Amicus Brief — United States v. Leon

No. 82-1771 NOY 14 1983

IN THE

SUPREME COURT OF THE UNITE

OCTOBER TERM, 1983

{.

‘

UNITED STATES OF AMERICA,

Petitioner,

v.

ALBERTO ANTONIO LEON, et al,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF RESPONDENTS

~ SONEY BERNSTEIN PROFESSOR JosEPH G. CooK

(Counsel of Record) (On the Brief)

TALMADGE, PESKIN, HARRIS Williford Gragg Professor

& FALICK of Law :

20 Vesey Street University of Tennessee

New York, New York 10007 School of Law

(212) 964-1390 1505 Cumberland Avenue

Davp S. S - 115) a7e gag 27916

President.

THE ASSOCIATION OF TRIAL

LAWYERS OF AMERICA *

1160 Suburban Station Boulevard

1617 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

(215) 568-7771

Attorneys for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST.

SUMMARY OF ARGUMENT.

ARGUMENT

I.

II.

THE

INDI

FOUR

A.

EXCLUSIONARY RULE IS AN

SPENSABLE COROLLARY TO THE

TH AMENDMENT. ; ,

The Fourth Amendment creates

a personal constitutional

right, and the exclusionary

rule says no more than that

the government should not

gain from the denial of that

right . s* be we

That the Fourth Amendment

does not by its terms pre-

Clude criminal convictions

based on illegally seized

evidence does not distin-

guish it from other con-

stitutional protections,

the deprivation of which

have required the reversal

of convictions.

THE ADOPTION OF A GOOD FAITH

EXCE

RULE

TO T

PTION TO THE EXCLUSIONARY

WOULD BE ANTITHETICAL

HE PROTECTION OF LIBERTY

MANDATED BY THE FOURTH AMEND-

MENT.

iii

me FI

-ll

22

33

-ii-

A. The adoption of a good

faith exception to the

exclusionary rule would

effectively diminish the

substantive protection

of the Fourth Amendment... 33

B. The adoption of a good

faith exception to the

exclusionary rule would

curtail the development

of Fourth Amendment law... 38

C. The adoption of a good

faith exception to the

exclusionary rule would

Significantly diminish

the motivation for in-

stitutions of law en-

forcement to govern

their conduct by Fourth

Amendment standards ..... 43

D. The adoption of a good

faith exception to the

exclusionary rule in

cases involving an im-

preperly issued warrant

would seriously erode

the protection of the

Fourth Amendment. ..... . 53

eo a ee

-iii-

TABLE OF AUTHORITIES

CASES

Aguilar v. Texas,

Bre Gees. Bee Capes) « « « 6 st ew eS, MH

Alderman v. United States,

See Gee BOD LEUOT) « « « « oh5, AG, 29

Ashwander v. T.V.A.,

Day wens wee teeee) «+ « «os 8 ee + ee

Beck v. Ohio, 4

Bee wanes Oe GCheeeke «¢ 0 -s 6 0 @ 1400 OF

Brown v. Board of Education,

oe x Me > Rt. | ) eee

Carroll v. United States,

, ge MS Oe: Bol.) eT

Chambers v. Maroney,

a ae, ae eee ss + © 2 6 6 + 8 & one

Chimel v. California,

Ore Dime Tee Gawee) « oc et we te et ke el ee

Cohen v. California,

nes Be REePEe., 5» « « & ¢-6 «© 688

Delaware v. Prouse,

440 U.S. 648

ceeeees « « « =e Oe Bee G4, 4, 4, 87

Franks v. Delaware,

a sie eee SEOPe) «6 6-6 «6 « «<0 oO

Gideon v. Wainwright,

ata U.S. Sao (1963) .... +. 6 32, 30

-iy-

Cases, Continued

Goode v. State, 41 Md.

398 A.2d 801 (1979)

Haynes v. Washington,

373 U.S. 503 (1963)

Henry v. United States,

361 U.S. 98 (1959).

Hill v. California,

401 U.S. 797 (1971)

Jones v. United States,

362 U.S. 257 (1960)

Katz v. United States,

389 U.S. 347 (1967)

Keenan v. State, 372 So.2d

Dist. Ct. App. 1979).

Mapp v. Ohio,

367 U.S. 643 (1961)

Payton v. New York,

445 U.S. 573 (1980)

App.

623,

1012 (Fla.

People v. Carlton, 81 Ill. App. 3d

738, 402 N.E.2d 310 (1981).

People v. John BB., 56 N.Y.2d 482,

438 N.E.2d 864, 453 N.Y.S.2d

158 (1982).

People v. Kunath, 99 Ill. App. 3d

201, 425 N.E.2d 486 (1981)

Pointer v. Texas,

380 U.S. 400 (1965)

-V-

Cases, Continued

Rakas v. Illinois,

439 U.S. 128 (1978)

Rochin v. California,

342 U.S. 165 (1952)

Shapiro v. State, 390 So.2d 344

(Fla. 1980), cert. denied

450 U.S. 982 (1981)

Silverthorne Lumber Co. v.

United States, 251 U.S. 385

(1920). a ee ee eee ee

Simmons v. United States,

390 U.S. 377 (1968)

Spano v. New York,

360 U.S. 377 (1959)

Spinelli v. United States,

393 U.S. 410 (1969)

State v. Coccomo, 177 N.J. Super.

575 427 A.2d 131(1980).

State v. Hilleshien,

291 N.W.2d 314 (Iowa 1980).

State v. Shankle, 58 Or. App. 134,

647 P.2d 959 (1982)

State v. Westbrook, 594 S.W.2d 741

(Tenn. Crim. App. 1979)

State v. Wilson, 388 So.2d 744

(La. 1980). ae ee

Stone v. Powell, 428 U.S. 465

[sevens © « ot See

.16,

15,

18

-35

.25

-22

16

28

.39

51

.50

-51

.50

-50

ol7, 27

-yvi-

Cases, Continued

Terry v. Ohio, 392 U.S. 1

C1960). « « « « « Oe Bee Oe ee

United States v. Bell, 464 F.2d 667

(2nd Cir.), cert. denied, 409 U.S.

991 (1972). L soe a6 eee

United States v. Clay, 638 F.2d 889

(Sth Cir.), cert. denied, 451 U.S.

917 (1981). | Cah — ee ae ae

United States v. Epperson, 454 F.2d

769 (4th Cir.), cert. denied, 406

U.S. 947 (1972) er

United States v. Lefkowitz,

285 U.S. 452 (1932)

United States v. Moreno, 475 F.2d 44

(5th Cir.), cert. denied, 414

U.S. 840 (1973) 7 a ce eeeee

United States v. Payner, 447 U.S.

727 (1980). A,

United States v. Payner, 434 F. Supp.

