Petitioners Reply Brief — United States v. Johnson

Iu Fax

7

~

to

- Supreme

FILED

FEB 17 1962

‘ALEXANDER L. STEVAS.

£_LERK

eS e : In the Supreme Court of the United States

OcTOBER TERM, 1981

1. No. 80-1608

cl

UNITED STATES OF AMERICA, PETITIONER

:

RAYMOND: EUGENE JOHNSON

_ |. ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

"REPLY BRIEF FOR THE UNITED STATES

Rex E. Lee

Solicitor General

Department of Justice

é SANS Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Ashwander v. TVA, 297 U.S. 288 .....eeeeeee- 4

Barrett v. United States, 423 U.S. 212 .......55. 3

Dandridge v. Williams, (a Pe | re 4

Desist v. United States, 394 U.S. 244 ......5005: 7

Fahy v. Connecticut, 375 U.S. 85 .......eeeeees 8

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

Gort, Gemted, F9Z U.S. 956 oc ccccccvevcssesess 2

Johnson v. United States, 333 U.S. 10 .......+.- 2

Kastigar v. United States, 406 U.S. 441 ......... 3

er; Vi: Camvortia, STA U.S. 23), wccccvesccnsy’ 2,8

Michigan v. Summers, No. 79-1794

Gen NUER Did dwiewescoccccagcvendnosaee 7

Payton v. New York, 445 U.S.

DUMCEMEAS wks CEs evndene recede t, 2, 3. 4, 5, 6, 7

Permian Basin Area Rate Cases, 390 U.S. 747 ... 3

Rosenberg v. Fleuti, 374 U.S. 449 ..... cee eees 4

Sabbath v. United States, 391 U.S. 585 ......... 2

Stoner v. California, 376 U.S. 483 ........0008 8

United States v. Caceres, 440 U.S. 741 .......+.- 4

United States v. Calhoun, 542 F. 2d 1094 ....... 3

United States v. Congote, 656 F. 2d 971 ........ 5

United States v. Cravero, 545 F. 2d 406,

UC I, a EE RED ood ccnlesnseccceees 7

Page

Cases—Continued:

United States v. Dien, 609 F. 2d 1038,

adhered to on rehearing, 615 F.2d 10 ........ 7

United States v. Gardner, 627 F. 2d 906 ........ 7

United States v. Hofman, 488 F. 2d 287 ........ 5

United States v. Peltier, 422 U.S.

DEES S adv ieeaenns besnesecbebedserees 4, 6,8

United States v. Prescott, 581 F. 2d

SU Sito Saba 6d odne reese 1, 2, 3, 4, 5, 6, 7

United States v. Rich, 518 F. 2d 980 ........... 7

United States v. Savage, 564 F.2d 728 ......... 5

United States v. Williams, 573 F. 24 348 ....... 5

United States v. Wysocki, 457 F. 2d 1155,

Sort; omied: SO9U.S, BSD: .. vccccsvvcccccccee 5

Williams v. United States, 401 U.S. 646 ...... 7-8

Constitution:

United States Con tution, Fourth

AmMOnGMOME: oc cccccccccccce 1, 2, 3, 4, 5, 6, 7,8

In the Supreme Court of the United States

OcTOBER TERM, 1981

No. 80-1608

UNITED STATES OF AMERICA, PETITIONER

v.

RAYMOND EUGENE JOHNSON

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. In our opening brief we argued that the policies under-

lying the exclusionary rule compel the conclusion that a

decision resolving a previously unsettled Fourth Amend-

ment question should not be applied retroactively. Respond-

ent acknowledges (Br. 2, 6-7, 10-11), as he must, that prior

to Payton v. New York, 445 U.S. 573 (1980), and United

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

and the Ninth Circuit had expressly reserved decision on the

constitutionality of warrantless arrest entries. Nevertheless,

respondent argues (Br. 6, 9) that those decisions announc-

ing a warrant requirement for arrest entries should be given

retroactive effect because they “merely applied familiar and

longstanding constitutional principles and did not establish

a new principle of law,” and that “even the most unsophisti-

cated law enforcement officer” should have been capable of

predicting the results in those cases.

