Amicus Brief — Colorado v. Quintero

Otmece Supreme Court, US,

| FILER

NO. 82-963

SEP 10 1985

NO. 82-1771 ALEXANDER L. STEVAS,

wes 7 meee RK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

COMMONWEALTH OF MASSACHUSETTS, Petitioner,

OSBORNE SHEPPARD, Respondent.

STATE OF COLORADO, Petitioner,

FIDEL QUINTERO, Respondent.

UNITED STATES OF AMERICA, Petitioner,

ALBERTO ANTONIO LEON, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of Massachusetts,

The Supreme Court of Colorado, and the United States

Court of Appeals for the Ninth Circuit, Respectively

BRIEF OF AMICI CURIAE,

SEVEN FORMER MEMBERS OF THE ATTORNEY

GENERAL’S TASK FORCE ON VIOLENT CRIME,

THE LEGAL FOUNDATION OF AMERICA,

AMERICANS FOR EFFECTIVE LAW ENFORCEMENT,

INC., ET AL.*, IN SUPPORT OF PETITIONERS

OF COUNSEL: DAVID L. CRUMP

WAYNE W. SCHMIDT The Legal Foundat'n of America

JAMES P. MANAK South Texas College of Law

Americans for Effective 1303 San Jacinto Street

Law Enforcement, Inc. Houston, Texas 77002

are no ea (713) 659-8040—Att’y of Rec'd

H. Wigmore Disting.

Prof. of Law, Emeritus FRANK G. CARRINGTON

Northwestern Univ. Hon. GRIFFIN B. BELL

SUSAN WAITE CRUMP Hon. JAMES R. THOMPSON

OTHER CO-AMICI:

THE STATE OF NORTH CAROLINA,

by Hon. Rufus L. Edmisten, Attorney General, and

David S. Crump, Deputy Attorney General;

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE;

CALIFORNIA PEACE OFFICERS ASSOCIATION,

COUNTY SHERIFFS OF COLORADO, and

MASSACHUSETTS ASSOCIATION OF CHIEFS OF POLICE,

As police associations from each of the

three States from which these cases arise;

ILLINOIS ASSOCIATION OF CHIEFS OF POLICE:

TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION,

by Tom Krampitz, Executive Director;

SOUTHEASTERN LEGAL FOUNDATION,

by Hon. Ben B. Blackburn, President; ard

VICTIM ASSISTANCE LEGAL ORGANIZATION, INC.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

BRIEF OF AMICI CURIAE :

INTEREST OF AMICI CURIAE 1

SUMMARY OF ARGUMENT 4

ARGUMENT 5

I. THE DETERRENCE THEORY DOES NOT JUS-

TIFY EXCLUSION OF EVIDENCE SEIZED REA-

SONABLY AND IN GOOD FAITH. )

A. A Person Cannot be Deterred Effectively if he

Cannot be Aware, With Reasonable Certainty,

What it is That he is to be Deterred From

Doing.

B. The Original Purpose of the Exclusionary

Rule was Addressed to Flagrant Police Miscon-

duct. 8

C. The Recognition of a Good Faith Exception

Will Not Impair Either the Deterrence That is

Attributed to the Exclusionary Rule or the

More Effective Deterrence That Actually Re-

sults From Other Remedies. 9

(1) Evidence resulting from bad-faith miscon-

duct will continue to be excluded, and

the law of search and seizure will con-

tinue to develop. g

(2) There exist more effective remedies

against police misconduct. 1l

II. A GOOD FAITH EXCEPTION IS FULLY CONSIS-

TENT WITH THE “JUDICIAL INTEGRITY”

RATIONALE. 12

A. The “Judicial Integrity” Rationale is not Served

by the Exclusion of Evidence Seized Reason-

ably and in Good Faith. Rather, the Needless

and Counterproductive Exclusion of Such Evi-

dence Itself Impairs Judicial Integrity. 12

(1) Impairment of judicial integrity through

the public impression of criminal law as

a mass of technicalities. 12

(2) Harm to judicial integrity because the

rule is generally disproportionate in its

effects to the violation. 13

(3) Impairment of judicial integrity by hap-

hazard results on guilt or innocence. 14

(4) Impairment of judicial integrity owing to

a demoralizing effect upon the honest and

conscientious police officer. 14

(5) Impairment of judicial integrity because

of the difficulty of a court’s performing a

task given to the executive, that of main-

taining detailed policies for police perfor-

mance. 16

(6) Impairment of judicial integrity by the

appearance of shifting and inconsistent

appellate decision-making. 16

(7) Impairment of judicial integrity by the

effect on the accused: The perceived irrele-

vance of guilt or innocence. 17

(8) Untruthful fact presentation to jurors by

-ii-

officers of the court. 18

B. The “Judicial Integrity” Rationale is Circular

When it is Used to Exclude Evidence Seized

Reasonably and in Good Faith. 18

CONCLUSION 18

TABLE OF AUTHORITIES

CASES

Alderman v. United States, 394 U. S. 164 (1969) 9

Arkansas v. Sanders, 442 U. S. 753 (1979) 17

Beck v. Ohio, 397 U. S. 89 (1964) 9

Bivens v. Six Unknown Agents, 403 U. S. 388 (1971) 13

Carrol v. U. S., 267 U. S. 132 (1925) 17

Chambers v. Maroney, 399 U. S. 42 (1970) 17

Chimel v. California, 395 U. S. 752 (1969) 17

Commonwealth v. Sheppard, 441 N. E. 2d 725 (Mass.