113 (N.D. Ohio 1977). ‘= whe

United States v. Pritchard,

645 F.2d 854 (10th Cir.), cer

denied, 454 U.S. 832 (1981)

ct

United States v. Ventresca,

380 U.S. 102 (1965)

Weeks v. United States,

aaa U.B. See theaal « « «2 «eee

Wolf v. Colorado, 338 U.S. 25

(1949). ‘6 meee

57

24

24

25

.54

.24

20

.20

~51

.54

31

.27

-vii-

CONSTITUTIONAL PROVISION

U.e« Comet. omeme. 707. « «+ © « «© ones

OTHER AUTHORITIES

Allen, The Judicial Quest for Penal

Justice: The Warren Court and the

Criminal Cases, 1975 Ill. L.F.

ee 6 6a a ae eee eee

Atkinson, Admissibility of Evidence

Obtained Through Unreasonable

Searches and Seizures, 25 Colum.

L. Rev. 11 (1925)

Cahn, Jurisprudence, 30 N.Y.L. Rev.

150 (1955). et ee ae ce, Ce

Cann & Egbert, The Exclusionary Rule:

Its Necessity in Constitutional

Democracy, 23 How. L.J. 299

(1980). ee ae ee ee ee

Cook, Constitutional Rights of the

Accused: Pretrial Rights pei

& Supp. De ° . . 7 > . 8,

Kamisar, A Defense of the Exclusionary

Rule, 15 Crim. L. Bull. 5

Tivrervs « o- = » sane Bee eee oe

Mertens & Wasserstrom, The Good Faith

Exception to the Exclusionary Rule:

Deregulating the Police and Derail-

ing the Law, 70 Geo. L.J. 365

eeea tt + wee ee « eee ae

55

-12

. 38

.58

. 26

43

-viii-

Other Authorities, Continued

Paulsen, The Exclusionary Rule and

Misconduct by the Police, 52 J.

Clam. be. & PscBs Bee Cameare 0 « 6 oe

Schrock & Welsh, Up from Calandra:

The Exclusionary Rule as a Con-

stitutional Requirement, 59 Minn.

ae ee. Bt.) ere ee ee ee

Wechsler, Principles, Politics and

Fundamental Law: Selected Essays,

“Toward Neutral Principles of

Constitutional Law" (1961). .. .58, 59

Comment, Applying Constitutional

Standards to Airport Security

Searches, 5 Loy. U. Chi. L.J.

gt! ee i a a ae a

Comment, Searching for Hijackers:

Consitutionality, Costs and

Alternatives, 40 U. Chi. L. Rev.

/ eo... |. i a er

No. 82-1771

In The

Supreme Court of the United States

October Term, 1983

UNITED STATES OF AMERICA,

Petitioner,

against

ALBERTO ANTONIO LEON, et al,

Respondents

On Writ of Certiorari to The United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE ON BEHALF OF

THE ASSOCIATION OF TRIAL LAWYERS

OF AMERICA

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST

The Association of Trial Lawyers of

America, founded 38 years ago, is a vol-

untary National Bar Association with a

membership exceeding 50,000 advocates of

a

whom 5,000, constituting the Criminal Law

Section, regularly appear in both state

and federal courts in defense of those

accused of crime. The men and women of

the Association, the largest trial bar in

the world, are pledged to the preserva-

tion of the American legal system, the

protection of individual rights and lib-

erties, and the evolution of the common

law. The Association, through its ap-

propriate officers and committees, has

authorized its participation in this case

as amicus curiae. This brief is filed

with the written consent of all the par-

ties.

The Association is vitally concerned

with this appeal, not only for the in-

stant case, but also for the effect the

decision in this case will have on simi-

lar cases now pending throughout the

=a.

country as well as on the development of

constitutional doctrine. Convinced that

the efficacy of the Fourth Amendment

protections depends on the unencumbered

viability of the exclusionary rule, the

Association believes that this case is of

Critical importance to its members and

their clients.

SUMMARY OF ARGUMENT

Opponents of the exclusionary rule

have chosen to identify its principal if

not sole purpose as the deterrence of

unconstitutional behavior by law enforce-

ment officers. Having thus characterized

the rule, they then place the onus upon

its defenders to demonstrate empirically

aie

that deterrence does result. While de

terrence of unconstitutional acts is

frequently demonstrable, though often

difficult to quantify, the debate on this

issue is largely a distraction from the

fundamental justificaton: the Fourth

Amendment provides for the liberty, pro-

perty and privacy of individuals, and the

exclusionary rule vindicates any depriva-

tion of those rights.

Never has it been suggested that a

utilitarian analysis be employed in re

gard to the enforcement of other consti-

tutional rights--for example, the exclu-

sion of illegally obtained confessions,

the right to confront one's accuser, or

the effective assistance of counsel. In

these and many other areas, once a con-

stitutional deprivation was found, no

reflection upon the deterrent effect of

SS

voiding the conviction has been consid-

ered appropriate. The fact that the

petitioner had been denied a constitu-

tional right was good and sufficient

reason for granting relief.

To speak in terms of balancing the

rights of the individual against soci-

ety's needs for law enforcement is mis-

placed in an analysis of the exclusionary

rule. The balancing process is applic-

able, and in fact necessary, in defining

the scope of the Fourth Amendment. When

the balancing analysis is applied to the

exclusionary rule an ominous result oc-

curs: unconstitutional actions on the

part of law enforcement officers are

condoned. This Court has never held that

practical needs could justify govern-

mental acts that are unconstitutional.

While it is accurate to say that the

atte

exclusionary rule is not explicit in the

Fourth Amendment, this in no way dis-

tinguishes the Fourth Amendment’ from

other provisions in the Bill of Rights.

Read literally, nothing in the panoply of

constitutional guarantees for those ac-

cused of crime specifies the remedy for a

deprivation. The implication, however,

has always been clear: a criminal convic-

tion cannot stand if achieved at the cost

of violating the constitution. Illegally

obtained confessions may not be admitted

into evidence, Spano v. New York, 360

U.S. 315 (1959), and a conviction ob-

tained in violation of the right to coun-

sel cannot stand, Gideon v. Wainwright,

372 U.S. 335 (1963); even though no pro-

vision in the Bill of Rights makes these

results mandatory.

m2

The adoption of a good faith excep-

tion to the exclusionary rule would seri-

ously curtail the development of Fourth

Amendment law. The landmark cases defin-

ing the scope of the Fourth Amendment

have reached this Court only because

convictions were obtained on evidence

allegedly seized unconstitutionally. In

some of the cases the government pre.

vailed while in others the accused was

vindicated. But if a good faith excep-

tion to the exclusionary rule had been

applicable, the constitutional question

might have been avoided altogether.

