Respondents Brief — Segura v. United States
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Iu the Supreme Court of the United
OCTOBER TERM, 1983
ANDRES SEGURA and LUZ MARINA COLON, PETITIONERS
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
Rex E. LEE
Solicitor General
D. LOWELL JENSEN
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
ALAN I. HorRowITz
Assistant to the Solicitor General
PATTY MERKAMP STEMLER
Attorney
Department of Justice
Washington, D.C. 20530
(202) 633-2217
a a NS
QUESTION PRESENTED
Whether evidence discovered pursuant to a valid, un-
tainted search warrant should be suppressed because
police had improperly entered the premises before the
warrant was issued.
(I)
TABLE OF CONTENTS
Ee AL TOIT AIL SEARED
A ES TN RN DENCE ecm P TORII M OWT
Statement .
ET OE BORING ano ence ceaneanes
Argument:
Evidence discovered and seized while executing an
untainted search warrant should not be suppressed
as the product of a Fourth Amendment violation
because of an antecedent illega] entry ........0000002...
A. The officers’ entry into petitioners’ apartment
to secure the premises was not an illegal seizure
OE EE OE a Gi ik cin thdiestdttiess cece
B. The evidence seized under the warrant is not
suppressible as the fruit of an illegal entry ......
1.
A Fourth Amendment violation requires
suppression of evidence only when an ex-
ploitation of the illegality causes the dis-
covery of the evidence ......0.... eee
The illegal entry did not cause the discovery
of the evidence in this case 00.
The possibility that the evidence would have
been destroyed before the warrant issued is
not a valid basis for suppression ..................
C. The conduct of the police here provides no basis
for applying the exclusionary rule to suppress
evidence that is not the fruit of an illegality....
Cases:
ee eee er eee ree
TABLE OF AUTHORITIES
Alderman V. United States, 394 U.S. 165 .............
Arkansas Vv. Sanders, 442 U.S. 753 2200000000000...
(II)
on KY
12
14
Cases—Continued: Page
Bivens v. Siz Unknown Fed. Narcotics Agents, 403
U.S. 388 .. Daa daliasticaabesens 37
Brewer V. Williams, 430 U. s. 387. - SE 36
Brown V. Illinois, 422 U.S. 590 ................ 10, 18, 25, 32, 35
Chambers V. Maroney, 399 U.S. 42 ............cccccccceeeees 19
Chimel Vv. California, 395 U.S, 752 ...........ccccccccceeceee 19
Colorado V. Bannister, 449 U.S. 1........cccccccccccceceeeeeee 16
Coolidge v. New Hampshire, 408 U.S. 448 .............. 16
Cupp Vv. Murphy, 412 U.S. 391 ................................. 19
Gilbert Vv. California, 388 U.S. 268.000.0000. 37
G.M. Leasing Corp. Vv. United States, 429 U. S.
i _. snvcuuvecsvovercccceces 18
SL 16
Illinois Vv. Gates, No. 81-430 (June 8, 1983) ........... _ 84, 85
Johnson V. United States, 333 U.S. 10 ooo... 19, 38
Michigan Vv. Summers, 452 U.S. 692.000.000.000... , 16, 20
Mincey VY. Arizona, 487 U.S, 385 ............................... 7, 20
Nardone V. United States, 308 U.S. 388 .................. 18, 24
Payton Vv. New York, 445 U.S. 573.000.0000... 7, 18, 29, 41
People v. Arnau, 58 N.Y.2d 27, 444 N.E.2d 13, 457
a ...15, 27, 82
People v. Barndt, 199 Colo, 51, 604 P.2d 1178 ........ 82
People v. Defore, 242 N.Y. 13, 150 N.E. 585, cert.
LS ae 33
People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, cert.