1982) 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971) S. 7, o3

Davis v. Mississippi, 394 U. S. 721 (1969) 9

Ehrlichman v. U. S., 546 F. 2d 910 (D. C. Cir. 1976) 9

Elkins v. U. S., 364 U. S. 206 (1960) 8

Harris v. New York, 401 U. S. 222 (1971) 17

Husty v. United States, 282 U.S. 694 (1931) 17

[llinois v. Gates, 51 U. S. L. W. 4709 (U.S. S. Ct. June 8,

1983) 1,8

Irvine v. California, 347 U. S. 128 (1954) 12

Mapp v. Ohio, 367 U. S. 643 (1961) 7,042

Michigan v. Tucker, 417 U. S. 433 (1974) 16, 17

Monnell v. Dep’t of Social Serv., 436 U. S. 658 (1978) 11

Olmstead v. U. S., 277 U. S. 438 (1928) 8

Owen v. City of Independence, 445 U.S. 622 (1980) 11

Owens v. Haas, 601 F. 2d 1242 (2nd Cir. 1979), cert.

denied sub nom. County of Nassau v. Owens,

444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407

(1979) 11

Preston v. United States, 376 U. S. 364 (1964) 17

Rose v. Lundy, 102 S. Ct. 1198 (1982) 6

Snyder v. Massachusetts, 291 U. S. 122 (1934) 13

Stone v. Powell, 428 U. S. 465 (1976) 16

Turpin v. Mailet, 619 F. 2d 196 (2nd Cir.); cert.

denied sub nom. Turpin v. West Haven, 449 U. S.

1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980) 1l

Texas v. White, 423 U. S. 67 (1975) 17

United States v. Calandra, 414 U. S. 338 (1974)

U. S. v. Ceccolini, 435 U. S. 368 (1978)

U. S. v. Mendenhall, 446 U. S. 554 (1980)

U. S. v. Peltier, 422 U. S. 531 (1975)

U. S. v. Rabinowitz, 339 U. S. 56 (1960)

U. S. v. Ross, 102 S. Ct. 2157 (1982)

U. S. v. Tucker, 404 U.S. 433 (1972)

U. S. v. Williams, 622 F. 2d 830 (5th Cir. 1980) (en

banc)

Webster v. City of Houston, 689 F. 2d 1220 (5th Cir.

1982)

STATUTES

42 U.S.C. Sec. 1983 (1964)

PERIODICALS, TREATISES AND

OTHER AUTHORITIES

F. L. BAILEY, THE DEFENSE NEVER RESTS (1968)

Bernardi, The Exclusionary Rule: Is a Good Faith

Standard Needed to Preserve a Liberal Interpreta-

tion of the Fourth Amendment? 30 De Paul L.

Rev. 51 (1980)

Brief for American Bar Association as Amicus Curiae at

17 in Gates v. Illinois, 51 U.S. L. W. 4709(U.S

S. Ct. June 8, 1983)

COMPTROLLER GENERAL OF THE UNITED STATES,

IMPACT OF THE EXCLUSIONARY RULE ON

FEDERAL CRIMINAL PROSECUTIONS, Rep.

No. CGD-79-45 (19 April 1979)

COUNCIL ON STATE GOVERNMENTS, DEFINITE

SENTENCING (1976)

W. O. DOUGLAS, THE COURT YEARS 387 (1980)

Interview with James Larkin, Assistant District Attorney

of Harris County, Texas, in Houston, Nov. 24, 1980

N. JOHNSON, L. SAVITZ & M. WOLFGANG, THE

SOCIOLOGY OF PUNISHMENT AND CORREC-

TION (1962)

S. KADISH & M. PAULSEN, CRIMINAL LAW AND

ITS PROCESSES (3rd ed. 1975)

-y-

passim

17

10

10

15

13

National Institute of Justice, The Effects of the Exclu-

sionary Rule: A Study in California (1982)

Oaks, Studying the Exclusionary Rule in Search &

Seizure, 37 U. CHI. L. REV. 665, 672, 678 (1970)

Rawitscher & Carnahan, Search and Seizure and

Suppression Proceedings, in STATE BAR OF

TEXAS ADVANCED CRIMINAL LAW COURSE

(D. Crump ed. 1979)

S. SCHLESINGER, EXCLUSIONARY INJUSTICE

50-57 (1977)

Shepard’s United States Citations, 1976 Supp., Vol. 4

Support for Exclusionary Rule Modification to

Provide for Admissibility of Evidence Obtained

by a Law Enforcement Officer Acting in Good

Faith, 1982: Hearings on S. 101, S. 751 and rele-

vant portions of S. 1995, Before the Subcommittee

on Criminal Law of the Senate Committee on the

Judiciary, 97th Cong., 2nd Sess. 226-27 (1982)

~] on

10

NO. 82-963

NO. 82-1711

NO. 82-1771

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

COMMONWEALTH OF MASSACHUSETTS, Petitioner,

v

OSBORNE SHEPPARD, Respondent.

