United States, 413 U.S. 266..14, 30, 36

Arkansas v. Sanders, 442 U.S. 753... 28

Bowen v. United States, 422 U.S. 916 ...................- 36

Brown v. Florida, 446 U.S. 902 35

Bush v. Florida, 446 U.S. 902 35

Coolidge v. New Hampshire, 403 U.S. 443 aida 20, 26, 31

Desist v. Un ed States, 394 U.S. 244 ..9, 16, 17, 30, 31, 35

Elkins v. Un d States, 364 U.S. 206 ...................... 9

Fuller v. Alaska, 393 U.S. 80 ‘oak 16

Cases—Continued Page

Gerstein v. Pugh, 420 U.S. 10 20

Hankerson v. North Carolina, 432 U.S. 233 35

Hill v. California, 401 U.S. 797 35

Jack v. United States, 387 F.2d 471, cert. denied,

e ccnsatuatnbectensosenee 23

Jones v. United States, 357 U.S. 499 20

Katz v. United States, 389 U.S. 347 31

Lin letter v. Walker, 381 U.S. 618 8, 16, 17, 19, 32, 35

Mapp v. Ohio, 867 U.S. 643 ————— 16, 17, 19

Michigan v. De Fillippo, 443 U.S. 111 19

Michigan v. Tucker, 417 U.S. 43333322 15

Miller v. United States, 357 U.S. 31! 27

Munoz v. United States, 325 F.2d 2ũ888 23

Ng Pui Yu v. United States, 352 F.2d 626 .............. 23

Payton v. New York, 445 U.S. 573 passim

People v. Privett, 55 Cal. 2d 698, 361 P.2d 602, 12

r ———————————————— 26

People v. Ramey, 16 Cal. 3d 263, 545 P. 2d 1333,

ZW 26, 27

Rakas v. Illinois, 439 U.S. 128 18-19

Steagald v. United States, No. 79-6777 (Apr. 21,

1981) . cabanesaathda ae 36-37

Stone v. Powell, 428 U.S. 465 8, 9, 13, 18

Stovall v. Denno, 388 U.S. 2998 37

United States v. Blake, 632 F.2d 731 7, 10, 23, 25, 26

28, 31, 32

United States v. Caceres, 440 U.S. 74 33

United States v. Calandra, 414 U.S. 338 9, 18, 17, 34

United States v. Calhoun, 542 F.2d 1094 24, 25

United States v. Corcione, 592 F.2d 111, cert.

e 27, 28

United States v. Di Re, 382 U.S. 5111 27

United States v. Escalante, 554 F.2d 970, cert.

denied, 434 U.S. 362 1 26

United States v. Flickinger, 573 F. 2d 1849, cert.

e 24

United States v. Gillespie, No. 81.879 (filed Nov.

err adie 36

United States v. Havens, r 17

United States v. Janis, 422 U.S. 433

Cases—Continued Page

United States v. Masterson, 529 F.2d 30, cert. de-

nied, 426 U.S. 908 24

United States v. McLaughlin, 525 F.2d 517, cert.

eee 24

United States v. Payner, 447 U.S. 727 19

United States v. Peltier, 500 F.2d 985, rev’d, 422

W ee passim

United States v. Phillips, 497 F.2d 1181 ................ 24, 25

United States v. Prescott, 581 F.2d 134 passim

* United States v. Reed, 572 F.2d 412, cert. denied,

W r 28, 33

United States v. Ross, 655 F.2d 1159, cert. granted,

No. 80-2209 (Oct. 18, 1981) .......... 10-11, 28, 29, 31, 33, 36

United States v. Santana, 427 U.S. 38 6, 7, 12

United States v. Stewart, 650 F.2d 178 36

United States v. Tucker, 610 F.2d 1007 .................. 28

United States v. Watson, 423 U.S. 4111 12, 20, 27

United States v. Williams, 622 F.2d 830, cert. de-

. 1 ; 15

Williams v. Gould, 486 F.2d 547. 23-24

Williams v. United States, 273 F.2d 781, cert. de-

F ̃ Ä.... 23

Williams v. United States, 401 U.S. 64 9, 16, 32, 35

Constitution and statutes:

United States Constitution, Fourth Amendment....passim

. 2

18 U.S.C. 641 SBE SSE ESS 2

F .... 2

Miscellaneous:

1 Blackstone, Commentaries (15th ed. 1809) 32

Note, Retroactivity and the Exclusionary Rule:

When Do The Policies Underlying The Exclu-

sionary Rule Warrant Its Retroactive Applica-

tion?—United States v. Peltier, 422 U.S. 531

(1975), 18 Am. Crim. L. Rev. 317 (1975) 29

In the Supreme Cowt of the United States

OCTOBER TERM, 1981

No. 80-1608

UNITED STATES OF AMERICA, PETITIONER

RAYMOND EUGENE JOHNSON

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

la-lla) is reported at 626 F.2d 753. The order

amending that opinion (Pet. App. 12a-13a) and the

court of appeals’ two prior opinions (Pet. App. 14a-

22a; id. at 23-30 a) are unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

31a) was entered on September 2, 1980. A petition

for rehearing was denied on December 29, 1980

(Pet. App. 32a). Justice Rehnquist extended the

time within which to file a petition for a writ of

certiorari to and including March 23, 1981. The

petition was filed on that date and was granted on

(1)

October 5, 1981 (J.A. 9). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District

Court for the Central District of California, respond-

ent was convicted of aiding and abetting the obstruc-

tion of correspondence, in violation of 18 U.S.C. 1703

and 2. Respondent’s sentence was suspended in favor

of five years’ probation."

1. The evidence at the suppression hearing and at

trial showed that on March 30, 1977, Lena Kearney

received in the mail an envelope addressed to Elihu

Peterson (Tr. 351). Kearney held the envelope up

to the light and discovered that it contained a De-

partment of Treasury check for $4,681.41 (Tr. 351).

Kearney contacted her sister-in-law, Wynona Wilkins,

and the two women decided to attempt to cash the

check (Tr. 352-353, 368, 433-434).

Wilkins requested co-defendant Oscar Joe Dodd

to assist in cashing the check (Tr. 354, 364-365,

434). The next day, Dodd, respondent and Eugene

McCardell went to Kearney’s house, where they ex-

amined the check and discussed possible ways of

cashing it (Tr. 374-375, 520). Respondent picked

up the check and made a telephone call. During this

call, he discussed the fact that he had a check that

he wanted to cash and that the age of the payee,

1 Respondent, together with co-defendant Oscar Joseph

Dodd, was charged in a two-count indictment with aiding and

abetting the obstruction of correspondence, and with receiv-

ing stolen government property, in violation of 18 U.S.C. 641.

Respondent was convicted on the obstruction of correspondence

count but was acquitted on the stolen property count. Dodd

was convicted on both counts and appealed; the court of ap-

peals affirmed his conviction in a separate opinion.

which was shown on the check, would make it difficult

to cash (Tr. 377, 412-413). Upon completion of the

call, respondent turned to Dodd and McCardell and

announced that he believed he had located some-

one who could assist them in cashing the check (Tr.

377, 384-385). The three men then left Kearney’s

house with the check in their possession (Tr. 387,

482, 669).

Thereafter, in the course of investigating this mat-

ter, Special Secret Service Agent Richard J. Hemen-

way interviewed Lena Kearney, who revealed details

of respondent’s participation in the scheme to ne-

gotiate the check (Tr. 258, 259). She related that

respondent, whom she ‘dentified from a photo spread,

had been present at the March 31 meeting at her

house and had participated in the discussion of the

plans for cashing the check. She also stated that

respondent had made a telephone call in an attempt

to find someone to cash the check (Tr. 138-139, 258-

259, 472). Wynona Wilkins confirmed that respond-

ent had been present at the March 31 meeting at

Kearney’s house and that there had been a discus-

sion with respect to the possibility and difficulties

of cashing the check (Tr. 438-441). In addition,

Wilkins informed Agent Hemenway that co-defendant

Dodd could be reached by calling respondent’s tele-

phone number. Further investigation revealed that

respondent and Dodd were classified as associates in

the criminal history files of the Los Angeles Police

Department (Tr. 471-472).