a ccuecenersconcesces 27-28
People v. Shuey, 13 Cal.8d 385, 583 P.2d 211, 120
Tee ss ceesceceecces 15
Rawlings v. Kentucky, 448 U.S. 98 0.0... 20, 31, 35
Silverthorne Lumber Co. v. United States, 251
Nee ec cecnseoneeceene 14, 24, 25
State V. Dorson, 615 P.2d 740 .............cccccceccccceccoseossee 15
State v. Fenin, 154 N.J. a 282, 381 A.2d
364 . “A Dejitichbisiaaees 82
Stone v. ‘Powell, ‘428 US. 465 Otc ctneitscceceess 13, 38-34
Sutton v. United States, 267 F.2d 271........ 33
Taylor v. Alabama, No, 81-5152 (June 28, 1982)... 37
Texas V. Brown, No, 81-419 (Apr. 19, 1983)... 16, 18
United States v. Allard, 634 F.2d 1182 ....15, 21, 22, 27, 32
United States v. Apker, 705 F.2d 293 00... 87
Cases—Continued: Page
United States v. Beck, 662 F.2d 527 ..............ccccccceees 15, 32
United States Vv. Bosby, 675 F.2d 1174 ..............-000+ 32
United States Vv. Calandra, 414 U.S. 338 ................. 13, 34
United States v. Campbell, 581 F.2d 22 ............0.0++ 89, 40
United States v. Ceccolini, 435 U.S. 268 ................00 $1, 34
United States Vv. Chadwick, 483 U.S. 1 ....ceccececceeeeeee 13, 19
United States v. Crews, 445 U.S. 4638............... 8, 13, 25, 26
United States v. Crozier, 674 F.2d 1293, petition
for cert. pending, No. 82-819 ..................sssssseserees 28
United States v. Edwards, 602 F.2d 458 ................. 15, 32
United States Vv. Fisher, 700 F.2d 780................000 87
United States Vv. Fitzharris, 633 F.2d 416, cert.
Is Ae ee ID cc eiticdenetletnticencnsctoenndoainenions 15, 32, 37
United States v. Flickinger, 573 F.2d 1349, cert.
a SI ig icant orkecnpuiatantohaioninces 23
United States Vv. Griffin, 502 F.2d 959, cert. denied,
Re I ciate sscsccenicbidicarinesenattinichinttestisiid 5, 15, 37
United States Vv. Hayes, 518 F.2d 675 oo... cceeeeee 20
United States Vv. Jeffers, 342 U.S. 48 0.......cc ce ceeseeeees 20
United States v. Kinney, 638 F.2d 941, cert. denied,
a IE faite cniceoscens stpnecadesicadde daiedabciasibevaeinres 82
United States Vv. Korman, 614 F.2d 541, cert.
I IED Tile TEE oc eushenssgnecncuenciccantaisbiinstamieebets 15, 32
United States v. Leon, cert. granted, No. 82-1771
I eo cieeshieuipnmecaninn 35
United States v. Lomas, 706 F.2d 886 ...... 15, 22, 23, 28, 32
United States Vv. Martino, 664 F.2d 860, cert.
denied, No, 81-6755 (June 28, 1982) 0.0.0.0... 38
United States v. Morrison, 449 U.S. 361 .........0000..... 34
United States v. Payner, 447 U.S. 727 ooo... 33, 34
United States v. Perez, 700 F.2d 1282 000000. 82
United States v. Place, No. 81-1617 (June 20,
BE Nee Sere s Sie eee aay OL MEM Sw Oe Ee. 8 a 17, 18, 19
United States v. Romero, 692 F.2d 699 00000. 87
United States v. Ross, 655 F.2d 1159, rev’d, 456
i A ERR ar NUR EP: cokers ate Sao 20
United States Vv. Rubin, 474 F.2d 262.000.000.000. 19
United States ’. Santana, 427 U.S. 38 000000000000... 18, 19, 38
United States Vv. Sherwin, 572 F.2d 196... 23
United States v. Wade, 388 U.S. 218
Cases—Continued: Page
United States V. Watson, 423 U.S, 411 .......cceeeeeee 7,18
United States V. Wiga, 662 F.2d 1325, cert. denied,
P+ Sl RA eee ee eee 38
United States v. Williams, 622 F.2d 830, cert. de-
nied, 449 U.S. 1127 ..........ccccoccccccssreceocseveeserersvensees 35
Vale v. Louisiana, 399 U.S. 30 ........ccccceeeeeeeees 19, 39, 40, 41
Williams v. Nix, 700 F.2d 1164, cert. granted, No.
GB-16B1 (Bay 81, 19GB) .....coresecocceeessccesecocrscscereesie 37, 38
Wong Sun Vv. United States, 371 U.S. 471....7, 9, 10, 18, 24,
25, 31, 32, 34
Constitution, statutes and rule:
U.S. Const.:
Re nt oo ccresndauieabeananieteenintonll passim
I ed salauieeadaenieadiadenenats 34
na oeslpeneaapnbiignaebapeiansea 28
RN RIGGS PEI reo Lal SP aioe aE” 8, 28
pid 0 OC” ieee areas ore nee een 2
BO Me CON OB Bovis rccoceoenscncahessdashsnnntaaensenemtuneninnes 2
ee Se aieieeibaniapeneelniiaieal 2
TOS SINE, is WP III a denssacdipsasssncesnceatdpeidicontassodedemanicn 42
Miscellaneous:
W. LaFave, Search and Seizure (1978):
PT BS oa accneniaemaaeioean 16
, A IES Ea ae SP AIR AL NER BR Ne 20, 23
FG gy GRE RR CMM ie MERE Meer elle ie TARE A 13
Note, Police Practices and the Threatened De-
struction of Tangible Evidence, 84 Harv. L. Rev.