STATE OF COLORADO, Petitioner,

v.

FIDEL QUINTERO, Respondent.

UNITED STATES OF AMERICA, Petitioner,

v

ALBERTO ANTONIO LEON, ET AL., Respondents.

BRIEF OF AMICI CURIAE,

SEVEN FORMER MEMBERS OF THE ATTORNEY

GENERAL’S TASK FORCE ON VIOLENT CRIME,

THE LEGAL FOUNDATION OF AMERICA,

AMERICANS FOR EFFECTIVE LAW ENFORCEMENT,

INC., ET AL.*, IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Because of their number,* amici will be described in groups.

* A similar group of amici appeared last term in Dlinois v. Gates, 51

U. S. L. W. 4709 (U. S. S. Ct. dume 8, 1983). At that time, the

Clerk’s office advised that as many amici as possible be consolidated

in a single brief to minimize imposition upon the Court. Amici here-

in have attempted to comply with that advice, and hence this brief

reflects the joinder of several different categories of amici.

Lp

I. Seven Former Members of the Task Force on Violent

Crime of the Attorney General of the United States. On April

10, 1981, the Attorney General of the United States convened a

Task Force on Violent Crime. The objective of the Task Force

was to make specific recommendations to the Attorney General

concerning ways in which the federal government could combat

violent crime.

Members of the Task Force were:

Honorable Griffin B. Bell, Esq., Former Attorney

General of the United States; Former Judge, U. S.

Court of Appeals for the Fifth Circuit, Co-Chairman.

Honorable James R. Thompson, Esq., Governor of

Illinois, Co-Chairman.

Honorable David L. Armstrong, Esq., District

Attorney, Jefferson County (Louisville) Kentucky.

Frank G. Carrington, Esq., Executive Director,

Crime Victims Legal Organization.

Robert L. Edwards, Director, Local Law Enforce-

ment Assistance, Florida Department of Law Enforce-

ment.

William L. Hart, Chief of Police, Detroit, Michigan.

Honorable Wilbur F. Littlefield, Public Defender,

Los Angeles County.

Professor James Q. Wilson, School of Government,

Harvard University.

One of the recommendations (No. 40) made to the Attor-

ney General by the Task Force read, in pertinent part:

In general, evidence should not be excluded

from a criminal proceeding if it has been ob-

tained by an officer acting in the reasonable,

good faith belief that it was in conformity to

the Fourth Amendment to the Constitution

_. . We recommend that the Attorney General

instruct United States Attorneys and the

-2-

Solicitor General urge this rule in appropriate

court proceedings, or support federal legisla-

tion establishing this rule, or both.*

The Task Force dissolved on August 17, 1981, when it

delivered its Final Report to the Attorney General. Thus, these

amici are not an official government body but a group of former

members. Amici hope, however, that, having taken lengthy testi-

mony about the Rule during hearings, they might be able to as-

sist this Court in reaching its conclusion.

Il. Peace Officers’ Associations and Related Groups. These

organizations are designed to promote and foster police and pro-

secutor professionalism on the n*tional and state levels. These

amici include organizations from each of the States from which

the present cases arise: The California Peace Officers’ Associa

tion, County Sheriffs of Colorado, and Massachusetts Association

of Chiefs of Police. In addition, these amici include the Inter-

national Association of Chiefs of Police, Inc., the Illinois Associa-

tion of Chiefs of Police, Inc., and the Texas District and County

Attorneys Association, which is an association of elected district

and county attorneys and their assistants in Texas.

~ IIL. Public Interest Law Centers. A number of centers,

foundations, and other organizations that engage in research,

litigation, education and public information on criminal justice

matters are co-amici on this brief. They include Americans for

Effective Law Enforcement, Inc.; The Legal Foundation of

America; Southeastern Legal Foundation, Inc.; and Victims’

Assistance Legal Organization, Inc.

* Mr. Littlefield dissented from this recommendation; hence, his name

is not associated with this brief. The Seven Members in the majority

were Messrs. Bell, Thompson, Armstrong, Carrington, Edwards, Hart

and Wilson, all of whom have requested that their names be asso-

ciated with this brief.

IV. Other Co-Amici: State of North Carolina, et. al. Amici

are also joined by the State of North Carolina, by and through

the Hon. Rufus L. Edmisten, Esq., Attorney General, State of

North Carolina, and David S. Crump, Esq., Deputy Attorney

General.*

SUMMARY OF ARGUMENT

The “Deterrence” Rationale. The deterrence theory does

not justify exclusion of evidence seized in good faith. The good

faith standard that is sought is one based upon objective reason-

ableness. Given the complexity of search and seizure law, it is

unlikely that greater deterrence can possibly result from the

current rule of universal exclusion. The rule was originally ad-

dressed to flagrant misconduct, and a good faith standard would

bring the law closer to its purposes. Such a standard would still

require exclusion of bad faith searches, the courts would con-

tinue to consider such cases, and such remedies as section 1983

actually provide a more effective deterrent in any event.