Furthermore, the likelihood of the appli-

cability of a good faith exception may in

Many cases remove the incentive to ap-

peal, thus denying this Court the oppor-

tunity to clarify permissible law en-

forcement behavior. Such would likely

-

have been tthe result in Terry v. Ohio,

392 U.S. 1 (1968), in which the Court

articulated constitutional guidelines for

field investigation procedures where none

had previously existed. Every jurisdic-

tion has relied on the announced Terry

standards and, overwhelmingly, the gov-

ernment has prevailed. See Cook, Consti-

tutional Rights of the Accused: Pretrial

Rights s7, at 55 n.10 (1972 and Supp.).

Adoption of a good faith exception to

the exclusionary rule would also signifi-

cantly reduce the incentive for law en.

forcement institutions to govern their

conduct by Fourth Amendment standards.

In Delaware v. Prouse, 440 U.S. 648

(1979) this Court reversed the drug re

lated conviction, holding that random

stopping of cars for driver's license

checks was unconstitutional. However,

atten

the Cowrt took the opportunity to note

that stops which eliminated the potential,

for the “unbridled discretion" of the

officers would be constitutional. Had

the conviction been allowed to stand

because of the good faith of the ar-

resting officer, the decision might well

be interpreted to mean that random ve.

hicle stops, though unconstitutional,

were permissible so long as the officer

acted in good faith. While disingenuous-

ness on the part of law enforcement of-

ficials may not be tolerated, ignorance

of the law may lead to the same result.

Ostensibly, the case now before this

Court presents the most appealing situa-

tion in which to apply the good faith

exception to the exclusionary rule. The

officer sought and obtained a warrant

tt.

before carrying out the search and there-

fore had every reason to believe - the

search was constitutional. Indeed, it

could be argued that every search made

pursuant to a warrant, except for the

rare case of fraud or collusion, is made

in good faith. Thus evidence so obtained

would be admissible, not because sup-

ported by probable cause but rather he-

cause made in good faith. Such a result

could hardly be more antithetical to the

Fourth Amendment. A warrant issued with-

out the requisite probable cause is con-

Stitutionally void as this Court has

held. Good faith is not interchangeable

with probable cause. Terry v. Ohio, 392

U.S. 1 (1968); Beck v. Ohio, 379 U.S. 89

(1964). To admit evidence seized under a

Warrant unsupported by probable cause

Ate

would substitute good faith for the ex-

plicit requirements of the Fourth Amend-

ment and render judicial review of war-

rant affidavits superfluous absent = an

allegation of bad faith on the part of

the officer or the issuing magistrate.

ARGUMENT

I. THE EXCLUSIONARY RULE IS AN_ INDIS-

PENSABLE COROLLARY TO THE FOURTH

AMENDMENT.

A. The Fourth Amendment creates a

personal constitutional fright,

and the exclusionary rule says

no more than that the government

should not gain from the denial

of that right.

The Justices who held in Weeks v.

United States, 232 U.S. 383 (1914) that.

evidence obtained in violation of the

Fourth Amendment was inadmissible in

federal prosecutions would “be quite

surprised to learn that some day the

value of the exclusionary rule would be

“| =

measured by--and the very life of the

rule might depend on--an empirical evalu-

ation of its efficacy in deterring police

conduct." Kamisar, A Defense of the

Exclusionary Rule, 15 Crim. L. Bull. 5

(1979). Rather, the exclusionary rule as

Originally articulated by this Court,

rested on “a principled basis rather than

an empirical proposition." Allen, The

Judicial Quest for Penal Justice: The

Warren Court and the Criminal Cases, 1975

cG

lil. L. Ff. 518, 536-37.

In Weeks, this Court said:

The effect of the Fourth

Amendment is to put the courts

of the United States and Federal

officials, in the exercise of

their power and authority, under

the limitations and restraints

as to the exercise of such power

and authority, .. . The ten-

dency of those who execute the

Criminal laws ... to obtain

conviction by means of unlawful

seizures .. . should find no

sanction in the judgments of Lhe

courts which are charged at all

ae.

times with the support of the

Constitution and to which people

of all conditions have a right

to appeal for the maintenance of

such fundamental rights.

The efforts of the courts

and their officials to bring the

guilty to punishment... are

not to be aided by the sacrifice

of {Fourth Amendment } prin-

ciples. - « «TO sanction such

proceedings would be to affirm

by judicial decision a manifest

neglect if not an open defiance

of the prohibitions of the Con-

stitution, intended for the

protection of the people against

such unauthorized action.

Weeks v. United States, 232 U.S. 383,

391-92, 393-94 (1914). See also Schrock

& Welsh, Up from Calandra: The Exclu-

Sionary Rule as a Constitutional Require-

ment, 59 Minn. L. Rev. 251, 357-60

(1974); Mertens & Wasserstrom, The Good

4

Faith Exception to the Exclusionary Rule:

Deregulating the Police and Derailing the

Law, 70 Geo. L.J. 365, 377-78 (1981).

-14-

While the exclusionary rule deters uncon-

Stitutional police behavior (see IIC,

infra), deterrence is an ancillary bene-

fit of the rule. Opponents of the ex-

clusionary rule have chosen to identify

its principal, if not sole purpose as the

deterrence of unconstitutional behavior

by law enforcement officers. The debate

regarding deterrence diverts attention

from the fundamental justification for

the exclusionary rule: the Fourth Amend-

ment provides protection for the liberty,

property and privacy of individuals, and

the exclusionary rule vindicates any

deprivation of these rights.

The Fourth Amendment protects “[t]jhe

right of the people to be secure in their

persons, houses, papers, and effects,

against unreasonable searches and sei-

zures." U.S. Const. amend. IV. Like the

-15-

other provisions of the Bill of Rights,

it recognizes a personal right and prohi-

bits the violation of that right by the

government. Id. The personal nature of

the right protected by the Fourth Amend-

ment has been acknowledged repeatedly by

this Court in cases addressing the Fourth

Amendment standing doctrine. Alderman v.

United States, 394 U.S. 165, 171-72, 174

(1969) (“We adhere ... to the general

rule that Fourth Amendment rights are

personal rights which, like some other

constitutional rights, may not be vicari-

ously asserted." Id. at 174); Simmons v.

United States, 390 U.S. 377, 389 (1968)

("{Rjights assured by the Fourth Amend-

ment are personal rights, and... they

may be enforced by exclusion of evidence

only at the instance of one whose own

protection was infringed by the search

-16-

and seizure.” Id. at 389).

More recently in Rakas v. Illinois,

439 U.S. 128 (1978), this Court, while

ostensibly eliminating standing as a

distinct inquiry in Fourth Amendment

cases, emphasized the personal nature of

the protected interest. In Rakas, the

defendants sought suppression of evidence

obtained in a search of Lhe automobile in

which they were passengers. The Court

"reaffirmed the principle that the

‘rights assured by the Fourth Amendment

are personal rights [which] ... may be

enforced by exclusion of evidence only at

the instance of one whose own protection

was infringed by the search and sei-

zure,'" Simmons v. United States, 390

U.8., et 369 .... .° Jay Ot O58.