I MECN. haceckccscintessecinciccdehsinusaibabetiaantenaaniee 23
In the Supreme Court of the United States
OCTOBER TERM, 1983
No. 82-5298
ANDRES SEGURA and LUZ MARINA COLON, PETITIONERS
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals on the interlocutory
appeal (J.A. 17-27) is reported at 663 F.2d 411. The
opinion of the court of appeals affirming the convictions
(J.A. 30-32) is unreported. The opinion of the district
court (J.A. 3-16) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
June 29, 1982 (J.A. 30). The petition for a writ of
certiorari was filed on August 27, 1982, and was granted
on February 22, 1983. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
(1)
2
STATEMENT
Following the district court’s grant of petitioners’
suppression motion, the United States took an appeal
pursuant to 18 U.S.C. 3731. The court of appeals affirmed
in part and reversed in part (J.A. 17-27). Petitioners
were then tried before a jury in the United States Dis-
trict Court for the Eastern District of New York and
were convicted of distributing, possessing with intent to
distribute, and conspiring to distribute, cocaine, in viola-
tion of 21 U.S.C. 841(a) (1) and 846. Petitioner Segura
was sentenced to concurrent terms of 10 years’ imprison-
ment on each count, followed by concurrent 15-year
special parole terms on each of the three substantive
counts. Petitioner Colon was sentenced to concurrent
sentences of eight years’ imprisonment followed by a
special parole term of 15 years on each of the three
substantive counts. The court of appeals affirmed (J.A.
30-32).
1. a. The evidence at the suppression hearing showed
that in late January and early February .1981, govern-
ment agents kept petitioners under close surveillance
after receiving a tip that cocaine sales were being nego-
tiated at petitioners’ apartment. On January 29, 1981,
the agents saw petitioners meet with a man in a bar. When
the group departed, the man followed petitioners to their
apartment. Petitioners went inside while the man waited
in his car. Shortly thereafter, petitioner Segura came
otside with a rolled up newspaper under his arm and
entered the man’s car. Two minutes later, Segura exited
3
the possibility of Segura selling Rivudalla one kilogram
of cocaine on consignment (H. Tr. 98-100, 150, 342-
343). On February 12, 1981, Segura called Rivudalla
and agreed to provide Rivudalla with one-half kilogram of
cocaine. Segura arranged to deliver the cocaine to Ri-
vudalla at 5:00 p.m. at a Burger King (H. Tr. 150,
342-343). At the appointed hour, petitioners Segura and
Colon drove to the restaurant, subject to police sur-
veillance. Within a few minutes, Rivudalla and his fian-
cee, Esther Parra, also pulled into the Burger King park-
ing lot. Segura met Rivudalla at the restaurant door,
and they talked for five or ten minutes. Colon joined
the two men and then walked to Rivudalla’s car carry-
ing a bulky shoulder bag. She stayed with Parra in the
car for a couple of minutes. When she left, Colon closed
the zipper on her shoulder bag, which the agents observed
was now noticeably thinner. Rivudalla and Parra then
left the Burger King (J.A. 4; H. Tr. 101-120, 594-598).
Two agents followed Rivudalla and Parra and stopped
the couple for questioning before they entered their
apartment. Upon learning that a brown paper bag being
carried by Parra contained a glassine bag of white powder
(later determined to be cocaine), the agents placed the
couple under arrest.' Rivudalla agreed to cooperate with
the police after being advised of his constitutional rights
{(H. Tr. 135-148). Rivudalla admitted that he had pur-
chased the cocaine from Segura, and that Colon had de-
livered the cocaine to Parra at the Burger King. Further-
more, Rivudalla informed the agents that he and Segura
had agreed that Segura would call him later that eve-
ning to find out whether he had been able to sell the
cocaine (J.A. 18; H. Tr. 149-151).
b. Between 6:30 and 7:00 p.m., the agents obtained
authorization from an Assistant United States Attorney
! Rivudailla and Parra were indicted with petitioners. They pleaded
guilty to the charges and absconded prior te sentencing.