The ‘Judicial Integrity” Rationale. Judicial integrity is not

served by indiscriminate, universal exclusion. Without a good

faith exception, the exclusionary rule actually decreases public

respect for the courts. It (1) reinforces the public impression

that criminal law is composed of dysfunctional technicalities; (2)

is palpably disproportionate to the violation in many cases;

(3) creates haphazard results upon guilt or innocence; (4) de-

moralizes the conscientious officer; (5) makes executive branch

responsibility for police conduct more difficult to discharge;

(6) places appellate courts in ostensibly shifting and inconsis-

tent doctrinal positions; (7) encourages the accused to conclude

that guilt or innocence is irrelevant; and (8) forces officers of

the court to present facts untruthfully.

* Amici wish to acknowledge the assistance of law student Chris

Di Ferrante in the preparation of this brief.

ARGUMENT

I. THE DETERRENCE THEORY DOES NOT

JUSTIFY EXCLUSION OF EVIDENCE

SEIZED REASONABLY AND IN GOOD

FAITH.

It is to be emphasized that the good faith standard Petition-

ers are seeking is an objective standard. As one court said, in

adopting a similar objective standard,

[T]he [search] . . . must be grounded in objec-

tive reasonableness. It must therefore be based

upon articulable premises sufficient to cause

_.. @ reasonably trained officer to believe that

he was acting lawfully. Thus a series of broad-

cast breakins and searches carried out by a con-

stable—no matter how pure in heart—who had

never heard of the fourth amendment, could

never qualify. l

There is no evidence that the present universal rule of exclusion

accomplishes its purpose better than one based on objective good

faith, and in fact there is evidence to the contrary.”

1 Williams v. United States, 622 F. 2d 830 (5th Cir. 1980) (en

A. A person cannot be deterred effectively if he cannot be

aware, with reasonable certainty, what it is that he is to be

deterred from doing.

As a matter of logic, it is unrealistic to expect more effec-

tive deterrence of disfavored conduct from a universal rule of

exclusion than from one incorporating an objective good faith

standard. The complexity of search and seizure law makes it

unlikely that greater deterrence can possibly result.

The fragmentation of search and seizure opinions is ilu-

strated by the syllabus to United States v. Mendenhall, 446 U. S.

554 (1980):

Stewart, J., announced the court’s judgment

and delivered an opinion . . . . with respect to

Parts I, II-B, II-C, and III, in which Burger, C.

J., and Blackmun, Powell, aiid Rehnquist, JJ.,

joined. Powell, J., filed an opinion concurring

in part and concurring in the judgment, in

which Burger, ©. J., and Blackmun, J., joined.

White, J., filed a dissenting opinion in which

Brennan, Marshall, and Stevens, JJ., joined.

Amici submit that when Justices of the Court disagree over parts

and sub-parts of a ruling, it is unrealistic to expect that a police

officer, acting under the exigencies that are inherent in police

work, should have a superior knowledge of the legal concepts

that have split the Court. Such divisions are not unusual in

search and seizure law. See also, e.g., Rose v. Lundy, 102 S. Ct.

1198 (1982); Coolidge v. New Hampshire, 403 U. S. 443 (1971)3

Impact of the Exclusionary Rule on Federal Criminal Prosecu-

tions, Rep. No. CGD-79-45 (19 April 1979) (GAO Study);

National Institute of Justice, The Effects of the Exclusionary

Rule: A Study in California (1982).

delivered the opinion of the court except as to Part IILC, J.

Blackmun filed an opinion concurring in the judgment, J.

,%

These difficulties are aggravated by what might be called the

“pyramid effect.” Each opinion of this Court is at the apex of

our jurisprudence, and it is subsequently interpreted by federal

courts of appeal, federal district courts, state supreme courts,

state appellate courts and state trial courts. For example,

Shepard’s United States Citations, 1976 supplement, volume 4,

lists 42 entries from United States Reports and approximately

1200 lower court entries citing Mapp v. Ohio, alone. Each re-

interpretation shifts meanings, sometimes slightly, sometimes

significantly. A good faith exception would not avoid these

complexities, but it would recognize that all that can be expected

of a police officer is that he act reasonably and in good faith.

In fact, the universal exclusionary rule is likely to frustrate

the policy of deterrence in some instances. For example, it

contravenes the fourth amendment preference for warrants,

because it makes the showing of a valid search more difficult in

the case of a warrant.4 But more fundamentally, if the exclu-

sionary rule is applied indiscriminately to bad faith misconduct

post, p. 493. White, J., filed a concurring and dissenting

opinion, in which Burger, C. J., joined, post, p. 510.

and to reasonable, good-faith searches, it cannot have the educa-

tional function that its proponents attribute to it. It is more

likely to frustrate those who try to comply with it, and frustra-

tion is not an effective tool of either education or motivation.

B._ The original purpose of the exclusionary rule was addressed

to flagrant police misconduct.

Originally, the exclusionary rule was intended to deter “offi-

cial lawlessness in flagrant abuse” of the Constitution. 5 Mapp v.

