# Amicus Brief — United States v. Leon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 897

## Text

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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0872%3A10. Public record. Not legal advice.