4
to arrest petitioners but were advised that a search war-
rant probably could not be obtained until the following
day. The attorney also advised the agents to secure the
premises because of the danger that evidence would be
destroyed before the warrant issued (H. Tr. 152-154;
444-445). The agents proceeded to petitioners’ apartment
and listened at the door, but they heard nothing to
indicate that the apartment was occupied. The agents
then commenced surveillance of the apartment. At first,
they posted themselves at the fire escape at the end of
petitioners’ hall. Later, they moved outside the building
(J.A. 10, 18-19; H. Tr. 363-364, 394-397).
At approximately 11:15 p.m., the agents observed Se-
gura enter the building alone, and they arrested him in
the lobby of the building. The agents took Segura up-
stairs to his apartment, although Segura was reluctant
to go, falsely maintaining that it was not his apart-
ment. The agents knocked on the door and entered when
a woman, later identified as petitioner Colon, opened the
door. In addition to Colon, the agents found three other
persons seated in the living room.* The agents explained
that Segura was under arrest and that they were ob-
taining a search warrant for the premises. The agents
then performed a limited security check of the premises
to determine whether any other persons were hiding
there. In the course of the security check, the agents dis-
covered in plain view on a bedroom desk a triple beam
scale and several jars of lactose, and they also saw
numerous small cellophane bags in a closet, but they
left these items untouched (J.A. 10-11, 19; H. Tr. 258-
259, 364-367, 375-376, 401-406). Colon subsequently was
arrested,’ and petitioners and the other occupants of the
2 Two of these persons were charged in the original indictment,
but a superseding indictment subsequently was returned that
charged only petitioners, Rivudalla, and Parra (see H. Tr. 3).
* Ineident to this arrest, Colon’s handbag was searched before
she was allowed to take it with her to headquarters. A loaded
5
apartment were taken to Drug Enforcement Administra-
tion headquarters. Two agents remained in the apartment
to secure the premises until the search warrant was ob-
tained (J.A. 11,19; H. Tr. 156-160, 374-379).
A search warrant application was presented to a mag-
istrate at 5:00 p.m. the next day, and a warrant was is-
sued and executed.* The agents discovered nearly three
pounds (1250 grams) of cocaine in an attache case,
two ounces of cocaine in the pocket of a trench coat, 18
rounds of ammunition for the revolver that had been
found in Colon’s’ purse when she was arrested, over
$54,000 in cash, and records of narcotics transactions.
These items were then seized along with the other evidence
that had first been seen in plain view in the course of the
security check the previous night (J.A. 11, 19-20; H.
Tr. 380-385).
2. Following a hearing, the district court granted peti-
tioners’ motion to suppress al] the evidence seized from
the apartment (J.A. 3-16). The court found that there
were no exigent circumstances to justify the warrantless
entry into the apartment and hence that the original
entry and security check of petitioners’ apartment was
illegal (J.A. 11-13). The court concluded that the search
warrant itself was valid because it rested upon a showing
of probable cause arising from information untainted by
the illegality (J.A. 13), but, relying heavily on United
States v. Griffin, 502 F.2d 959 (6th Cir.), cert. denied,
419 U.S. 1050 (1974), the court held that the evidence
seized pursuant to the warrant nonetheless had to be sup-
pressed because of the illegal entry (J.A. 13-16). The
revolver and more than $2,000 in cash were found (H. Tr. 370-371).
Those items were ordered suppressed by the district court as the
fruits of an illegal arrest (J.A. 13, 16).
*One agent explained that the application was not presented
6
court concluded that the evidence would not inevitably
have been discovered in the absence of the illegal entry
because petitioner Colon might have destroyed it before
the warrant could be executed (J.A. 15).
The court of appeals affirmed in part and reversed in
part (J.A. 17-27). The court agreed that the warrant-
less entry was not justified by exigent circumstances
‘J.A. 21-23), but it held that the evidence discovered
pursuant to the valid warrant search was admissible
(J.A. 24-26). The court specifically rejected the district
court’s analysis, explaining that the fact that persons
were present in the apartment who might otherwise
destroy the evidence was a “prudentially unsound” basis
for suppression because it would penalize the officers for
the correctness of their belief that persons were present
who posed a danger of destruction of the evidence (J.A.
25). The court further held, however, that the evidence
discovered in plain view in the course of the initial entry
should be suppressed (J.A. 26-27). The court reasoned
that suppression of such evidence would deter officers
from abusing the security check procedure (J.A. 27).