On May 5, 1977, at about 6:00 p.m., Agents Hem-

enway and Pickering went to respondent’s house to

question him about his role in the check cashing

scheme (Tr. 115, 140). Although the agents had

obtained a warrant for Dodd’s arrest, they had not

obtained one for respondent (Tr. 139). After watch-

ing the residence for a short time the agents observed

respondent’s car pull into his driveway and the two

occupants of the car enter respondent’s residence

(Tr. 498). The agents then approached the front

door and drew their weapons, pointing them down-

ward (Tr. 135, 169, 489-490). Agent Hemenway

knocked on the door and identified himself, using a

fictitious name (Tr. 504). When respondent opened

the door, Agent Hemenway identified himself and

Agent Pickering as Secret Service agents and dis-

played his badge (Tr. 115, 477). Respondent in-

vited the agents into his house (Tr. 182, 477, 491).

Agent Hemenway conducted a brief security check

of the house (Tr. 491). After Hemenway asked a

woman who was present to come into the living room,

the agents holstered their weapons (Tr. 115, 185).

Hemenway then asked respondent to step into the

bedroom (Tr. 116). After being advised of his con-

stitutional rights, respondent told Agent Hemenway

that he was willing to cooperate (Tr. 481). During

the ensuing discussion, respondent revealed his in-

volvement in the scheme to cash the Treasury check

(Tr. 118, 127). The agents then informed respond-

ent that he was under arrest (Tr. 128, 169). The

agents and respondent left the residence and went to

the police station, where respondent, after again

being advised of his constitutional rights, signed a

written statement detailing his involvement in the

scheme (Tr. 128-134, 155-161). The check eventually

was found in McCardell’s vehicle (Tr. 489).

Prior to trial, respondent sought suppression of his

oral and written statements as the fruits of an un-

lawful arrest that was not supported by probable

cause. The district court denied respondent’s motion,

finding that, even though they initially did not have

probable cause to arrest respondent, the agents acted

properly in going to respondent’s house to question

him about the crime (J.A. 7). The court further

found that respondent had not been arrested until

after he voluntarily admitted his participation in the

check cashing scheme, and that at that point the

agents had probable cause to arrest him (ibid.).

2. On respondent’s appeal, the court of appeals

initially affirmed his conviction. In its first opinion,

filed on December 19, 1978 (Pet. App. 23a-30a), the

court concluded that, even though the agents testified

that they had not intended to effect an arrest when

they initially entered respondent’s residence, [re-

spondent’s] arrest occurred immediately upon the

entry of the agents into [respondent’s] home” (id.

at 26a). While diverging from the reasoning of

the district court, the court of appeals nonetheless

concluded that the motion to suppress respondent’s

statements had been properly denied because the

agents had probable cause to arrest respondent prior

to their entry. While noting that “[i]t certainly

would have been preferable had the agents obtained

a warrant” for respondent’s arrest before entering

his residence, the court held that “if probable cause

exists for the arrest, [respondent’s] constitutional

2 The court reasoned that, regardless of the agents’ subjec-

tive intentions, the determination whether an arrest has oc-

curred depends upon an objective “evaluation of what a person

innocent of a crime would have thought of the situation, given

all of the factors involved” (Pet. App. 25a-26a). In light of

the facts that the agents were armed when they entered re-

spondent’s house and that their weapons remained drawn

while one of the agents remained with respondent and the

other searched the house, the court concluded that “a reason-

able person, under those circumstances, would have thought

that he was under arrest” (id. at 26a).

rights were not violated by the warrantless arrest,

even though there may have been time to have ob-

tained a warrant for his arrest” (id. at 26a-27a).

On August 20, 1979, the court of appeals issued

an amended opinion (Pet. App. 14a-22a) to address

the applicability to this case of its decision in United

States v. Prescott, 581 F.2d 1343 (9th Cir. 1978),

which had held that a warrantless entry into a third

party’s residence to arrest a suspect on probable

cause violated the Fourth Amendment.’ The court

concluded that respondent’s arrest occurred, not after

the agents’ entry into his house, as it previously had

found, but prior to the entry, when respondent opened

the door “and was first confronted by the agents

with their guns drawn” (Pet. App. 17a; see id. at

18a). Accordingly, the court held that respondent’s

subsequent statements were admissible because the

arrest was valid under United States v. Santana, 427

U.S. 38 (1976) (Pet. App. 18a). The court dis-

tinguished Prescott on the ground that that case

involved a forcible entry to effect an arrest, whereas

here respondent wes arrested in the doorway and the

agents’ subsequent entry was at respondent’s invi-

tation (Pet. App. 18a-19a).

Following this Court’s decision in Payton v. New

York, 445 U.S. 573 (1980), the court of appeals is-

sued another opinion, this time reversing respond-

ent’s conviction (Pet. App. la-lla). The court rec-

ognized that, unlike the situation in Riddick v. New

York, the companion case to Payton, the agents in

this case did not enter respondent’s residence prior

to effecting his arrest (Pet. App. 7a). Nonetheless,

Although Prescott had been decided on September 14, 1978,

prior to the court’s first opinion in this case, that opinion made

no mention of Prescott.

relying on the “strong language” in Payton “em-

phasizing the special protection the Constitution af-

fords to individuals within their homes” (Pet. App.

7a), the court concluded that “it is the location of

the arrested person, and not the arresting agents,

that determines whether an arrest occurs within a

home. Otherwise, arresting officers could avoid il-

legal ‘entry’ into a home simply by remaining out-

side the doorway and controlling the movements of

suspects within through the use of weapons that

greatly extend the ‘reach’ of the arresting officers”

(ibid.). Accordingly, the court held that the war-

rantless arrest violated respondent’s Fourth Amend-

ment rights (ibid.).* Having determined that the

arrest was unlawful, the court went on to hold that

even though respondent’s confessions were voluntary,

they should have been suppressed as fruits of that

arrest (id. at 8a-11a).

In response to the government’s argument, in its

petition for rehearing, that the principles of Payton

should not be applied retroactively, the court of ap-

peals revised its amended opinion to include a foot-

note explaining that its decision rested on the prin-

ciples announced in both Payton and its own decision

in United States v. Prescott, supra (Pet. App. 12a-

13a). Although respondent’s arrest occurred prior

to either of those decisions, the court pointed out

that in United States v. Blake, 632 F.2d 731 (9th

Cir. 1980), it had held that the rule of Prescott ap-

plied retroactively in the Ninth Circuit to arrest en-

tries that occurred prior to Prescott (Pet. App. 13a).

* The court sought to distinguish the doorway arrest in this

case from that in United States v. Santana, supra, on the

ground that respondent did not voluntarily expose himself to

public view but rather was induced to open his door when the

agents misrepresented their identities (Pet. App. 6a-7a).

SUMMARY OF ARGUMENT

The warrantless entry into respondent’s home took

place in May 1977, nearly three years before this

Court’s decision in Payton v. New York, 445 U.S.

573 (1980), and more than 16 months before the

Ninth Circuit’s decision in United States v. Prescott,

581 F.2d 1343 (1978). At the time of the entry,

therefore, neither this Court nor the Ninth Circuit

had held that under the Fourth Amendment law en-

forcement officers were required to obtain an arrest

warrant before entering a suspect’s house to arrest

him on probable cause. And, as the Court observed

in Payton (445 U.S. at 600), the practice of con-

ducting warrantless arrest entries was “longstand-

ing” and “widespread”. Indeed, in this very case the

panel’s first opinion held, at least implicitly, that

warrantless arrest entries are lawful if supported

by probable cause (Pet. App. 26a-27a). The court

of appeals in its final opinion nevertheless held that

the principles announced in Payton and Prescott gov-

erned the agents’ conduct in this case, and that there-

fore the evidence obtained following the warrantless

entry into respondent’s house had to be suppressed.

The decision to apply Payton and Prescott retro-

actively to a case such as this one is based on a

fundamental misconception of the nature of the

Fourth Amendment’s exclusionary rule. The prin-

cipal purpose of the exclusionary rule is to deter un-

lawful police conduct. Stone v. Powell, 428 U.S. 465,

486 (1976). The rule “is not calculated to redress

the injury to the privacy of the victim of the search

or seizure, for any ‘[rJeparation comes too late.“

Ibid., quoting from Linkletter v. Walker, 381 U.S.

