Brief for the United States — Massachusetts v. Sheppard

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALBERTO ANTONIO LEON, ET AL.

COMMONWEALTH OF MASSACHUSETTS, PETITIONER

AS Vv. *,

: OSBORNE SHEPPARD -

STATE OF COLORADO, PETITIONER ;

v. c

$ . FIDEL QUINTERO ‘

; fe

i ‘x

‘ ON WRITS OF CERTIORARI TO THE UNITED STATES ‘a

COURT OF APPEALS FOR THE NINTH CIRCUIT, .

THE SUPREME JUDICIAL COURT OF M. C5

AND THE SUPREME COURT OF COLORADO ae

/ se?

zy _—

ta FOR THE UNITED STATES 3

4 , y> ©

: Re

P Rex E. Lee ° = 3

ee STEPHEN S. TRoTT i

tS Assistant Attorney General —

ee Anpaew L. Faxy roe

oe KATHRYN A. OBERLY geet

ee Assistant to the Solicitor General Es

pyre =r onifs

QUESTIONS PRESENTED

1. In No. 82-1771, the question presented is whether

the Fourth Amendment exclusionary rule should be

modified so as not to bar the admission of evidence

seized in reasonable reliance on a search warrant that

is subsequently held to be defective for lack of prob-

able cause.

2. In No. 82-963, the question presented is whether

the Fourth Amendment exclusionary rule should be

modified so as not to bar the admission of evidence

seized in reasonable reliance on a search warrant

supported by probable cause but later held to be tech-

nically defective for failure to incorporate the spec-

ification of items to be seized contained in the war-

rant application.

3. In No. 82-1711, the question presented is

whether the Fourth Amendment exclusionary rule

should be modified so as not to bar the admission of

evidence seized in the reasonable belief that the war-

rantless arrest of a burglary suspect did not violate

the Fourth Amendment.

(I)

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption in

No. 82-1771, Armando Lazaro Sanchez, Patsy Ann

Stewart and Ricardo Albert Del Castillo were appel-

lees below and are respondents here.

TABLE OF CONTENTS

Page

nt Eat ER LI PE TD LO DAP

SEE ca Se ay eR aCe Sn

Go I EIST Aan reese

nr ON 7. 5. aa sadasideamioiesnsieisnsapunicabeticinndliale 18

Argument:

I. As a judicially created rule of evidence, the ex-

clusionary rule may appropriately be modified in

I I a ladacdeebininsnmnaemieinainios 27

A. The only viable justification for the exclu-

sionary rule is its presumed deterrent effect

on unlawful police conduct .....00.0.0.......0.ccccceees $1

B. The policy of deterrence dictates a cost-benefit

approach to the application of the exclusion-

I I sts hicnscacnteiektrsiaries haalaimtalsh inn cadibiphsintitbibbadacabitn 34

II. The costs of the exclusionary rule outweigh its

benefits when it is applied to suppress evidence

obtained in a search and seizure that a reason-

ably well-trained officer would not have recog-

nized as a violation of the Fourth Amendment... 38

A. The presumed benefits of the exclusionary

rule are not realized by applying it to sup-

press evidence obtained in searches or seiz-

ures that were not recognizably violative of

the Fourth Amendment .....22220...........ccccceceeseee 40

B. The reasons for applying the exclusionary

rule are most remote when law enforcement

officers have relied on a judicially-issued

re II inn. civcnicsccnneosneescaniaAicestatlanilandideaes 57

C. In light of the exclusionary rule’s inability to

fulfill its deterrent purpose when applied to

reasonable mistakes, its costs are higher than

our system of criminal justice can afford........ 68

D. The objections to a reasonable mistake ex-

ception to the exclusionary rule are insuffi-

cient to overcome the need for modification...

Conclusion

& 3

(111)

TABLE OF AUTHORITIES

Cases: Page

Agnello v. United States, 269 U.S. 20 ..........00...0200. 56

Aguilar V. Texas, 878 U.S. 106 ....0-c......222.00200002200000 9, 64, 65

Alderman v. United States, 394 U.S. 166 ................ 19, 35

Arkansas Vv. Sanders, 442 U.S. 758 .............-..----------- 25, 76

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 ..28, 49, 62, 72, 74, 87

Brewer V. Williams, 480 U.S. 387 ..............-2..0c-00c000+ 28

Brown V. Illinois, 422 U.S. 590.........2...2..0.:22000- 44, 45, 63, 65

Brown V. Texas, 448 U.S. 47 ........0ccccecseccccccsssccccceseesee 48

Cady v. Dombrowski, 413 U.S. 483 .20......ccccceeeeeee 50

California v. Minjares, 443 U.S. 916 ...........22.......... 28

Chambers Vv. Maroney, 399 U.S. 42 ......0......00.00000000.. 66

Chapman V. California, 386 U.S. 18 .20......eeeeeeeeeeee ee 68

Chapman V. United States, 365 U.S. 610 ................ 50

Coleman V. Alabama, 399 U.S. 1 .00.............cccccceseeeeeee 85

Colorado vy. Bannister, 449 U.S. 1 0........2000cccccceeeeeee 51

Coolidge v. New Hampshire, 403 U.S. 443 ....28, 50, 59, 62

Desist v. United States, 394 U.S. 244 000.0000... 18, 31, 37

Donovan V. Federal Clearing Die Casting Co., 695

RRB TERS aE y SL ae ee 87

Elkins v. United States, 364 U.S. 206................... 32, 38, 40

Franks v. Delaware, 488 U.S. 164 ...............200.0..2... 55, 65

Gifford v. State, 680 S.W.2d 887 .............2..ccccceeccee-s 47, 61

Go-Bart Importing Co. v. United States, 282 U.S.

ek RE BAAS SA Cal oat A be« 68 a SWRI ON 56

Gouled v. United States, 255 U.S. 298 ...............000.0.. 56

Government of the Virgin Islands vy. Rasool, 657

BN MIE Shai cicececihetincrarcasnianl isan ies edict tad Mh aoe 52

Harlow v. Fitzgerald, No. 80-945 (June 24, 1982).. 79, 80

Harris v. New York, 401 U.S. 222 ...........200..0..00.200. 35

Harryman V. Estelle, 616 F.2d 870 20.02.0.....ccceseeeeee 85

Hill v. California, 401 U.S. 797 ..2...........00. ccccceeeeeeeeee 55

Holloman yv. Commonwealth, 221 Va. 947, 275 S.E.

RRS PIC ey dense EI re ot a 79

Illinois v. Andreas, No, 81-1848 (July 5, 1983)...... 51

Illinois v. Gates, No. 81-430 (June 8, 1983) ............. passim

Illinois v. Lafayette, No. 81-1859 (June 20, 1983) .. 51

Irvine Vv. California, 8347 U.S. 128 40

Johnson Vv. United States, 8383 U.S. 10 -..............-0-+- 63, 64

_Cases—Continued: Page

Jones V. United States, 362 U.S. 257 -.2............ccceees 64

Linkletter v. Walker, 381 U.S. 618 ....................... 33, 37, 74

Lopez-Mendoza Vv. Immigration and Naturalization

SE, TU Wee: SI acnctaneiisndthlieeisateinhatatiinniacstiniaes 38

Mapp V. Ohio, 367 U.S. 648 ............ 18, 27, 30, 31, 40, 55, 56

Michigan V. DeFillippo, 443 U.S. 81 .00....0..........000- 54

Michigan v. Long, No. 82-256 (July 6, 1988)........ 51

Michigan V. Tucker, 417 U.S, 488 .................ccccceeeees 43

Milton v. Wainwright, 407 U.S. 371......00.....2..2...0-+2 84

Nathanson v. United States, 290 U.S. 41................. 65

New York v. Belton, 453 U.S. 464 .....000......... 49-50, 51, 53

O’Connor Vv. Donaldson, 422 U.S. 568 ..........0......0.2.. 84

Comes We Bie, GO Bh. TI cnn erecccccstrchsverencens 85

People v. Adams, 58 N.Y.2d 1, 422 N.E.2d 587, 439

RR SEES: Bae emeree 47, 48

People v. Defore, 242 N.Y. 18, 150 N.E. 585, cert.

ST I i eae 23, 69

People v. Schreyer, 640 P.2d 1147 .......00....0.ccce 15

Rakae V. Ilinoie, 489 U.S. 128 ................00.cccccccsecseee 85

Rawlings v. Kentucky, 448 U.S, 98 ..............0.0.0-0000 35

Robbins v. California, 453 U.S. 420 ....000000000000000... 28, 53

Scheuer v. Rhodes, 416 U.S. 282 .............................. 74

Schneckloth v. Bustamonte, 412 U.S. 218 ................ 28, 58

Scott v. United States, 486 U.S. 128 ...........0000000002... 78

Shadwick v. City of Tampa, 407 U.S. 845 .0000000...... 60

Silverthorne Lumber Co. v. United States, 251 U.S.

RRS RCS ERO Aen ELD oc nee Oe 56

Spinelli v. United States, 398 U.S. 410 000. 9, 64

State v. Lien, 265 N.W.2d 888 .............................00... 59

State v. Nolting, 312 Minn. 449, 254 N.W.2d 340.... 59

Stone V. Powell, 428 U.S. 465 20.........cccccecccccccccceees passim

Stovall v. Denno, 888 U.S. 298 ...2................cccccccccccess 86

- a OR EO Somers Seamer 68

Texas V. Brown, No. §1-419 (Apr. 19, 1988) .......... 51

_, SA) SF Rt YF ee ere a eee 51

Tirado Vv. Commissioner, 689 F.2d 307 ...000..00000000... 38

United States v. Acosta, 501 F.2d 1830, modified,

509 F.2d 589, cert. denied, 423 U.S. 891............... 59

United States v. Ajlouny, 629 F.2d 830, cert. de-

nied, 449 U.S. 1111 .... 47, 79, 84

United States v. Alvarez-Porras, 648 F.2d 54, cert.

denied, 454 U.S. 8389 61

ier

Cases—Continued: Page

United States v. Bazzano, No. 81-1936 (8d Cir.

I a cesintlehiemnian 38

United States v. Blackwell, 694 F.2d 1325 .............. 85

United States vy. Bulman, 667 F.2d 1874 .................. 85

United States v. Caceres, 440 U.S. 741..................... 54, 55

United States v. Calandra, 414 U.S. 388 ................ passim

United States v. Ceccolini, 435 U.S. 268 ............ 19, 28, 36

United States v. Civella, 666 F.2d 1122 0.000. 85

United States v. Cortez, 449 U.S, 411 -............0........ 51

United States v. Downing, 665 F.2d 404 _...00... 79

United States v. Hasting, No. 81-1463 (May 23,

Nalin ha ON a Sa aR A TR ee ee ne 60

United States v. Havens, 446 U.S. 620 ............ 19, 35, 36, 42

United States v. Hill, 500 F.2d 315 ........000000-00000...... 61

United States v. Hill, 447 F.2d 817 .........0.000000000...... 38

United States Vv. Janis, 428 U.S. 433 .....00.0.......2-..200. passim

United States v. Jeffers, 342 U.S. 48 -........02......--... 56

United States v. Johnson, 457 U.S. 587............... 24, 37, 42

United States v. Karathanos, 531 F.2d 26, cert. de-

eS” eae Re see ieee oS ree meeee 63

United States v. Knotts, No. 81-1802 (Mar. 2,

| SERED eRe arene neo + Orns 51

United States v. Lee, 540 F.2d 1205, cert. denied,

ae ERSTE ROSA Nee Onc rele 38

United States v. Lefkowitz, 285 U.S. 452.000.0000... 64

United States v. Mahoney, No. 82-1452 (5th Cir.

I I ie ls 48, 47, 78, 84

United States v. Martinez-Fuerte, 428 U.S. 543........ 51

United States v. McCulley, 6783 F.2d 346 2.000000... 85

United States v. Nolan, 530 F. Supp. 386 ....... 47, 77, 78, 79

United States v. Payner, 447 U.S. 727 .....0....0ccccccce 35

United States v. Peltier, 422 U.S. 581 ............ 34, 37, 48, 79

United States v. Ramsey, 431 U.S. 606 ........ sinha 51

United States v. Rosales-Lopez, 617 F.2d 1349, aff’d,

I a 85

United States v. Ross, 655 F.2d 1159, rev’d, 456

US. 796 ......... 52-58, 61, 72, 75, 76, 88

United States v. Salvucci, 448 U.S. 83 85

United States v. Schipani, 435 F.2d 26, cert. denied,

401 U.S. 983 88

vil

Cases—Continued: Page

United States v. Shorter, 600 F.2d B85 .....ccccccccceees 62

United States Vv, Tateo, 877 U.S, 468 ........e 76

United States v. Torres, 659 F.2d 1012, cert. denied,

RT kT 85

United States v, Travisano, 560 F. Supp, 627, pend-

ing on appeal, No, 83-1159 (2d Cir., filed Apr.

IEEE CRORE Ano 63

United States v, United States District Court, 407

MFaEE, TI. cdiceaicecantuhnctcadictcaydcienbiticabtedbisitadsinihiniciusdeptntadadal 63

United States v. Ventresca, 880 U.S, 102................. 63, 64

United States v, Villamonte-Marquez, No, 81-1350

RINNE 7 TINIE taste ouisscheeah onennnsntueasnadsésauaeenieasiebenses 51

United States v, Watson, 423 U.S. 411.000.000.000... 51, 64

United States v. West, 670 F.2d 675, cert. denied,

SETI MIEIIIE MEINE cites sonscdnandpackbunandedipbabesndisiniaecdaiinbmaceaeie 85

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

I A Tals IIIED sacnuochtnetncntenipansioheneneceed 45-47, 48, 77, 78

United States v. Wilson, 628 F, Supp. 1129 ............ 47

United States v. Winsett, 518 F.2d 51..........0..000. 88

United States ex rel. Sperling v. Fitzpatrick, 426

SUNT III ossctissekdusinrasinsesdisrsllshitica abe nceieclatsc tapantnigeaaaneicie 88

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454

Sis SII Uiitcccsinintenicdicsaicincabhaiachedhidemnbesindselelensheibtvonsntdaecanende 85

Walder Vv. United States, 847 U.S. 8? ......... chcpsiidaas 35

Weeks Vv. United States, 232 U.S. 383 ........ 18, 27, 30, 38, 56

Williams v. United States, 401 U.S. 646 ..........000.... 87

Wolf V. Colorado, 388 U.S. 26 ..........cceccccesssessessssenenees 82, 40

Constitution, statutes and rule:

U.S, Const.:

NB eel COPD eee enn ; 85

RN ARE Rees a ce oe eT passim

Amend. V (Double Jeopardy Clause) ................ 76

Federal Magistrates Act of 1968, 28 U.S.C. (&

Supp. V) 681 et seq.:

28 U.S.C. (Supp. V) 681(b) (1) .................. 60

28 U.S.C. (Supp. V) 681(b) (2) oo... 60

28 U.S.C. (Supp. V) GBL (i) .........ccccccccscssees 60

CCS a Se ba 60

Vill

Constitution, statutes and rule—Continued: Page

Foreign Intelligence Surveillance Act of 1978, 50

Tee CHRD. V) RODD EBLT ccccseccecscscocesteccescessccesse 84

a I TD sonics ciacssecehaditinieichedubbaigneanntsniie 2

SUI MIE cstis cais ch soie en bisnckattahamenensdentancsanivenenetpedbcaions 2

8 EET SO Oe Pe 74, 86

Colo, Rev, Stat. § 16-3-808 (Supp. 1982) ................ 16, 18

Fed. R. Crim. P. 41(6) (2) (DD) .ccerccccccscccesscssccsccsecseees 62

Miscellaneous:

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn. L. Rev, 849 (1974)... csccesceeees 50

Amsterdam, Search, Seizure, and Section 2255: A

Comment, 112 U. Pa, L. Rev. 878 (1964) ............ 65, 82

Attorney General's Task Force on Violent Crime,

IE MEINE CE IUIEED cecccisstenanchcndssnstihtndhiasbctctsbtennetnanis 72

Ball, Good Faith and the Fourth Amendment: The

“Reasonable” Exception to the Exclusionary

Rule, 69 J. Crim. L. & Criminology 635 (1978).... 47,78

Beytagh, Ten Years of Non-Retroactivity: A Cri-

tique and a Proposal, 61 Va. L. Rev. 1557

UII ccincsertesiieiiieedisitaeteiteinaciideditet neath caeial ac 86

Carrington, Good Faith Mistakes and the Exclu-

sionary Rule, 1 Crim. Just. Ethics 85 (1982).... 47, 78

Comp. Gen, Rep. No. GGD-79-45, Impact of the

Exclusionary Rule on Federal Criminal Prosecu-

SEIINO CITT cactonsdccschesniccibmedidhesataasatactahaehaensunasiseaien 70, 71, 74

H, Friendly, Benchmarks (1967) ........cccccccceeneee 44, 67, 81

Friendly, The Bill of Rights as a Code of Criminal

Procedure, 58 Calif. L. Rev. 929 (1965) .............. 83

Geller, Enforcing the Fourth Amendment: The Ex-

clusionary Rule and its Alternatives, 1975 Wash.

Se ED. CUED | cenisendicienbigtennttaidbecmenaiiicnibines 82, 87

Goodpaster, An Essay on Ending the Exclusionary

Rule, 38 Hastings L.J. 1065 (1982) 000.0000... 50, 82, 87

P, Johnson, New Approaches to Enforcing the

Fourth Amendment (Working Paper, Sept.