Petitioners were then tried and convicted, and the court
of appeals affirmed their convictions (J.A. 30-32).°
SUMMARY OF ARGUMENT
The ques.ion in this case concerns the application of
the exclusionary rule—should evidence discovered pur-
suant to a valid search warrant be suppressed because of
an earlier illegal entry? It has heretofore been well
established that evidence is subject to suppression only if
¢ On the second appeal, the court re Gontention that the
search warrant was invalid because material misrepresenta-
tions in the affidavit, holding that this contention was foreclosed
7
it is the “fruit” of an illegality, i.e. if it is discovered
through exploitation of the illegality. Wong Sun v. United
States, 371 U.S. 471, 488 (1963). The evidence in
question here was not unlawfully seized, nor was the
illegal entry or search exploited in order to discover the
evidence. Because the evidence was derived from an
“independent source,” it should not be suppressed.
A. The evidence in question was not illegally seized
when the officers entered the apartment and secured the
premises. Assuming arguendo that the officers’ action in
securing the premises can be characterized as a “seizure”
of the evidence, which they had not yet discovered, it
was not an unreasonable seizure in violation of the
Fourth Amendment. The officers undisputedly had prob-
able cause to believe that there was contraband in the
apartment. While probable cause alone did not give them
the authority, in the absence of a warrant or exigent
circumstances, to enter the apartment, which would entail
a limited search, it did entitle them to preserve the
status quo pending the issuance of a warrant by secur-
ing or “seizing” the premises. Because seizures in a
public place involve no invasion of privacy interests, they
generally do not require a warrant (see, e.g., Payton Vv.
New York, 445 U.S. 578, 587 (1980); United States v.
Watson, 423 U.S. 411 (1976)); and this Court has spe-
cifically approved the seizure of a container on the basis
of probable cause pending the issuance of a warrant
authorizing its search. Arkansas v. Sanders, 442 U.S.
753, 764 n.13 (1979). By the same token, securing prem-
ises on the basis of probable cause by stationing officers
outside to prevent entry and the removal] of ‘its contents
until a search warrant is obtaigg@@ is not an “unreason-
able seizure.” See, ¢.g., Mincey V. Arizona, 437 U.S. 385,
394 (1978). ee eee ee oo
of petitioners’ apartment in the absence of exigent cir-
cumstances constituted an bey we officers did
not effect any illegal seizure; hence, the evidence should
8
be suppressed only if it was discovered through exploita-
tion of the illegal entry.
B. Evidence is suppressible as a fruit of the poisonous
tree if it is discovered through exploitation of an ille
gality, but it clearly cannot be a fruit if the illegality is
not even a “but-for cause” of the discovery of the evi-
dence. See United States v. Crews, 445 U.S. 463, 471
(1980). Here, the discovery of the evidence did not
derive from any information learned during the illegal
entry and search. The officers did not discover the evi-
dence in question until they executed the lawful search
pursuant to the warrant. The warrant itself was based
on probable cause known to the officers before the illegal
entry took place, and hence was not tainted by the il-
legality. In short, the discovery of the evidence pursuant
to the search warrant transpired exactly as it would have
if the illegal entry had never occurred, and thus the
evidence should not be suppressed as a fruit.
The only way in which it can be argued that the il-
legality was a “but-for cause” of the discovery of the
evidence is by speculating that, if the officers had not
entered to secure the premises, petitioner Colon would
have successfully destroyed the evidence before the war-
rant was obtained. This analysis, which was the basis for
the district court’s decision, was correctly rejected by the
court of appeals as “prudentially unsound” (J.A. 25).
Suspects have no constitutional right to destroy evi-
dence—indeed, it is a criminal offense to do so (see 18
U.S.C. 2232)—and the exclusionary rule should not be
invoked to suppress evidence solely on the theory that
improper police action may have prevented an individual
from destroying evidence during the time a Aue
was being procured. ~
Moreover, suppression on this basis has emis of
logical self-contradiction. An illegal entry can be the but-
for cause 6f the discovery of evidence in this sense only
if there were persons present in the apartment who
9
would have removed or destroyed the evidence before a
warrant was obtained. But in that case exigent circum-
stances would exist that would justify a warrantless
entry into the apartment to prevent the destruction of
evidence. Consequently, there is considerable tension be-
tween the two underpinnings of the district court’s deci-
sion—that exigent circumstances did not justify the entry
and that the entry caused the discovery of the evidence
because it prevented Colon from destroying it before the
warrant issued. Moreover, following the district court’s
approach would result in a bizarre anomaly. The officers
would be penalized for being correct in their assessment
of exigent circumstances. The evidence would be sup-
pressed when the officers turned out to be correct and the
apartment was in fact occupied by persons who could
have destroyed the evidence; on the other hand, the evi-
dence would not be suppressed when the officers mis-
takenly entered and the apartment was unoccupied, be-
cause in that case the entry could not possibly have aided
the discovery of the evidence by preventing its destruction.