618, 637 (1965). See United States v. Janis, 428

U.S. 433, 443 (1976); Desist v. United States, 394

U.S. 244, 249 (1969); Elkins v. United States, 364

U.S. 206, 217 (1960). Rather, the rule “is a ju-

dicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent

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

348 (1974). Although the exclusionary rule also has

been described as serving the imperative of judicial

integrity, the Court’s decisions demonstrate that this

justification plays only a limited role in determining

whether to apply the rule in a particular situation.

Stone v. Powell, supra, 428 U.S. at 485.

Furthermore, in the Fourth Amendment context,

the price of the exclusionary rule is extremely high.

Although a newly announced Fourth Amendment doc-

trine “raises no question about the guilt of defend-

ants convicted in prior trials“ (Williams v. United

States, 401 U.S. 646, 653 (1971) (plurality opin-

ion) ), when the exclusionary rule is invoked the re-

sult is that relevant, probative evidence is withheld,

thus impairing the search for truth. Particularly

because the constitutional guarantee against unrea-

sonable seizures is unrelated to the fact-finding func-

tion of the criminal trial, this Court has emphasized

that “the application of the rule has been restricted

to those areas where its remedial objectives are

thought most efficaciously served.” United States v.

Calandra, swpra, 414 U.S. at 348.

In recognition of the unique characteristics of the

exclusionary rule, this Court held in United States

v. Peltier, 422 U.S. 531 (1975), that neither the

deterrent purpose of the rule nor the imperative of

judicial integrity justified the suppression of highly

probative evidence where law enforcement officers ob-

tained that evidence in good faith compliance with

then-prevailing constitutional norms. Under the

standard announced in Peltier, the evidence in this

case should not be suppressed. No legitimate purpose

would be served by excluding the fruits of warrant-

less arrest entries that occurred prior to Payton and

Prescott, because law enforcement officers conducting

those entries did not know, and could not reasonably

be charged with knowing, that their actions were

proscribed by the Fourth Amendment.

Until Payton, this Court had expressly left open

the question of the validity of warrantless arrest en-

tries, and the Ninth Circuit did not resolve the ques-

tion until its decision in Prescott. Moreover, that

question was one on which the lower courts and com-

mentators had been in sharp disagreement. It would

be unrealistic to expect the arresting agents in this

case to have predicted the resolution of a difficult,

unsettled question of constitutional law and to have

acted accordingly. Indeed, if the panel of judges in

this very case was initially of the view that a war-

rant was not required to uphold the arrest entry

into respondent’s residence, it is difficult, if not im-

possible, to conclude that the arresting officers should

have known of such a requirement.

The Ninth Circuit’s conclusion in United States

v. Blake, 632 F.2d 731 (1980), relied upon by the

court below, that the result in Prescott was “clearly

foreshadowed” by dicta in two pre-Prescott cases,

applies the wrong test for assessing the retroactive

application of Fourth Amendment decisions. Under

the rationale of Peltier, the appropriate question is

not whether lawyers and judges would describe the

new decision as [having been clearly foreshadowed],

but whether a working patrolman can properly be

charged with foreknowledge of the new decision’s out-

come.” United States v. Ross, 655 F.2d 1159, 1190

(D.C. Cir. 1981) (en banc) (Wilkey, J., dissenting;

emphasis omitted), cert. granted, No. 80-2209 (Oct.

13, 1981). In short, police conduct cannot be meas-

ured by dicta, hints, or precatory judicial observa-

tions. In the absence of clear, settled rules, con-

stitutional transgressions will not be sufficiently de-

terred to justify the high cost of suppressing proba-

tive evidence, because the officer will not know that

he is trespassing into constitutionally protected

areas.

Finally, the fact that respondent’s case was pend-

ing on direct review when Payton and Prescott were

decided does not entitle respondent to suppression of

evidence for violations of the new Fourth Amendment

standard established in those cases. The exclusionary

rule is not a personal right but a procedural safe-

guard designed to deter futwre violations. The deter-

rent purpose of the rule would not be served by sup-

pressing evidence seized as the result of warrantless

arrest entries that occurred prior to the announce-

ment in Payton and Prescott that such entries were

unlawful; all that would be accomplished is the dis-

charge of a wrongdoer.

ARGUMENT

THE DECISIONS REQUIRING WARRANTS FOR

ARREST ENTRIES INTO SUSPECTS’ HOMES

SHOULD NOT BE APPLIED TO SUPPRESS EVI-

DENCE OBTAINED AS A RESULT OF ARREST

ENTRIES ANTEDATING THOSE DECISIONS

Respondent was arrested inside his home in Cali-

fornia on May 5, 1977. The arrest was supported

by probable cause but was not authorized by a

5 The court of appeals assumed that the agents had prob-

able cause to arrest respondent when they went to his house

(Pet. App. 4a), and, in light of the information given Agent

Hemenway by Lena Kearney and Wynona Wilkins (see page

8, supra), there is little basis for disputing that conclusion.

warrant. At the time of the arrest, neither this Court

nor the Ninth Circuit had held that a warrant is

required before law enforcement officers may enter

a suspect’s home in order to arrest the suspect on

probable cause. On September 14, 1978, more than

16 months after the entry at issue here, the Ninth

Circuit concluded in United States v. Prescott, 581

F.2d 1343, that the Fourth Amendment imposes such

a requirement. This Court did not rule on the ques-

tion until its decision in Payton v. New York, 445

U.S. 573, issued on April 15, 1980, nearly three years

after respondent’s arrest. Nevertheless, the court of

appeals in this case held that both Payton and Pres-

cott should be applied retroactively to suppress the

fruits of a warrantless arrest entry into respondent’s

house (Pet. App. 5a-7a, 12a-13a).°

In the course of reaching its conclusion that respondent's

admissions should have been excluded as evidence at his trial,

the court of appeals relied upon two other propositions that

we believe to be erroneous. First, it concluded that the prin-

ciples of Payton extend to the situation in which officers pos-

sessing probable cause but no warrant, by ruse or show of

weapons, cause a suspect to open the door of his house, thereby

placing himself in position to be arrested without any entry

into the premises (Pet. App. 7a). In our view, such a situa-

tion is governed by the principles of United States v. Watson,

423 U.S. 411 (1976), and United States v. Santana, 427 U.S.

88 (1976), upholding warrantless probable cause arrests that

do not require an entry into the home, rather than by Payton.

The gist of Payton is not that the home is a sanctuary against

warrantless arrests, but rather that the search of the home

resulting from an arrest entry implicates an independent in-

terest deserving of some form of warrant protection. Accord-

ingly, if an arrest can be effectuated without an entry into

the home, the policies served by the decision in Payton are

not implicated. (Because the present case involved an arrest

The retroactive application of the new Fourth

Amendment rule announced in Payton and Prescott

is contrary to this Court’s long-established policy of

applying the exclusionary rule only where its deter-

rent purpose is “most efficaciously served.” Stone

v. Powell, 428 U.S. 465, 487 (1976); United States

v. Calandra, 414 U.S. 338, 348 (1974). Moreover,

the decision below is at odds with the principles un-

derlying the line of Fourth Amendment retroactivity

cases culminating in United States v. Peltier, 422

U.S. 531 (1975).

entry, the discussion of the foregoing issue does not appear

to have been essential to the court’s decision.)

Second, the court of appeals held that respondent’s state-

ments were a suppressible fruit of what it had found to be

an illegal entry into his home (Pet. App. 8a-1la). While this

perhaps presents a closer issue than the one discussed in the

preceding paragraph, we believe the court of appeals’ holding

on the point is also in error. A correct “fruits” analysis calls

for distinguishing between the entry into the home—which,

at least after the decisions in Prescott and Payton, was un-

lawful—and the arrest itself, which the agents had a right to

make by virtue of the information they possessed giving them

probable cause to believe respondent had committed a crime.