1978), quoted in 1 W, LaFave, Search and Seiz-

ure: A Treatise on the Fourth Amendment

RRR as SE Near aL 62

Miscellaneous—Continued Page

Kaplan, The Limits of the Exclusionary Rule, 26

Stan, L. Rev. 1027 (1974)............... 82, 47, 50, 62-68, 79

LaFave, Improving Police Performance Through

the Exclusionary Rule, 80 Mo, L. Rev. 391

GEREN | ccikeinstisssenanesthesteatbeanetianiasiinciauannaiaaseninaaaa 50

1 W. LaFave, Search and Seizure (Supp. 1982)...... 69

W. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment (1978):

TUES - Us ckbisicheasanac Gadauensseaceinphaceesebitbenseiennaeldadsameananan 56

TUNA :t) AccieDidiecincecisecbantns teneeenicatitisiseiehdelitieabactalanaieniatis 638

L. Levy, Against the Law: The Nixon Court and

ol Uf | ee Se 61

C. McCormick, Handbook of the Law of Evidence

CHD, CE TIIID dnecccncncictsenttnyahinnienticnsentdbsninticss 89

Model Code of Pre-Arraignment Procedure (1975).. 44

National Institute of Justice, The Effects of the Ex-

clusionary Rule: A Study in California (Dec.

Ie Sa SES HST Lh co ws 70, 71

Oaks, Studying the Exclusionary Rule in Search

and Seizure, 87 U. Chi. L. Rev, 665 (1970) ....... 88, 41, 82

Sachs, The Exclusionary Rule: A Prosecutor’s De-

fense, 1 Crim. Just. Ethics 28 (1982) .........0....... 78

Schroeder, Deterring Fourth Amendment Viola-

tions: Alternatives to the Exclusionary Rule, 69

Gd, Eade BBR COBY cccecccciscctinmectocomenl 44, 47, 55-56, 62, 78

The Exclusionary Rule Bills: Hearings on S, 101,

S. 751 and S. 1995 Before the Subcomm., on Crim-

inal Law of the Senate Comm. on the Judiciary,

O7th Cong., lst Sess. (1981) .............cssecsssssserseeees 69

M. Wilkey, Enforcing the Fourth Amendment by

Alternatives to the Exclusionary Rule, 95 F.R.D.

be. RIE I 5s eo 76

Wilkey, The Exclusionary Rule: Costs and Viable

Alternatives, 1 Crim. Just. Ethics 16 (1982)....89, 72, 87

Wilkey, The Exclusionary Rule: Why Suppress

Valid Evidence?, 62 Judicature 215 (1978) ........ 68

Wright, Must the Criminal Go Free If the Constable

Blunders?, 50 Tex. L. Rev. 786 (1972) .........0. 44, 49

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-1771

UNITED STATES OF AMERICA, PETITIONER

ALBERTO ANTONIO LEON, ET AL.

No. 82-963

COMMONWEALTH OF MASSACHUSETTS, PETITIONER

Vv.

OSBORNE SHEPPARD

No. 82-1711

STATE OF COLORADO, PETITIONER

Vv.

FIDEL QUINTERO

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS,

AND THE SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES

The Solicitor General, on behalf of the United

States, submits this brief for the United States as

petitioner in No. 82-1771 and as amicus curiae in

(1)

support of the petitioners in Nos. 82-963 and

82-1711.’

OPINIONS BELOW

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

6a) and the ruling of the district court suppressing

evidence (id. at 9a-14a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 19, 1983 (Pet. App. 7a). A petition for

rehearing was denied on March 4, 1983 (id. at 8a).

The petition for a writ of certiorari was filed on

April 29, 1983, and granted on June 27, 1983 (J.A.

151). The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

STATEMENT

1. No. 82-1771—On October 2, 1981, a five-count

indictment was returned in the United States District

Court for the Central District of California charging

respondents with conspiring to possess and distribute

cocaine, in violation of 21 U.S.C. 846 (Count I) (J.A.

27-29). In addition, respondents were variously

charged in substantive counts with the possession of

cocaine (Counts II, III and V) and methaqualone

(Count IV) with intent to distribute, in violation of

21 U.S.C. 841(a)(1) (J.A. 29-30). Respondents

thereafter moved to suppress contraband and other

evidence seized pursuant to a judicial warrant au-

1 The filing of a consolidated brief in these three closely re-

lated cases was authorized by Justice Rehnquist in an order

dated August 29, 1983. The formal portions of this brief per-

tain to No. 82-1771, the case to which the United States is a

party, and, unless otherwise indicated, references to the ap-

pendix to the petition and to the joint appendix are to the doc-

uments filed in that case.

thorizing the search of residences and automobiles

belonging to them. Following an evidentiary hearing,

the district court granted the motion to suppress in

part, finding that the search warrant was not sup-

ported by probable cause (Pet. App. 10a).? The court

of appeals affirmed the suppression order, with one

judge dissenting (id. at la-6a).

a. The affidavit in support of the search warrant

contained the following information. On August 18,

1981, a confidential informant of unproven reliability

told Officer Cyril A. Rombach of the Burbank, Calli-

fornia, Police Department that two persons known

to him as “Armando” and “Patsy” were selling large

quantities of cocaine and methaqualone (quaaludes)

from their residence at 620 Price Drive in Burbank

(J.A. 37). According to the informant, “Armando”

sold cocaine in quantities of one-half pound and

larger, and “Patsy” sold methaqualone in quantities

of 100 tablets and larger (ibid.). The informant also

stated that he had been present at the Price Drive

residence five months earlier and had at that time

seen “Patsy” sell 500 methaqualone tablets (ibid.).

At the same time, the informant observed a shoe box

containing between $50,000 and $100,000 that be-

longed to “Patsy.” Finally, the informant stated that

“Patsy” and “Armando” kept only relatively small

quantities of drugs at the Price Drive residence, stor-

ing the remainder at another location somewhere in

the “hill area” of Burbank (ibid.).

On receipt of this information, Burbank police of-

ficers instituted a month-long investigation that first

focused on the Price Drive residence and later on

2 Not all of the evidence was suppressed as to all of the re-

spondents because the court held that no single respondent had

a legitimate expectation of privacy in all of the places searched

(Pet. App. 10a-13a; see also page 8 note 4, infra).

residences located at 716 South Sunset Canyon in

Burbank and 7902 Via Magdelena in Los Angeles.

On August 19, 1981, officers drove to the Price Drive

residence and observed automobiles registered to re-

spondents Armando Sanchez and Patsy Ann Stewart

parked outside (J.A. 37-38). Although a records

check revealed that Stewart had no prior criminal

record, Sanchez had been found with $20,000 in cur-

rency at the Miami Airport in 1977, and had been

arrested in Miami in December 1978 for possession

of marijuana (J.A. 38).

On August 24, 1981, officers observed the arrival

at the Price Drive residence of an automobile regis-

tered to respondent Del Castillo (J.A. 38). A Latin

male exited the vehicle, entered the house, returned

to the vehicle ten minutes later carrying a small paper

bag and drove away. A background check disclosed

that in January 1979 Del Castillo had been arrested

in Miami for possession of 50 pounds of marijuana

while he was attempting to board an aircraft bound

for Los Angeles (J.A. 39). The telephone number for

his employer that Del Castillo had given the probation

authorities turned out to be registered to respondent

Leon. Leon, in turn, had been arrested in 1980 on

cocaine and quaalude charges and in 1979 on

quaalude charges (ibid.). In addition, police officers

were told by a woman, who previously had been ar-

rested with Leon, that Leon was a drug importer

affiliated with the “Cuban Mafia” (J.A. 39-40), and

by a second informant that Leon had several thou-

sand quaalude tablets at his residence (J.A. 40).

Utility records showed that Leon lived at 716 South

Sunset Canyon in Burbank (ibid.).

On August 25, 1981, officers observed Thomas Kil-

burn enter the Price Drive house and emerge a short

while later carrying a paper bag (J.A. 40-41). The

officers determined that Kilburn had been arrested in

1974 for possession of hashhish and cultivation of

marijuana (J.A. 41). On August 26, 1981, the officers

observed an unidentified individual enter the Price

Drive residence and emerge a short time later carry-

ing a small box (ibid.).

On August 28, 1981, officers observed Del Castillo’s

vehicle being driven from Price Drive to a condo-

minium at 7902 Via Magdelena. Later that day,

Sanchez drove in his vehicle from Price Drive to

Leon’s Sunset Canyon residence, where Sanchez ob-

tained a small package and returned to Price Drive.

Later, an unidentified man drove to the Price Drive

residence and entered the house. At about the same

time, a man driving Del Castillo’s vehicle arrived, ran

into the residence, and ran back out immediately.

Sanchez then left the Price Drive house, drove to a

neighboring town, parked his car, and entered an

unknown house. Before surveillance was lost, San-

chez was observed returning to his car with a large

rectangular container (J.A. 42-43).

On September 8, 1981, officers were engaged in the

surveillance of another house as part of a separate

drug investigation. They observed Patsy Stewart

drive up to the house. A female left the house and

entered Stewart’s vehicle. One minute later, she re-

turned to the house carrying a small paper sack.

Later that day, the occupants of that house were

arrested for purchasing amphetamines from persons

not related to this case (J.A. 43).

On September 11, 1981, the officers saw Sanchez

and Stewart drive to the Los Angeles airport, where

Sanchez, carrying only a small briefcase and a gar-

ment bag, boarded a flight for Miami (J.A. 44).

Four days later, Stewart was driven to the airport

in Del Castillo’s automobile. Visibly upset when told

that she could not carry a large suitcase on the plane

with her, Stewart checked the bag and boarded a

flight for Miami (J.A. 46-47). Stewart and Sanchez

both returned to Los Angeles on September 19, 1981.

Although they had been seated together on the plane,

Stewart and Sanchez deplaned and walked through

the terminal separately; they rejoined one another

only near the exit to the terminal. The pair carried

many pieces of carry-on luggage, most of which they

had not taken to Miami. And, although they had

checked at least one piece of luggage in Miami, they

did not pick up any checked luggage in Los Angeles.

Nor did either of them have the large suitcase that

Stewart had taken with her to Florida (J.A. 48-49).

As they were entering a taxi, the two were ap-

proached by airport narcotics officers who conducted

a consensual search of their luggage. A small amount

of marijuana was found (J.A. 49).

In the early morning hours of September 19, 1981,

the officers saw a silver Chevrolet that was registered

to Sanchez parked in front of Leon’s house on Sunset

Canyon. The vehicle was later seen at the Price Drive

residence (J.A. 49). The officers then went to 7902

Via Magdelena, where they observed the interior

lights on. This was the first time since the beginning

of the investigation that the officers had seen any

sign of occupancy at the condominium.’ Two days

later, on September 21, Sanchez’s automobile was ob-

served parked outside the condominium (J.A. 50).

From these observations, Officer Rombach con-

cluded that respondents were engaged in an on-going

criminal enterprise involving the transportation and

distribution of controlled substances (J.A. 52). Of-

ficer Rombach based his opinion both on personal

* Investigation showed that the utilities at the Via Magdelena

condominium were listed in Stewart’s name, but that there was

no telephone service (J.A. 47).

experience as a narcotics officer and on specialized

training in narcotics investigations (J.A. 50-52).

In addition, Officer Rombach opined that the Via

Magdelena condominium was being used as a “stash

pad” to store large quantities of narcotics, which

were then transported in smaller amounts to re-

spondents’ residences for distribution (J.A. 47-48).

Officer Rombach averred that major drug dealers

most often store large quantities of drugs at locations

other than their primary residences to minimize the

risk of seizure if their activities are detected (ibid.).

b. Based on this information, a state superior court

judge issued a warrant on September 21, 1981, au-

thorizing the search of the residences at 620 Price

Drive and 716 South Sunset Canyon, the condo-

minium at 7902 Via Magdelena, and automobiles

registered to Sanchez, Stewart, Leon and Del Cas-

tillo (J.A. 31-33). In an ensuing series of searches,

police officers seized more than four pounds of cocaine

and 1,165 quaalude tablets at the Via Magdelena

condominium, nearly a pound of cocaine at Leon’s

house on Sunset Canyon, and about an ounce of

cocaine at the Price Drive residence of Stewart and

Sanchez. The officers additionally found parapher-

nalia for testing, cutting and packaging cocaine,

scales, a police radio and large amounts of currency

(J.A. 53-69). Finally, a search of Stewart’s auto-

mobile produced two garage door openers—one for

the Price Drive residence and one for the Via Mag-

delena condominium—while a search of Del Castillo’s

automobile revealed a small amount of marijuana

residue.

ce. The district court suppressed the seized evi-

dence, finding that there was “no question” that the

reliability and credibility of the informant had not

been established (Pet. App. 10a). Although recog-

nizing that “[s]ome details * * * tended to corrob-

orate” the informant’s information, the court con-

cluded that such details either corroborated informa-

tion about a stale transaction or were “as consistent

with innocence as * * * with guilt” (ibid.). Accord-

ingly, the court found that the search warrant was

not supported by probable cause.‘

The district court rejected the government’s arg:-

ment that the exclusionary rule should not apply

when evidence is seized in reasonable, good-faith

reliance on a search warrant (Pet. App. 14a). In so

doing, however, the district court specifically noted

(ibid.) :

I will say certainly in my view, there is not

any question about good faith. He [Officer Rom-

bach] went to a Superior Court judge and got a

warrant; obviously laid a meticulous trail. Had

surveilled for a long period of time, and I believe

his testimony—and I think he said he consulted

with three Deputy District Attorneys before pro-

ceeding himself, and I certainly have no doubt

about the fact that that is true.

d. On appeal, a panel of the Ninth Circuit affirmed

the suppression order, with one judge dissenting. The

* The district court rejected respondents’ additional claims

that the description of the items to be seized in the search war-

rant was impermissibly overbroad and that the officers had

failed to comply with the California “knock-notice” rule during

the execution of the warrant (Pet. App. 9a-10a). Moreover,

the court held that only Sanchez and Stewart had a sufficient

expectation of privacy to challenge the search of the Price

Drive residence; that only Leon had a sufficient expectation of

privacy to challenge the search of the Sunset Canyon residence;

and that only Stewaft and Del Castillo had a sufficient expecta-

tion of privacy to challenge the searches of their respective

automobiles (id. at 10a-18a). No one, in the district court’s

view, was entitled to challenge the search of the Via Magdelena

condominium (id. at 11a).

majority held that the only portion of the affidavit

that adequately set forth facts to demonstrate the in-

formant’s knowledge of criminal activity—the infor-

mant’s personal observation of “Patsy’s” distribution

of drugs—was fatally stale (Pet. App. 3a). The ma-

jority further held that the information supplied by

the informant was inadequate under both prongs of

the Aguilar-Spinelli test * and that the month-long in-

dependent police investigation was insufficient either

to corroborate the informant’s information or to re-

vive the stale information (Pet. App. 3a). Finally,

the majority flatly declined to recognize a “good-

faith” exeeption to the exclusionary rule (id. at 4a).

In dissent, Judge Kennedy observed that “[t]he af-

fidavit for the search warrant sets forth the details

of a police investigation conducted with care, dili-

gence, and good faith” (Pet. App. 5a). Judge Ken-

nedy concluded that the informant’s information was

both adequately corroborated and sufficiently current

in view of the month-long surveillance, which had re-

vealed to experienced investigators a continuous pat-

tern of conduct that “was quite inconsistent with any

explanation other than illegal drug activity” (ibid.).

2. No, 82-968—On May 5, 1979, at approximately

5 a.m., the badly burned and beaten body of a 29-year

old woman was found in a vacant lot in the Roxbury

section of Boston (82-963 Pet. App. A3). Respondent

was convicted of first-degree murder (id, at Al). On

appeal, the Supreme Judicial Court of Massachusetts

reversed respondent’s conviction because certain evi-

dence introduced at trial had been “obtained in the

course of a police search conducted in good faith, but

pursuant to a warrant which, although issued on

probable cause, violated the constitutional and statu-

5 Spinelli v. United States, 393 U.S. 410 (1969) ; Aguilar v.

Texas, 878 U.S. 108 (1964).

tory requirement that search warrants describe the

things to be seized” (ibid.).

a. After the murder victim’s body was discovered,

suspicion quickly focused on respondent, a boyfriend

of the victim (82-963 Pet. App. A4). Respondent vol-

untarily accompanied police officers to the station for

questioning (id, at A4-A5). On the way to the sta-

tion, respondent told police that he had last seen the

victim some five days earlier, that on that day he had

gone to her house, stayed there for about an hour,

and then left with her in a cab (id. at A5). They

stopped to purchase some marijuana and a bottle of

amaretto (id. at A6). Respondent told police that the

victim then left him at about 1 p.m. and that he had

not seen her since (ibid.). At the police station, re-

spondent told essentially the same story, adding that

after purchasing the marijuana and the amaretto he

and the victim had gone to respondent’s home at 42

Deckard Street in Roxbury and that the victim stayed

there until approximately 2 p.m. (id. at A6-A7). Re-

spondent also told the police that he had spent the

evening of May 4 and the early morning hours of

May 5, when the victim’s body was found, at a “gam-

ing house” in Dorchester (id. at A8).

The police interviewed various persons who, accord-

ing to respondent, had been at the “gaming house”

when he was there. The police learned that at about

3 a.m. on May 5, respondent had borrowed a car for

a trip that should have taken approximately 15 min-

utes, but that he did not return to the “gaming house”

until approximately 4:45 a.m. He remained there for

only a few minutes and then left again (82-963 Pet.

App. A8).

Continuing their investigation on Sunday morning,

May 6, 1979, police learned from a friend of respond-

ent that the basement of the Deckard Street house

had been refinished and that respondent had said he

entertained women there (82-963 Pet. App. AQ).

With the owner’s consent, police then inspected the

car that respondent had borrowed the previous night.

They found bloodstains and pieces of hair on the rear

bumper and near the lid of the trunk (id. at A10).

Inside the car were various types of wire (ibid.).

Later on Sunday morning, the police and the dis-

trict attorney concluded that they should seek a war-

rant for respondent’s arrest and a warrant to search

his residence at Deckard Street (82-963 Pet. App.