By the same token, established exclusionary rule princi-
ples clearly demonstrate that the evidence in question
here cannot be characterized as a fruit. The “connection”
between the illegality and the discovery of the evidence
is extremely attenuated, and, indeed, it rests on the ques-
tionable assumption that, if the police had not entered
when they did, Colon would have successfully destroyed
all of the evidence before the warrant was obtained with-
out any of the agents stationed outside being alerted.
Moreover, the officers’ decision, despite their reasonable
view that exigent circumstances existed, not to conduct
any evidentiary search except pursuant to a search war-
rant. belies any suggestion that they “exploited” the il-
legality; hence, under the principles of Wong Sun, the
evidence should not be su as a fruit.
10
was derived from the misconduct is both theoretically and
factually unsound. Because of the harsh consequences of
the exclusionary rule, this Court has restricted its appli-
cation to those situations where its purposes are best
served. In particular, the Court has determined that evi-
dence should be suppressed only when it is the fruit of
an illegality under the Wong Sun test. When the dis-
covery of evidence is causally connected to an illegality,
the “flagrancy” of the constitutional violation is one im-
portant element of the consequent attenuation inquiry.
See Brown Vv. Illinois, 422 U.S. 590, 604 (1975). Even
in such cases, however, the occurrence of misconduct that
could be termed “flagrant” does not completely displace
the fruits inquiry, and, a fortiori, it cannot require sup-
pression of evidence derived from a source wholly inde
pendent of the illegality.
Nor is suppression necessary here as a general deter-
rent to flagrant illegal entries to secure premises in other
cases. As a practical matter, police officers who are in the
process of applying for a warrant have little incentive to
make an immediate entry unless they genuinely enter-
tain substantial fears that, unless they act, the evidence
will be destroyed before the warrant arrives. Thus, while
they may sometimes be mistaken in such instances in
their judgment that the circumstances are sufficiently
exigent to justify warrantless entries, such improper
entries will generally occur only in close cases; there is
no investigative benefit to be reaped’from a flagrant vio-
lation and hence no incentive for “the police to commit
one. On the other hand, even under the court of appeals’
decision, there remain substantial disincentives to such
illegal entries, such as civil liability and the suppression
11
rantless entry to prevent the destruction of evidence is
permitted if the police have sufficient reason to believe
that someone is on the premises who is likely to destroy
the evidence before a warrant is obtained. Here, the
officers undisputedly had probable cause to believe that
there was contraband in petitioners’ apartment. Because
of the arrests that had occurred, the officers also had
reason to fear that any occupants of the apartment would
be alerted that something was amiss before the warrant
issued; when Segura unexpettedly arrived after 11:00
p.m. alone, the officers had a strong basis to believe that
Colon was inside the apartment, thereby materially en-
hancing the concern that the evidence might be destroyed.
While the court of appeals disagreed and held that the
facts known to the officers did not give them a sufficient
basis to suspect that evidence was in danger of being
destroyed, this is plainly a close question of law, and the
illegality was based solely on a good faith legal misjudg-
ment by the officers.
The other actions taken by the officers also belie the
accusation that they acted in bad faith. They consulted
with the United States Attorney’s office before arresting
petitioners and secured the premises on the advice of that
office after being informed that a warrant could not be
obtained until the following day. When they did enter
the premises, they took only those steps necessary to
ensure that evidence would not be destroyed and did not
conduct an evidentiary search until the warrant was
obtained. In sum, the officers’ conduct here provides no
basis for departing from the black letter principle that
the exclusionary rule should not be applied to suppress
evidence that is not obtained by exploitation of a viola-
tion of a defendant’s rights. -
12
ARGUMENT
EVIDENCE DISCOVERED AND SEIZED WHILE
EXECUTING AN UNTAINTED SEARCH WARRANT
SHOULD NOT BE SUPPRESSED AS THE PRODUCT
OF A FOURTH AMENDMENT VIOLATION BE-
CAUSE OF AN ANTECEDENT ILLEGAL ENTRY
This case concerns the admissibility of evidence dis-
covered and seized in a search of an apartment conducted
pursuant to a valid, umtainted warrant. It presents a
question concerning the proper application of the ex-
clusionary rule—should such evidence be suppressed be-
cause, before the warrant was obtained, police officers
illegally entered the apartment and secured the prem-
ises?® Thus, contrary to petitioners’ repeated suggestion
(Br. 6, 16-17, 28, 37-38, 48), the legality of the officers’
conduct itself is not in issue here, and therefore the
court of appeals’ decision certainly does not “counte-
nance[]” (Br. 24) police activity that threatens the
public’s right to “live as free men and women, safe in
[their] homes from lawless government intrusion” (Br.