Ohio, 367 U. S. 643, 655 (1961) (emphasis added). That the

criminal should go free was unfortunate, but it would be far

worse for courts “to declare that the Government may commit

crimes in order to secure the conviction of a private criminal

.... ” Elkins v. United States, 364 U. S. 206, 223 (1960)

(emphasis added), quoting from Olmstead v. United States, 277

U. S. 438, 485 (1928) (Brandeis, J. dissenting). ®

This was the original theory of the exclusionary rule. But

in recent years the rule has been applied in cases in which there

has been no police misconduct and in which the police have be-

haved reasonably in all respects, such as the cases at bar. Evi-

dence has been suppressed simply because the police, or the

magistrate upon whom they relied, made a reasonable judgment

as to some factual, practical matter, such as the existence of

probable cause, with which the court subsequently reviewing

their conduct disagreed. Recognition of a good faith exception

would go far toward bringing the rule back to its original pur-

pose.

to be free to decide fearlessly; to use a suppression remedy as a

“deterrent” to judges would be anomalous.

5 Much of this discussion originated with the Brief of Petitioner

State of Dlinois, Dlinois v. Gates, 51 U. S. L. W. 4709 (U. S.

S. Ct. Jume 8, 1983) (on rehearing).

6 The “judicial integrity” rationale supports the same view of the

exclusionary rule. See Part [1 of this Brief, infra.

$-

C. The recognition of a good faith exception will not impair

either the deterrence that is attributed to the exclusionary

rule or the more effective deterrence that actually results

from other remedies.

The recognition of a constitutional right does not imply

that any particular remedy is exclusive. This Court has always

recognized the difference between rights and remedies. It has

consistently attempted to choose remedies by pragmatic con-

siderations, rather than by doctrines bound to the right that is

to be enforced. The choice of one remedy rather than another

by a practical calculus of advantages and disadvantages has never

been thought to imply any devaluation of the right at issue, nor

should it here. /

(1) Evidence resulting from bad-faith misconduct

will continue to be excluded, and the law of

search and seizure will continue to develop.

The law of search and seizure is sufficiently clear in many

instances that its violation cannot be characterized as reasonable

or in good faith. Extreme examples would include arrests at will

of anyone who has previously been convicted of crime, cf. Beck

v. Ohio, 397 U. S. 89 (1964); dragnet arrests of anyone who

might be remotely suspected of crime, cf. Davis v. Mississippi,

394 U. S. 721 (1969); surreptitious violations of wiretap sta-

tutes, cf. Alderman v.-United States, 394 U. S. 165 (1969); or

unwarranted and unauthorized entry into private premises or

residences in the absence of any claim of exigent circumstances,

ef. Ehrlichman v, United States, 546 F. 2d 910 (D. C. Cir. 1976)

(denying good faith defense in criminal prosecution for govern-

ment official’s break-in of office). Amici applaud the basic prin-

ciples underlying such decisions, and we would point out that

7 The Memoirs of Mr. Justice Douglas indicate that the Court

DOUGLAS, THE COURT YEARS 387 (1980).

4.

there are many other situations in which the law is sufficiently

clear, or the violation sufficiently serious, that no one could con-

tend that a search or seizure was in good faith. In such clear

situations, exclusion of the evidence would follow because the

good faith exception advocated here simply would not apply.

For these reasons, the law of search and seizure will con-

tinue to develop after a good faith exception is adopted. Good

faith and reasonableness do not become relevant issues in the

case until there has been a determination in the first instance

that the law of search and seizure would otherwise require exclu-

sion. Furthermore, good faith and reasonableness are inseparable

from the development of the law, because the objective reason-

ableness of the officer’s conduct must always be tested against

the law. As one commentator has written, “A reasonable, good

faith standard, by retaining an objective element, permits, even

necessitates, judicial review.”’ 8 Opponents’ objections to the

effect that a good faith exception might make rulings on fourth

amendment issues “impossible,” cf. Brief for American Bar Asso-

ciation as Amicus Curiae at 17 in JIlinois v. Gates, 51 U.S. L. W.

4709 (U.S. S. Ct. June 8, 1983), are not well taken.

But perhaps the most convincing evidence that the good

faith exception would not lead to an atrophy of fourth amend-

ment values comes from the Fifth and Eleventh Circuits. Testi-

mony before the Congress, in its consideration of a statutory

alternative to the universal exclusionary rule, indicates no abuse

of the good faith exception adopted by both Circuits,? and both

8 Berardi, The Exclusionary Rule: Is a Good Faith Standard

Needed to Preserve a Liberal Interpretation of the Fourth

Amendment? 30 De Paul L. Rev. 51, 101 (1980).

9 Support for Exclusionary Rule Modification to Provide for

Admissibility of Evidence Obtained by a Law Enforcement

Officer Actirg in Good Faith, 1982: Hearings on S. 101, 8. 751

and relevant portions of S. 1995, before the Subcommittee on

Criminal Law of the Senste Committee on the Judiciary, 97th

Cong., 2nd Sess. 226-27 (1982).

-10-

have continued to decide search and seizure issues in a manner

that has continued the development of the law.

(2) There exist more effective remedies against

police misconduct.