Notwithstanding the consistently

reaffirmed recognition that the Fourth

|

Amendment protects a personal constitu-

tional right, more recently this Court

has expressed the view that the exclu-

Sionary rule is not itself an aspect of

that right. Stone v. Powell, 428 U.S.

465 (1976). Rather, this Court has taken

the view that “(t]he primary justifica-

tion for the exclusionary rule... is

the deterrence of police conduct that

violates Fourth Amendment rights." Id.

at 486. The constitutional history of

the Fourth Amendment, however, counsels

that this assumption be reassessed.

The requirement of a personal in-

terest, whether recognized as a standing

requirement or as part of the constitu-

tional protection itself, is strong indi-

cation that the primary purpose for the

exclusion of illegally seized evidence is

not to deter police misconduct. Were

5"

this the case, the focus of attention

would be primarily upon the actions of

the law enforcement officers, not upon

the party raising the objection. If the

purpose of the exclusionary rule was to

effectuate deterrence, this Court should

have abolished the personal interest

requirement in cases such as Alderman v.

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

Rakas v. Illinois, 439 U.S. 128 (1978),

In Alderman, elimination of the standing

requirement clearly would have fostered

deterrence, but this Court explicitly

rejected that course:

The deterrent value of . pre-

venting the incrimination of

those whose rights the police

have violated has been’ con-

sidered sufficient to justify

the suppression of probative

evidence even though the case

against the defendant is weak-

ened or destroyed ... But we

oi@s

are not convinced that the addi-

tional benefits of extending the

exclusionary rule to other de-

fendants would justify further

encroachment upon the_- public

interest in prosecuting those

accused of crime and having them

acquitted or convicted on the

basis of all the evidence which

exposes the truth.

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

174-75 (1969).

Indeed, if deterring unconstitutional

police activity were the dispositive

factor in applying the exclusionary rule,

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

(1980), presented a most compelling case

for the exclusion of evidence. In

Payner, the trial court found that, as a

Matter of strategy in tax investigations,

"the Government affirmatively counsels

its agents that the Fourth Amendment

standing limitations permits them to

purposefully conduct an unconstitutional

search and seizure of one individual in

-20-

order to obtain evidence against third

parties, who are the sole targets of the

governmental instrusion, and that the IRS

agents in this case acted, and will act

in the future, according to that coun-

sel." United States v. Payner, 434 FPF.

Supp. 113, 132-33 (N.D. Ohio 1977). The

deterrent effect of excluding evidence so

obtained is apparent, but this Court

refused to apply the exclusionary rule

holding, ‘“{ojurc Fourth Amendment deci-

sions have established beyond any doubt

that the interest in deterring illegal

searches does not justify the exclusion

of tainted evidence at the instance of a

party who was not the victim of the chal-

lenged practices." United States v.

Payner, 447 U.S. 727, 735 (1980).

The assumption that deterrence is the

=i

“primary justification* for the exclu-

Sionary rule is therefore difficult to

reconcile with, first, this Court's enm-

phasis on the personal nature of the

Fourth Amendment protection and, second,

its frequent refusal to exclude evidence

where the deterrent effect of doing so

was clear. Moreover, there is a lack of

constitutional justification for treating

deterrence as the “primary justification”

for the exclusionary rule. Although the

rigorous protection of constitutional

rights inevitably entails the repudiation

of official conduct which violates those

rights, surely the pre-eminent reason for

affording judicial relief is the mere

fact that a right has been violated.

Fourth Amendment claims offer nothing

unique in this regard. An accused denied

the Sixth Amendment right to counsel in a

; 2

Criminal prosecution will have his con-

viction reversed solely because he has

been denied a fundamental right. Gideon

v. Wainwright, 372 U.S. 335 (1963). A

salutary result of this decision may be

to deter future courts from trying an

accused without the assistance of coun-

sel. But to justify the decision one

need go no further than to observe that

the party involved was denied a federal

constitutional right. When a confession

is suppressed because obtained by uncon-

stitutional means, the effect of the

decision will be to alter law enforcement

practices to comply with articulated

constitutioual standards, but the primary

justification for the holding is the

vindication of.rights protected by the

Pifth, Sixth and/or Fourteenth Amend-

ments. When this Court sustained the

atte

right of a draft protester to carry a

potentially offensive placard through the

corridors of a court house in Cohen v.

California, 403 U.S. 15 (1971), the deci-

sion may have encouraged greater govern-

mental tolerance for unpopular and con-

frontational views, but the vindication

of the First Amendment right of the peti-

tioner was important enough, standing

alone to support the decision. Cohen v.

California, 403 U.S. 15, 24-25 (1971).

Proponents of modifying the exclu-

sionary rule make the argument that indi-

vidual rights must be balanced against

societal needs for law enforcement. In

its place, this is not only a plausible

argument, but a central theme in this

Court's interpretation of the Fourth

Amendment. It is central to Chief Jus-

tice Warren's opinion for this Court in

«24<

Terry v. Ohio, 392 U.S. 1 (1968), legiti-'

mizing brief detention and frisks not-

withstanding the absence of probable

cause. The need to enforce prohibition

laws generated an exception to the war-

rant requirement. See Carroll v. United

States, 267 U.S. 132 (1925). The felt

necessities of the times have sustained

the practice of searching all persons

boarding commercial air flights even

though such practices would clearly have

violated the Fourth Amendment in an

earlier era. See e.g., United States v.

te

Clay, 638 F.2d 889 (Sth Cir.), cer

denied, 45] U.S. 917 (1981); United

States v. Moreno, 475 F.2d 44 (5th Cir.),

cert. denied, 414 U.S. 840 (1973); United

States v. Bell, 464 F.2d 667 (2d Cir.),

cert. denied, 409 U.S. 99] (1972); United

States v. Epperson, 454 F.2d 769 (4th

x =

Cir.), cert. denied, 406 U.S. 947 (1972)

Shapiro v. State, 390 So.2d 344 (Fla.

1980), cert. denied, 450 U.S. 982 (1981);

See generally Comment, Applying Constitu-

tional Standards to Airport Security

Searches, 5 Loy. U. Chi. L. J. 166

(1974); Comment, Searching for Hijackers:

Constitutionality, Costs, and Alterna-

tives, 40 U. Chi. L. Rev. 383 (1973).