37). The question presented is not one of substantive
Fourth Amendment law, but rather simply one of
remedy—whether the policies underlying the exclusionary
rule require that evidence discovered during a warrant
search should be suppressed even though untainted by the
prior illegal entry.
The principles that guide this determination are well
established. The exclusionary rule has been viewed as a
remedial measure necessary to deter constitutiohal viola-
tions by law enforcement officers by removing the incen-
* Both courts below found that the initial, warrantless entry into
13
tive to commit those violations. See, e.g., Stone v. Powell,
428 U.S. 465, 486 (1976). At the same time, this Court
has repeatedly recognized that application of the exclu-
sionary rule imposes significant costs on society by pre
venting the use at trial of reliable, probative evidence,
thus allowing culpable defendants to go free. Accordingly,
“fajs with any remedial device, the application of the
rule has been restricted to those areas where its remedial
objectives are thought most efficaciously served.” United
States v. Calandra, 414 U.S. 338, 348 (19744.
The exclusionary rule generally provides that evidence
obtained as the direct result of a violation of a defen-
dant’s Fourth Amendment rights should be suppressed.
For example, evidence discovered in the course of an
illegal search ordinarily should be excluded. See, e.g.,
United States v. Chadwick, 433 U.S. 1 (1977). Such
evidence is sometimes called “primary evidence” because
it is discovered while the Fourth Ame: *ment violation is
occurring. See 3 W. LaFave, Search and Seizure § 11.4,
at 612 (1978). In addition, evidence that is subsequently
discovered through exploitation of a prior constitutional
violation is subject to suppression as the “fruit of the
poisonous tree” (Nardone v. United States, 308 U.S. 338,
341 (1939)). See, eg., Brown v. Illinois, 422 U.S. 590
(1975). In these “derivative evidence” situations, the
relevant inquiry is whether the evidence was obtained
“ “by exploitation of [the prior] illegality or instead by
means sufficiently distinguishable to be purged of the
primary taint.’” Wong Sun v. United States, 371 US.
471, 488 (1963) (citation omitted). Thus, some evidence
may be admissible at trial even if a Fourth Amendment
violation is the “but-for causé” of its discovery, provided ©
the connection between the illegality and the evidence is
sufficiently attenuated.
At a minimum, however, it is clear that suppression is
appropriate only if “the challenged evidence is in some
Oe tne ates ete an a eee
United States v. Crews, U.8. 468, 471 (1980).° If an
14
individual has been the victim of a Fourth Amendment
violation, evidence nevertheless may be introduced against
him if it is obtained from an “independent source” and
thus is not the product of the illegality. Silverthorne
Lumber Co. Vv. United States, 251 U.S. 385, 392 (1920).
In our view, this basic principle compels affirmance of
the decision of the court of appeals, because the evidence
first discovered in executing a valid search warrant at
petitioners’ apartment was not the product of the earlier
illegal entry. '
A. The Officers’ Entry Into Petitioners’ Apartment To
Secure The Premises Was Not An Illegal Seizure Of
All Of Its Contents
Petitioners’ principal contention (Br. 22-34) is that
the evidence in question,’ which was first discovered in
the course of a valid warrant search based on probable
cause known to the officers before they entered peti-
tioners’ apartment, was illegally seized at the time of the
entry and that such illegal seizure continued until the
search warrant was executed. That is so, petitioners ar-
gue, because the officers’ action prevented anyone from
removing any of the contents of the apartment pending
the issuance of the warrant (see Br. 24). Therefore,
even though the evidence in question was not discovered
in the course of or as a direct result of an illegal search,
petitioners contend that it must be suppressed as “pri-
mary” (Br. 28, 36) illegally seized evidence.* This con-
7 We refer here to the cocaine, cash, and narcotics records that
15
tention must fail because there was no illegal seizure
here; to the extent the officers’ actions prior to the execu-
tion of the search warrant constituted a seizure of the
evidence at issue, that seizure was justified by probable
cause and did not violate the Fourth Amendment.
Assuming that the officers “seized”’ the evidence in ques-
tion within the meaning of the Fourth Amendment when
cuit decisions characterizing a securing of the premises after an
illegal entry as an illegal seizure of the evidence within. United
States v. Lomas, 706 F.2d 886, 893-894 (1983); United States v.