Al10). An application for a search warrant was pre-

pared by one of the investigating officers, and both

the district attorney and his first assistant concluded

that it set forth probable cause for the arrest and the

search (id, at All). The application specified pre-

cisely those items for which permission to search

would be sought (id. at A12 n.7):

A fifth bottle of amaretto liquor, 2 nickel bags of

marijuana, a woman’s jacket that has been de-

scribed as black-grey (charcoal), any possessions

of Sandra D. Boulware, similar type wire and

rope that match those in the body of Sandra D.

Boulware, or in the above Thunderbird. A blunt

instrument that might have been used on the vic-

tim, men’s or women’s clothing that may have

blood, gasoline burns on them. Items that may

have fingerprints of the victim.

At this point, on Sunday afternoon, no court clerk

could be found, nor could the police find a suitable

search warrant form. The best they were able to lo-

cate was a form once used for searches for controlled

substances in the Dorchester Division of the Munic-

ipal Court (82-963 Pet. App. A138). One of the offi-

cers attempted to modify this printed form by cross-

ing out the words “controlled substance” on one side

of the form and replacing the word “Dorchester” with

“Roxbury” (ibid.). He also inserted “2nd & Base-

ment” of 42 Deckard Street as the places to be

searched (ibid.) Despite these changes and additions,

the references to “controlled substance” in those por-

tions of the form that constituted the application for

a search warrant and, when signed, would become the

warrant itself, were not deleted (id. at A13-A14).

Several police officers and the first assistant district

attorney then went to the home of a judge, arriving

at approximately 2:45 p.m. on Sunday afternoon.

The judge was unable to find a suitable search war-

rant form in his library, and so he used the ‘“‘con-

trolled substance” form as modified by the police and

by himself. Again, however, no change was made to

the substantive portion of the warrant. Thus, the

warrant authorized the police “to search for any con-

trolled substance, article, implement or other para-

phernalia used in, for, or in connection with the un-

lawful possession or use of any controlled substance”

(82-963 Pet, App. Al5). The warrant did not refer

to the items listed in the police officer’s affidavit in

support of the application, nor was the affidavit at-

tached to the search warrant (ibid.).

One of the officers left with the warrant and his

own affidavit in support thereof (82-963 Pet. App.

Al16). He thought the warrant was valid (ibid.).

At about 5 p.m. on Sunday afternoon, he arrived at

42 Deckard Street to execute the warrant. He was

admitted to the house by the respondent’s mother and

sister, neither of whom apparently asked to read the

warrant (id. at A16-A17).

During the course of the search, the police found

and seized apparently bloodstained boots, women’s

earrings, one apparently with bloodstains, an appar-

ently bloodstained envelope, a pair of apparently

bloody men’s jockey shorts and women’s leotards. The

police also found bloodstains on the concrete floor of

the cellar that later were shown to match the victim’s

blood type (82-963 Pet. App. A17-A20). The Supreme

Judicial Court of Massachusetts summed up the evi-

déntiary significance of the search as follows (id. at

A20-A21):

It can readily be seen that evidence seized in

the search of 42 Deckard Street tended to show

that the [respondent] seriously injured the vic-

tim in his cellar, hid her earrings under a piece

of plywood under a mat, and tied her up with

wire available in the cellar of his home. This evi-

dence, much of it obtained as a result of careful

and commendable police investigatory techniques,

was highly probative of the [respondent’s] guilt.

Although the Commonwealth could have presented

a case against the [respondent] without this evi-

dence, this evidence was most important in round-

re: out a case based only on circumstantial evi-

ence,

b. The trial court denied respondent’s motion to

suppress the evidence seized at 42 Deckard Street

(82-963 Pet. App, B1-B48). The court first held that

the affidavit in support of the search warrant estab-

lished probable cause to search the premises at 42

Deckard Street (id. at B26-B29). The court then

held, however, that the warrant was “fatally defec-

tive” (id. at B34) because it did not incorporate by

reference or have attached to it the application for

the warrant, which, the court found, adequately spec-

ified the places to be searched and the items to be

seized. Nevertheless, the trial judge concluded that

the exclusionary rule should not be invoked because

its deterrent effect would not be realized (id, at B42-

B44):

In this case the police sought a warrant. The

affidavit was submitted to an official from the

District Attorney's office for a determination as

to its adequacy from the point of view of prob-

able cause. There was proper presentment to a

magistrate, There was an independent assess-

ment of that disinterested judicial officer that

there was probable cause to search, The police

had adequately described with constitutional

specificity the places to be searched and the items

to be seized. The police presented a form which

was the only form of warrant available to them.

The magistrate said he could adopt it. There-

after the actual search undertaken was within

the limit of the authority the police thought rea-

sonably had been granted.

[I]f police officers undertake their duties prop-

erly, they will act in the same fashion in similar

circumstances in the future and the only con-

sequence of applying the exclusionary rule would

be to keep from the jury probative evidence and

thereby impair the truth finding function.

ce. The Supreme Judicial Court of Massachusetts

reversed (82-963 Pet, App. A30-A53). A plurality of

the court first held that the warrant was defective

for failing to specify the items to be seized (id. at

A80-A34). After noting that few courts had ad-

dressed the applicability of the exclusionary rule to

situations involving judicial error rather than police

misconduct, the plurality opinion concluded that sup-

pression was of dubious validity as a deterrent “in

cases where the police conduct was entirely proper,

the defendant was not prejudiced by the magistrate’s

error, and an appellate court clearly identifies the

magistrate’s error of law as a guide to future con-

duct” (id. at A48-A49). Nevertheless, the plurality

concluded that suppression was required in this case

because this Court has not yet recognized an excep-

tion to the exclusionary rule for an error of the type

that occurred here (id. at A49-A52).

Two justices concurred in the judgment because, in

their view, the search warrant was so defective that

neither the police nor the issuing judge could be

said to have acted in reasonable good faith (82-963

Pet. App. A5-A12). The concurring justices also dis-

agreed with the plurality on the efficacy of the exclu-

sionary rule as a means for deterring judicial error

(id. at Al4).

Justice Lynch dissented. First, he noted that, the

technical defect notwithstanding, the search warrant

in this case posed none of the dangers of general war-

rants and that the police had in fact conducted the

search as if the items to be seized had been specifically

identified in the warrant (82-963 Pet. App, A2-A5).

More importantly, the dissent concluded that applica-

tion of the exclusionary rule in this case would “serve

no beneficial purpose” (id. at All):

Police misconduct will not be deterred because

none occurred. The human error committed by

the judge harmed no rights of the defendant, as

nothing beyond the evidence listed in the affidavit

was searched for or seized. By contrast, applica-

tion of the exclusionary rule will result in the

very substantial harm of withdrawing highly

probative evidence from the trier of fact.

Accordingly, the dissent concluded that this Court’s

exclusionary rule precedents did not mandate suppres-

sion in this case (id. at A12).

3.’ No. 82-1711—Respondent was convicted of sec-

ond degree burglary. Following his conviction, the

trial court granted his motion for a new trial and his

motion to suppress evidence in light of an interven-

ing decision of the Supreme Court of Colorado, People

v. Schreyer, 640 P.2d 1147 (1982). On the State’s

appeal, the state supreme court affirmed the suppres-

sion ruling, holding that the police lacked probable

cause to arrest respondent and that evidence seized

from respondent at the time of his arrest was there-

fore inadmissible at his burglary trial. The court also

declined to recognize a “good faith” exception to the

exclusionary rule because this Court has not yet done

so (82-1711 Pet. App. 7); it further held that Colo-

rado’s statutory good faith exception (Colo. Rev.

Stat. § 16-38-8308 (Supp. 1982) ) did not apply to this

case,

a. On September 29, 1981, Darlene Bergan was

outside her home in Denver sweeping the porch. She

saw a man walking on the opposite side of the street

and observed him briefly peering into the front win-

dow of the house across from hers. After observing

him apparently looking into other windows at the

same house, she saw him stop at another house, after

which he disappeared from her view. She next saw

him about an hour later at a bus stop next to her

house. He had taken off his shirt and was using it to

cover a television set. He appeared nervous to Mrs.

Bergan, and she called the police (82-1711 Pet.

App. 3).

Officer Freeman, a 21-year police veteran, was the

first to respond to the dispatcher’s report of a possible

burglary suspect. He asked respondent for identifica-

tion, but respondent had none. Other officers then ar-

rived at the scene. They asked respondent various

questions, to which he responded that he had bought

the television set from someone in the neighborhood

for $100 and was trying to take it home. He was

wearing an undershirt and had brown wool gloves in

his back pocket (82-1711 Pet. App. 4).

After Mrs. Bergan came outside and identified her-

self as the person who had called the police, respond-

ent was arrested and searched (82-1711 Pet. App. 4).

Under his shirt, police found the television set and a

video game. They also found $140 in cash, five rings

(including two class rings bearing different initials

and class years), and some women’s jewelry in re-

spondent’s pockets (id. at 4-5).

Several hours after respondent was arrested, the

owners of a house one block south of Mrs. Bergan’s

house reported that their house had been burglarized

and that a television set and a video game had been

stolen. The television set and video game that had

been found in respondent’s possession were later iden-

tified as the items taken in the burglary (82-1711

Pet. App. 5).

b. A majority of the state supreme court held that

the officers lacked probable cause to arrest respondent

because they did not learn until several hours after

the arrest that a burglary had in fact been com-

mitted. As the majority explained (82-1711 Pet.

App. 6-7):

The arresting officer in this case believed that

probable cause existed to arrest Quintero. At the

time the arrest was made, the police knew that

Quintero was a stranger to the neighborhood, and

that he claimed that he had purchased a television

set from someone in the neighborhood. They also

knew that he had attempted to cover the televi-

sion set and the video game with his shirt. He

had no identification, but no evidence existed to

establish that a crime had been committed.

Brown v. Texas, 443 U.S. 47 * * * (1979). The

police did not learn who the owners of the tele-

vision set and the video game were until more

than five hours after they arrested Quintero.

Suspicion does not amount to probable cause and

an analysis of the facts requires us to reach the

same conclusion which we reached in People v.

Schreyer, 640 P.2d 1147 (Colo. 1982).

The majority also held that the lack of probable

cause to arrest was not remedied by the inevitable

discovery doctrine (not here in issue) or a good faith

exception to the exclusionary rule. As for the latter,

the majority held that it would be “inappropriate”

for the state supreme court to adopt a good faith ex-

ception in the absence of action by this Court

(82-1711 Pet. App. 7).

Finally, the majority concluded that Colo, Rev.

Stat. § 16-3-308 (Supp. 1982), which renders admis-

sible evidence seized as a result of a good faith mis-

take, was inapplicable here, holding that the statutory

exception is limited to errors of fact rather than er-

rors of law and concluding that the “mistake” in this

case had been one of law in assessing the existence of

probable cause to arrest (82-1711 Pet. App. 8).

Justice Rovira dissented, both on the question of

probable cause to arrest and on the application of the

exclusionary rule (82-1711 Pet. App. 10-17).

SUMMARY OF ARGUMENT

1. Nothing in the Fourth Amendment or any other

provision of the Constitution either directly or im-

plicitly provides for the exclusion of illegally seized

evidence from criminal trials. Instead, decisions of

this Court over the last two decades have made it clear

that the exclusionary rule first enunciated in Weeks

v. United States, 232 U.S. 383 (1914), and later ex-

tended to the states in Mapp v. Ohio, 367 U.S. 643

(1961), is a judicially-created remedy, the paramount

and perhaps sole purpose of which is the deterrence of

unlawful police conduct. See, e.g., United States v.

Calandra, 414 U.S; 338, 348 (1974) ; Desist v. United

States, 394 U.S. 244, 254 n.24 (1969). As the deter-

rence rationale has achieved supremacy over earlier,

now-discarded justifications for the rule, the,Gourt has

recognized that it makes sense to apply thé-rule only

to those situations in which its deterrent purpose will

in fact be significantly advanced. Calandra, 414 U.S.

at 348. Accordingly, the Court now employs a cost-

benefit analysis whenever it considers whether the

rule should be applied to particular situations. When

the costs of applying the rule are found to outweigh

whatever deterrent effect it might achieve, the rule

will not be imposed. See, e.g., United States v.

Havens, 446 U.S. 620 (1980); United States v. Cec-

colini, 485 U.S. 268 (1978) ; Stone v. Powell, 428 U.S.

465 (1976); United States v. Janis, 428 U.S. 433

(1976) ; Calandra, 414 U.S. 338; Alderman v, United

States, 394 U.S. 165 (1969).

2. After nearly 70 years of experience with the

exclusionary rule, it is now appropriate to apply the

same. type of cost-benefit analysis in considering

whether to adopt a “reasonable mistake” exception to

the existing rule. If, as we shall demonstrate in this

brief, the benefits of applying the rule to certain

classes of situations are outweighed by the costs, the

Court should not hesitate to reformulate the rule. In

our submission, a reasoned cost-benefit analysis of the

exclusionary rule compels the conclusion that it

should no longer be applied in those situations in

which a reasonably well-trained police officer should

not have known that the search and seizure in ques-

tion violated the Fourth Amendment or in which the

violation did not substantially affect the rights of the

subject of the search. Preliminarily, however, we

suggest that this is a situation ill-suited to a strictly

even-handed weighing of costs and benefits. By ex-

cluding unquestionably relevant evidence, the exclu-

sionary rule operates in precisely the opposite manner

from what we ordinarily demand of rules of evidence.

Thus, its benefits should not simply be presumed;

they must, instead, be convincingly demonstrated if

they are to overcome the indisputable costs. Accord-

ingly, the exclusionary rule cannot rationally be re-

tained in those circumstances where it is thought sim-

ply that it might produce some benefit. Similarly, the

rule should not be retained merely because it appears

that no better deterrent to police misconduct cur-

rently exists; the rule must carry its own weight

through demonstrable evidence that it operates in the

manner intended.

a. The principal benefit claimed for the exclusion-

ary rule is its deterrent effect. Unfortunately for the

proponents of the rule, however, it has never been

empirically proven that the exclusionary rule is an

effective deterrent in the absolute sense, or even that

it is a relatively more effective deterrent than alter-

native, less draconian, Fourth Amendment remedies.

And even if one accepts the intuitively plausible but

unproven assumption that the rule is capable of de-

terring police misconduct to some extent, it is readily

apparent as a matter of logic that the deterrent po-

tential of the rule is drastically reduced, if not wholly

eliminated, when it is invoked to suppress evidence

obtained by a reasonably well-trained police officer

unaware that his conduct violated the Fourth Amend-

ment.

The cases now before the Court demonstrate that

in certain circumstances the rule is both inapprepri-

ate and ineffective as a deterrent device. In Quintero,

the police could not reasonably be expected to have

known that the state supreme court would later hold

that they lacked probable cause to arrest as a burglary

suspect a stranger to the neighborhood found at-

tempting to hide a television set under his shirt, and

unable to produce any identification or satisfactorily

answer routine questions. On the contrary, many rea-

sonable people would surely have considered the police

derelict in their duty had they failed to arrest Quin-

tero on the spot. Application of the exclusionary rule

in this case is thus ineffective, because of the greatly

diminished potential for deterrence when the police

conduct themselves in a manner they reasonably be-

lieve to be lawful, and inappropriate, because society

has little interest in “deterring” the police from solv-

ing or preventing crime under circumstances in

which the Fourth Amendment violation, if any, could

not reasonably have been predicted.

Quintero thus demonstrates the need for a “reason-

able mistake” modification to the exclusionary rule in

the case of warrantless searches and seizures. Shep-

pard and Leon, on the other hand, present the Court

with its first real opportunity to consider whether

there is any justification for application of the exclu-

sionary rule to situations involving judicial mistakes.

The rule’s purpose is to deter police misconduct, and

Leon demonstrates that that purpose cannot be ad-

vanced when law enforcement officers have done ex-

actly what is demanded of them by obtaining a judi-

cial search warrant and acting according to its terms.

It is irrational to assume that police officers can be

meaningfully deterred from future “unlawful” con-

duct when, at the time of the conduct in question,

they had the authorization of a warrant obtained in

the reasonable belief that there existed probable cause

for the search and seizure in question. As has been

often noted, the suppression of evidence that occurs

when a higher court overturns a magistrate’s finding

of probable cause does not involve any police miscon-

duct that needs to be deterred; all that is involved is

disagreement among judges about subtle and ever-

changing principles of law. There is no rational

justification for applying the exclusionary rule to

these situations, which bear not the slightest relation-

ship to the egregious police misconduct for which the

rule was first devised.

Finally, the type of error that occurred in Shep-

pard was, in the circumstances of the particular case,

harmless beyond question. No doubt there are cir-

cumstances in which failure to specify the items to be

seized could lead to serious Fourth Amendment abuses.

But that is not what happened here. Instead, it is un-

disputed that there was probable cause for the search,

that the judge thought he was authorizing the search

that was properly described in the police application,

and that the police conducted the search in exactly

the same manner that they would have if their appli-

cation had been attached to or incorporated by refer-

ence in the warrant. Under these circumstances, the

harmless error rule is appropriately invoked to avoid

the draconian consequences of suppression.

b. The presumed benefits of the exclusionary rule,

which are substantially diluted if not entirely absent

in cases like the instant ones, must be weighed

against the rule’s undeniable costs. Those costs are

readily catalogued :

First, the exclusionary rule excludes from consid-

eration at trial the very evidence that is most relevant

and trustworthy. The resulting distortion of the

truth-finding process of adversary adjudication re-

quires justification of the highest order.

Second, when applied in circumstances in which

significant deterrence of future misconduct is un-

likely, the rule benefits only those who otherwise

would be found guilty; it allows “[t]he criminal

* * * to go free because the constable has blun-

dered.” People v, Defore, 242 N.Y. 18, 21, 150 N.E.

585, 587, cert. denied, 270 U.S. 657 (1926). The

available data demonstrate that the rule, where in-

voked, has a substantial effect on the prosecution’s

ability to obtain convictions. Moreover, the effects of

the rule are felt most heavily in drug cases involving

defendants who, following dismissal of their nar-

cotics charges because of the suppression of disposi-

tive evidence, often go on to commit other crimes,

frequently crimes of violence. The rule affords no

remedy, however, for the innocent victims of unlaw-

ful police conduct, who are or should be the very per-

sons most deserving of protection.