In all these cases, however, the

balancing process was employed in defin-

ing the scope of the protection of the

Fourth Amendment. When used to support a

modification of the exclusionary rule,

however, something quite different is at

issue. The argument is not that the

Fourth Amendment protection should be

tempered but that unconstitutional ac-

tions on the part of law enforcement

alts

officers should be condoned. Never be-

fore has this Court held that practical

needs could excuse governmental acts

which were concededly unconstitutional.

wn

©

e Cann & Egbert, The Exclusionary Rule:

ol

ct

n

Necessity in Constitutional Demo-

cracy, 23 How. L.J. 299, 319-20 (1980).

While it is implicit in virtually

every action of this Court that behavior

of parties other than those before the

Court will be modified in an effort to

comply with the Court's interpretation of

the constitution, the primary concern of

the Court is, and must be, whether con-

stitutional standards have been satisfied

in the case before it. If the government

is found to have violated an individual's

constitutional right, the government

should not benefit from its wrong. To

say that evidence seized in violation of

i?

the Fourth Amendment may not be used to

convict an accused is most notable for

its obviousness.

B. That the Fourth Amendment does

not by its terms preclude crim-

inal convictions based on illeg-

ally seized evidence does not

distinguish it from other con-

stitutional protections, the

deprivation of which have _ re-

quired the reversal of convic-

tions.

Efforts to belittle the constitu-

tional significance of the exclusionary

rule have been encouraged by this Court's

observation that it is but a “matter of

judicial implication," Wolf v. Colorado,

338 U.S. 25, 28 (1949). More recently,

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

this Court expressed the belief “that the

{exclusionary} rule is not a personal

constitutional right," but rather ‘a

judicially created remedy designed to

= ©

safeguard Fourth Amendment rights gene-

rally through its deterrent effect

"Id. at 486. (quoting United States v.

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

That these declarations are accurate is

undeniable, but their significance is

something less than might initially ap-

pear. While the Fourth Amendment con-

tains no exclusionary rule, neither does

any other provision of the Bill of

Rights. Nowhere in the constitution does

it say that illegally obtained confes-

sions may not be admitted in evidence.

Indeed, confessions are not mentioned in

the constitution at all. Yet in Spano v.

New York, 360 U.S. 315 (1959), this Court

dig not hesitate to order such evidence

excluded, specifically noting that:

abhorrence .. . to the use of

involuntary confessions does not

turn alone on their inherent

untrustworthiness. It also

o

turns on the deeprooted feeling

that the police must obey the

law while enforcing the _ law;

that in the end life and liberty

can be as much endangered from

illegal methods to convict those

thought to be criminals as from

the actual criminals themselves.

Id. at 320-21. See Kamisar, supra at

18-20. Nowhere in the Sixth Amendment

does it say that when the accused has

been denied the right of confrontation

regarding a particular statement, such is

to be excluded. But a conviction was

reversed in Pointer v. Texas, 380 U.S.

400 (1965) upon a finding that “the Sixth

Amendment's right of an accused to con-

front the witness against him is ...a

fundamental right and is made obligatory

on the States by the Fourteenth Amend-

ment." Id. at 403. Nowhere in the Sixth

Amendment does it say that a conviction

obtained in violation of the right to

counsel cannot stand. But such was the

«3G

result in Gideon v. Wainwright, 372 U.S.

335 (1963), as well as hundreds of deci-

sions following in its wake. In each of

these instances, and many others, once

this Court has found the substance of a

constitutional right has been denied, the

impropriety of permitting the government

the advantage of the deprivation has been

so self-evident that the question is

rarely raised outside the context of

harmless error.

Indeed, to say that the exclusionary

rule is but a “matter of judicial impli-

cation* is to do little more than to

describe the function of this Court in

constitutional interpretation. As Pro-

fessor Kamisar has noted, disparaging the

exclusionary rule as “judicial impli-

cation*® is not ‘much of a point

unless “somebody can cite me one Supreme

bis

Court case interpreting the Constitution

that is not ‘a matter of judicial impli-

cation.'* Kamisar, supra at 16. Indeed,

this Court “cannot escape the demands of

judging or making difficult appraisals."

Haynes v. Washington, 373 U.S. 503, 515

(1963). It is its task to determine what

the constitution commands beyond that

which it literally says. The rationale

for the exclusionary rule was forth-

rightly explained in Weeks: ‘If letters

and private documents can thus be seized

and held and used in evidence against a

citizen accused of an offense, the pro-

tection of the Fourth Amendment ... is

of no value, and, .. . might as well be

stricken from the Constitution." Weeks

v. United States, 232 U.S. 383, 393

(1914). That Court was unaware of any

extraordinary ‘judicial implication" on

-32-

its part when it concluded that ‘“[(t)he

efforts of the courts and their officials

to bring the guilty to punishment

are not to be aided by the sacrifice of

{Fourth Amendment] principles." Id. at

393. Six years later, Justice Holmes

“found this reasoning compelling in speak-

ing for the Court: “The essence of a

provision forbidding the acquisition of

evidence in a certain way is that not

merely evidence so acquired shall not [ez

used before the Court but that it shall

not be used at all.“ Silverthorne Lumber

Co. v. United States, 251 U.S. 385, 392

(1920). Indeed, the application of the

exclusionary rule after the fact of the

constitutional violation is conceptually

indistinguishable from the requirement

that the Fourth Amendment protections be

complied with prior to the issuance of a

a%Su

Warrant to prevent a constitutional viol-

ation. In the latter case, a violation

of the Fourth Amendment may be fore-

stalled; in the former, the design is to

resume the status quo ante, as if the

search had not occurred.

II. THE ADOPTION OF A GOOD FAITH EXCEP-

TION TO THE EXCLUSIONARY RULE WOULD

BE ANTITHETICAL TO THE PROTECTION OF

LIBERTY MANDATED BY THE FOURTH AMEND-

MENT

A. The adoption of a good faith

exception to the exclusionary

rule would effectively diminish

the substantive protection of

the Fourth Amendment.

The refusal of a court to exclude

evidence from a criminal trial when that

evidence has been obtained as the result

of a violation of the Fourth Amendment,

is nothing less than a refusal to honor a

constitutional right. This is true even

if a civil rights action is available to

vindicate the deprivation, or if internal

~34-

disciplinary sanctions are invoked

against the offending officer. If the

evidence is used to convict, then the

constitutional right, that is the con-

stitutional limitation upon governmental

action, has been denied. The logic of

the foregoing has never been questioned

in the context of confessions: an in-

voluntary confession may not be in-

troduced in evidence. That the events

that produced the confession might giv’

rise to a tort claim, or an action for

damages for the deprivation of a civil

right, or the disciplining of the respon-

Sible officials, has no bearing on the

admissibility of the confession at a

criminal trial.

No member of this Court has taken the

view that under no circumstances should

illegally seized evidence be excluded.

ae.