In contrast to the inefficiency of a universal exclusionary

rule, 42 U. S. C. sec. 1983 (1964) (the civil rights damage sta-

tute) provides a highly effective deterrent. In situations involv-

ing bad faith searches, the damage remedy provides a powerful

punitive measure against individual officers. Furthermore, muni-

cipalities or other government entities do not have any defense of

good faith in 1983 actions. Owen v. City of Independence, 445

U. S. 622 (1980). They can thus be held liable for damages

caused by a search that is ultimately determined to be unlaw-

ful, even if they act in good faith. Claims against municipalities

are recognized if the damage is caused by an “official policy” of

the municipality,1° but an official policy need not be formal, and

it can be evidenced by such inactions as failure to train officers

properly, inadequate supervision, or toleration. 11 It should be

reiterated that a bad faith seizure would continue to require sup-

pression under the proposed approach, and thus whatever deter-

rence can result from suppression would be preserved; but what

is more significant is that the “pure hearted” constable referred

to above, who committed breakins because he had “‘never heard

of the fourth amendment,” would not only see the resulting

evidence suppressed, but would himself likely be liable in

damages and would make his municipality liable because he had

been inadequately trained.

10 Monell v. Dep’t of Social Serv., 436 U. S. 658 (1978).

11 Owens v. Haas, 601 F. 2d 1242 (2nd Cir. 1979), cert. denied

sub nom. County of Nassau v. Owens, 444 U. S. 980, 100 S. Ct.

483, 62 L. Ed. 2d 407 (1979); Turpin v. Mailet, 619 F. 2d 196

(2nd Cir.), cert. denied sub nom. Turpin v. West Haven, 449

U. S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980). See also

Webster v. City of Houston, 689 F. 2d 1220 (5th Cir. 1982).

24.

As this Court has said, ‘The disciplinary or educational ef-

fect of the court’s releasing the defendant for police misbehavior

is sO indirect as to be no more than a mild deterrent at best.”

Irvine v. California, 347 U. S. 128, 136-37 (1954) (plurality

opinion). While few remedies are perfect, the 1983 remedy is

far superior. It provides a direct protection to innocent victims

of unlawful police conduct, and in the case of municipal liability

it does so even if the unlawful acts are committed in good faith.

Furthermore, it places the onus on the person or entity whose

action caused the violation. The direct benefits of the exclusion-

ary rule are available only to guilty criminals, and perhaps more

importantly, the object of its punishment is the society at large.

II. A GOOD FAITH EXCEPTION IS FULLY

CONSISTENT WITH THE “JUDICIAL INTE-

GRITY” RATIONALE.

A. The “judicial integrity” rationale is not served by the exclu-

sion of evidence seized reasonably and in good faith.

Rather, the needless and counterproductive exclusion of

such evidence itself impairs judicial integrity.

A second principle that is sometimes said to underlie the ex-

clusionary rule is that courts should avoid the taint of illegally

seized evidence. E.g., Mapp v. Ohio, 367 U. S. 643 (1961).

Courts are nondemocratic institutions without independent en-

forcement mechanisms. If their orders are to prevail in unpopu-

lar as well as popular causes, they must have public respect.

To the extent that there is validity to this rationale, it is the

exclusion of evidence honestly and reasonably seized, not its

reception, that actually impairs judicial integrity.

(1) Impairment of judicial integrity through the

public impression of criminal law as a mass of

technicalities.

The first way in which the exclusion of honestly and reason-

ably seized evidence taints a court is by creating a public impres-

sion that the criminal law is a mass of dysfunctional technical-

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ities. This danger was articulated by Mr. Justice Cardozo in

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), as follows:

There is danger that the criminal law will be

brought into contempt—that discredit will

even touch the great immunities assured by the

Fourteenth Amendment—if gossamer possibili-

ties of prejudice are to nullify a sentence pro-

nounced by a court of competent jurisdiction

in obedience to local law, and set the guilty

free.

Although the error in Snyder was exclusion of the defendant

from the proceedings and an improper remark by the trial judge,

rather than an illegal seizure, the reasoning applies equally to the

cases at bar.

(2) Harm to judicial integrity because the rule is

generally disproportionate in its effects to the

violation.

Secondly, proportionality is such an important value in the

criminal law that it is typically examined by every first-year law

student. But the current enforcement of the exclusionary rule is

seriously inconsistent with this fundamental principle. Cf. S.

KADISH & M. PAULSEN, CRIMINAL LAW AND ITS PRO-

CESSES 155-67 (3rd ed. 1975). Such philosophers as Bentham,

Hart, Stephen, and Feinberg have emphasized the disrespect that

the law engenders when its response is disproportionate to the

severity of an alleged violation. Id. As Mr. Chief Justice Burger

said in dissent in Bivens v. Six Unknown Agents, 403 U. S. 388,

419 (1971), “Freeing either a tiger or a mouse in a schoolroom is

an illegal act, but no rational person would suggest that these two

acts should be punished in the same way.”

In one of the decisions below, a relatively slight and honest

oversight in conditions of great time pressure caused the exclu-

sion of crucial evidence gained by excellent police work, against a

murderer who burned the unconscious but living body of his vic-

tim with gasoline. Commonwealth v. Sheppard, 441 N. E. 2d

-]3-

725 (Mass. 1982). All who are affected by the case must feel

that this all-or-nothing approach is disproportionate.