2

Respondent’s argument is unfounded. To begin with, it is

absurd to suggest that Paytonand Prescott did not establish

a new constitutional rule. Prior to those decisions, neither

this Court nor the Ninth Circuit had held that police must

obtain a warrant before entering a suspect’s home in order

to arrest him on probable cause. While reserving decision

on the constitutionality of warrantless arrest entries, both

this Court and the Ninth Circuit had, in numerous cases,'

assumed the validity of the practice, which was approved by

many common law authorities and was standard police

practice in this country from its inception. The fact that the

Fourth Amendment had long been construed as requiring a

warrant to search for property inside private premises did

not, as respondent suggests, settle the issue with respect to

arrest entries. On the contrary, at the time of the entry into

respondent’s house many judges and commentators, whu

presumably were aware of the warrant requirement for

searches for property inside houses, had concluded that

warrants were not required for arrest entries.? Indeed, as we

have observed in our opening brief (at 26-27), if the court of

appeals judges who initially upheld the warrantless entry

into respondent’s house (see Pet. App. 26a-27a) did not

believe, in December 1978, that the Fourth Amendment

imposed a warrant requirement, law enforcement officers in

'See, e.g., Sabbath v. United States, 391 U.S. 585, 588 (1968); Ker

v. California, 374 U.S. 23, 37-38 (1963) (plurality opinion); Johnson

v. United States, 333 U.S. 10, 15 (1948); Jack v. United States, 387

F. 2d 471, 473 (9th Cir. 1967), cert. denied, 392 U.S. 934 (1968).

2We note that respondent considerably overstates (Br. 13-14, 15-16)

the number of federal and state appellate courts that had prohibited

warrantless arrest entries as of May 5. 1977, the date of the entry in this

case. See our opening brief at 21, nn.10 & 11.

3

the Ninth Circuit should not be charged with having

known, in May 1977, that such a requirement was the law.’

Respondent also argues that dicta appearing in the deci-

sions of this Court and the Ninth Circuit, and persistent

avoidance of the issue, “clearly foreshadowed” the results in

Payton and Prescott and should have signalled to law

enforcement officers that the Fourth Amendment required

warrants for arrest entries. But statements made in dicta

are, by definition, “unnecessary to [a court's] decision, and

cannot be considered binding authority.” Kastigar v.

United States, 406 U.S. 441, 454-455 (1972). See Permian

Basin Area Rate Cases, 390 U.S. 747, 775 (1968). Law

enforcement officers should not be compelled to adhere to

superfluous language inserted into judicial decisions.‘

‘It is noteworthy that respondent himself did not argue that the

absence of a warrant invalidated the arrest entry until after the Ninth

Circuit's decision in Prescott. See respondent's petition for rehearing.

dated Dec. 30, 1978, at 11-12. Prior to Prescott, respondent had simply

contended that the arrest was invalid because the agents lacked prob-

able cause. See respondent's court of appeals brief, dated Apr. 3, 1978,

at 10-18.

‘Respondent erroneously contends (Br. 11 & n.5) that government

counsel's apparent concession in United States v. Calhoun, 542 F. 2d

1094, 1102 (9th Cir. 1976), that a warrantless entry would be unlawful

absent exigent circumstances, established that the government's institu-

tional position at the time of the entry in this case was that an arrest

warrant was constitutionally required in order to arrest a person in his

home. It would indeed be extraordinary if the statement of a single

Assistant United States Attorney in a particular case bound the

government or “proved” the state of the law, and that is of course not

the case. Cf. Barrett v. United States, 423 U.S. 212, 222 & n.6 (1976),

Furthermore, respondent's reliance (Br. 2, 13 0.8) on an oral state-

ment from the bench by District Judge Ferguson in the course of

denying a suppression motion in United States vy. Rombouts, Cr. No.

76-1540-F (C.D. Cal.), is also misplaced. The statement was mere

dictum and was not binding on the government, which had no means of

obtaining review of the statement. In addition, even if Judge Ferguson

had decided the arrest entry issue adversely to the government, the

4

Moreover, the fact that the arrest entry issue was not settled

in other cases decided by this Court and the Ninth Circuit

prior to Payton and Prescott did not provide notice to

anyone, including law enforcement officers, that the issue

eventually would be decided adversely to the government.

The failure to resolve the issue earlier is attributable to the

familiar principle that important constitutional questions

should not be decided unnecessarily. See, e.g., Dandridge

v. Williams, 397 U.S. 471, 475-476 (1970); Rosenberg

v. Fleuti, 374 U.S. 449, 451 (1963); Ashwander v. TVA, 297

U.S. 288, 346-347 (1936) (Brandeis, J., concurring).