Third, and irrespective of the actual number of

guilty defendants set free by virtue of the rule, its

application necessarily exacts a high cost in dimin-

ished public respect for the judicial system. The pub-

lie perception that there is something wrong with a

system of criminal justice that frees guilty defend-

ants on “technicalities” cannot lightly be ignored.

Fourth, and of particular relevance to the instant

cases, the rule lacks the essential ingredient of pro-

portionality when applied to marginal Fourth

Amendment violations. It utterly fails to take into

account the actual existence of police misconduct that

is perceived as such by the public and that is within

the core proscriptions intended by the Framers of the

Fourth Amendment. Behavior that a reasonably well-

trained officer could not be expected to have known

violated the Fourth Amendment is subject te the

same draconian “remedy” as the most flagrant abuse

of police power.

Fifth, granting for purposes of argument the

premise that application of the rule to conduct close

to the often indistinct boundary between lawful and

unlawful searches would meaningfully deter some

marginally improper police conduct (see United

States v. Johnson, 457 U.S, 587, 560-561 (1982) ),

in this class of cases the rule is, almost by definition,

as likely to deter proper as improper conduct. Thus,

one of the gravest costs of relentless application of

the rule to honest police mistakes is not merely that

“the criminal * * * [shall] go free because the con-

stable has blundered,” but that the crime shall go un-

detected (or, worse, unprevented) because the ex-

clusionary rule has deterred the officer from the law-

ful performance of his duties.

Sixth, the present rule substantially strains the

judicial system by encouraging the filing of suppres-

sion motions irrespective of whether there is even the

slightest evidence of serious police misconduct. The

windfall benefits of the rule to the guilty defendant

are so overwhelming as to completely negate the

process of self-screening and evaluation on the part

of criminal defense counsel. A country whose judicial

system is as seriously overloaded as ours can ill-afford

the continued application of a rule that fosters such

vast amounts of make-work.

Finally, the rule actually diminishes the Fourth

Amendment by making judges reluctant to condemn

questionable practices because of the extreme con-

sequences—total suppression of unquestionably rele-

vant and frequently dispositive evidence and the

release, unpunished, of a dangerous offender.

c. While the trilogy of cases now before the Court

serves to demonstrate some of the varying situations

in which a “reasonable mistake” exception to the ex-

clusionary rule would be appropriate, many of the

practical details relating to the operation of such an

exception may be left to future cases and initia] de-

velopment by lower courts. For now, it is sufficient to

note that the most commonly-voiced objections to a

reasonable mistake exception are lacking in sub-

stance, For example, it has been claimed that the

proposed exception would “put a premium on police

ignorance” because the incentive for thorough police

training in the requirements of the Fourth Amend-

ment now provided by the exclusionary rule would be

lost. This objection is a palpable strawman. The rea-

sonableness of a police officer’s actions would be tested

by the objective standard of what should be expected

of the reasonably well-trained law enforcement offi-

cial. Thus, a reasonable mistake exception would pre-

serve every incentive for police departments to ensure

that their officers remain current with the develop-

ment of Fourth Amendment law.

Moreover, the objective nature of the inquiry will

protect the judicial system against unduly burden-

some and generally irrelevant inquiries into the sub-

jective state of mind of a particular officer. In most

cases, a court will need to determine only whether a

reasonably well-trained officer should have known, in

light of the extant principles of law, that his conduct

was prohibited. The inquiry thus will not be markedly

different from that required of a court in deciding

a suppression motion.

It is also sometimes suggested that the exclusionary

rule needs to be retained in its present form, or even

expanded, so as not to “freeze” the development of

Fourth Amendment law. Of course, it is not entirely

clear that society is greatly benefitted by having

courts continue to decide every question that inven-

tive lawyers can devise, particularly when “the gen-

eral principles applicable to claims of Fourth Amend-

ment violations are well settled * * *.” Arkansas v.

Sanders, 442 U.S. 753, 757 (1979). But, in any event,

there need be no serious concern that adoption of a

reasonable mistake exception to the exclusionary rule

would bring a halt to the adjudication of substantive

Fourth Amendment issues. Many unsettled questions

of Fourth Amendment law are amenable to adjudica-

tion in suits for declaratory or injunctive relief or in

damages actions against municipalities. In addition,

as demonstrated by the number of nonmeritorious

suppression motions currently filed, criminal defend-

ants can be counted upon to assert every defense

available to them. Because the substantial windfall of

exclusion would remain available to those defendants

who could show demonstrably unreasonable police

conduct, it is unrealistic to assume that defendants

with colorably meritorious claims of Fourth Amend-

ment violations will lose their incentive to litigate

(although we anticipate that there would be a con-

siderable reduction in the number of frivolous

claims).

There is, moreover, no jurisprudential impediment

to a court’s deciding a question of substantive Fourth

Amendment law before determining the applicability

in a particular case of a reasonable mistake exception

to the exclusionary rule. Such a practice would be en-

tirely consistent with the customary approach of

deciding questions of rights first, and then turning to

questions of remedies. Indeed, it is a common feature

of current jurisprudence, with appellate courts first

considering an appellant’s claim of error and then

determining whether the error was harmless. Accord-

ingly, whether to assume the existence of a Fourth

Amendment violation and decide only the question of

reasonable mistake, or whether to decide the substan-

tive question first, should be left to judicial discretion.

It might well be appropriate for courts to decline to

adjudicate nonrecurring fact-bound questions concern-

ing the propriety of a particulary search and seizure

if application of a reasonable mistake exception would

be sufficient to dispose of the case. On the other hand,

courts would remain free to decide significant un-

settled questions of law or to adjudicate particularly

problematic or recurring factual situations that give

cause for concern.

Finally, it has been suggested that, whatever the

flaws of the exclusionary rule, it must be retained

because there is no adequate alternative. This is, we

submit, insufficient justification for a rule that car-

ries the heavy costs of the exclusionary rule in the

class of cases here considered. Moreover, the con-

tinued existence of the rule may well operate to deter

the development of more efficacious and less costly

alternatives. Accordingly, the time has come for

recognition by this Court that, in the category of

cases here under consideration, the exclusionary rule

is entirely unjustified, if not actually detrimental to

the achievement of the goals of the Fourth Amend-

ment.

ARGUMENT

I. AS A JUDICIALLY CREATED RULE OF EVI-

DENCE, THE EXCLUSIONARY RULE MAY AP-

PROPRIATELY BE MODIFIED IN THE LIGHT OF

EXPERIENCE

This Court first required the exclusion of evidence

obtained in violation of the Fourth Amendment in

Weeks v. United States, 232 U.S. 383 (1914), a case

involving successive, warrantless searches by federal

agents of an accused’s home, which resulted in the

seizure of letters and other personal documents.

Later, in Mapp v. Ohio, 367 U.S. 643 (1961), the

Court extended the application of the Fourth Amend-

ment exclusionary rule to the states in the context of

a case involving a forcible, warrantless entry into a

suspect’s home that was followed by an exploratory

search through personal papers and effects. Since that

time, however, the exclusionary rule has been increas-

ingly criticized as “both conceptually sterile and prac-

tically ineffective in accomplishing its stated objec-

tive’ of ensuring compliance with the Fourth

Amendment by law enforcement officials. Bivens v.

Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 415 (1971) (Burger, C.J.,

dissenting). Accordingly, members of the Court have

repeatedly urged a general reconsideration of the

exclusionary rule and the situations in which it is

applied. Jd. at 415-416, 420-421; see also Illinois v.

Gates, No. 81-430 (June 8, 1983), slip op. 9-22

(White, J., concurring); Robbins v. California, 453

U.S. 420, 437, 443-444 (1981) (Rehnquist, J., dis-

senting); California v. Minjares, 443 U.S. 916, 917

(1979) (Rehnquist, J., dissenting from denial of

stay); United States v. Ceccolini, 485 U.S. 268, 283

(1978) (Burger, C.J., concurring); Brewer v. Wil-

liams, 430 U.S. 387, 413-414 n.2 (1977) (Powell, J.,

concurring); Stone v. Powell, 428 U.S. 465, 496

(1976) (Burger, C.J., concurring); id. at 5387-539

(White, J., dissenting); Schneckloth v. Bustamonte,

412 U.S. 218, 271 (1973) (Powell, J., concurring) ;

Coolidge v. New Hampshire, 403 U.S. 448, 490

(1971) (Harlan, J., concurring).

The instant cases offer appropriate vehicles for

such a reevaluatior of the scope of the exclusionary

rule. In Leon, the record establishes that the police

officers obtained a search warrant after making a

detailed submission to a state court judge based on

both a tip and corroborating information obtained

during a month-long investigation of the tip. There-

after, the officers executed the warrant according to

its terms. As was recognized by the district court and

by Judge Kennedy in dissent, the officers “laid a

meticulous trail” (Pet. App. 14a) by conducting their

investigation “with care, diligence, and good faith”

(id. at 5a). Including the issuing judge, five judges

have examined the officers’ application for a warrant,

and they have divided three to two on the existence of

probable cause. Under such circumstances, it seems

wholly unreasonable to suppose that the police can be

deterred from making a similar “mistake” in the

future.

In Sheppard, the officers relied on a search warrant

that was without question supported by probable

cause. Granting that the warrant was defective be-

cause it failed to specify the items to be seized, those

items nevertheless were correctly identified in the

police officer’s application for the warrant. Moreover,

there is no question that the issuing judge knew and

approved of the precise scope of the search that the

police intended to conduct, or that the search was in

fact so confined. See 82-963 Pet. App. A10-A16. Thus,

highly probative evidence was suppressed because

exigent circumstances surrounding issuance of the

warrant resulted in the incomplete adaptation of

boilerplate language in a form warrant. The funda-

mental values that the Fourth Amendment protects

were in no way compromised, while society’s equally

compelling interest in convicting the guilty was dealt

a needless blow.

In Quintero, police officers responded to a citizen’s

report of a possible burglary. The police found the

suspect, a stranger to the neighborhood, standing at

a corner bus stop in his undershirt, having placed his

shirt over a television set. The suspect had no iden-

tification and told the police that he had paid some-

one $100 for the television set. Later that day, resi-

dents of the neighborhood reported that their house

had been burglarized, and they identified items re-

covered from the defendant as items that had been

taken from their home. See 82-1711 Pet. App. 2-5.

The Supreme Court of Colorado held that the police

lacked probable cause to arrest respondent, although

the majority apparently believed that probable cause

would have been present if the police had had in their

possession one additional fact—actual knowledge that

a burglary had been committed. In our view, it is

readily apparent that many reasonable persons would

consider the police to have been derelict in their duty

had they failed to arrest respondent simply because

the victims of the burglary had not yet discovered

what was obvious to the police—that a thief had

made off with their property. But even assuming that

the state court correctly determined the probable

cause issue, it is unrealistic to suppose that the

court’s decision provides a useful guide to future

police conduct. Cases such as Quintero highlight the

impossibility of reliably providing precise guidance

to the officer in the field confronted with a close prob-

able cause issue; while an officer with an encyclopedic

memory for the details of vast numbers of judicial

decisions will, should he ever happen upon precisely

the same facts, know that an appellate court has

found them lacking, even the slightest variation in

the facts could lead to a different result that the of-

ficer could not be expected to glean from decisions

such as that in this case. Under such circumstances,

the principal “lesson” learned by the police is that

appellate oversight of the factual determinations that

an officer must make in the daily performance of his

duty offers an uncertain and basically unpredictable

guide to future conduct.

Thus, in each of the cases now before the Court,

the officers’ conduct stands on a far different footing

from the palpably unlawful searches at issue in Weeks

and Mapp. The suppression remedy does not mean-

ingfully protect against the arbitrary invasion of pri-

vacy interests—the core value safeguarded by the

Fourth Amendment—when, as in the instant cases,

law enforcement officers have acted in the reasonable

belief that their conduct complies with constitutional

standards. Modification of the exclusionary rule to

acknowledge this point is consistent with the funda-

mental purpose of the rule and the cases of this Court

explicating it.

A. The Only Viable Justification For The Exclusionary

Rule Is Its Presumed Deterrent Effect On Unlawful

Police Conduct

Nothing in the Fourth Amendment or any other

provision of the Constitution either directly or im-

plicitly provides for the exclusion of illegally seized

evidence from criminal trials. Although the plurality

opinion in Mapp, 367 U.S. at 649, 651, 655-656, sug-

gested that an absolute exclusionary rule is constitu-

tionally required, the Court has never so held. Never-

theless, because the exclusionary rule was first con-

ceived in the context of flagrantly unlawful police

conduct and later extended to the states in a case in-

volving even more abusive practices, it is not surpris-

ing that, for many years, the Court appeared to as-

sume that the Fourth Amendment required an abso-

lute prohibition against the use of illegally obtained

evidence. As the Court has come to focus more clearly

on the true purpose of the exclusionary rule and the

effect it is likely to have in differing contexts, how-

ever, it has recognized that the rule is merely a judge-

made rule of evidence—constitutionally based but not

specifically constitutionally required—the contours of

which must be adapted to fit the circumstances. See,

e.g., United States v. Calandra, 414 U.S. 388, 348

(1974); Desist v. United States, 394 U.S. 244, 254

n.24 (1969) ; see also Stone v. Powell, 428 U.S. at 542

(White, J., dissenting) ; Wolf v. Colorado, 338 U.S.

25, 39-40 (1949) (Black, J., concurring) (rule “is a

judicially created rule of evidence’) .°

Accordingly, the exclusionary rule “has never been

interpreted to proscribe the introduction of illegally

seized evidence in all proceedings or against all per-

sons.” Stone v. Powell, 428 U.S. at 486. Because of

the inherent trustworthiness of seized tangible evi-

dence and the resulting societal costs from its loss

through suppression, application of the exclusionary

rule has been carefully “restricted to those areas

where its remedial objectives are thought most effi-

caciously served.” Calandra, 414 U.S. at 348. Thus,

any consideration of the extent to which the rule

should be modified must begin with a clear under-

standing of its purpose.

Over time, the justifications advanced in support of

the exclusionary rule have varied, but it is now clear

that the principal, and certainly the only logical pur-

pose of the rule is to deter Fourth Amendment viola-

tions by law enforcement officers by removing the in-

centive to commit those violations. See, e.g., Stone v.

Powell, 428 U.S. at 486; United States v. Janis, 428

U.S. 433, 446 (1976). The Court summarized the

rule’s deterrent purpose succinctly in Elkins v. United

States, 364 U.S. 206, 217 (1960) :

The rule is calculated to prevent, not to repair.

Its purpose is to deter—to compel respect for

the constitutional guaranty in the only effectively

* As one commentator put it, “the exclusionary rule does not

‘look’ like a constitutional doctrine. * * * [It] is merely one

arbitrary point on a continuum between deterrence of illegal

police activity and conviction of guilty persons.” Kaplan, The

Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1080

(1974).

available way—by removing the incentive to dis-

regard it.

The rise to preeminence of the exclusionary rule’s

deterrent purpose reflects the abandonment of earlier

justifications. Initially, the rule was justified as a

remedy for the violation of an accused’s personal

Fourth Amendment right of privacy. Weeks, 232

U.S. at 398. This rationale has since been repeatedly

and squarely rejected by the Court (e.g., Calandra,

414 U.S. at 347; Linkletter v. Walker, 381 U.S. 618,

637 (1965) ), and with ample reason. The exclusion-

ary rule is fundamentally irrational as a remedy for

unlawful invasions of privacy, both because it utterly

fails to succor those most deserving of a remedy—

the innocent victims of unreasonable searches—and

because, as Judge Friendly has said in an observation

particularly apt in cases like these of marginal il-

legality, “the benefit received [exclusion of evidence

proving the defendant’s guilt] is wholly dispropor-

tionate to the wrong suffered.” Friendly, The Bill of

Rights as a Code of Criminal Procedure, 53 Calif. L.

Rev. 929, 951 (1965).

Another early rationale for the exclusionary rule

was that it served to safeguard the purity of the

courts’ processes by forbidding the introduction of

tainted evidence. See Elkins, 364 U.S. at 222-223.

But the “imperative of judicial integrity” has not in

fact served as the basis for deciding cases. Oaks,

Studying the Exclusionary Rule in Search and Sei-

zure, 37 U. Chi. L. Rev. 665, 669 (1970). The Court

has recognized that the strength of this rationale has

been steadily eroded by a series of decisions permit-

ting the collateral use of unlawfully seized evidence.

See pages 34-38, infra. Thus, preserving the courts’

distance from tainted evidence has now been eclipsed

by, and indeed subsumed within, the policy of deter-

rence: to the extent that the judicial integrity ra-

tionale was intended to insulate the courts from be-

coming partners in lawless government conduct, that

function is fully served by the policy of deterrence.

See Janis, 428 U.S. at 458-459 n.35; Stone v. Powell,

428 U.S. at 484-485; United States v. Peltier, 422

U.S. 531, 536-538 (1975).

But even if the “imperative of judicial integrity”

had survived as an independent justification for the

exclusionary rule, it would not be impugned by the

“reasonable mistake” exception that we propose (see

pages 44-45, 47-49, 65-68, infra). As the Court recog-

nized in Peltier, 422 U.S. at 537-538, ‘“‘the ‘imperative

of judicial integrity’ is * * * not offended if law en-

forcement 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 en-

forcement officials is not permitted by the Constitu-

tion.” Indeed, we suggest that judicial integrity is

put in greater jeopardy by the rendition of erroneous

verdicts caused by the suppression of dispositive evi-

dence than it is by the admission of evidence that a

reasonably well-trained police officer could not have

been expected to know was being obtained in viola-

tion of the Fourth Amendment.