Justice Frankfurter dissented from the

holding of this Court in Mapp v. Ohio,

367 U.S. 643 (1961), yet he wrote for a

unanimous Court in Rochin v. California,

342 U.S. 165 (1952), excluding evidence

obtained by non-consensual stomach pump-

ing. The lesson of Rochin is that at

some point, any constitutionally sensi-

tive judge “will not care about or even

think about ‘alternatives' to the remedy

of exclusion; he will exclude the evi-

dence however logically relevant and

verifiable it be, or, if the court below

admitted it, he simply will not let the

conviction stand.* Kamisar, supra at

30. The question, therefore, is not

whether there should be an exclusionary

rule but where the line should be drawn.

In the past, Justices have disagreed

as to when the Fourth Amendment should

oie

apply, substantively and jurisdiction-

ally. The present dispute, however,

begins with the assumption that a viola-

tion of the constitutional protection has

occurred but maintains that under some

circumstances the exclusionary rule nev-

ertheless should not apply. Should this

Court adopt any exception to the exclu-

Sionary rule, it would be tantamount to

holding that certain violations of the

Fourth Amendment--although most assured],

violations--are not deserving of protec-

tion. For all practical purposes, this

is simply to say there was no violation

at all. In no other area of constitu-

tional rights has this Court held that a

deprivation has “*ccurred but vindication

was unnecessary. In the words of one

commentator:

Does a court that admits

the evidence in such a case not

o§7~

manifest a willingness to “put

up with" the unconstitutional

conduct that produced it? If

so, how can the police and the

citizenry be expected “to be-

lieve that the government truly

meant to forbid the conduct in

the first place"?

Kamisar, supra at 33 (quoting Paulsen,

The Exclusionary Rule and Misconduct by

the Police, 52 U. Crim. L.C. & P.S. 255,

258 (1961)). A deliberate and egregious

deprivation of a Fourth Amendment right

is obvious, and exclusion of evidence so

obtained is not criticized by even ardent

supporters of a good faith exception to

the exclusionary rule. But any violation

of a constitutional right, no matter how

subtle, cannot be ignored. Indeed, the

less flagrant violations may well be

those for which the exclusionary rule is

most important. As one commentator has

noted, “The more violent and obvious

infringements may be curtailed through

-38-

civil or criminal actions against the

guilty officers." (emphasis added).

Atkinson, Admissibility of Evidence Ob-

tained Through Unreasonable Searches and

Seigures, 25 Coium. & Rev. iti, @

(1925). If good faith violations of the

Fourth Amendment are not interdicted by

the exclusionary rule, they will not be

curtailed at all.

B. The adoption of a good faith

exception to the exclusionary

rule would curtail the develop-

ment of Fourth Amendment law

The landmark cases which have shaped

the meaning of the Fourth Amendment have

reached this Court only because the vic-

tims of certain law enforcement methods

have been convicted of crimes by use of

evidence allegedly obtained in violation

of the Fourth Amendment. The ultimate

question in many of the more significant

-~39-

precedents--Terry v. Ohio, 392 U.S. 1

(1968); Chimel v. California, 395 U.S.

752 (1969): Delaware v. Prouse, 440 U.S.

648 (1979); Katz v. United States, 389

U.S. 347 (1967); Payton v. New York, 445

U.S. 573 (1980); Chambers v. Maroney, 399

U.S. 42 (1976); Spinelli v. United

States, 393 U.S. 410 (1969)--was the

same: whether seized evidence should be

excluded from the trial of the accused.

In some of these cases the government

prevailed; in others the accused was

vindicated. But--and this is the impor-

tant point--in all of these cases most

observers would agree that the challenged

acts of law enforcement officers were

carried out in good faith.

Had a good faith exception to the

exclusionary rule been in effect at the

time these cases arose, it is doubtful

-40-

that most of them would have achieved any

precedential significance. Judicial

restraint counsels that courts avoid

answering constitutional questions. (See

Ashwander v. T.V.A., 297 U.S. 288, 341,

346-48 (1936) in which the concurring

opinion of Justice Brandeis summarized

the practice of this Court in avoiding

constitutional questions. “The Court will

not pass upon a constitutional question

although properly presented by the rec-

ord, if there is also present some other

ground upon which the case may be dis-

posed of." 5G. Ot 26%s3; It follows

that once the good faith of the officers

has been determined and the evidence held

to be admissible, there is no need to

decide if a constitutional right was

actually violated.

Even assuming courts would determine

aes

the constitutionality of the officer's

behavior, the case may never reach even a

lower appellate court let alone the Su-

preme Court. See Mertens & Wasserstronm,

supra, at 449-54. For example, in Terry,

it would have been pointless for the

defense to appeal the questions to this

Court, for if anything is clear in the

Terry case, it is that Officer McFadden

is a model patrolman, responding to a set

of suspicious circumstances in a highly

professional, efficient and humane man-

ner. Because a finding of good faith is

inevitable, there would be no incentive

for the accused to appeal, even if there

were a strong possibility of success on

the substantive issue.

The result in the case might be the

same, but this Court would have been

denied the opportunity to address an

oA.

important, and at the time of Terry,

highly confused issue: the application of

the Fourth Amendment to confrontations

between law enforcement agents and sus-

pects which fall short of arrest and

search. By its careful examination of

the questions in Terry, this Court did

more than give its approval to the tac-

tics involved in a particular field in-

vestigation. It gave stop and frisk

practices general const tutional ap

proval. It approved guidelines where

none had previously existed for the in-

struction of law enforcement personnel in

field investigation procedures. In the

fifteen years since Terry, thousands of

appellate decisions from every jurisdic-

tion have relied upon its standards in

scrutinzing field detentions and frisks,

and in the overwhelming majority of

a

cases, the government has prevailed. See

Cook, Constitutional Rights of the Ac-

cused: Pretrial Rights s7, at 55 n.10

(1972 & Supp.) This opportunity to pro-

vide meaningful parameters on the Fourth

Amendment would have been lost had Terry

gone unlitigated at the appellate level

Or unexplored by this Court in light of

the good faith of the arresting of-

ficers. The same may very well be true

in virtually every case in which this

Court has made significant pronouncements

on the meaning and scope of the Fourth

Amendment. See Mertens & Wasserstronm,

Supra at 401 et. seg.

€. The adoption of a good faith

exception to the exclusionary

rule would significantly dimin-

ish the motivation for institu-

tions of law enforcement to

govern their conduct by Fourth

Amendment standards

~44.

2

A major thrust of the argument favor-

ing a good faith exception to the exclu-

sionary rule is that, so long as law

enforcement officers have acted in good

faith in executing their duties, nothing

will be accomplished by excluding the

evidence obtained even illegally, because

the reasonable belief of the officer in

the legality of his or her conduct pre-

cludes a deterrent effect. While the

deterrent effect of the exclusionary rule

should not be the dispositive question

before this Court, the argument in any

event fails to credit what Mertens and

Wasserstrom have identified as “systemic

deterrence." Mertens & Wasserstrom,

Supra at 399 et seg.