Respondent characterizes (Br. |, 3-4) our argument as

construing United States v. Peltier,422 U.S. 531 (1975), to

hold that it does not matter for retroactivity purposes

whether a Fourth Amendment decision declares new law or

merely applies settled constitutional principles to the facts

of the particular case. This misconstrues both our argument

decision of one district judge is not binding on other judges within the

district, and thus government agents within the district would not have

been required to adhere to that decision. Respondent's approach would

place an impossible burden on law enforcement officers by requiring

them to conform their conduct to every suggestion made by a district

judge in favor of expanding Fourth Amendment protections.

By the same token, the fact that the agents in this case obtained an

arrest warrant for co-defendant Dodd does not, as respondent urges

(Br. 15.10, 19-20), indicate that the agents were aware that the Fourth

Amendment required them to get a warrant before arresting respondent

inside his house. Respondent's bare speculation concerning the agents’

subjective beliefs regarding the applicable constitutional standard

underscores the problems inherent in respondent's analysis of the retro-

activity question. Law enforcement agencies might be discouraged from

adopting policies more protective of Fourth Amendment rights than

the courts have theretofore held are constitutionally required if an

occasional violation of such a policy by the agency's officers would

inevitably lead to suppression upon a subsequent judicial determination

that the conduct reflected in the policy is mandated by the Constitution.

See United States v. Caceres, 440 U.S. 741, 755-756 (1979).

5

and the issue in this case. If a decision is based upon “exist-

ing constitutional principles” (Resp. Br. 4), its retroactivity

is a matter of no moment in subsequent cases turning upon

those preexisting principles, since the same result would be

reached on the basis of those principles. Conversely, if a

decision declares new law by overruling a prior decision,

even respondent would agree (see, e.g., Resp. Br. 26-27) that

it should not be applied retroactively. The real area of

dispute is whether new (and therefore nonretroactive)

Fourth Amendment decisions are only those that overrule

prior decisions, or also include those that resolve a pre-

viously unsettled point.

Contrary to respondent's characterization, therefore, our

retroactivity analysis does start from the premise that Pay-

tonand Prescott announced new constitutional principles.

In our view, a new Fourth Amendment rule is not

established—and law enforcement officers may not be

charged with knowledge of any such rule—until either this

Court or the court of appeals for the circuit in which the

challenged search or seizure took place authoritatively

holds that conduct of the type in question is unlawful.’

‘Respondent claims (Br. 18) that the Fifth Circuit, in United States

v. Congote, 656 F. 2d 971, 974 n.3 (1981), applied the Payton rule toa

warrantless arrest entry that antedated the decision in Payron. In the

course of holding that the defendant did not have “standing” to chal-

lenge the validity of a pre- Payton warrantless arrest entry, the court in

Congote observed in dictum that the rule announced in Payton was not

a “new rule” because it had previously been adopted by most of the

courts of appeals. We submit that the statement in Congote reflects the

same erroneous approach as that of respondent to the retroactivity of

decisions announcing new Fourth Amendment principles. The dictum

in Congote ignored the fact that, prior to Payron, the Fifth Circuit had

consistently upheld warrantless arrest entries. See, ¢.g., United States v.

Williams, 573 F. 2d 348, 350 (Sth Cir. 1978); United States v. Savage.

564 F. 2d 728 (Sth Cir. 1977); United States v. Hofman, 488 F. 2d 287

(Sth Cir. 1974); United States v. Wysocki, 457 F. 2d 1155 (Sth Cir.):

cert. denied, 409 U.S. 859 (1972). Thus, whatever may have been the law

6

Here, it is undisputed that prior to the entry into

respondent's home neither this Court nor the Ninth Circuit

had held unconstitutional the particular class of conduct in

question—i.e., the longstanding police practice of making

warrantless arrest entries. Although respondent asserts (Br.