B. The Policy Of Deterrence Dictates A Cost-Benefit

Approach To The Application Of The Exclusionary

Rule

Recognition that the policy of deterrence is the only

logical justification for the exclusionary rule has gov-

erned the Court’s consideration of a multitude of ap-

plications of the rule. Because “the exclusion of evi-

dence is not a personal constitutional right but a rem-

edy,”’ the judiciary “must be sensitive to the costs and

benefits of its imposition.” Gates, slip op. 11-12

(White, J., concurring). Indeed, this Court has long

engaged in a cost-benefit analysis when it has con-

fronted suggested expansions of the rule or has ex-

amined afresh the propriety of certain applications of

the rule. For example, in Alderman vy. United States,

394 U.S. 165, 174-175 (1969), the Court ruled that

suppression may be sought only by one whose own

Fourth Amendment rights have been violated. The

Court concluded that any additional benefits that

might flow from extending the suppression remedy to

persons not themselves the victims of unlawful

searches and seizures were offset by “the public in-

terest in prosecuting those accused of crime and hav-

ing them acquitted or convicted on the basis of all the

evidence which exposes the truth.” Jd. at 175. See

also United States vy. Salvucci, 448 U.S. 838, 94-95

(1980); Rawlings v. Kentucky, 448 U.S. 98, 104-106

(1980) ; United States v. Payner, 447 U.S. 727, 731-

734 (1980); Rakas y. Illinois, 439 U.S. 128, 137

(1978).”

Similarly, the Court’s recognition of the permissible

use of unlawfully seized evidence as an impeachment

tool rests on the conclusion that any furthering of the

deterrent purpose of the exclusionary rule would be

more than offset by the interference with the truth-

finding function of criminal trials. See United States

v. Havens, 446 U.S. 620 (1980); Walder v. United

States, 347 U.S. 62 (1954); see also Oregon v. Hass,

420 U.S. 714 (1975); Harris v. New York, 401 U.S.

222 (1971). In reaching this conclusion, the Court

7 These decisions would not be sustainable if the “imperative

of judicial integrity” were a substantial independent basis for

the exclusion of illegally obtained evidence, because the impact

on judicial integrity of such use does not depend in the least

upon whether the particular defendant’s rights were infringed

in procuring the tainted evidence.

noted in Havens that any increase in deterrence oc-

casioned “by forbidding impeachment of the defend-

ant who testifies [is] deemed insufficient to permit or

require that false testimony go unchallenged, with the

resulting impairment of the integrity of the factfind-

ing goals of the criminal trial’ (446 U.S. at 627).

Likewise, the Court has refused to apply the exclu-

sionary rule when the initial illegality has become at-

tenuated. F.g., United States v. Ceccolini, 435 U.S. at

280. Again, a cost-benefit analysis controlled the out-

come of the case (ibid.) :

The cost of permanently silencing [a live wit-

ness] is too great for an evenhanded system of

law enforcement to bear in order to secure such

a speculative and very likely negligible deterrent

effect.

The Court also has employed a cost-benefit analysis

in determining whether to apply the exclusionary rule

to various types of proceedings other than the crim-

inal trial itself. In Calandra, the Court refused to

prohibit the use of illegally seized evidence in grand

jury proceedings. In reaching this result, the Court

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

Any incremental deterrent effect which might

be achieved by extending the rule to grand jury

proceedings is uncertain at best. * * * We there-

fore decline to embrace a view that would achieve

a speculative and undoubtedly minimal advance

in the deterrence of police misconduct at the ex-

pense of substantially impeding the role of the

grand jury.

A like analysis was employed in Stone v. Powell,

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

substantial costs to society of the suppression remedy

would outweigh any marginal deterrent effect that

might follow from permitting state prisoners to re-

litigate search and seizure claims in federal habeas

corpus proceedings. And in Janis, 428 U.S. at 454,

the Court 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.”

Finally, the Court has employed the same balancing

analysis when considering whether Fourth Amend-

ment decisions should be applied retroactively. See,

e.g., Peltier, 422 U.S. at 538-539; Williams v. United

States, 401 U.S. 646, 654-655 (1971) (plurality opin-

ion); Desist v. United States, 394 U.S. at 249-250;

Linkletter vy. Walker, 381 U.S. at 636-639." In these

cases, the Court has recognized that retroactive ap-

plication of new Fourth Amendment standards can-

not meaningfully promote the deterrent purpose of

the exclusionary rule. ”

In short, the Court has steadfastly declined to apply

the exclusionary rule in circumstances in which the

degree of incremental deterrence that suppression

might provide is outweighed by the attendant societal

costs.’ This cost-benefit approach is a necessary corol-

§ To the extent that United States v. Johnson, 457 U.S. 537

(1982), may be read as a departure from these cases, we sug-

gest that it reflects only the Court’s concern with according

fundamental fairness for persons similarly situated rather than

any general retreat from the balancing analysis that the Court

has consistently employed in the context of the exclusionary

rule.

* Using the same reasoning, lower federal courts have placed

similar limitations on the application of the exclusionary rule.

See, e.g., Donovan v, Federal Clearing Die Casting Co., 695

F.2d 1020 (7th Cir. 1982) (exclusionary rule inapplicable to

evidence seized by Occupational Safety and Health Administra-

tion pursuant to subsequently-invalidated search warrant);

lary to the fact that deterrence is the only logical

justification for the rule.

IL THE COSTS OF THE EXCLUSIONARY RULE OUT-

WEIGH ITS BENEFITS WHEN IT IS APPLIED TO

SUPPRESS EVIDENCE OBTAINED IN A SEARCH

AND SEIZURE THAT A REASONABLY WELL-

TRAINED OFFICER WOULD NOT HAVE RECOG-

NIZED AS A VIOLATION OF THE FOURTH

AMENDMENT

After nearly 70 years of experience with the ex-

clusionary rule, it is now appropriate for the Court

to employ the same type of cost-benefit analysis uti-

lized in the past in evaluating particular applications

of the rule (see pages 34-38, swpra) to a consideration

of the wisdom of its application to reasonable mis-

takes. Preliminarily, however, we suggest that this

weighing is not properly performed on scales that are

evenly balanced. By excluding unquestionably reliable

and relevant evidence, the exclusionary rule operates

in precisely the opposite manner from what we gen-

Tirado Vv. Commissioner, 689 F.2d 307 (2d Cir. 1982) (evidence

unlawfully seized by federal narcotics agents admissible in a

federal civil tax proceeding; unlikely that narcotics agents

would be deterred by prospect that illegally seized evidence

might be unavailable in a future tax proceeding); United

States v. Lee, 540 F.2d 1205, 1211 (4th Cir.), cert. denied, 429

U.S. 894 (1976) (exclusionary rule inapplicable to sentencing

proceedings); United States v. Schipani, 485 F.2d 26, 28 (2d

Cir. 1970), cert. denied, 401 U.S. 983 (1971) (same); United

States v. Bazzano, No. 81-1936 (8d Cir. June 17, 1983) (en

banc) (exclusionary rule inapplicable at probation revocation

hearings) ; United States v. Winsett, 518 F.2d 51, 58-55 (9th

Cir. 1975) (same) ; United States v, Hill, 447 F.2d 817, 818-819

(7th Cir. 1971) (same); United States ez rel. Sperling v. Fitz-

patrick, 426 F.2d 1161, 1163-1164 (2d Cir. 1970) (same). But

see Lopez-Mendoza V. Immigration and Naturalization Service,

705 F.2d 1059 (9th Cir. 1983) (en banc) _ (exclusionary rule

applicable in civil deportation proceedings) .”

erally demand of other rules of evidence. See, e.g.,

C. McCormick, Handbook of the Law of Evidence § 72

(E. Cleary ed. 1972). Thus, the rule’s benefits should

not simply be presumed; the rule’s application to par-

ticular classes of cases requires more than an as-

sumption that it might have the desired deterrent

effect. As the Chief Justice observed in his concur-

rence in Stone v. Powell, 428 U.S. at 499-500:

To vindicate the continued existence of this

judge-made rule, it is incumbent upon those who

seek its retention * * * to demonstrate that it

serves its declared deterrent purpose and to show

that the results outweigh the rule’s heavy costs

to rational enforcement of the criminal law.

* * * The burden rightly rests upon those who

ask society to ignore trustworthy evidence of

guilt, at the expense of setting obviously guilty

criminals free to ply their trade.

Similarly, Justice White stated in his Gates concur-

rence (slip op. 12):

[A]ny rule of evidence that denies the jury ac-

cess to clearly probative and reliable evidence

must bear a heavy burden of justification, and

must be carefully limited to the circumstances in

which it will pay its way by deterring official

lawlessness.

See also Wilkey, The Exclusionary Rule: Costs and

Viable Alternatives, 1 Crim. Just. Ethics 16, 20

(1982). In any event, as we shall now demonstrate,

such an analysis reveals that the costs of the rule far

outweigh its presumed benefits when applied to police

actions that may in retrospect be deemed illegal but

would not have been recognizable as such to a reason-

ably well-trained officer. Accordingly, the Court

should have no hesitation in fashioning an appropriate

exception to the rule.

A. The Presumed Benefits Of The Exclusionary Rule

Are Not Realized By Applying It To Suppress Evi-

dence Obtained In Searches Or Seizures That Were

Not Recognizably Violative Of The Fourth Amend-

ment

1. The principal benefit claimed for the exclusion-

ary rule is its deterrent effect. Unfortunately for the

rule’s proponents, however, its deterrent effect has

never been proven, either in an absolute sense or rela-

tive to alternative, less costly means of enforcing the

Fourth Amendment. The Court itself has acknowl-

edged the lack of reliable empirical evidence to sup-

port the deterrent effect of the exclusionary rule. In

Wolf v. Colorado, 338 U.S. 25, 44 n.5 (1949) (Mur-

phy, J., dissenting), Justice Murphy argued that his

own “statistical study” of police chiefs supported a

broadened application of the rule.”® Several years

later, however, the Court observed that “[t]here is no

reliable evidence known to us that inhabitants of those

states which exclude the [tainted] evidence suffer less

from lawless searches and seizures than those of states

that admit it.” Jrvine v. California, 347 U.S. 128, 136

(1954). See also Elkins, 364 U.S. at 218 (“it cannot

positively be demonstrated that enforcement of the

criminal law is either more or less effective under

either rule’).

Since Mapp, of course, there have been no meaning-

ful comparative statistics showing the effect the ex-

clusionary rule has had upon police conduct. See Janis,

%# Justice Murphy’s study consisted of 26 replies to a ques-

tionnaire he himself sent to the police chiefs of 38 large cities.

Only those replies “of any significance” were discussed in the

text of his dissenting opinion (338 U.S. at 44 n.5). However

commendable Justice Murphy’s attempt to gather empirical

evidence may have been, he himself recognized the need for

more comprehensive research (ibid.).

428 U.S. at 452 & n.24. The Court has noted twice in

recent years that the available empirical studies are

virtually useless. Stone v. Powell, 428 U.S. at 492 &

n.32; id. at 498-499 (Burger, C.J., concurring) ;

Janis, 428 U.S. at 449-453. This situation is not sur-

prising in view of the manifest difficulty of designing

and implementing an adequately controlled compara-

tive study that could produce objectively valid results.

The commentators, like this Court, have concluded

that there is no reliable evidence to support the prop-

osition that the exclusionary rule operates effectively

to deter police misconduct. The author of the leading

empirical study on the question has concluded (Oaks,

supra, 37 U. Chi. L. Rev. at 755) :

As a device for directly deterring illegal

searches and seizures by the police, the exclu-

sionary rule is a failure. There is no reason to

expect the rule to have any direct effect on the

overwhelming majority of police conduct that is

not meant to result in prosecutions, and there is

hardly any evidence that the rule exerts any de-

terrent effect on the small fraction of law en-

forcement activity that is aimed at prosecution.

What is known about the deterrent effect of sanc-

tions suggests that the exclusionary rule operates

under conditions that are extremely unfavorable

for deterring the police. The harshest criticism

of the rule is that it is ineffective.

Thus, the rule cannot be reliably shown to fulfill

the only purpose that justifies its implementation.

Nevertheless, we accept as intuitively plausible (even

if not empirically demonstrated) the premise that sup-

pression of evidence in a criminal trial can to some ex-

tent or in some circumstances deter law enforcement

officers from violations of the Fourth Amendment.

What is pertinent to the present inquiry is how well, if

at all, deterrence can operate in the “reasonable mis-

take” context. It seems apparent that the degree of

deterrence achieved by the exclusionary rule is likely

to vary in relation to two factors: the extent to which

imposition of the suppression sanction is “painful,”

and the extent to which the officer can predict at the

time he acts that his action is improper and therefore

likely to lead to imposition of the sanction. Cases

such as Calandra, Stone v. Powell, Janis, and Havens

turn upon the Court’s assessment of the first of these

factors; they reach the result they do because it ap-

peared unlikely to the Court that police officers would

be encouraged to engage in prohibited conduct by the

availability of the particular uses of unlawfully

seized evidence there permitted. Thus, any specula-

tive deterrent effect was clearly outweighed by the

evident costs of suppression.

The present cases call upon the Court to evaluate

the second factor, i.e., whether deterrence will be too

slight to justify the costs of suppression when the

conduct in question is of a sort that a reasonably

well-trained officer would not recognize to be unlaw-

ful. In advancing the contention that exclusion of

evidence is unjustified in such circumstances, we do

not (and need not) go so far as to suggest that adop-

tion of a reasonable mistake exception would have no

effect at all on the presumed deterability of Fourth

Amendment violations. Perhaps it is tenable to sup-

pose that, if police are responsive to the suppression

sanction, then the more sweeping and stringent the

use of the sanction, the more cautious they will be in

cases in which there is any room for doubt about the

legality of a proposed search or seizure, a point the

Court made in United States v. Johnson, 457 U.S. at

560-561.

But the mere fact that some deterrence may be

postulated plainly cannot control the inquiry here. If

it did, the Court’s decisions imposing the “standing”

requirement, for example, would be totally untenable;

it is, after all, hardly disputable that a rule allowing

any defendant to obtain suppression would be far

more likely to deter than one excluding the fruits of

searches that were not recognizably illegal at the time

they were undertaken. The question, in short, does

not turn merely upon identification of some reason-

able possibility of deterrence, but requires an evalua-

tion of the substantiality of the anticipated deter-

rence. As the Court noted in Michigan v. Tucker, 417

U.S. 483, 447 (1974):

The deterrent purpose of the exclusionary rule

necessarily assumes that the police have engaged

in willful, or at the very least negligent, conduct

which has deprived the defendant of some right.

By refusing to admit evidence gained as a result

of such conduct, the courts hope to instill in those

particular investigating officers, or in their fu-

ture counterparts, a greater degree of care to-

ward the rights of an accused. Where the offi-

cial action was pursued in good faith, however,

the deterrence rationale loses much of its force.

Similarly, in Peltier, 422 U.S. at 542, the Court

stated:

If the purpose of the exclusionary rule is to deter

unlawful police conduct then evidence obtained

from « 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 unconstitutional

under the Fourth Amendment.

See also Janis, 428 U.S. at 458-459 n.35; United

States v. Mahoney, No. 82-1452 (5th Cir. Aug. 22,

1983), slip op. 6707 (“[TThere may be benefit in uni-

formly applying the exclusionary rule such that legal-

ity is the sole index of exclusion. Those benefits bear

in our view too great a price”).

2. Experience teaches that Fourth Amendment

violations vary greatly in their gravity and, we sub-

mit, in their amenability to deterrence. At one end of

the spectrum, when officers have made Fourth

Amendment intrusions under circumstances “so lack-

ing in indicia of probable cause as to render official

belief in its existence entirely unreasonable,” or en-

gaged in law enforcement activities that constitute

“flagrantly abusive violation[s] of Fourth Amend-

ment rights,” “the deterrent value of the exclusionary

rule is most likely to be effective.” Brown v. Illinois,

422 U.S. 590, 610-611 (1975) (Powell, J., concur-

ring). By contrast, when there is merely a “‘tech-

11 “TT }he object of deterrence would be sufficiently achieved

if the police were denied the fruit of activity intentionally or

flagrantly illegal—where there was no reasonable cause to be-

lieve there was reasonable cause.” H, Friendly, Benchmarks

261 (1967) (footnote omitted). See also Wright, Must the

Criminal Go Free If the Constable Blunders?, 50 Tex. L. Rev.

736, 744-745 (1972).

In accord with that sentiment, the ALI’s Model Code of

Pre-Arraignment Procedure § SS 290.2(2) (1975), provides

that “[a] motion to suppress evidence * * * shall be granted

only if * * * the violation upon which it is based was sub-

stantial * * *.” In turn, the substantiality of a violation is to

be determined from a consideration of “all the circumstances”

of a case (id, §SS290.2(4)), except in those situations

where a violation is “gross, wilful and prejudicial to the ac-

cused” or “appears to be part of the practice of the law en-

forcement agency” (id. §SS 290.2(8)). As one commenta-

tor has stated, “the purpose of the test is to invite courts to

reconsider the need for exclusion where the fourth amend-

ment violation is relatively minor and is neither willful nor

reflective of agency policy or general indifference to individ-

uals’ rights.” Schroeder, Deterring Fourth Amendment Vio-

lations: Alternatives to the Exclusionary Rule, 69 Geo. L.J.

1361, 1423 (1981) (footnote omitted).

nical” violation of Fourth Amendment rights occa-

sioned by actions that a reasonably well-trained police

officer would not recognize as impermissible, “the de-

terrence rationale of the exclusionary rule does not

obtain,” and there is accordingly ‘no legitimate justi-

fication for depriving the prosecution of reliable and

probative evidence.” Id. at 611-612.

In our view, if the exclusionary rule is to function

tolerably in our society, it must take account of these

differences, Thus, we endorse Justice White’s opinion

(Stone v. Powell, 428 U.S. at 538 (White, J., dissent-

ing) ) that

the rule should be substantially modified so as to

prevent its application in those many circum-

stances where the evidence at issue was seized

by an officer acting in the good-faith belief that

his conduct comported with existing law and hav-

ing reasonable grounds for this belief. These are

recurring situations; and recurringly evidence is

excluded without any realistic expectation that

its exclusion will contribute in the slightest to

the purposes of the rule, even though the trial

will be seriously affected or the indictment dis-

missed.