Consider, for example, the decision

in Delaware v. Prouse, 440 U.S. 648

(1979). There, this Court held that the

aie

"unbridled discretion" of a police of-

ficer in stopping at random an automobile

to check the validity of the license of

the driver could not be countenanced

under the Fourth Amendment. While the

dissent in Prouse observed that there was

no allegation or evidence of abuse of

discretion by the police officer, the

majority of this Court was convinced that

the potential for abuse was enough.

Reversing the conviction because evidence

obtained in violation of the Fourth

Amendment had been admitted at trial,

this Court used the opportunity to

suggest that roadblocks set up to check

the licenses of all drivers passing a

particular point during a particular time

period would not run afoul of the

constitution, Delaware v. Prouse, 440

U.S. 648, 663 (1979), and the concurring

sie

opinion added the caveat that something

short of stopping all vehicles--every

third vehicle, for example--would be

acceptable as well.

There would appear little reason to

doubt that the arresting officer in

Prouse acted in good faith. Had a good

faith exception to the exclusionary rule

been employed to resolve that ceéese, the

constitutionality of the stop might never

have been addressed. Even if the trial

court did address the constitutional

question, if a good faith exception were

allowed and its application were fairly

inevitable, the case would never have

been appealed. Thus, law enforcement

officers would still not know whether

random traffic stops were constitutional,

a determination that needed to be made,

considering the uncertainty in that area

oy pe

of law enforcement. See cases cited in

Delaware v. Prouse, 440 U.S. at 651 nn.

2-3.

An even more ominous outcome could

easily have resulted from the application

of the good faith exception in Prouse.

The message would be clear: the random

stopping of an automobile with no partic-

ularized suspicion to check a driver's

license violates the Fourth Amendment but

if the defendant cannot demonstrate that

the officer acted in bad faith in select-

ing him for the check (based, for exan-

ple, on his race, or age, or the type

motor vehicle), any evidence of crime

fortuitously discovered will be admissi-

ble, notwithstanding the constitutional

violation. ‘This might encourage some law

enforcement agencies to fail to communi-

cate the most recent relevant constitu-

tional decisions to their personnel. The

-48-

same lack of knowledge on the part of

police may result even absent an inten-

tional withholding of information. For

example, in a rural setting police may

not have the resources or the institu-

tional structure to inform themselves of

the latest constitutional mandates. In

either event, if the policeman ‘on the

beat" did not know that his selection of

a car based on his “unbridled discretion"

was unconstitutional and the defendant

could not prove obvious bad faith, the

policeman would surely testify to his own

subjective good faith, and the evidence,

even though obtained clearly in violation

of the constitution, would be admissi-

ble. In short, the application of the

good faith exception in Prouse may well

encourage unconstitutional behavior so

long as it is done in an acceptable man-

ner.

-49-

This is, of course, not what this

Court did in Prouse. It held the prac-

tice unconstitutional, and it excluded

the evidence. The message to law en-

forcement officers was clear: random

stops of motor vehicles without particu-

larized suspicion will not be tolerated.

License checks of motorists, without

particularized suspicion, are neverthe-

less permissible if the element of un-

bridled discretion is removed. Stated

Simply, Prouse told law enforcement of-

ficials how to and how not to go about

achieving what was concededly a legiti-

mate objective. Implementation of the

guidelines enables the police to obtain

the information they seek while ensuring

the protection of constitutional rights.

In the years since Prouse, the deci-

sion has frequently provided the control-

ling precedent in license check cases in

-50-

the lower courts. Sometimes convictions

have been reversed for the same reasons

this Court reversed Prouse. See e.g.,

Keenan v. State, 372 So.2d 1012 (Fla.

Dist. Ct. App. 1979) (unreasonable stop

under Prouse); People v. Kunath, 99 Ill.

App. 3d 201, 425 N.E.2d 486 (1981) ("stop

of the car was more in the nature of a

mere hunch .. . rather than on specific

and articulated facts .. ."); State v.

Hilleshiem, 291 N.W.2d 314 (Iowa 1980)

State v. ilson, 388 So.2d 744 (La.

1980); Goode v. State, 41 Md. App. 623,

398 A.2d 801 (1979); State v. Westbrook,

594 S$.W.2d 741 (Tenn. Crim. App. 1979).

In other cases, however, law enforcement

agencies have followed the guidance pro-

vided in Prouse, and convictions obtained

as a result of evidence seized during

license checks have been sustained, not

wat.

because the officers acted in good faith,

but because they had acted in a wholly

constitutional fashion. See e.g., United

States v. Pritchard, 645 F.2d 854 (10th

Cir.), cert. denied, 454 U.S. 832 (1981);

People v. Carlton, 81 Ili. App. 3d 738,

402 N.E.2d 310 (1981); People v. John

BB., 56 N.Y.2d 482, 438 N.E.2d 864, 453

N.Y.S.2d 158 (1982); State v. Shankle, 58

Or. App. 134, 647 P.2d 959 (1982). In-

deed, Prouse has been used for direct

guidance in some police departments. For

example, "The written policy of the

Roxbury (New Jersey) Township police

department is to stop every fifth vehicle

during certain light traffic hours."

State v. Coccomo, 177 N.J. Super. 575,

579, 427 A.2d 131, 133 (1980). The court

noted in a footnote that "In September

1979, the Morris County Prosecutor

~$3-

strongly urged each municipal police

department to adopt rules and procedures

to adjust their police practices to the

Prouse proscriptions. Along with a sun-

mary of Prouse, a set of regulations

approved by the Attorney General of New

Jersey was also forwarded to the

chiefs." Id. at n.l. The evidence was

not suppressed in the case, because the

procedures adopted and used by the police

were reasonable and constitutional. Ser

also Mertens & Wasserstrom, supra at

399-401, for an account of similar

actions taken by the District of Columbia

Metropolitan Police.

The desirability of providing police

with guidance so they may obtain infor-

mation they need without fear of it being

found inadmissible is self-evident. This

interaction between the holding of this

wh.

Court and law enforcement agencies has

led to the optimum result. The Fourth

Amendment rights of motorists have been

articulated clearly, while the practical

needs of law enforcement have been given

their due.

D. The adoption of a good _ faith

exception to the exclusionary

rule in cases involving an in-

properly issued warrant would

seriously erode the protection

of the Fourth Amendment

The adoption of a good faith excep-

tion to the exclusionary rule would ap-

pear to reach its highest level of plaus-

ibility in cases such as the one present-

ly before this Court in which the officer

has sought and obtained a warrant before

Carrying out the search. When acting

pursuant to a judicial order, which will

carry a presumption of validity, the

officer has every reason to believe the

search is constitutional. This Court has

iin

always favored the use of warrants, Terry

v. Ohio, 392 U.S. 1, 20 (1968); United

States v. Ventresca, 380 U.S. 102, 106-7

(1965); United States v. Lefkowitz, 285

U.S. 452, 464 (1932), and has implied a

more lenient standard of probable cause

might be appropriate when a warrant is

obtained. In Aguilar v. Texas, 378 U.S.