9-10) that any doubts about the need for an arrest warrant

should have been resolved in favor of a warrant, respond-

ent’s approach stands the basic teaching of Peltier on its

head. Under Peltier, the evidence obtained as a result of the

warrantless entry into respondent's house should not be

suppressed because the arresting agents did not have

knowledge, and may not properly be charged with knowl-

edge, that their conduct was unconstitutional under the

Fourth Amendment. There might be some marginal deter-

rent benefit in requiring suppression in those situations

where the police fail to resolve any doubts in favor of more

stringent protections than the courts have theretofore held

the Fourth Amendment to require. However, the costs to

society in diminished law enforcement effectiveness greatly

outweigh any incremental deterrent effect that might be

achieved by applying the exclusionary rule to suppress reli-

able evidence seized by police officers in the course of a

search or scizure that is established to have been unlawful

only by subsequent decisions.

2. Respondent argues (Br. 2-3, 22-23) that certain actions

by the agents after their entry into respondent's home mil-

itate in favor of retroactive application of Paytonand Pres-

cott.6 But those decisions held only that the Fourth

in the other circuits prior to Payton, law enforcement agents in the Fifth

Circuit were justified in relying on the consistent line of decisions by that

court of appeals upholding warrantless arrest entries. See United

States v. Peltier, supra.

*The court of appeals did not pass upon the validity of the agents’

actions in conducting a cursory search of respondent's home and in

requesting respondent's wife to come into the living room. We note,

7

Amendment requires officers to obtain a warrant before

effecting au arrest entry. The conduct of the agents inside

respondent’s home is therefore irrelevant to the retroactiv-

ity question before the Court. Furthermore, respondent’s

statements were the fruits, not of any arguably improper

actions by the agents after their entry, but of respondent’s

arrest, which clearly was lawful because the agents had

probable cause to believe that respondent had committed a

crime. Thus, whether or not the agents’ post-entry conduct

was reasonable under the Fourth Amendment, that con-

duct may not serve as the basis for suppressing respondent’s

statements. See our opening brief at 13 n.6.

3. There is no merit to respondent's contention that he is

entitled to benefit from the rule announced in Payton and

Prescott because his case was pending on direct review

when those cases were decided. In Desist v. United States,

394 U.S. 244, 253 (1969), the Court rejected the argument

that a new Fourth Amendment decision should be applied

retroactively to cases pending on direct review, noting that

“[bJoth the deterrent purpose of the exclusionary rule and

the reliance of law enforcement officers focus upon the time

of the search, not any subsequent point in the prosecution,

as the relevant date.” See Williams v. United States, 401

however, that the courts of appeals have recognized that when officers

arrest a person inside a residence they may conduct a brief inspection of

the premises when they reasonably believe that other persons might be

present who could pose a danger to them. See. e¢.g.. United States v.

Gardner, 627 F. 2d 906, 909-910 (9th Cir. 1980); United States v. Dien,

609 F_ 2d 1038, 1047 (2d Cir. 1979), adhered to on rehearing, 615 F. 2d

10 (1980); United States v. Cravero, 545 F. 2d 406, 417-418 (Sth Cir.

1976), cert. denied, 429 U.S. 1100 (1977); United States v. Rich, 518

F. 2d 980, 985-986 (8th Cir. 1975). Similarly, it is a reasonable security

precaution for officers arresting an individual inside a residence to

exercise control over other persons present. Cf. Michigan v. Summers.

No. 79-1794 (June 22, 1981), slip op. 10-11 & n.17.

8

U.S. 646, 656-659 (1971) (plurality opinion).’? Thus, as we

have shown in our opening brief (at 34-37), because the

exclusion of reliable evidence undermines the factfinding

objective of the criminal trial and because the deterrent

purpose of the exclusionary rule is not served by retroactive

application, there is no valid reason to apply new Fourth

Amendment decisions retroactively to cases pending on

direct review. All that is accomplished thereby is the freeing

of a criminal.

For the foregoing reasons and the reasons stated in our

opening brief, it is respectfully submitted that the judgment

of the court of appeals should be reversed.

Rex E. Lee

Solicitor General

FEBRUARY 1982

7Respondent cites (Br. 25 n.21) Ker v. California, supra, Fahy v.

Connecticut, 375 U.S. 85 (1963), and Stoner v. California, 376 U.S. 483

(1964), as general authority for the retroactive application of a new

Fourth Amendment rule to cases pending on direct review. But as the

Court pointed out in United States v. Peltier, supra, 422 U.S. at 535n.5,

“{t]hose cases were decided without discussion of retroactivity princi-

ples, and they have not been interpreted as establishing any retroactivity

limitation of general applicability.”