See also Gates, slip op. 1, 12 (White, J., concurring).

This type of focused exception responsive to the

policies of the exclusionary rule has been expressly

adopted by the Fifth Circuit. United States v. Wil-

liams, 622 F.2d 830 (5th Cir. 1980) (en banc), cert.

denied, 449 U.S. 1127 (1981). There, a federal agent

who had previously arrested Williams in Ohio for a

narcotics violation encountered her in Georgia. The

agent knew that a condition of Williams’ release on

bond pending appeal was that she remain in Ohio.

Accordingly, the agent arrested Williams for violat-

ing this condition and, in ensuing searches incident to

the arrest, seized heroin from Williams’ possession.

Sitting en banc, the Fifth Circuit held unanimously

that the district court should not have suppressed the

heroin. One majority of the court held that the fed-

eral agent had legal authority to arrest Williams be-

cause, by violating the conditions of her bail release,

she had committed the crime of contempt of court in

the agent’s presence (622 F.2d at 836-839). A differ-

ent, overlapping majority of the court held that, irre-

spective of the validity of Williams’ arrest, the heroin

should not have been suppressed because the agent

had acted in good faith in arresting and searching

Williams, and could not reasonably be expected to

have known that there was serious doubt concerning

his authority to make the arrest. Because the pur-

pose of the exclusionary rule is to deter “willful or

flagrant actions by police, not reasonable, good-faith

ones” (id. at 840), the court concluded that it made

no sense to suppress evidence in these circumstances,

“unless we somehow wish to deter [police officers]

from acting at all” (id. at 842). The court noted that

its decision was fully consistent with this Court’s

cost-benefit approach to the exclusionary rule (id. at

842-843; citations omitted; eniphasis added) :

Any slight deterrent effect of excluding fruits

of good-faith arrests is even less than the small

deterrence from suppressing the fruits of illegal

police actions that are attenuated in effect, that

are challenged in habeas corpus petitions on

fourth amendment grounds, that are used in

grand jury deliberations, or that are used for

impeachment. Yet the Supreme Court has found

that the deterrent effect of exclusion in the ex-

amples listed and others does not justify the so-

cietal harm incurred by suppessing relevant and

incriminating evidence. The good-faith exception

that we explicitly recognize today is of a kind

with these.'”!

8. The “reasonable mistake” exception to the ex-

clusionary rule that we advocate will be appropriate

12 The Fifth Circuit has recently applied the Williams rule

in United States v. Mahoney, No. 82-1452 (Aug. 22, 1983).

Other courts have adopted similar rules. See United States v.

Ajlouny, 629 F.2d 830, 840-841 (2d Cir. 1980), cert. denied,

449 U.S. 1111 (1981) (even if warrantless national security

wiretap was unlawful, suppression not required where agents

acted in good faith and could not be charged with knowledge

that their conduct was improper); United States v. Nolan, 530

F. Supp. 386, 396-399 (W.D. Pa. 1981) (suppression not re-

quired for what was, at most, a technical, good faith violation

of the knock-and-announce rule); United States v. Wilson,

528 F. Supp. 1129, 1132 (S.D. Fla. 1982) (even if arrest ef-

fectuated outside of officers’ territorial jurisdiction was not a

lawful citizen’s arrest, good faith exception bars suppression

of marijuana); Gifford v. State, 680 S.W.2d 387, 391 (Tex.

Crim. App. 1982) (suppression not required where officers

relied in good faith on a search warrant later found to be

technically defective); People v. Adams, 53 N.Y.2d 1, 9-10,

422 N.E.2d 537, 541, 489 N.Y.S.2d 877, 881-882 (1981) (sup-

pression not required where agent relied in reasonable good

faith on purported authority of accused’s girlfriend to consent

to a search of his apartment); cf. cases cited at pages 37-38

note 9, supra.

A number of legal commentators have joined the Fifth Cir-

cuit and other courts following its lead in noting the absence

of any meaningful deterrent effect when police officers have

acted in the reasonable belief that their conduct was lawful.

See, e.g., Carrington, Good Faith Mistakes and the Exclusion-

ary Rule, 1 Crim. Just. Ethics 35, 37-88 (1982) ; Schroeder,

Deterring Fourth Amendment Violations: Alternatives to the

Exclusionary Ride, 69 Geo. L.J. 1361, 13880 (1981); Ball, Good

Faith and the Fourth Amendment: The “Reasonable” Excep-

tion to the Exclusionary Rule, 69 J. Crim. L. & Criminology

635, 650 (1978); Kaplan, The Limits of the Exclusionary Rule,

26 Stan. L. Rev. 1027, 1044 (1974).

in a variety of factual settings, not all of which can

or should be precisely mapped out at this stage of the

development of the exception. But the facts in United

States vy. Williams and in Quintero well illustrate two

situations in which the exclusionary rule should be

modified to accommodate the practical realities of

police work. In Williams, the officer was required to

make an on-the-spot decision concerning the scope of

his arrest powers, a legal issue that had not been

judicially resolved. Irrespective of what an appellate

court might ultimately announce as the correct an-

swer to that legal question, there can be no doubt that

the officer was not unreasonable in believing that he

had observed the commission of a crime in his pres-

ence, Society expects the police to act in such situa-

tions, and it cannot seriously be urged that society is

benefitted, or that individual constitutional liberties

are meaningfully advanced, by a rule of law that

causes an officer to doubt the propriety of taking ac-

tion when he observes what he reasonably believes to

be an offense in progress.

Similarly, in Quintero, the court found that the ar-

resting officer believed he had probable cause to arrest

the respondent (82-1711 Pet. App. 6); indeed, it is

difficult to imagine that the officer could have believed

anything else. But regardless of the “correct” answer

to the probable cause issue,” the officer was called

18 In our view, it is clear that the Supreme Court of Colorado

misread Brown v. Texas, 443 U.S. 47 (1979). In Brown, the

Court held that the police had unlawfully detained Brown

“fijn the absence of any basis for suspecting [him] of mis-

conduct” (id. at 52). Brown had merely refused to identify

himself when stopped in an area frequented by drug traf-

fickers; the police could articulate no objective facts suggesting

that Brown was himself engaged in drug dealings or in any

other criminal activity (id. at 49, 52). In Quintero, by con-

trast, the arresting officer did articulate (and the state supreme

upon to make an immediate judgment involving a

mixed question of law and fact as to which, at mini-

mum, reasonable persons could differ. Again, society

is not benefitted by a rule of law that seeks to “deter”

law enforcement officers who reasonably believe that

a crime has been committed from performing their

duty to make an arrest.

As the cases now before the Court demonstrate,

policemen are not trained legal technicians; neverthe-

less, they are expected to make quick decisions, often

involving complicated legal and factual analyses, “in

the course of the difficult and often dangerous busi-

ness of law enforcement.” Wright, Must the Criminal

Go Free If the Constable Blunders?, 50 Tex. L. Rev.

736, 741 (1972). Thus, countless officers in the field

must daily decide under rapidly-changing circum-

stances whether there exists the requisite probable

cause to support an arrest or a search, reasonable

suspicion to justify an investigative detention, or exi-

gent circumstances permitting warrantless action. In

such cases, “[i]nadvertent errors of judgment” and

“honest mistakes” will “inevitably occur given the

pressures inherent in police work having to do with

serious crimes.” Bivens, 403 U.S. at 418 (Burger,

C.J., dissenting).

The uncertainties inherent in police work are ex-

acerbated by a lack of coherent Fourth Amendment

standards that are readily recognizable and can be

predictably applied by officers in the field. Too often,

courts leave police officers to resolve these difficult

questions for themselves, see New York v. Belton, 453

court recited) the objective factors that led him to conclude

that respondent had committed a burglary (82-1711 Pet. App.

3-7). Nevertheless, for purposes of this case, we must assume

that the state supreme court correctly determined the probable

cause issue.

U.S. 454, 470 (1981) (Brennan, J., dissenting), and

then feel free to second-guess what appeared at the

time to have been reasonable judgments. The result

is that the courts have engendered a “state of uncer-

tainty” that is “intolerable” to the officer on the beat.

Coolidge v. New Hampshire, 403 U.S. at 490-491

(Harlan, J., concurring).’* Without the ability ac-

curately to predict how courts will resolve Fourth

Amendment questions, law enforcement officers will

neither know the scope of their authority nor be suf-

ficiently deterred from improper action to justify ap-

plication of the exclusionary rule. See New York vy.

Belton, 453 U.S. at 459-460; see also LaFave, Im-

proving Police Performance Through the Exclusion-

ary Rule, 30 Mo. L. Rev. 391, 395 (1965).

4 As Justice Frankfurter once remarked, “the course of true

law pertaining to searches and seizures * * * has not—to put

it mildly—run smooth.” Chapman v. United States, 365 U.S.

610, 618 (1961) (Frankfurter, J., concurring). See also Cady

v. Dombrowski, 413 U.S. 433, 440 (1978) (“this branch of the

law is something less than a seamless web’’). Legal com-

mentators have agreed with these observations. See, e.g.,

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.

L. Rev. 349 (1974) (“For clarity and consistency, the law of

the fourth amendment is not the Supreme Court’s most suc-

cessful product’); Kaplan, The Limits of the Exclusionary

Rule, 26 Stan, L. Rev. 1027, 1083 (1974) (Fourth Amendment

law “is so complicated and abstruse that the police often

honestly and reasonably cannot determine in advance” how it

will be applied); Goodpaster, An Essay on Ending the Exclu-

sionary Rule, 338 Hastings L.J. 1065, 1092 (1982) (Fourth

Amendment law marked by “sophisticated, complicated, and

confusing decisions”) .

% As Professor LaFave has noted, “[t]he threat of evidence

exclusion can have little impact unless decision-making officers

have some basis for determining what conduct will bring about

exclusion” (30 Mo. L. Rev. at 396).

There is no basis for faulting an officer who has

made a reasonable but incorrect assessment regard-

ing the existence of reasonable suspicion or probable

cause or the necessity of obtaining a warrant. Fourth

Amendment adjudications inevitably leave “much

room for disagreement among judges, each of whom

is convinced that both he and his colleagues are rea-

sonable men. Surely when this Court divides five to

four on issues of probable cause, it is not tenable to

conclude that the officer was at fault or acted unrea-

sonably in making the arrest.” Stone v. Powell, 428

U.S. at 540 (White, J., dissenting).’* Justice White

went on to note (id. at 539-540):

[E]xperience tells us that there will be those oc-

easions where the trial or appellate court will

disagree on the issue of probable cause, no mat-

ter how reasonable the grounds for arrest ap-

peared to the officer and though reasonable men

16 And, of course, the instances are legion in which lower

courts have erroneously condemned officers’ actions as violative

of the Fourth Amendment. Indeed, last Term alone this Court

reversed seven lower court decisions that had invalidated

searches or seizures on Fourth Amendment grounds. Michigan

v. Long, No. 82-256 (July 6, 1983); Illinois v. Andreas, No.

81-1843 (July 5, 1983); Jlinois v. Lafayette, No. 81-1859

(June 20, 1983); United States v. Villamonte-Marquez, No.

81-1350 (June 17, 1983); Jllinois v. Gates, No, 81-430 (June 8,

1983); Texas v. Brown, No. 81-419 (Apr. 19, 1988); United

States v. Knotts, No. 81-1802 (Mar. 2, 1983). See also New

York v. Belton, 458 U.S. 454 (1981); United States v. Cortez,

449 U.S. 411 (1981) ; Colorado v. Bannister, 449 U.S. 1 (1980) ;

United States v. Ramsey, 431 U.S. 606 (1977); United States

Vv. Martinez-Fuerte, 428 U.S. 543 (1976); United States v.

Watson, 423 U.S. 411 (1976); Texas v. White, 423 U.S. 67

(1975). Because courts are fallible human institutions, oc-

casional mistakes are unavoidable, especially when the legal

issue is close. What is unfortunate, however, is that it should

frequently happen that lawfully seized evidence is suppressed.

The rule for which we contend will greatly diminish that risk.

could easily differ on the question. It also hap-

pens that after the events at issue have occurred,

the lav’ may change, dramatically or, ever so

slightly, but in any event sufficiently to require

the trial judge to hold that there was not probable

cause to make the arrest and to seize the evidence

offered by the prosecution. * * *

In these situations, and perhaps many others,

excluding the evidence will not further the ends

of the exclusionary rule in any appreciable way;

for it is painfully apparent that in each of them

the officer is acting as a reasonable officer would

and should act in similar circumstances. Exclud-

ing the evidence can in no way affect his future

conduct unless it is to make him less willing to

do his duty."”!

17 Lower court judges have made the same point. E£.g.,

Government of the Virgin Islands v. Rasool, 657 F.2d 582,

595 (3d Cir. 1981) (Adams, J., concurring):

[I]t is not realistic to expect the exclusionary rule to

deter misconduct on the part of police officers. Often

there is no misconduct to deter or punish—the officer has

simply acted reasonably in a pressured situation and is

later told he guessed wrong about how Supreme Court

precedents might be interpreted to apply in fine-line situa-

tions.

In a similar vein is United States v. Ross, 655 F.2d 1159,

1204 (D.C. Cir. 1981) (en banc) (footnote omitted) (Wilkey,

J., dissenting), rev’d, 456 U.S. 798 (1982) :

[T]oo many prosecutions * * * have gone awry, not as a

result of intentional police misconduct, and certainly not

because of any doubt about the guilt of the criminal, but

simply because a court, with the benefit of time to reflect

and of hindsight, concludes that an officer acting under

pressure in the field, maybe under fear for his own life,

failed properly to apply the often confused and confusing

standards of conduct set out by courts interpreting the

Constitution.

Judge Wilkey also observed that in cases in which the law is

not settled, courts “would have to impute to [police officers]

Quite clearly, it is in these “grey, twilight area(s],

where the law is difficult for courts to apply, let alone

for the policeman on the beat to understand,” that the

exclusionary rule is least efficacious in deterring

police misconduct. Schneckloth vy. Bustamonte, 412

U.S. at 269 (Powell, J., concurring).

4. The reasonable mistake exception to the ex-

clusionary rule that we advocate here is consistent

with this Court’s recognition of the ameliorating

effects of police good faith in other Fourth Amend-

ment contexts." For example, in Michigan v. DeFil-

nearly supernatural powers to see the future before we could

charge [them] with knowledge that [their] conduct was un-

constitutional” (655 F.2d at 1181).

18 Tf concrete examples of the problem are necessary, one

need only look to the Court’s decisions in New York v. Belton,

453 U.S. 454 (1981), and Robbins v. California, 453 U.S. 420

(1981). The facts of the cases were remarkably similar. In

both cases, police officers lawfully stopped a car, smelled burnt

marijuana, discovered marijuana in the passenger compart-

ment of the car, and lawfully arrested the occupants. There-

after, in Robbins, the officer found two packages wrapped in

green opaque paper in the recessed rear compartment of the

car, opened them without a warrant, and found 30 pounds of

marijuana. In Belton, the officer found a jacket in the passen-

ger compartment, unzipped the pocket without a warrant, and

found a quantity of cocaine.

When the Court decided these cases, three Justices opined

that both searches were legal; three Justices opined that they

were both illegal; and three Justices controlled the ultimate

decision that the search in Robbins was illegal and that in

Belton legal. It may come as small consolation to the officer

who made the search in Robbins that only a year later the deci-

sion was overruled in United States v. Ross, 456 U.S. 798

(1982).

19 We speak in this brief of a “reasonable mistake” excep-

tion to the exclusionary rule, rather than a “good faith” ex-

Li.

lippe, 448 U.S. 31 (1979), a police officer made an

arrest in good-faith reliance on a municipal ordinance

later declared to be unconstitutional. In an ensuing

search incident to the arrest, the officer seized drugs

from the defendant’s person. In upholding the admis-

sibility of the seized drugs, the Court stated (id. at

37-38) :

A prudent officer, in the course of determining

whether [the defendant] had committed an of-

fense under all the circumstances shown by this

record, should not have been required to antici-

pate that a court would later hold the ordinance

unconstitutional. * * * '!

Similarly, in United States v. Caceres, 440 U.S. 741

(1979), Internal Revenue agents conducted a series

of “consensual electronic surveillance” encounters

with a targeted taxpayer. Although internal agency

guidelines required prior authorization for such sur-

veillance, the agents failed to obtain written author-

ception, because, as discussed later (see pages 78-80, infra), we

believe that the test for invocation of the exception should be

objective in nature. The “good faith” terminology has the

unfortunate consequence of suggesting that good intentions,

even if objectively unsupportable, should be the touchstone, a

proposition we do not advocate. But the “good faith” cases

already decided by this Court and discussed in this section of

our brief all satisfy the objective standard of reasonableness

that we propose and could have been decided on that basis.

*” The Court recognized (448 U.S. at 38 n.3):

The purpose of the exclusionary rule is to deter unlaw-

ful 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 [defendant], 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.

ization. Refusing to require suppression of the fruits

of the unauthorized surveillance, the Court noted that

“Tt]}he agency action, while later found to be in vio-

lation of the regulations, nonetheless reflected a rea-

sonable, good-faith attempt to comply in a situation”

in which monitoring was appropriate and would have

been authorized had the request for authorization

been received more promptly (id. at 757). So too, in

Hill vy. California, 401 U.S. 797 (1971), officers had

probable cause to arrest Hill; however, the officers

mistakenly arrested one Miller, who was present in

Hill’s apartment, and conducted a search incident to

the arrest that disclosed evidence incriminating Hill.