(3) Impairment of judicial integrity by haphazard

results on guilt or innocence.

Third, exclusion of reasonably and honestly seized evidence

taints the criminal justice system by causing haphazard adjudica-

tion of guilt or innocence. Inconsistent results are sometimes un-

avoidable under the Constitution, but they should not be en-

couraged when unnecessary.

An incident that occurred several years ago in Harris County

(Houston), Texas illustrates the point. The District Attorney

presented seventy-three drug possession cases, some of which

were appropriate for no-bills because of searches that would re-

quire suppression, and some of which were appropriate for true

bills because of searches deemed valid. The grand jury, however,

no-billed all cases in both groups, in part because it was unable

to rationalize differential treatment of the persons involved on

the basis of what the grand jurors apparently regarded as ir-

rational distinctions. Interview with James Larkin, Assistant

District Attorney of Harris County, Texas, in Houston, Nov. 24,

1980. The haphazard adjudication that this grand jury impliedly

condemned would not be removed by a good faith exception,

but it would be lessened.

(4) Impairment of judicial integrity owing to a de-

moralizing effect upon the honest and con-

scientious police officer.

Fourth, exclusion of reasonably and honestly seized evi-

dence taints the courts by demoralizing the conscientious police

officer, making him less likely, not more likely, to understand

and follow fourth amendment decisions. Fourth amendment law

immediately dissolves into ambiguity in a concrete factual situa-

tion. The variety of probable cause judgments is infinite. It is

overlaid by a bewildering array of doctrines such as plain view,

stop and frisk, inventory, exigent circumstances, and consent.

Procedural considerations such as standing and burden of proof

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influence a variety of cases. The officer will see a seem ingly rea-

sonable seizure struck down in one case and a borderline one up-

held in the next.

Even experts complain that they cannot understand search

and seizure law. As two prominent criminal defense lawyers have

written,

In determining the balance, guidelines have

been spelled out by the Supreme Court. A

great deal of difficulty arises in applying the

many guidelines to a particular set of eee

[T]he decisions dealing with search and seizure

appear to be in a constant state of change.

Rawitscher & Carnahan, Search and Seizure and Suppression Pro-

ceedings, in STATE BAR OF TEXAS, ADVANCED CRIMINAL

LAW COURSE (D. Crump ed. 1979). If the decisions induce this

reaction in a criminal law scholar, they must resemble a roulette

wheel to the officer who risks his life in good faith, only to be

told that his conduct was “illegal” and must be “deterred” by

suppression. Research confirms what common sense suggests:

aberrational acts of misconduct are most common in situations

in which individuals, including police officers, perceive that they

are unlikely to obtain justice in the court system. CL. N.

JOHNSON, L. SAVITZ & M. WOLFGANG, THE SOCIOLOGY

OF PUNISHMENT AND CORRECTION 11 (1962).

The three cases at bar are an example. In Colorado v.

Quintero, it can only engender disrespect for courts if the offi-

cers are told they acted illegally, when they honestly and quite

reasonably made the judgment, in the field, that probable cause

existed, and their only other choice was to let the suspect leave

with property of victims that any ordinary person would con-

clude was stolen. In Leon and Sheppard, the officers acted on

the authority of warrants issued, from all that appears, by courts

acting as they sincerely deemed the law required; and for the

officers to fail to execute such a warrant would have been, itself,

an act of disobedience of a court order. Yet in response to their

obedience, the officers are told by the suppression order that

16.

their conduct was “willfully” unlawful, to use the words of

Michigan v. Tucker, 417 U. S. 433, 477 (1974).

(5) Impairment of judicial integrity because of the

difficulty of a court’s performing a task given

to the executive, that of maintaining detailed

policies for police performance.

The executive is the branch charged with supervision of the

details of law enforcement. Efforts by courts to maintain de-

tailed supervision of police performance are an erosion of the

separation of powers and are likely to impair the ability or moti-

vation of the executive to undertake the task. The essence of

professionalism is repeatable procedures, and the confusing over-

lay of doctrines in search and seizure frustrates the ability of the

executive to prescribe uniform conduct. It also dilutes the public

perception of the locus of responsibility. Furthermore, the

“secondhand” control of the exclusionary rule is simply in-

effective to supervise with the kind of detail the courts have

attempted, making the courts themselves appear ineffectual. If

the conduct is seriously inconsistent with law, suppression may

be more clearly justified, but this result would follow from the

recognition of a good faith exception.

(6) Impairment of judicial integrity by the appear-

ance of shifting and inconsistent appellate

decision-making.

Sixth, the present administration of the exclusionary rule

places appellate courts in ostensibly shifting and inconsistent

doctrinal positions. This Court has withheld suppression when

the illegality has been attenuated by intervening events, the

defendant has lacked standing, the challenge has arisen in a

habeas corpus action, use of the evidence was before the grand

jury, use was for impeachment, or the resulting arrest was used

to increase sentence in another case.}2 On occasion, doctrinal

12 United States v. Ceccolini, 435 U. S. 368 (1978); Stone v.

Powell, 428 U. S. 465 (1976); United States v. Peltier, 422 U. S.