With this critical distinction in mind, it becomes clear that

any evidence discovered by virtue of the officers’ presence in-

side an arrestee’s home would be a suppressible fruit of the

unlawful entry, whereas evidence such as statements or items

found on the arrestee’s person are properly viewed as fruits

of the arrest, not the entry, and should be admissible so long

as the arrest was itself authorized by law.

We have, however, not presented either of the foregoing

issues in our petition, and they are thus not before this Court.

We accordingly assume, for purposes of this case only, that

those issues were correctly resolved by the court of appeals.

A. A Decision Resolving A Previously Unsettled Fourth

Amendment Issue Should Not Be Applied Retro-

actively

In United States v. Peltier, swpra, the Court held

that the policies underlying the exclusionary rule did

not require the suppression of evidence seized in

searches that concededly were unlawful under the

principles announced in Almeida-Sanchez v. United

States, 413 U.S. 266 (1973), but that were con-

ducted prior to the date that Almeida-Sanchez was

decided. The Court noted that new constitutional

principles often have been applied retroactively where

those principles are directed at remedying a prior

practice that impaired the truth-finding function of

criminal trials. 422 U.S. at 535. However, the Court

also pointed out (ibid.; footnote omitted) that

in every case in which the Court has addressed

the retroactivity problem in the context of the

exclusionary rule, whereby concededly relevant

evidence is excluded in order to enforce a con-

stitutional guarantee that does not relate to the

integrity of the factfinding process, the Court

has concluded that any such new constitutional

principle would be accorded only prospective

application.

The Court in Peltier then undertook to explain

why it consistently had concluded that decisions ex-

panding the scope of Fourth Amendment rights

should be applied prospectively only. It noted that

neither of the purposes served by the exclusionary

rule—deterrence of unlawful police conduct and pres-

ervation of judicial integrity—would be served by

giving retroactive effect to decisions announcing new

Fourth Amendment standards. Thus, the Court ob-

served that “the ‘imperative of judicial integrity’

is * * * not offended if law enforcement officials

reasonably believed in good faith that their conduct

was in accordance with the law even if decisions

subsequent to the search or seizure have held that

conduct of the type engaged in by the law enforce-

ment officials is not permitted by the Constitution.”

422 U.S. at 537-538 (emphasis omitted). Similarly,

the Court noted that [where the official action

was pursued in complete good faith * * * the deter-

rence rationale loses much of its force“ because it

“ ‘necessarily assumes that the police have engaged in

willful, or at the very least negligent, conduct

*. % Id. at 539, quoting Michigan v. Tucker, 417

U.S. 433, 447 (1974). Accordingly, the Court con-

cluded that “evidence obtained from 2 search should

be suppressed only if it can be said that the law

enforcement officer had knowledge, or may properly

be charged with knowledge, that the search was un-

7 See also United States v. Williams, 622 F.2d 830, 840 (5th

Cir. 1980) (en banc), cert. denied, 449 U.S. 1127 (1981),

where the Fifth Circuit held that

evidence is not to be suppressed under the exclusionary

rule where it is discovered by officers in the course of ac-

tions that are taken in good faith and in the reasonable,

though mistaken, belief that they are authorized. We

* * * so [hold] because the exclusionary rule exists to

deter willful or flagrant actions by police, not reasonable,

good-faith ones. Where the reason for the rule ceases, its

application must cease also.

While there would appear to be substantial reasons for this

Court to adopt a general and relatively broad “good faith”

exception to the exclusionary rule in an appropriate case, we

do not believe that it is necessary to do so here because re-

spondent’s suppression claim can be disposed of by reference

to well settled principles that lead directly to the more specific

conclusion that new Fourth Amendment rulings are to be

applied prospectively only.

constitutional under the Fourth Amendment.” 422

U. S. at 542.

The Peltier test reflects the view that the conduct

of law enforcement officers must be evaluated prag-

matically. The officer in the field is often forced to

respond quickly to fast-moving, unpredictable events,

many of which present potential dangers to the

officer or to the public at large. At the same time,

while the officer’s conduct is circumscribed by the

Constitution, he is not a constitutional scholar, and

the plain language of the Constitution offers little

in the way of specific guidance, “particularly * * *

when the constitutional standard is as amorphous as

the word ‘reasonable.’” Payton v. New York, supra,

445 U.S. at 600.

The Court’s approach in Peltier is consistent with

its earlier decisions addressing the retroactivity is-

sue in the Fourth Atnendment context. In each of

those cases, the Court concluded that the deterrent

purpose of the exclusionary rule would not be served

by retroactive application of new constitutional doc-

trines. See Linkletter v. Walker, 381 U.S. 618, 636-

639 (1965); Fuller v. Alaska, 393 U.S. 80, 81

(1968) ; Desist v. United States, 394 U.S. 244, 249-

250, 254 n.24 (1969); Williams v. United States,

401 U.S. 646, 651-656 (1971) (plurality opinion).

Thus, in Linkletter v. Walker, supra, the Court re-

fused to apply retroactively its decision in Mapp v.

Ohio, 367 U.S. 643 (1961), which had held that the

Fourth Amendment exclusionary rule was appli-

cable in state criminal trials. Noting that Mapp’s

application of the exclusionary rule to state cases

was premised on the “necessity for an effective de-

terrent to illegal police action” (381 U.S. at 636-

637), the Court in Linkletter stated that it could

not conclude that this purpose would be advanced by

making the rule retrospective. The misconduct of

the police prior to Mapp has already occurred and

will not be corrected by releasing the prisoners in-

volved.” 381 U.S. at 637. Likewise, in Desist v.

United States, supra, the Court observed that I the

exclusionary rule ‘has no bearing on guilt’ or ‘the

fairness of the trial, and it accordingly “decline[d]

to extend the court-made exclusionary rule to cases

in which its deterrent purpose would not be served.”

394 U.S. at 254 n. 24, quoting from Linkletter v.

Walker, supra, 381 U.S. at 638, 639.

The focus in the retroactivity cases on the deter-

rent purpose of the exclusionary rule echoes the

theme of this Court’s decisions concerning the ap-

plication of the rule in a variety of other settings.

For example, in United States v. Havens, 446 U.S.

620 (1980), the Court upheld the use of illegally

seized evidence to impeach a defendant’s testimony

at trial. The Court concluded that the deterrent pur-

pose of the exclusionary rule was adequately served

by prohibiting the government from using the evi-

dence to make out its case in chief, and that any

increase in deterrence “by forbidding impeachment

of the defendant who testifies [is] insufficient to per-

mit or require that false testimony go unchallenged,

with the resulting impairment of the integrity of the

factfinding goals of the criminal trial.” Id. at 627.

Similarly, in United States v. Calandra, supra, the

Court refused to extend the exclusionary rule to bar

the admission of illegally seized evidence in grand

jury proceedings. In reaching this result, the Court

stated (414 U.S. at 351-352; footnote wmitted) :

Any incremental deterrent effect which might

be achieved by extending the rule to grand jury

proceedings is uncertain at best. Whatever de-

terrence of police misconduct may result from

the exclusion of illegally seized evidence from

criminal] trials, it is unrealistic to assume that

application of the rule to grand jury proceed-

ings would significantly further that goal. Such

an extension would deter only police investiga-

tion consciously directed toward the discovery

of evidence solely for use in a grand jury in-

vestigation. * * * We therefore decline to em-

brace a view that would achieve a speculative

and undoubtedly minimal advance in the deter-

rence of police misconduct at the expense of

substantially impeding the role of the grand

jury.

A like analysis was employed in Stone v. Powell,

supra, 428 U.S. at 482-495, where the Court held

that the substantial costs to society would outweigh

any marginal deterrent effect that might follow from

application of the exclusionary rule to permit state

prisoners to relitigate search and seizure claims in

federal habeas corpus proceedings. In United States

v. Janis, 428 U.S. 433, 454 (1976), the Court simi-

larly concluded that “exclusion from federal civil

proceedings of evidence unlawfully seized by a state

criminal enforcement officer has not been shown to

have a sufficient likelihood of deterring the conduct

of the state police so that it outweighs the societal

costs imposed by the exclusion.” And in Alderman

v. United States, 394 U.S. 165, 174-175 (1969), the

Court ruled that the interest in deterring illegal

searches does not justify the exclusion of tainted evi-

dence at the instance of a party who was not the

victim of the challenged practices. See Rakas v.