108 (1964) this Court stated that “when a

search is based upon a magistrate's,

rather than a police officer's, determin

ation of probable cause, the reviewing

courts will accept evidence of a less

‘judicially competent or persuasive char-

acter than would have justified an of-

ficer in acting on his own without a

warrant.'“* Id. at 111 (quoting Jones v.

United States, 362 U.S. 257, 270 (1960)).

From this it might be argued that,

~§§-

but for the rare case of fraud or col-

lusion, searches made pursuant to war-

rants are made in good faith. The result

would be that evidence obtained in virtu-

ally all warrant searches would be admis-

sible, not because supported by probable

cause, but simply because made in good

faith.

Such a result could hardly be more

antithetical to the Fourth Amendment.

The Amendment states categorically that

". . . MO Warrants shall issue, but upon

probable cause." U.S. Const. amend. IV.

It follows that any warrant issued with-

out the requisite probable cause is con-

Sstitutionally void and cannot’ provide

justification for a search, and this

Court has consistently so held. Franks

v. Delaware, 438 U.S. 154 (1978) (if

material in an affidavit is found to be

-56-

false and set aside and the “remaining

content is insufficient to establish

probable cause, the search warrant must

be voided and the fruits of the search

excluded to the same extent as if proba-

ble cause was lacking on the face of the

affidavit." Id. at 156); Aguilar v.

Texas, 378 U.S. 108 (1964)("*the search

Warrant should not have been issued be-

cause the affidavit did not provide a

sufficient basis for a finding of proba

ble cause and .. . the evidence obtained

as a result of the search warrant was

inadmissible. . ." Id. at 115-16).

Nothing in the Fourth Amendment suggests

that the requirement of probable cause

can be replaced by good faith, and this

Court has repeatedly held on the issue of

probable cause that good faith can add

nothing to facts which fail to satisfy

at.

that requirement. Beck v. Ohio, 379 U.S.

89 (1964); Henry v. United States, 361

U.S. 98 (1959). As this Court observed

in Terry v. Ohio, 392 U.S. 1 (1968):

And simple “'good faith on the

part of the arresting officer is

not enough.'. .. If subjective

good faith alone were the test,

the protections of the Fourth

Amendment would evaporate, and

the people would be ‘secure in

their persons, houses, papers,

and effects,' only in the dis-

cretion of the police."

Id. at 22 (quoting Beck v. Ohio, 379 U.S.

89, 97 (1964)). See also Hill v. Cali-

fornia, 401 U.S. 797 (1971) ("subjective

good-faith belief would not in itself

justify either the arrest or the subse-

quent search.“ Id. at 804). To admit

evidence seized under a warrant unsup-

ported by probable cause would substitute

good faith for the explicit requirements

of the Fourth Amendment and render judi-

cial review of warrant affidavits super-

fiuous absent an allegation of bad faith

_58-

on the part of the officer or issuing

magistrate.

CONCLUSION

Nearly thirty years ago, substantial

commentary was generated by a footnote to

this Court's opinion in Brown v. Board of

Education, 347 U.S. 483 (1954), which had

led some to the conclusion that racially

segregated public schools were unconsti-

tutional because such schools were empir

ically shown to be deleterious to the

education of black school children.

Commentators admonished the “dangerous

precedent” if Brown turned upon the vaga-

ries of the evidence of social scien-

tists. See Cahn, Jurisprudence, 30

N.Y.U.L. Rev. 150 (1955); Wechsler, Prin-

ciples, Politics and Fundamental Law: |

-59-

Selected Essays, “Toward Neutral Prin-

ciples of Constitutional Law,” 43-47

(1961). Subsequent decisions of this

Court made clear that these fears were

unwarranted. Racially segregated facil-

ities were unconstitutional for reasons

of constitutional principle: the equal

protection clause of the Fourteenth

Amendment did not countenance racial

Classifications.

A comparable choice arises in the

issue presented to the Court in this

case. Advocates of an exception to the

exclusionary rule wish to confine the

enforcement of the Fourth Amendment to

those cases in which a deterrent effect

upon law enforcement practices can be

shown. Just as the Equal Protection

clause is not addressed to maximizing the

-60-

quality of education, so the Fourth A-

mendment is not concerned solely or even

primarily with regulating the future

behavior of law enforcement officers. To

so hamstring the Fourth Amendment by the

principle of utility would deny its sta-

ture as a fundamental constitutional

right which, like all other provisions of

the Bill of Rights, requires no other

justification for rigorous enforcement

and, therefore, for the foregoing ree

sons, Amicus Curiae, the Association of

Trial Lawyers of America respectfully

submits that the decision of the United

States Court of Appeals for the Ninth

Circuit, upholding the suppression of the

seized evidence, should be affirmed.

~6§) «

Respectfully submitted,

SIDNEY BERNSTEIN, ESQ.

(Counsel of Record)

Talmadge, Peskin, Harris &

Falick

20 Vesey Street

New York, NY 10007

(212)964-1390

PROFESSOR JOSEPH G. COOK

(On the Brief)

Williford Gragg Professor

of Law

University of Tennessee

College of Law

1505 West Cumberland Avenue

Knoxville, TN 37516

(615)974-2524

DAVID S. SHRAGER, President

The Association of Trial

Lawyers of America

1160 Suburban Station Bldg.

1617 John F. Kenndey Blvd.

Philadelphia, PA 19103

(215)568-7771

Attorneys for Amicus Curiae

The Association of Trial

Lawyers of America

42.

CERTIFICATE OF SERVICE

I hereby certify that on November 14,

1983, true and correct copies of the

foregoing Brief for Amicus Curiae, The

Association of Trial Lawyers of America,

were deposited in the United States

Postal Service with first class postage

prepaid and properly addressed to the

following counsel for parties to this

appeal:

REX E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

Attorney for Petitioner

NORMAN KAPLAN

Suite 100

205 South Broadway

Los Angeles, CA 90012

BARRY TARLOW

9119 Sunset Boulevard

Los Angeles, CA 90069

ROGER KOSSAK

Suite 400

10850 Wilshire Boulevard

Los Angeles, CA 90048

JAY LICHTMAN

6420 Wilshire Boulevard

14th Floor

Los Angeles, CA 90048

-63-

MICHAEL ABZUG

1900 Avenue of the Stars

Suite 2512

Los Angeles, CA 90067

Attorneys for Respondents

I also certify that all parties re-

quired to be served have been so served.

Respectfully submitted,