-16-

justification fails to prevent the appearance of a zig-zag course;

this is especially so in cases involving vehicles taken to another

location, containers, and searches incident to arrest.12 These

difficulties are the natural result of practical efforts with con-

flicting policy, but they create a nagging suspicion that interpre-

tive principles cannot be reconciled with a reasonable view of the

fourth amendment. Often, the true reason for admitting evi-

dence is that the officer has acted honestly and reasonably, and

explicit recognition of this reason would bring the law into line

with its purposes.

(7) Impairment of judicial integrity by the effect

on the accused: The perceived irrelevance of

guilt or innocence.

Seventh, the exclusionary rule taints the criminal justice

system by inducing the accused to believe that his guilt or inno-

cence is not important. One popular author has written that

“innocence becomes less relevant’’ as the criminal justice system

progresses. F. L. BAILEY, THE DEFENSE NEVER RESTS 1

(1968). Disparate treatment creates cynicism in the accused.

It has been identified by wardens in some states as a greater cause

of prison unrest than food, overcrowding, or conditions of incar-

531 (1975); Michigan v. Tucker, 417 U. S. 433 (1974); United

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

Tucker, 404 U. S. 433 (1972); Harris v. New York, 401 U. S.

222 (1971).

13 With respect to automobile searches, compare Chambers v.

Maroney, 399 U. S. 42 (1970); Preston v. United States, 376

U. S. 364 (1964); Husty v. United States, 282 U. S. 694 (1931);

and Carroll v. United States, 267 U. S. 132 (1925) with Arkan-

sas v. Sanders, 442 U. S. 753 (1979); Texas v. White, 423 U. S.

67 (1975); Coolidge v. New Hampshire, 403 U. S. 42 (1971).

With respect to containers, compare United States v. Ross, 102

S. Ct. 2157 (1982) with Arkansas v. Saunders, 442 U. S. 753

(1979). As to searches incident to arrest, compare United

States v. Rabinowitz, 339 U. S. 56 (1960) (overruling prior

authority) with Chimel v. California, 395 U. S. 752 (1969)

(overruling Rabinowitz).

-17-

ceration. COUNCIL ON STATE GOVERNMENTS, DEFINITE

SENTENCING 10 (1976). Although this finding was stated in

the context of sentencing disparity, the same kind of prisoner

cynicism is likely to be generated when disparity is caused by the

exclusionary rule.

(8) Untruthful fact presentation to jurors by offi-

cers of the court.

Finally, the exclusion of reasonably and honestly seized

evidence taints the criminal justice system by presenting an un-

truthful impression to the trier of fact. A conscientious defense

lawyer is likely to argue to the jury that the government has not

presented sufficient evidence in a trial from which evidence has

been suppressed. He is likely to follow with criticism of the

government for prosecution of the case without the type of evi-

dence that is missing. }4

If the seizure is flagrantly improper, suppression may be

justifiable; however, a juror is likely to feel that he has been un-

fairly tricked if he learns that the truth has been hidden from

him by officers of the court notwithstanding a reasonable, good-

faith search. Perhaps the saddest effect of this misrepresentation

is its effect upon defense counsel. It is understandable that many

attorneys avoid the criminal defense practice because they do not

wish to be the tools of such deception.

B. The “judicial integrity” rationale is circular when it is used

to exclude evidence seized reasonably and in good faith.

The label of “‘illegality” in search and seizure law does not,

by itself, adjudge the integrity of the officer’s conduct. Often,

14 The “open door” or reply doctrine would allow prosecution

response if defense counsel referred by name to the specific

item suppressed, but through the exercise of minimal skill,

defense counsel can make a general enough reference to pre-

vent response and still get the point across.

-18-

the label is affixed in spite of recognition that an officer has

acted reasonably and sincerely (as in the present cases), and it

represents only a conclusion that the policies of the fourth

amendment would be best served in a pragmatic way by exclu-

sion or that case authority so interprets those policies. But when

a court has thus determined illegality without regard to the

actual propriety of the acts leading to the seizure, there is an ab-

sence of logic in the assertion that the label of “‘llegality”’ the

court has itself thus affixed to the evidence would undermine its

integrity. In these circumstances, in other words, it is circular to

say that judicial integrity demands exclusion.

CONCLUSION

The recognition of an objective good-faith standard is not

made inappropriate by the deterrence theory. The complexity

of search and seizure makes it unlikely that greater deterrence

can possibly result from universal exclusion. Bad faith searches

would still require exclusion, the courts would continue to con-

sider such cases, and such remedies as section 1983 actually pro-

vide more effective deterrence than exclusion in any event.

Furthermore, the recognition of a good-faith exception to

the judicially created rule of exclusion would not impair judicial

integrity. Instead, it is the unnecessary and counterproductive

exclusion of evidence seized reasonably and in good faith that

actually threatens to impair public respect for courts. The deci-

sions below should be reversed.

Respectfully submitted,

David Crump

The Legal Foundation of America

Professor of Law,

South Texas College of Law

1303 San Jacinto

Houston, Texas 77002

(713) 659-8040

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