Illinois, 489 U.S. 128, 137 (1978); United States

v. Payner, 447 U.S. 727, 735 (1980).“

There is even less reason for paying the price of

the exclusionary rule in this case than in the cases

discussed above. Those cases establish that even if

police conduct is plainly and culpably illegal, the

exclusionary rule does not bar use of the fruits of

that illegality in all situation., Thus, despite the fact

that the police in Linkletter (and in other pre-Mapp

cases) could not reasonably have entertained any

doubts that their conduct was prohibited by the

Fourth Amendment, the Court nonetheless ruled that

Mapp would not be applied retroactively to exclude

the fruits of illegal searches that pre-dated Mapp.

See United States v. Peltier, supra, 422 U.S. at 538.

Surely the policies of the exclusionary rule are even

less served by applying it here to conduct the officers

had no reason to know was in violation of the

Fourth Amendment.

B. The Arresting Agents Were Not Acting In Violation

Of Existing Constitutional Standards

As Peltier teaches, in determining whether the ex-

clusionary rule requires the suppression of respond-

In Michigan v. DeFillippo, 443 U.S. 31 (1979), the Court

refused to suppress evidence seized incident to an arrest made

in good-faith reliance on an ordinance later declared unconsti-

tutional. The Court observed (id. at 38 n.3):

The purpose of the exclusionary rule is to deter unlawful

police action. No conceivable purpose of deterrence

would be served by suppressing evidence which, at the

time it was found on the person of the respondent, was

the product of a lawful arrest and a lawful search. To

deter police from enforcing a presumptively valid statute

was never remotely in the contemplation of even the most

zealous advocate of the exclusionary rule.

ent’s statements, the critical question is whether the

arresting agents knew or should have known on May

5, 1977, that their warrantless entry into respond-

ent’s home was in violation of the Fourth Amend-

ment—not whether light is shed on the question by

subsequent judicial decisions.

1. Certainly there was nothing in this Court’s

cases that gave the agents knowledge that their con-

duct was unlawful. In Payton itself the Court noted

that the question of warrantless arrest entries had]

been expressly left open in a number of our prior

opinions.” 445 U.S. at 574. See United States v.

Watson, 423 U.S. 411, 418 n.6 (1976); id. at 433

(Stewart, J., concurring); id. at 432-433 (Powell,

J., concurring) ; Gerstein v. Pugh, 420 U.S. 103, 113

n. 13 (1975); Coolidge v. New Hampshire, 403 U.S.

443, 474-481 (1971); id. at 492 (Harlan, J., concur-

ring); id. at 510-512 & n.1 (White, J., dissenting) ;

Jones v. United States, 357 U.S. 493, 499-500

(1958).

Moreover, the question that this Court left un-

settled until Payton had been answered in different

In Coolidge v. New Hampshire, supra, it was stated that

„lil is clear * * * that the notion that the warrantless entry

of a man’s house in order to arrest him on probable cause is

per se legitimate is in fundamental conflict with the basic

principle of Fourth Amendment law that searches and seiz-

ures inside a man’s house without warrant are per se unrea-

sonable in the absence of some one of a number of well defined

‘exigent circumstances.’” 403 U.S. at 477-478. However, the

Court found it “unnecessary” to decide whether warrantless

arrest entries were unconstitutional. Jd. at 481. Moreover,

Justice Harlan, who concurred “although not without diffi-

culty” (id. at 491) in certain portions of the Court’s opinion,

including the portion containing the above-quoted statement,

expressed the view that the Court acted wisely in leaving open

the warrantless arrest entry issue. Id. at 492.

ways by various state and federal courts, most

often in favor of the constitutionality of warrant-

less arrest entries. The practice of making warrant-

less arrest entries was described in Payton as

“longstanding” and “widespread” (445 U.S. at 600),

and the Court specifically acknowledged that [a]

majority of the States that have taken a position on

the question permit warrantless entry into the home

to arrest even in the absence of exigent circum-

stances.” Jd. at 598. In this connection, the Court

pointed out that at the time of its decision 24 states

permitted warrantless arrest entries, while only 15

states clearly prohibited them. Id. at 598-599 & nn.

46-47.“ Furthermore, the Court noted that the

federal courts of appeals were split on the consti-

tutional validity of warrantless arrest entries. Id.

at 575 & n.4.“ Finally, the Court also observed that

„the common-law commentators disagreed sharply

on the subject.” Id. at 593.

Given this background, it is no exaggeration to

state that when Agents Hemenway and Pickering

entered respondent’s home and arrested him, their

actions implicated a perplexing constitutional ques-

tion that had dramatically divided scholars and

jurists alike for many years. Even had they pre-

ceded their actions by a diligent study of legal

10 This reckoning considerably overstates the number of

jurisdictions that prohibited such entries as of May 5, 1977,

when the federal agents in this case entered respondent’s

home. Of the ten state courts that had found such entries

unconstitutional at the time of the decision in Payton, only

three had done so prior to May 1977 (see 445 U.S. at 575 n.3).

11 Again, only two of the decisions cited by the Court in

this footnote as condemning warrantless arrest entries were

handed down before the entry in the instant case.

authorities, the agents, who presumably lacked

supernatural prescience, could not have discerned

the answer that would ultimately be given to this

difficult question, about which more learned men had

argued for centuries and which sharply divided this

Court in its eventual resolution. As the decision in

Peltier recognizes, police officers should be required

to conform their behavior to prevailing constitutional

norms. They should not, however, be required to

predict correctly the resolution of close and unset-

tled constitutional questions. The arresting agents

in this case could not reasonably be charged with

foreknowledge of the outcome of this Court’s decision

three years later in Payton, a result that was by no

means a foregone conclusion. Until Payton was de-

cided in April 1980, no decision of this Court was in

any way intended, or could reasonably have been

expected, to deter a police officer from proceeding

as Agents Hemenway and Pickering proceeded. Ac-

cordingly, under the Peltier test, Payton v. New

York should not be applied retroactively to arrest

entries that took place prior to April 15, 1980.

2. We acknowledge that an earlier date could ap-

propriately be utilized if the federal court of ap-

peals for the circuit in which the challenged search

and seizure took place had authoritatively held the

conduct in question unlawful prior to the officers’

action in a particular case. This point does not aid

respondent, however, for there is no reasonable basis

on which the agents could be charged with knowledge

of a warrant requirement under the prevailing law

of the Ninth Circuit at the time of the entry in May

1977. It was not until 16 months later that the

Ninth Circuit concluded, in United States v. Prescott,

supra, that absent exigent circumstances law en-

forcement officers must obtain a warrant before en-

tering private premises to effect an arrest.“ The

court in Prescott expressly noted that theretofore

this Court “ha[d] never resolved this issue“ and

that the Ninth Circuit itself “ha[d] never decided

the question either.” 581 F.2d at 1348.

Prior to Prescott, the Ninth Circuit had decided a

number of cases in which law enforcement officers

without warrants had arrested persons in their

homes. See United States v. Blake, 632 F.2d 731,

735 n.1 (9th Cir. 1980). Until 1973, the court

focused on whether the officers had probable cause

to make an arrest and whether they announced their

identity and purpose before entering. See, e.g., Wil-

liams v. United States, 273 F.2d 781 (9th Cir. 1959),

cert. denied, 362 U.S. 951 (1960); Munoz v. United

States, 325 F.2d 28, 27 (9th Cir. 1963); Ng Pui Yu

v. United States, 352 F.2d 626, 631 (9th Cir. 1965) ;

Jack v. United States, 387 F.2d 471, 473 (9th Cir.

1967), cert. denied, 392 U.S. 934 (1968). In 1973

the court stated for the first time that the permissi-

bility of a warrantless arrest entry into a home was

an open question. See Williams v. Gould, 486 F.2d

12 Unlike Payton or the present case, which involved war-

rantless entries into the suspects’ own homes, Prescott in-

volved a warrantless entry into the home of a nonsuspect

third party in order to arrest a fugitive who was believed to

be inside. But the opinion of the court of appeals in Prescott

did not differentiate between entries into a suspect’s home and

entries into a third party’s residence. Thus, after Prescott, it

was tolerably clear that a warrant was required in order to

make an arrest entry inside any private dwelling within the

Ninth Circuit. See Payton v. New York, supra, 445 U.S. at

575 n.4 (listing Prescott among those court of appeals deci-

sions that imposed a warrant requirement on arrest entries

into a suspect’s residence).