In upholding the validity of the seizure, the Court

stated: “The upshot was that the officers in good faith

believed Miller was Hill and arrested him. They were

quite wrong as it turned out, and subjective good-

faith belief would not in itself justify either the ar-

rest or the subsequent search. But * * * the officers’

mistake was understandable and the arrest a reason-

able response to the situation facing them at the time”

(id, at 803-804). And in Franks v. Delaware, 438

U.S. 154 (1978), the Court limited the circumstances

in which a defendant may challenge the truthfulness

of allegations in a search warrant affidavit to those

effectively involving official bad faith. Thus, as the

Court made clear, “[t]here must be allegations of

deliberate falsehood or of reckless disregard for the

truth * * *. Allegations of negligence or innocent

mistake are insufficient” (id. at 171).

5. Finally, the reasonable mistake exception to the

exclusionary rule that we propose comports fully with

the context in which the rule was first promulgated

and then applied to the states. It has been noted that

pre-Mapp cases frequently involved “arrogant or

brazen police behavior.” Schroeder, Deterring Fourth

Amendment Violations: Alternatives to the Exclu-

sionary Rule, 69 Geo. L.J. 1861, 1414-1415 (1981)

(footnote omitted). As we observed at the outset

(see page 27, supra), both Weeks and Mapp involved

warrantless, exploratory searches through private

papers and effects. So too, many of the early cases in

which the exclusionary rule was first applied involved

equally egregious misconduct.** In keeping with this

historical perspective, nothing in the modification we

propose will prevent courts from excluding evidence

obtained through intentional or clearly abusive police

misconduct.

But it makes no sense to apply a rule of suppres-

sion that was conceived in the context of palpably

egregious police misconduct to the multitude of

present-day cases in which law enforcement officers

make all reasonable efforts to comply with the Con-

stitution. Police resort to the preferred warrant

procedure has markedly increased in the years since

Mapp was decided (see 1 W. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 1.2,

at 26 (1978) ), law enforcement officers have to a far

greater extent become well-trained professionals, and

the cases now being litigated most often probe the

“grey, twilight area[s]” of Fourth Amendment law,

21 See, e.g., Silverthorne Lumber Co, v. United States, 251

U.S. 885, 390-391 (1920) (prosecutor conceded “outrageous”

conduct based on a warrantless documents search conducted

“without a shadow of authority”) ; Gouled v, United States,

255 U.S. 298 (1921) (surreptitious document search) ; Agnello

v. United States, 269 U.S. 20 (1925) (warrantless search of

home as incident to an arrest that occurred blocks away); Go-

Bart Importing Co. v. United States, 282 U.S. 344 (1981)

(warrantless, exploratory search of documents) ; United States

v. Jeffers, 342 U.S, 48, 52 (1951) (warrantless search of hotel

room conducted “surreptitiously and by means denounced as

criminal”).

“a

rather than directly touching the core values of that

constitutional protection. Against this background,

neither the fundamental values of the Fourth Amend-

ment nor the deterrent purpose of the exclusionary

rule are meaningfully advanced by the suppression of

evidence when law enforcement officers, even though

acting without a warrant, reasonably attempt to

navigate the intricate channels of Fourth Amendment

law. Simply put, when law enforcement officers have

acted in a manner far removed from the egregious

type of conduct that the exclusionary rule was first

designed to combat, their honest mistakes should not

be met with the severe sanction of suppression.

B. The Reasons For Applying The Exclusionary Rule

Are Most Remote When Law Enforcement Officers

Have Relied On A Judicially-Issued Search Warrant

1. As we have demonstrated, the purpose of the

exclusionary rule is to deter unconstitutional actions

by the police. When law enforcement officers reason-

ably, albeit mistakenly, believe that they are acting

lawfully, the potential for deterrence is drastically

diminished and the social value of deterrence greatly

reduced. In those circumstances, the justification for

the suppression remedy vanishes. That is the situa-

tion in Quintero. Equally important, however, is the

fact that no credible justification has ever been ad-

vanced for invoking the exclusionary rule when, as in

Leon and Sheppard, the police have not engaged in

any misconduct whatsoever, but a judicial officer has

issued a search warrant that is subsequently held to

be defective. “This Court has never set forth a ra-

tionale for applying the exclusionary rule to suppress

evidence obtained pursuant to a search warrant; it

has simply done so without considering whether

Fourth Amendment interests are advanced.” Gates,

slip op. 17 (White, J., concurring). The situation is

thus remarkably similar to that presented in Stone v.

Powell, in which the Court acknowledged that its

prior decisions had not fully considered the extent to

which the exclusionary rule should apply in federal

habeas corpus proceedings (428 U.S. at 480-481 &

n.15). Upon examination, of course, the Court con-

cluded that the cost of permitting state prisoners to

relitigate search and seizure issues outweighed any

incremental deterrent effect that might flow from ap-

plication of the exclusionary rule in that context.

Here, too, the Court is presented with its first real

occasion to examine the policies of the exclusionary

rule as they relate to evidence obtained pursuant to

a warrant. As in Stone v. Powell, should that exami-

nation reveal the absence of sufficient justification for

continuing to apply the exclusionary rule in such cir-

cumstances, the Court should not hesitate to modify

the rule.

2. In our submission, the exclusionary rule is an

inherently inappropriate device for deterring Fourth

Amendment violations that are the result of judicial

miscalculation, rather than police misconduct. As the

Court observed in Janis (428 U.S. at 448), applica-

tion of the exclusionary rule must be tied to the iden-

tity of those who are to be deterred and the nature

of the conduct that is to be controlled. In the

Fourth Amendment context, “the exclusionary rule

was adopted to deter unlawful searches by police, not

to punish the errors of magistrates and judges.”

Gates, slip op. 18 (White, J., concurring). Accord-

ingly, as was recognized by the plurality in Sheppard

(82-963 Pet. App. A47-A49) :

The exclusionary rule may not be well tailored

to deterring judicial misconduct. If applied to

judicial misconduct, the rule would be just as

costly as it is when it is applied to police mis-

conduct, but it may be ill-fitted to the job-created

motivations of judges. As we have said, ideally

a judge is impartial as to whether a particular

piece of evidence is admitted or a particular de-

fendant convicted. Hence, in the abstract, sup-

pression of a particular piece of evidence may not

be as effective a disincentive to a neutral judge

as it would be to the police. It may be that a

ruling by an appellate court that [a] search war-

rant was unconstitutional would be sufficient to

deter similar conduct in the future by magis-

trates. We question, therefore, whether suppres-

sion of evidence is necessary as a deterrent in

cases where the police conduct was entirely pro-

per, the defendant was not prejudiced by the

magistrate’s error, and an appellate court clearly

identifies the magistrate’s error of law as a guide

to future conduct.

See also United States v. Acosta, 501 F.2d 1330, 1337

(5th Cir. 1974) (Gee, J., dissenting), modified, 509

F.2d 539 (5th Cir.), cert. denied, 423 U.S. 891

(1975); State v. Lien, 265 N.W.2d 833, 840-841 n.1

(Minn. 1978); State v. Nolting, 312 Minn. 449, 456-

457 n.7, 254 N.W.2d 340, 345 n.7 (1977).

Thus, even if one accepts the premise that the ex-

clusionary rule is capable of affecting police behavior

in some circumstances, there is no basis whatsoever

for assuming that it can have any impact on magis-

trates. Magistrates are not part of the law enforce-

ment “team” (see Coolidge v. New Hampshire, 403

U.S. 448, 450-453 (1971)); as neutral judicial offi-

cers, magistrates have no stake in the outcome of any

criminal prosecution, and the threat that evidence

may be excluded from trial cannot logically be ex-

pected to have a significant deterrent impact on them.

Instead, judicial officers considering warrant applica-

tions presumably are motivated—like judicial officers

performing other duties—to reach a correct decision.”

* There is no constitutional requirement that an official issu-

ing a warrant be either a judge or a lawyer, so long as the

official is neutral and capable of assessing probable cause. See

Shadwick v. City of Tampa, 407 U.S. 345, 348-350 (1972). In

the federal system, however, magistrates will usually be trained

and experienced lawyers. Thus, the Federal Magistrates Act

of 1968 requires, with limited exceptions, that all magistrates

have practiced law for five years (28 U.S.C. (Supp. V) 631

(b) (1)), that they be selected pursuant to merit selection pro-

cedures (28 U.S.C. (Supp. V) 631(b) (2)), and that they at-

tend special training programs (28 U.S.C. 687). Although

neither constitutionally required nor necessary to give rise to

the preference that reviewing courts extend to a magistrate’s

determinations, we think these salutary features enhance the

presumption of propriety that applies to a federal magistrate’s

probable cause determinations. These same enhancing consid-

erations also apply to the warrants in Leon and Sheppard,

both of which were issued by state court judges.

Moreover, because the exclusionary rule “is a judicially cre-

ated remedy designed to safeguard Fourth Amendment rights

generally through its deterrent effect, rather than a personal

constitutional right of the party aggrieved” (Calandra, 414

U.S, at 348), relentless application of the rule in warrant cases

is both unnecessary and unwise because suitable and efficacious

substitute remedies, less costly to society, are available, at

least in the federal system. A United States Magistrate, un-

like a law enforcement officer, is subject to the control and

direction of the district court and may be removed by the

court for “incompetency, misconduct, neglect of duty, or physi-

cal or mental disability.” 28 U.S.C. (Supp. V) 631(i). If it

appears that a particular magistrate is serving merely as a

“rubber stamp” or has demonstrated an inability to exercise

mature judgment, a remedy is available that is far more direct

and effective, and less costly to the criminal justice system,

than the suppression of evidence in a later proceeding. Cf.

United States v. Hasting, No. 81-1463 (May 23, 1983), slip op.

6-7 & n.5 (deterrence rationale is an inappropriate basis for

applying most severe sanctions when more narrowly tailored

sanctions are available).

3. The suppression of evidence obtained pursuant

to judicially-issued search warrants, even though an

unintended extension of the exclusionary rule as orig-

inally conceived, might be justified if it furthered the

rule’s basic purpose of deterring police misconduct.

But in fact it does no such thing. See Gates, slip op.

17 (White, J., concurring). Rather, “[{i]mposing an

admittedly indirect ‘sanction’ on the police officer in

that instance is nothing less than sophisticated non-

sense” (Stone v. Powell, 428 U.S. at 498 (Burger,

C.J., concurring) ), because law enforcement officers

will never be deterred from executing a search war-

rant that a judge has told them is valid. “Once the

warrant issues, there is literally nothing more the

policeman can do in seeking to comply with the law.”

Ibid.” See United States vy. Hill, 500 F.2d 315, 322

(5th Cir. 1° (4); Gifford vy. State, 6830 S.W.2d at 391;

ef. United States v. Ross, 456 U.S. 798, 823 n.82

(1982) (“[A] warrant issued by a magistrate nor-

mally suffices to establish” that a law enforcement

officer has “acted in good faith in conducting the

search’) ; United States v, Alvarez-Porras, 643 F.2d

54, 65-66 (2d Cir.), cert. denied, 454 U.S. 839 (1981)

(deterrent purpose of exclusionary rule is not served

in circumstances that include the agents’ good-faith

23 As Professor Levy has noted (L. Levy, Against the Law:

The Nizon Court and Criminal Justice 81 (1974) ):

[T]o penalize the police by holding that a magistrate had

not scrutinized the facts with enough independence is

comparable to penalizing a prosecutor by holding that the

police obtained the evidence illegally. The sanction of the

law strikes the wrong party when the police have obtained

a warrant.

attempt to comply with the warrant requirement) .™

Quite clearly, neither the fundamental values of the

Fourth Amendment nor the deterrent purpose of the

exclusionary rule can be meaningfully advanced by

the suppression of evidence in cases such as Shep-

pard, where a search warrant is invalidated because

of a technical defect resulting from oversight;* sup-

pressing it because the issuing official, although au-

thorized by statute to issue warrants, is found to lack

the requisite degree of neutrality, see Coolidge v. New

Hampshire, 408 U.S. 448 (1971) ;™ or suppressing it

*% See also Schroeder, Deterring Fourth Amendment Viola-

tions: Alternatives to the Exclusionary Rule, 69 Geo. L.J.

1361, 1418-1419 (1981):

A search conducted in accordance with the terms of the

warrant necessarily involves good faith * * *, When the

police have dutifully applied to a judge or a magistrate

for a search warrant, and have executed the warrant in

strict conformity with its terms, exclusion of the evidence

thus obtained can have no possible deterrent effect on fu-

ture police conduct.

Accord, P. Johnson, New Approaches to Enforcing the Fourth

Amendment 8-9 (Working Paper Sept. 1978), quoted in 1

W. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 1.2, at 3 (Supp. 1982).

% See also United States v. Shorter, 600 F.2d 585 (6th Cir.

1979). In that case, suppression was ordered because, despite

a clear demonstration of probable cause, the magistrate failed

to administer an oath to the affiant “immediately” at the be-

ginning of his telephonic application for a search warrant, as

required by Rule 41 (c) (2) (D), Fed. R. Crim. P.

* Concurring in Coolidge, Justice Harlan noted that nothing

in the unlawful conduct in that case touched on “core” Fourth

Amendment values (403 U.S. at 491). See also Bivens, 408

USS. at 418-419 (Burger, C.J., dissenting) (even assuming the

conduct in Coolidge was improper, it “was surely insufficient

in nature and extent to justify the drastic result dictated by

the suppression doctrine”); Kaplan, supra, 26 Stan. L. Rev.

because, as in Leon, a reasonable presentation of in-

formation to a neutral judicial officer is later deter-

mined to fall short of probable cause, e.g., United

States v. Karathanos, 531 F.2d 26, 35 (2d Cir.), cert.

denied, 428 U.S. 910 (1976); United States v. Travi-

sano, 560 F. Supp. 627, 628-680 & n.2 (D. Conn.

1983), pending on appeal, No. 83-1159 (2d Cir., filed

Apr. 28, 1983).

4. Application of the exclusionary rule to the fruits

of judicially-warranted searches is not only ineffec-

tive in terms of deterrence, but may well reduce in-

centives for police resort to the ~warrant procedure,

which this Court has repeatedly held is the constitu-

tionally preferred method for safeguarding individ-

ual privacy rights. See Gates, slip op. 21; United

States v. United States District Court, 407 U.S. 297,

317 (1972); Terry v. Ohio, 392 U.S. 1, 20 (1968);

United States v. Ventresca, 380 U.S. 102, 106-107

(1965); Johnson v. United States, 333 U.S. 10, 14

n.3 (1948); 2 W. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 4.2, at 29

(1978). Thus, a reasonable mistake exception to the

exclusionary rule when a warrant has been obtained

would provide a substantial incentive for law enforce-

ment officers to utilize the preferred warrant proce-

dure. See Brown vy. Illinois, 422 U.S. at 611 & n.8

(Powell, J., concurring). Unlike instances in which

at 1086 (“the police practices revealed in Coolidge v. New

Hampshire are hardly incompatible with a moral society; yet

letting the defendant in that case go free perhaps is’’).

In explaining the essence of the Fourth Amendment, the

Court has stated: “[W]here practical, a governmental search

and seizure should represent both the efforts of the officer to

gather evidence of wrongful acts and the judgment of the

magistrate that the collected evidence is sufficient to justify

invasion of a citizen’s private premises or conversation.”

United States v. United States District Court, 407 U.S. at 316.

the police have acted without judicial authorization

and in which an exclusionary rule might, in limited

circumstances, provide a deterrent to future miscon-

duct, resort to the warrant procedure itself provides

a substantial alternative barrier to unreasonable or

otherwise defective searches and seizures. See Jones

vy. United States, 362 U.S. 257, 270-271 (1960);

Johnson vy. United States, 333 U.S. at 14; United

States v. Lefkowitz, 285 U.S. 452, 464 (1932). For

this reason, the Court has recognized that errors of

judgment by a magistrate should not necessarily be

treated as severely as Fourth Amendment violations

by law enforcement officers acting without judicial

supervision and approval. See Gates, slip op. 21, 24;

United States v. Watson, 423 U.S. 411, 423 (1976);

Spinelli v. United States, 393 U.S. 410, 419 (1969) ;

United States v. Ventresca, 380 U.S. at 109; Aguilar

v. Texas, 378 U.S. 101, 111 (1964); Jones v. United

States, 362 U.S. at 270-271. As the Court explained

in Aguilar, 378 U.S. at 111, quoting Jones, 362 U.S.

at 271:

[When a search is based upon a magistrate’s,

rather than a police officer’s, determination of

probable cause, the reviewing courts will accept

evidence of a less “judicially competent or per-

suasive character than would have justified an

officer in acting on his own without a warrant,”

* * * and will sustain the judicial determination

so long as “there was substantial basis for [the

magistrate] to conclude that narcotics were prob-

ably present. ...”

A reasonable mistake exception to the exclusionary

rule in the case of evidence seized pursuant to a war-

rant would thus fully comport with the special status

the Court has attached to warrants in the past.

5. We do not suggest that the exclusionary rule is

never appropriate when a search has been conducted

pursuant to a warrant, or that the mere issuance of

a warrant wholly forecloses further inquiry into the

existence of probable cause. Even when a warrant has

been obtained, suppression of evidence may be justi-

fied if the factors relied on by the magistrate “were

so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable,”

Brown vy. Illinois, 422 U.S. at 610-611 (Powell, J.,

concurring), or if the warrant was procured in bad

faith or on the basis of material misrepresentations,

see Franks v. Delaware, 438 U.S. 154 (1978). See

also Gates, slip op. 19 (White, J., concurring).

For example, in Nathanson v. United States, 290

U.S. 41, 46 (1933), a search warrant was obtained

“ypon a mere affirmation of suspicion and belief with-

out any statement of adequate supporting facts.”

Similarly, in Aguilar v. Texas, 378 U.S. at 109 & n.1,

the warrant was based on a “bare-bones” affidavit

which, although averring probable cause, supplied no

supporting facts. While the officers who executed the

search warrants in Nathanson and Aguilar perhaps

acted in good faith, certainly no officer today could

reasonably rely on the validity of similar warrants

in light of the unambiguous legal authority condemn-

ing “bare-bones” affidavits. Application of the ex-

clusionary rule in such circumstances would be con-

sistent with its historic underpinnings. But as Pro-

. fessor Amsterdam has written, “the rule is a needed,

but grudgingly taken, medicament; no more should be

swallowed than is needed to combat the disease.”

