# Brief for the United States — Massachusetts v. Sheppard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0064%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1984 - **Citation:** 468 U.S. 981 ## Text UNITED STATES OF AMERICA, PETITIONER Vv. ALBERTO ANTONIO LEON, ET AL. COMMONWEALTH OF MASSACHUSETTS, PETITIONER AS Vv. *, : OSBORNE SHEPPARD - 7 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) Ir 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) IV 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 Dl ier VI 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 Ix 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 v. 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) 2 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). 4 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 5 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 6 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). 7 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- S 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). 10 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 11 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- 12 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 18 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 14 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- 15 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 16 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). 17 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 18 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- 19 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 20 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 21 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- 22 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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- 31 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 32 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). 33 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- 34 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 35 (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. 36 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- 87 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); 38 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) .” 89 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. as 40 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.). 41 428 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- CC 42 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 43 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- 44 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). 45 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. 46 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 47 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). 48 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 49 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. 50 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). 51 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. 52 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] 53 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. 54 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. 55 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 56 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 57 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. Si [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0064%3A05. Public record. Not legal advice.