547, 548 (9th Cir. 1973). Soon thereafter, in the

course of holding that officers making an arrest entry

lacked sufficient grounds for believing the suspect to

be on the premises, the court did state in dictum

that arrest entries require arrest warrants. United

States v. Phillips, 497 F.2d 1131, 1135 (9th Cir.

1974). That this dictum was not regarded as an

authoritative disposition of the issue is evident from

subsequent cases clearly recognizing the issue as un-

settled and avoiding its decision by finding that any

error in the admission of evidence was harmless,

United States v. Masterson, 529 F.2d 30, 31 (9th

Cir.), cert. denied, 426 U.S. 908 (1976), or that the

arrests were justified by exigent circumstances.

United States v. McLaughlin, 525 F.2d 517, 520 (9th

Cir. 1975), cert. denied, 427 U.S. 904 (1976) ; United

States v. Flickinger, 573 F.2d 1349, 1354 (9th Cir.),

cert. denied, 439 U.S. 836 (1978) *.

Apparently then, at the time of the entry at issue

here, it was common practice among law enforcement

officers in the Ninth Circuit to enter private dwell-

ings without a warrant in order to effectuate a

felony arrest on probable cause. Indeed, the practice

had such widespread acceptance that respondent in-

itially based his suppression claim solely on the issue

of probable cause to arrest. He never argued in the

district court that the entry was unlawful because

the arresting agents lacked a warrant.

18 In United States v. Calhoun, 542 F.2d 1094, 1102 (9th

Cir. 1976), without expressing its own view on the question,

the court noted the government’s concession that a warrant-

less arrest entry would be unlawful in the absence of exigent

circumstances, which it held did not exist on the facts of that

case.

Despite this background and the Ninth Circuit’s

emphasis in Prescott that it was deciding a question

that had not yet been settled either in the circuit or

in this Court, the court of appeals in this case con-

cluded, in reliance on United States v. Blake, supra,

that the decision in Prescott should be given retro-

active effect. Citing United States v. Calhoun, 542

F.2d 1094 (9th Cir. 1976), and United States v.

Phillips, supra, the court in Blake had held that the

result in Prescott had been “clearly foreshadowed,”

and that therefore the Prescott rule would be applied

to suppress evidence seized as a result of warrantless

arrest entries that pre-dated Prescott. The court

stated that its decisions in Calhoun and Phillips “in-

dicated that a warrant very likely was required” to

justify an entry into private premises to effect an

arrest. 632 F.2d at 735. While acknowledging that

neither Calhoun nor Phillips had actually held that

a warrant was required, and that prior to Prescott it

had “avoided the issue repeatedly either by finding

that probable cause to arrest was lacking or, when

not lacking, that exigent circumstances existed,” the

court nevertheless concluded that its “[p]ersistent

avoidance” of the issue should have “signalled” to

law enforcement officers that the issue might be de-

cided adversely to the government, and that this

was sufficient to constitute a clear foreshadowing of

the decision in Prescott. 632 F.2d at 735-736. In the

alternative, the court concluded that because the

“fundamental source” for Prescott’s holding was the

sanctity of the home in England under the common

law, “it is unlikely that the pre-Prescott ‘law’ of this

circuit can be said to have been other than as stated

in Prescott.” 632 F.2d at 736. The court explained

(ibid.) that

prior to Prescott law enforcement officials knew

that this circuit’s law was unsettled but that

there was some drift toward a warrant require-

ment. To announce at this late date that prior

to Prescott there was no warrant requirement

would be to refute Prescott’s source and to ignore

the drift that Calhoun and Phillips represent.

3. The Ninth Circuit’s decision in Blake that Pres-

cott should be applied retroactively, and the court’s re-

troactive application of Prescott to suppress evidence

in this case, are plainly wrong. Prior to Prescott,

borrowing the Ninth Circuit’s own words, “there was

no holding which gave [federal] law enforcement

agencies [in the Ninth Circuit] adequate notice of

the unconstitutionality” of warrantless arrest en-

tries. United States v. Escalante, 554 F.2d 970, 973

(9th Cir.) (en banc), cert. denied, 434 U.S. 862

(1977) (holding decisions prohibiting non-probable-

cause searches of vehicles at fixed checkpoints not

retroaetive).“ Indeed, in its initial opinion in the

In 1976, the California Supreme Court held, under the

Fourth Amendment and its counterpart in the California con-

stitution, that warrantless arrests within the home are per se

unreasonable in the absence of exigent circumstances. People

v. Ramey, 16 Cal.8d 263, 275-276, 545 P.2d 1333, 1340-1341,

127 Cal. Rptr. 629, 636-637. Although acknowledging that

dicta in Coolidge v. New Hampshire, supra, 403 U.S. at 447-

478, and in one of its own cases, People v. Privett, 55 Cal.2d

698, 703, 361 P.2d 602, 605, 12 Cal. Rptr. 874 (1961), indicated

that warrantless arrest entries might be unconstitutional (16

Cal.3d at 272-273, 545 P.2d at 1338-1339, 127 Cal. Rptr. at

634-635), the court in Ramey nonetheless held that the new

rule imposing a warrant requirement would apply prospec-

tively only, because the California courts in numerous prior

cases had assumed the legality of warrantless arrest entries so

instant case the court of appeals upheld the war-

rantless arrest entry into respondent’s house (Pet.

App. 26a-27a). If the panel of judges in this very

case did not initially believe that the Constitution

required a warrant or that Ninth Circuit precedent

called for such a result, it would indeed be bizarre to

conclude that law enforcement officers in May 1977

should have anticipated and conformed their conduct

to the impending evolution of the law.

Thus, the same considerations that impel the con-

clusion that this Court’s decision in Payton should

not be applied retroactively also establish the error

of retroactive application of the Ninth Circuit’s deci-

sion in Prescott. Because the arresting agents in this

case did not know, and could not reasonably be

charged with knowledge, that their actions violated

the Fourth Amendment, the evidence they obtained

was properly admitted at respondent’s trial.”

long as probable cause was present. 16 Cal.3d at 276 n.7,

545 P.2d at 1341 n.7, 127 Cal. Rptr. at 637 n.7.

This Court has remarked on several occasions that “in

absence of an applicable federal statute the law of the state

where an arrest without warrant takes place determines its

validity.” United States v. Di Re, 382 U.S. 581, 589 (1948).

See Miller v. United States, 357 U.S. 301, 305 (1958) ; United

States v. Watson, supra, 423 U.S. at 420-421 n.8. However,

this rule is concerned only with whether the officer has affirma-

tive authority to make an arrest, not whether his actions in

making an arrest are permissible under the Fourth Amend-

ment. Thus, the state court decision in Ramey was not bind-

ing on the actions of federal agents who operated within the

state. Moreover, the issue in arrest entry cases is not whether

the arrest itself is constitutional without a warrant, but

whether the entry of a private dwelling to effect an arrest

is an unlawful search. As the court of appeals noted in

Prescott, “federal law, not state law, is controlling” on the

question of the validity of warrantless arrest entries. 581

F.2d at 1348.

15 In United States v. Corcione, 592 F.2d 111, 118 (2d Cir.),

cert. denied, 440 U.S. 975 (1979), the Second Circuit refused

The principal defect in the Ninth Circuit’s analysis

in Blake, which was relied on in this case, is that it

“confuse[s] the test to be applied in retroactivity

cases not involving the exclusionary rule with the

standard the Peltier decision set forth to be applied

in exclusionary rule cases.” United States v. Ross,

655 F.2d 1159, 1188 (D.C. Cir. 1981) (en banc)

(Wilkey, J., dissenting), cert. granted, No. 80-2209

(Oct. 18, 1981).“ See United States v. Tucker, 610

F.2d 1007, 1014 (2d Cir. 1979) (Van Graafeiland,

to apply retroactively its decision in United States v. Reed,

572 F.2d 412 (2d Cir.), cert. denied, 489 U.S. 918 (1978),

which had imposed a warrant requirement for arrest entries.