Amsterdam, Search, Seizwre, and Section 2255: A

Comment, 112 U. Pa. L. Rev. 378, 389 (1964) .*

28In his concurring opinion in Gates, Justice White stated

that he would apply the exclusionary rule “when it is plainly

Manifestly, the rare circumstances that might jus-

tify exclusion of the fruits of a judicially-warranted

search are not present in the cases now before the

Court. In Leon, the police took meticulous care to

ensure that their conduct at all times comported with

constitutional requirements. First, rather than acting

precipitously based on an informant’s tip, the police

independently investigated the allegations in the tip

through extensive surveillance of respondents and

their various residences. When their surveillance con-

firmed the accuracy of much of the information pro-

vided in the tip, the police did not act on their own

initiative, but instead sought a warrant from a neu-

tral judicial officer.” Moreover, they provided the

evident that a magistrate or judge had no business issuing a

warrant” (slip op. 19). To the extent that this approach

would focus on the conduct of the issuing magistrate, it ap-

pears to be analytically contrary to the proposition that the

exclusionary rule is meant to deter police, not judicial, mis-

conduct. In practice, however the distinction may be of little

significance. In our view, those situations in which “a magis-

trate or judge had no business issuing a warrant” are prob-

ably coextensive with those situations in which “no well-

trained officer could reasonably have thought that a warrant

should issue” (ibid.). Thus, for exclusionary rule purposes,

the danger of a hypothetical “runaway” magistrate can effec-

tively be controlled by focusing on the objective reasonableness

of the conduct of law enforcement officers in applying for and

executing the search warrant. Of course, as we have noted

above (see page 60 note 22, supra), personal sanctions are

available to punish federal magistrates who are derelict in

their duties.

2 Because the officers’ suspicion in this case focused in part

on respondents’ various automobiles, the police were not con-

stitutionally obliged to obtain a warrant for that part of their

proposed search. See, e.g., Chambers v. Maroney, 399 U.S. 42

(1970). Their decision to seek prior judicial approval for the

search of the automobiles is indicative of the reasonableness

of their conduct.

judicial officer with every bit of information they

possessed that would assist him in making a reasoned,

independent decision. And they executed the warrant

properly and with no reason to be on notice that it

was not valid. In turn, the judge issuing the warrant

clearly had at least “reasonable cause to believe there

was reasonable cause.” H. Friendly, Benchmarks 261

(1967). In these circumstances, it would advance no

Fourth Amendment policy to suppress the seized

evidence.

While the kind of defect present in Sheppard is

quite different from that found by the court of ap-

peals in Leon, there too the Fourth Amendment would

not be well-served by suppression. Admittedly, the

search warrant was technically defective, and the

defect, had it been noticed, would have been obvious

to the issuing judge and to the officers as well.

Moreover, the defect could have been significant if,

for example, the police had attempted to exploit it by

searching for items, such as drugs, for which they

lacked probable cause and which the judge had not

intended to authorize. But no such abuses occurred

here. Instead, there is no question that the police had

probable cause to seize the items specified in the war-

rant application, it is undisputed that the judge thought

he was authorizine the police to conduct only the

search described in the warrant application, and it is

further undisputed that the police did in fact limit

their search to that for which they thought they had

valid authorization. The failure of the warrant to

specify the items to be seized was, in short, entirely

nonprejudicial to Sheppard’s right to be free from un-

reasonable searches and seizures. Under these cir-

cumstances, only a policy of attempting to deter even

a ee a

the most harmless human error could justify invoca-

tion of the exclusionary rule.” Such a policy would

bear not the slightest resemblance to the policies that

led to the exclusionary rule that the Court fashioned

in Weeks and Mapp.”

C. In Light Of The Exclusionary Rule’s Inability To

Fulfill Its Deterrent Purpose When Applied To Rea-

sonable Mistakes, Its Costs Are Higher Than Our

System Of Criminal Justice Can Afford

Many of the costs of the exclusionary rule have

been alluded to in previous sections of this brief.

Nevertheless, in completing the cost-benefit analysis

that we commend to the Court, it is appropriate to

recapitulate briefly the most obvious costs and to

elaborate more fully on some of the less evident ones.

First, the exclusionary rule excludes from con-

sideration at trial the very evidence that is most

relevant and trustworthy.” The rule thus subverts

* As previously noted (see page 44 note 11, supra), the ALI

has recognized that such a policy is inappropriate, and that

striking the proper balance requires an assessment of the sub-

stantiality of the violation.

= We recognize that the Court has not heretofore applied

the harmless error rule in considering the applicability of the

exclusionary rule, but the facts in Sheppard quite clearly jus-

tify such an approach. The harmless error rule has of course

long encompassed constitutional as well as non-constitutional

errors (see Chapman V. California, 386 U.S. 18, 22 (1967)),

the courts’ paramount truthfinding function. See, e.g.,

Stone v. Powell, 428 U.S. at 489; id. at 499-500

(Burger, C.J., concurring); Janis, 428 U.S, at 448-

449.

Second, the exclusionary rule directly benefits only

those who are unquestionably guilty. In the now-

famous words of Justice Cardozo, particularly apt to

consideration of a reasonable mistake exception, the

rule aliows “[t]he criminal * * * to go free because

the constable has blundered.”” People v. Defore, 242

N.Y. 18, 21, 150 N.E. 585, 587, cert. denied, 270 U.S.

657 (1926). The rule does nothing, however, to repair

injury to innocent victims of unreasonable searches.

While, judiciously applied, it may prevent future vio-

lations of constitutional rights, that objective can be

accomplished by limiting use of the suppression sanc-

tion to cases in which substantial deterrence of fu-

ture misconduct can realistically be expected.

Proponents of the exclusionary rule have argued

that only a very small number of guilty defendants

actually go free because of it, and that this is a small

price to pay to safeguard the Fourth Amendment

rights of all citizens.” In addition to the fact that the

freeing of even one guilty defendant by virtue of an

irrational application of the rule may exact a greater

cost than society should be expected to bear (see

pages 71-73, infra), this argument disregards evi-

dence that tends to demonstrate very real costs, in

numerical terms, of the rule’s operation.

It is no doubt true, as Justice White observed

(Gates, slip op. 12 (White, J., concurring)), that

* See, ¢.9., The Exclusionary Rule Bille: Hearings on S. 101,

S. 751 and S. 1995 Before the Subcomm, on Criminal Law of

the Senate Comm. on the Judiciary, ¥Tth Cong., 1st Sess. 35-37

(1981) (testimony ot stephen H. Sachs); 1 W. LaFave, Scarch

and Seizure § 1.2 n.9, at 1 (Supp. 1982).

“Twle will never know how many guilty defendants

go free as a result of the rule’s operation,” but still

certain conclusions are possible (id, at 12 n.13):

The effects of the exclusionary rule are often

felt before a case reaches trial. A recent study

by the National Institute of Justice of felony ar-

rests in California during the years 1976-1979

“found a major impact. of the exclusionary rule

on state prosecutions.” National Institute of

Justice, The Effects of the Exclusionary Rule: A

Study in California 2 (1982). The study found

that 4.8% of the more than 4,000 felony cases

declined for prosecution were rejected because of

search and seizure problems, The exclusionary

rule was found to have a particularly pronounced

effect in drug cases; prosecutors rejected approxi-

mately 30% of all felony drug arrests because

of search and seizure problems. ™!

* A 1979 study by the General Accounting Office concluded

that of all cases declined for prosecution by United States

Attorneys, Fourth Amendment search and seizure problems

were the primary reason for declination in only 0.4% of the

total. Comp. Gen, Rep. No. GGD-79-45, Impact of the Exclu-

sionary Rule on Federal Criminal Prosecutions 14 (1979)

{hereinafter cited as GAO Report]. Federal declinations may

be low, however, because relatively few federal cases involve

manifestly illegal searches. Assistant United States Attorneys

may thus choose to go forward in a significant number of cases

that have search and seizure problems that may be assessed as

troublesome but worth litigating. This hypothesis is borne out

by the frequency with which suppression motions are denied

(GAO Report, supra, at 10). Moreover, it was later deter-

mined that “[m]ost of the federal caseload at the time the

[GAO] study was conducted was composed of such white col-

lar crimes as embezzlement, fraud and forgery. Search and

Moreover, in cases in which prosecutors elect to pro-

ceed to trial despite successful suppression motions,

the resulting conviction rates are dramatically im-

paired. GAO Report, supra note 34, at 13.% Although

the systemic effects of the exclusionary rule have

never been fully calculated, the limited studies avail-

able thus demonstrate that a definite relationship ex-

ists between the suppression of evidence and the

prosecution’s ability to obtain a conviction.”

But even if the numerical impact of the exclusion-

ary rule were to be discounted, the rule exacts an ex-

ceedingly high societal cost. This Court has noted

that the exclusionary rule may well serve to lessen

pubiic respect for the judicial system. “Thus, al-

though the rule is thought to deter unlawful police

activity in part through the nurturing of respect for

Fourth Amendment values, if applied indiscrimi-

nately it may well have the opposite effect of generat-

® According to the GAO study, a conviction was obtained

in more than 84% of the cases in which a suppression motion

had been denied. The conviction rate dropped dramatically,

however, to about 50%, whenever a suppression motion had

been granted in whole or in part. GAO Report, supra note 34,

at 13.

* The deleterious effects of the exclusionary rule on law en-

forcement are exacerbated by its tendency in practice to free

the recidivist. As the NIJ study noted (NIJ Report, supra

note 34, at 2):

For most defendants, the arrest that ended in release be-

cause of the exclusionary i ule was only a single incident

in a longer criminal career.

ing disrespect for the law and administration of

justice.” Stone v. Powell, 428 U.S. at 490-491. More-

over, indiscriminate application of the exclusionary

rule may foster a public perception that the courts

are simply unaware of reality. See Bivens, 403 U.S.

at 415 (Burger, C.J., dissenting) (deterrence ration-

ale is “hardly more than a wistful dream”’) .”

In part, this problem of public perception arises

because the exclusionary rule, as currently applied,

lacks the vital ingredient of proportionality.” As the

Chief Justice observed in his concurrence in Stone v.

Powell, 428 U.S. at 490 (footnote omitted): “The

disparity in particular cases between the error com-

mitted by the police officer and the windfall afforded

a guilty defendant by application of the rule is con-

trary to the idea of proportionality that is essential to

the concept of justice.” This cost of the exclusion-

*7 It may be significant in this regard that “no other civilized

country has adopted our mandatory rule of the exclusion of

probative material evidence because of police misconduct.”

Wilkey, supra, 1 Crim. Just. Ethics at 28. Moreover, the deci-

sion of other countries not to adopt an exclusionary rule has

generally come after careful and deliberate study. See, e.g., id.

at 23-24 & 26-27 nn. 26-35.

** Prompted by the belief “that any remedy for the violation

of a constitutional right should be proportional to the magni-

tude of the violation,” the Attorney General’s Task Force on

Violent Crime has recommended the adoption of a reasonable

good-faith exception to the exclusionary rule. Attorney Gen-

eral’s Task Force on Violent Crime, Final Report 55-56 (1981).

* Judge Wilkey has made the same point, perhaps more

graphically, dissenting in United States v. Ross (655 F.2d at

1208), in language that foreshadows the Sheppard case:

[The] penalty [of the exclusionary rule] is administered

with a sense of proportionality reminiscent of those medi-

eval penal systems that prescribed capital punishment for

everything from pickpocketing on up. The rule falls mer-

ary rule is particularly evident in cases such as those

now before the Court, in which it cannot seriously be

urged that the police engaged in any misconduct. See

pages 48-49, 66-68, swpra. On the other hand, there

can be little doubt that the suppressed evidence, if ad-

mitted, would conclusively establish the respondents’

guilt.

The chilling effect on legitimate police activities is

another less visible but equally important cost specifi-

cally associated with suppression of evidence gar-

nered in good faith violations of the Fourth Amend-

ment. As the circumstances surrounding a particular

proposed course of action bring it closer to the irtdis-

tinct line often separating lawful from unlawful

searches or seizures, a relentless application of the

exclusionary rule is increasingly likely to deter the

former rather than the latter, since almost by defini-

tion this class of situations is as likely to involve legal

as illegal police activity. “To the extent the rule

operates to discourage police from reasonable and

proper investigative actions, it hinders the solution

and even the prevention of crime.” Gates, slip op.

cilessly on evidence deemed to have been seized uncon-

stitutionally, without regard for the gravity of the police

misconduct or the seriousness of the crime of which the

defendant has been charged. Even if the policeman’s ac-

tions were only marginally in violation of the Constitution

despite his good faith while the criminal is guilty of rape

and murder, still the evidence stays out. Such a dispro-

portion would be regarded as barbaric if used to deter

crime; ironically, employed to deter the police many ap-

parently consider it “progressive.”

“In addition, these are the very cases in which it is most

likely that courts would erroneously conclude that the Fourth

Amendment has been violated, with the unhappy result of sup-

pressing lawfully obtained evidence. See page 51 note 16,

supra.

12 (White, J., concurring). Once application of the

rule approaches the point at which it is as likely to

chill legitimate police action as to discourage mar-

ginally improper action, powerful justifications indeed

are needed to justify such results.”

Still another cost of the exclusionary rule is its

failure to provide any remedy for the innocent vic-

tims of unlawful searches and seizures. Even for the

criminal defendant, the primary effect of the rule’s

application—aiding him to secure an acquittal even

though he is guilty—does not itself repair the breach

of privacy that the Fourth Amendment protects. See

Calandra, 414 U.S. at 347; Linkletter v. Walker, 381

U.S. at 637. And the exclusionary rule is, of course,

an entirely meaningless “remedy” when the victim of

the unlawful search is never accused of a crime. See

Bivens, 403 U.S. at 410 (“[f]Jor people in Bivens’

shoes, it is damages or nothing’); id. at 415-416,

417-418 (Burger, C. J., dissenting).

A further cost of the exclusionary rule, often paid

insufficient attention, is the burden it places on the

judicial system. One-third of federal defendants go-

ing to trial file Fourth Amendment suppression mo-

tions, and 70% to 90% of these involve formal hear-

ings. GAO Report, supra note 34, at 10. Although

most of these motions are denied (ibid.), the effect on

judicial and prosecutorial resources is the same as if

“ The Court has recognized the same point in holding that

public officials enjoy at least qualified immunity in civil dam-

ages actions brought under 42 U.S.C. 1983. In Scheuer v.

Rhodes, 416 U.S, 232, 242 (1974), the Court observed:

Implicit in the idea that officials have some immunity—

absolute or qualified—for their acts, is a recognition that

they may err. The concept of immunity assumes this and

goes on to assume that it is better to risk some error and

— injury from such error than not to decide or act

the motions were meritorious. Significantly, the re-

sult of this diversion of resources from criminal trials

to pretrial motions may have its harshest impact on

innocent defendants. See United States v. Ross, 655

F.2d at 1205-1206 (Wilkey, J., dissenting) :

To understand how the innocent defendant is

victimized by the diversion of scarce resources

from criminal] trials to police discipline, it is nec-

essary briefly to consider how our criminal jus-

tice system now operates in fact, if not in theory.

* * * [It] ensures that more due process will be

required than the system can afford to pay for.

As a result, trials have now been priced too high

to be held in most circumstances * * *.

Instead, we have come increasingly to rely on

an informal system of negotiated settlements in

the form of plea bargained arrangements be-

tween prosecutor and defendant. The results are

woeful. Criminals guilty of grievous offenses

routinely are permitted to escape with convic-

tions for crimes far less serious carrying only

wrist-slapping penalties. Meanwhile innocent de-

fendants who might well have been vindicated at

trial are coerced into settling for a conviction on

a lesser charge * * *.

It is against this background that we must

measure the diversion of energy, talent and dol-

lars from the central task of fairly determining

the guilt and innocence of defendants into the

work of adjudicating whether the police have

blundered. * * * That function should be per-

formed elsewhere and by others. The exclusion-

ary remedy thus literally buys what little in the

way of Fourth Amendment protection it affords

at the cost of more trials for criminal defend-

ants. Even if the rule did a fair job of promoting

Fourth Amendment values, this would be at best

a questionable bargain,'™!

Finally, the exclusionary rule in the long run

threatens the very Fourth Amendment values it is

intended to safeguard. “If one were diabolically to

attempt to invent a rule sure slowly to undermine the

substantive reach of the Fourth Amendment, it would

be hard to do better than the exclusionary rule.”

United States v. Ross, 655 F.2d at 1206 (Wilkey, J.,

dissenting). This is because of the obvious reluctance

of judges to condemn questionable practices under the

Fourth Amendment when they know that the result

of their decision will be the freeing of a guilty de-

fendant, The Court has noted the same effect in con-

sidering the permissibility of a retrial under the Dou-

ble Jeopardy Clause (United States v. Tateo, 377

U.S, 463, 466 (1964) (emphasis added) ) :

Corresponding to the right of an accused to be

given a fair trial is the societal interest in punish-

ing one whose guilt is clear after he has obtained

“2 The workload generated by the exclusionary rule does not,

of course, cease at the trial court level. For example, Judge

Wilkey has pointed out that, over a three-year period, 22.1%

of the published opinions of the United States Court of Ap-

peals for the District of Columbia Circuit in criminal cases

involved suppression issues. Wilkey, Enforcing the Fourth

Amendment by Alternatives to the Exclusionary Rule, 95

F.R.D. 211, 220 (1982). Similarly, a substantial portion of

this Court’s criminal docket regularly involves Fourth Amend-

ment search and seizures issues. See page 51 note 16, supra.

This expenditure of judicial resources on suppression issues

continues unabated even though “the general principles appli-

cable to claims of Fourth Amendment violations are well set-

tled * * *.” Arkansas v.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.