The court in Corcione concluded that the deterrent purpose of

the exclusionary rule would not be served “where police offi-

cers obtained the evidence in good faith prior to the announce-

ment of the new constitutional principle.” 592 F.2d at 118.

The good faith of the arresting agents in this case cannot

seriously be questioned. The agents went to respondent’s

house with the intention of questioning him about his involve-

ment in the check cashing scheme. The agents had obtained

an arrest warrant for co-defendant Dodd even though no war-

rant was needed to arrest Dodd in a public place and neither

this Court nor the Ninth Circuit had held that a warrant was

required before entering a suspect’s home in order to arrest

him.

16 The petition in Ross presented only an unresolved sub-

stantive Fourth Amendment issue regarding the application

of the warrant requirement to the probable cause search of a

paper bag seized from an automobile. The issue of the retro-

activity of Arkansas v. Sanders, 442 U.S. 753 (1979), dis-

cussed at some length in the majority opinion and in Judge

Wilkey’s dissent in Ross, is not before this Court. As is evi-

dent from the discussion in the text, we agree with Judge

Wilkey’s excellent and thorough analysis of retroactivity prin-

ciples.

J., dissenting).“ As Judge Wilkey explained in

United States v. Ross, supra, 655 F.2d at 1188-1189

(emphasis in original; footnotes omitted) :

In situations not involving the retroactive ap-

plication of the exclusionary remedy, a decision

is limited to prospective application only if it

meets each of two tests. The first of these two is

a threshold test which quickly eliminates those

new substauiive decisions that should not seri-

ously be considered for limitation to prospective

effect. This first test was set out by the Supreme

Court in Chevron Oil Co. v. Huson [404 U.S. 97

(1971)], in which the Court stated that a case

must decide “an issue of first impression whose

resolution was not clearly foreshadowed” [id.

at 106] before the rule of the case can seriously

be considered for prospective application only.

Unless the new decision meets the threshold

requirements of the Chevron Oil test, it is ineligi-

ble for full-blown consideration for limitation

to prospective application. If it meets the

threshold standards, further consideration is then

guided by the three factors set forth in the Su-

preme Court’s decision in Stovall v. Denno [388

US. 293, 297 (1967)]: (1) the purpose of the

new result; (2) the extent to which law en-

forcement officials may have relied on the previ-

ous law; and (3) the impact of retroactivity on

the administration of justice.

In Peltier, however, this Court rejected this two-

step analysis in considering whether new Fourth

17 See also Note, Retroactivity And The Exclusionary Rule:

When Do The Policies Underlying The Exclusionary Rule

Warrant Its Retroactive Application?—United States v. Pel-

tier, 422 U.S. 531 (1975), 18 Am. Crim. L. Rev. 317, 329

(1975).

Amendment decisions should be applied retroactively.

The Ninth Circuit in Peltier had divided over

whether this Court had “articulated a new doctrine”

in Almeida-Sanchez. See United States v. Peltier,

supra, 422 U.S. at 533-534. The dispute in the court

of appeals turned on whether Almeida-Sanchez had

“reaffirmed well-established Fourth Amendment

standards” or had “disturb[ed] a long-accepted and

relied-upon practice.” United States v. Peltier, 500

F.2d 985, 988 (9th Cir. 1974) (en banc), rev'd,

422 U.S. 581 (1975). The focus of this Court’s

analysis in Peltier, however, was not on whether

Almeida-Sanchez made new law, but on whether “the

law enforcement officer had knowledge, or may prop-

erly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.”

422 U.S. at 542.”

Even before Peltier, this Court in Desist v. United

States, supra, had rejected the argument that it

18 We recognize that Peltier may perhaps be distinguished

from this case on the ground that the law enforcement con-

duct in that case was carried out “in reliance upon a validly

enacted statute, supported by longstanding administrative

regulations and continuous judicial approval” (422 U.S. at

541), whereas here the agents’ actions were not expressly

authorized by statute and there was no recent history of af-

firmative judicial approval of such actions by the Ninth Cir-

cuit. But this distinction should not lead to a different result.

Regardless whether a new Fourth Amendment decision ac-

tually changes prior law, answers a previously unsettled ques-

tion, or reaches a result “foreshadowed” (but not yet conclu-

sively established) by earlier decisions, the substantial costs

to society outweigh whatever minimal deterrent benefit

might result from excluding reliable evidence obtained by law

enforcement officers in the course of a search or seizure that

is established to have been unlawful only by subsequent deci-

sions.

should give retroactive effect to its decision in Katz

v. United States, 389 U.S. 347 (1967), because the

result in Katz had been “clearly foreshadowed.” The

Court in Desist noted that “[w]hile decisions before

Katz may have reflected growing dissatisfaction with

the traditional tests of the constitutional validity of

electronic surveillance, the Court consistently reiter-

ated those tests and declined invitations to abandon

them.” 394 U.S. at 248 (footnote omitted). Thus,

„however clearly [the] holding in Katz may have

been foreshadowed” (ibid.), the Court in Desist con-

cluded that Katz would not be applied retroactively

because the deterrent purpose of the exclusionary rule

“overwhelmingly supports nonretroactivity.” Id. at

251.

Accordingly, the Ninth Circuit in Blake erred in

basing its retroactivity inquiry on whether the result

in Prescott had been “clearly foreshadowed.” “The

appropriate question to ask * * * is not whether law-

yers and judges would describe the new decision as

[having been clearly foreshadowed], but whether a

working patrolman can properly be charged with.

foreknowledge of the new decision’s outcome.”

United States v. Ross, supra, 655 F.2d at 1190 (Wil-

key, J., dissenting; emphasis omitted) .”

10 In any event, as we have shown above and as the Prescott

panel acknowledged (581 F.2d at 1348), the result in Prescott

was not clearly foreshadowed by the dicta in earlier Ninth

Circuit cases any more than Payton was foreshadowed by the

dictum in Coolidge v. New Hampshire, supra. Before Prescott

the law in the Ninth Circuit, even under the view of the Blake

panel, was “unsettled,” although there was “some drift“ 29

ward a warrant requirement. 632 F.2d at 736. By holding

that law enforcement officers in the Ninth Circuit should have

caught this “drift,” the court in Blake and in this case disre-

garded the Peltier test for assessing retroactivity questions in

the context of the exclusionary rule.

The Ninth Circuit in Blake also erred in conclud-

ing (632 F.2d at 736) that the “law” that existed

in the circuit prior to Prescott was no different from

that announced in Prescott. This approach stems

from the common law notion that “the duty of the

court was not to ‘pronounce a new law, but to main-

tain and expound the old one.’” Linkletter v.

Walker, supra, 381 U.S. at 622-623, quoting from

1 Blackstone, Commentaries 69 (15th ed. 1809). But

this Court has “firmly rejected the idea that all new

interpretations of the Constitution must be consid-

ered always to have been the law and that prior con-

structions to the contrary must always be ignored.”

Williams v. United States, supra, 401 U.S. at 651

(plurality opinion) (emphasis in original).

In short, police conduct cannot be measured by

dicta, hints, or precatory observations. It is diffi-

cult enough for law enforcement officers to keep

abreast of established doctrine in the Fourth Amend-

ment area, which is one of the most rapidly changing

areas of the law. To expect officers to be familiar

with, and conform their conduct to, subtle judicial

nuances in the treatment of unsettled issues is entirely

unreasonable.

Accordingly, the retroactivity of principles an-

nounced in a Fourth Amendment decision should be

governed by whether the officer may properly be

charged, prior to the time that decision was rendered,

with knowledge that his actions were unlawful. In

the absence of clear, straightforward rules, constitu-

tional transgressions will not be effectively deterred,

because the officer will have no reasonable way of

knowing that he is trespassing into constitutionally

protected areas.” Now that Payton has been decided,

20 This is not to suggest that police departments or other

law enforcement agencies may not, as a matter of policy, re-

quire their officers to adhere to standards of conduct more

a clear rule has been established, and law enforce-

ment officers may henceforth properly be charged

with knowledge that warrantless arrest entries are

prohibited in the absence of exigent circumstances.

If, in the future, an officer disregards the Payton

warrant requirement, the evidentiary fruits of his

entry will be suppressed at trial. Knowledge of this

consequence will (if the premise of the exclusionary

rule is sound), deter unlawful arrest entries. But

no purpose of deterrence will be sérved by applying

the Fcurth Amendment doctrine of Payton and Pres-

cott to suppress evidence obtained as a result of

arrest entries conducted prior to those decisions. As

Judge Wilkey remarked in United States v. Ross,

supra, 655 F.2d at 1192:

Under these circumstances, suppressing the

evidence [the agents obtained] is nothing short

of levying an ex post facto penalty on utterly

blameless police work undertaken in the line of

duty. Suppressing the evidence in this case can-

not deter the police from doing what they have

no way of knowing is wrong. * * * The [court

of appeals’ decision] does not deter the constable

from blundering by liberating the criminal. It

simply liberates the criminal.

stringent than those that are constitutionally required. See

United States v. Caceres, 440 U.S. 741, 751 (1979). In fact,

subsequent to the 1978 decision of the Second Circuit holding

warrantless arrest entries unlawful in United States v. Reed,

supra, the Justice Department instructed federal law enforce-

ment agencies that they should follow the practice of procur-

ing arrest warrants prior to entering a suspect’s home to

arrest him in the absence of exigent circumstances. But the

failure to adopt such initiatives should not lead to the suppres-

sion of evidence where the agencies and their officers are at-

tempting to adhere in good faith to established constitutional

standards.

For those law enforcement agencies and officers

who are exceptionally sensitive to deterrence by ap-

plications of the exclusionary rule, it may be argued

that retroactive application of decisions like Payton,

which resolve previously unsettled issues, will influ-

ence their conduct by deterring any actions that are

not settled as being lawful. This will have the effect

of causing officers to eschew both legal and illegal

searches or seizures (much as overbroad statutes

regulating speech activities operate to deter both

constitutionally protected and unprotected behavior).

While such scatter-shot deterrence will reap some

benefits, it will also incur substantial costs. Even

under the most positive view of the benefits of the

exclusionary rule as an empirically effective mech-

anism for protecting the constitutional rights of the

citizenry, the incremental value of deterring be-

havior of possible but questionable legality hardly

justifies the costs of such a policy, especially when it

is considered that the period of uncertainty as to any

type of search and seizure activity will last only until

an instance of such conduct is challenged in court and

the issue is judicially resolved.

C. The Fact That Respondent’s Case Was Pending On

Direct Review When Payton And Prescott Were De-

cided Does Not Justify Suppression Of The Evidence

Against Him

The exclusionary rule is a procedural safeguard

implemented in an effort to prevent future Fourth

Amendment violations. It is not a personal right to

which respondent can lay claim. See United States

v. Peltier, supra, 422 U.S. at 538; United States v.

Calandra, supra, 414 U.S. at 348. Its deterrent pur-

pose requires that any inquiry concerning implemen-

tation of the rule focus on “the time of the search,

not any subsequent point in the prosecution.” Desist

v. United States, supra, 394 U.S. at 253. See Hill v.

California, 401 U.S. 797, 802 (1971); Williams v.

United States, supra, 401 U.S. at 651-652 (plurality

opinion). No purpose of deterrence would be served

by giving the benefit of the exclusionary rule to those

who were victims of warrantless arrest entries that

occurred prior to the time that this Court in Payton,

or a controlling lower court that anticipated Payton,

announced that such entries were unlawful. All of

those unlawful entries are past history; “the rup-

tured privacy of the victims’ homes * * * cannot be

restored.” Linkletter v. Walker, supra, 381 U.S. at

637. Moreover, the exclusion of reliable, probative

evidence clearly undermines the factfinding objective

of the criminal trial. See Desist v. United States,

supra, 394 U.S. at 250. Accordingly, whatever may

be the rule with respect to the retroactivity of other

kinds of constitutional decisions (see, e. g., Hanker-

son v. North Carolina, 432 U.S. 233 (1977)), the

pendency of a case at trial or on direct appeal should

have no bearing on the retroactivity of newly decided

Fourth Amendment principles.

Nor is it of any significance, with respect to the

retroactivity issue, that following the decision in Pay-

ton the Court vacated the judgments in a number of

cases and remanded those cases to the lower courts

for further consideration in light of Payton. See,

e.g., Brown v. Florida, 446 U.S. 902 (1980); Bush

v. Florida, 446 U.S. 902 (1980). The Court’s sum-

mary vacation and remand orders said nothing about

the subject of Payton’s retroactivity, and we submit

that it would be improper to conclude that those

orders should have the same effect as an explicit deci-

sion by this Court on the merits of the retroactivity

issue. Any such conclusion is directly contrary to

Bowen v. United States, 422 U.S. 916 (1975), where

this Court refused to give retroactive effect to its

decision in Almeida-Sanchez v. United States, supra,

notwithstanding the fact that it previously had va-

cated the judgment in Bowen’s case and remanded

for reconsideration in light of Almeida-Sanchez. Re-

lying on its decision in Peltier, which refused to apply

Almeida-Sanchez retroactively even though Peltier’s

direct appeal was pending on the date of the decision

in Almeida-Sanchez, this Court concluded that the

reasons that dictated a holding of nonretroactivity

in Peltier compelled a similar result in Bowen. 422

U.S. at 918. See United States v. Stewart, 650 F.2d

178, 179-180 (9th Cir. 1981); United States v. Ross,

supra, 655 F.2d at 1191-1192 (Wilkey, J., dissent-

ing).

Finally, nothing in this Court's decision in Stea-

gald v. United States, No. 79-6777 (Apr. 21, 1981),

holding that police officers must obtain a search war-

rant before searching for the subject of an arrest

warrant in the home of a nonsuspect third party,

suggests that Payton should be applied retroactively.”

While the search in Steagald antedated the decision

in Payton, the Court’s opinion makes no reference to

retroactivity considerations. Moreover, the sv stan-

tive Fourth Amendment question presented in Stea-

21 We have recently filed a petition for a writ of certiorari

seeking review of a decision of the Seventh Circuit that ap-

plied Steagald retroactively to exclude evidence found in the

search of a third party’s residence that took place prior to the

decisions in Steagald and Payton. United States v. Gillespie,

No. 81-879 (filed Nov. 10, 981).

gald was quite different from the question that was

before the Court in Payton. Thus, as we conceded in

our brief in Steagald (79-6777 U.S. Br. 12, 26), even

if the Court in Payton had not adopted an arrest

warrant requirement for entries into a suspect’s own

house, it could still logically have required the police

to secure search warrants before searching for a

suspect in a third party’s residence. Accordingly, in

reaching the merits of the petitioner’s Fourth Amend-

ment claims, the Court in Steagald merely followed

its general practice in criminal cases of applying a

new constitutional ruling to the litigant in whose

case it was announced. “Sound policies of decision-

making, rooted in the command 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 advance contentions requir-

ing a change in the law, militate against denying

[litigants] the benefits of * * * decisions” announc-

ing new rules. Stovall v. Denno, 388 U.S. 293, 301

(1967) (footnotes omitted). Accordingly, the Court’s

substantive holding in Steagald, and its silence with

respect to the question of Payton’s retroactivity,

should not be construed as an implicit acceptance of

the proposition that the principles announced in

Payton should be applied retroactively.

In sum, we submit that, consistent with this Court’s

practice, only the victims of warrantless arrest en-

tries that occur after April 15, 1980, should receive

the benefit of the Fourth Amendment principle an-

nounced in Payton, absent controlling authority es-

tablishing a similar rule in the jurisdiction in ques-

tion. In the Ninth Circuit, only the victims of war-

rantless arrest entries occurring after September 14,

1978, should benefit from the holding of Prescott.

Because the entry into respondent’s house occurred

before Payton and Prescott advised law enforcement

officers of the need for a warrant, respondent’s post-

arrest confessions were properly admitted into evi-

dence at trial.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ELLIOTT SCHULDER

Assistant to the Solicitor General

Parry MERKAMP STEMLER

Attorney

NOVEMBER 1981

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