Allard, 634 F.2d 1182, 1186-1187 (1980). Even the Ninth Circuit,
however, has not taken as extreme a position as petitioners. Peti-
tioners argue (Br. 29-34) that no “fruits” inquiry is appropriate
because the evidence was illegally seized, but the Ninth Circuit
has recognized the relevance of a “fruits” analysis in suggesting
that such “illegally seized” evidence should not be suppressed if
the government can show that it would have successfully obtained
the evidence notwithstanding the seizure. United States vy. Allard,
supra, 634 F.2d at 1187.
Other courts of appeals have either expressly or implicitly re-
jected petitioners’ seizure theory in considering the admissibility
of evidence seized pursuant to warrant searches of premises that
had previously been secured by means of an allegedly illegal entry.
See United States v. Beck, 662 F.2d 527, 530 (8th Cir. 1981);
United States v. Fitzharris, 633 F.2d 415, 421 (5th Cir. 1980),
cert. denied, 451 U.S. 988 (1981); United States v. Korman, 614
F.2d 541, 542, 547 (6th Cir.), cert. denied, 446 U.S. 952 (1980);
United States v. Edwards, 602 F.2d 458, 469 n.12 (1st Cir. 1979).
Petitioners’ reliance (Br. 24-25) on United States v. Griffin, 502
F.2d 959 (6th Cir.), cert. denied, 419 U.S. 1050 (1974), is mis-
placed. The Griffin court did not suggest that an illegal seizure
had occurred; it held that the evidence discovered during an illegal
entry was the fruit of an illegal search. The New York Court of
Appeals has explicitly rejected petitioners’ seizure theory. Pecple
v. Arnau, 58 N.Y.2d 27, 444 N.E.2d 13, 17-19, 457 N.Y.S.2d 763,
767-769 (1982) ; contra, State v. Dorson, 615 P.2d 740, 744 (Hawaii
1980) ; People v. Shuey, 13 Cal.3d 835, 8560, 533 P.2d 211, 222, 120
Cal. Rptr. 883, 94 1975) (securing premises is “inchoate seizure”
before individual contents are “actually seized”).
16
they secured petitioners’ apartment,® there was nothing
illegal about the seizure. Putting aside for the moment
the officers’ entry into the apartment, which necessarily
resulted in a limited search (see Part B, infra), peti-
* When police officers secure an apartment to prevent removal
of its contents, there is some technical sense in which they can
be said to have “seized” all the contents of the apartment. It
seems clear, however, that police cannot actually “seize” a par-
ticular movable object in the ordinary sense of the word when
they have not even discovered it yet, and thus it is open to serious
question whether the underlying premise of petitioners’ contention
is correct, i.e., that the evidence in question here was “seized” within
the meaning of the Fourth Amendment when the officers secured
the premises (see Pet. Br. 24). See, e.g., 1 W. LaFave, Search and
Seizure § 2.1, at 221 (1978) (citation omitted) (defining “seizure”
us the “‘act of physically taking and removing tangible personal
property’”’); Hale v. Henkel, 201 U.S. 43, 76 (1906) (“a seizure
contemplates a forcible dispossession of the owner’). While this
Court has not had occasion to address the issue directly, its analysis
of search and seizure cases reflects the view that the securing of
premises does not constitute a Fourth Amendment “seizure” of
each of the individual items contained therein. For example, the
Court has given detailed consideration to the question of when the
police may seize evidence found in plain view in the course of
executing a search warrant for other evidence, even though the
entire area being searched is under the custody and control of the
police during the search, and thus presumably, under petitioners’
theory, all of the contents have already been seized. See, e.g.,
Tezas V. Brown, No. 81-419 (Apr. 19, 1983); Cvuolidge v. New
Hampshire, 403 U.S. 443 (1971). Similarly, the Court has charac-
terized the taking of individual items from an automobile as a
seizure, even though the occupants had already been arrested and
the entire automobile presumably was already within the custody
and control of the police. See Texas v. Brown, supra, slip op. 8 (plu-
rality opinion) ; Colorado v. Bannister, 449 U.S. 1, 3-4 (1980).
Moreover, acceptance of petitioners’ theory would cast doubt on
the validity of well-established law enforcement practices that are
commonly recognized as constitutional. For example, when execut-
ing a search warrant, police officers routinely secure the premises
in the sense that they do not allow individuals to walk off with the
contents of the premises before the search is completed. Cf. Michi-
gan Vv. Summers, 452 U.S. 692 (1981). Similarly, it is often neces-
sary for police to cordon off an area during an investigation, for
example, to apprehend a fugitive or to investigate a bomb threat.
These procedures result in the immobilization of items contained
in the secured premises, most of which obviousiy are not evidence
17
tioners’ contention that there was an illegal seizure here
rests on the fact that the officers divested them of con-
trol and custody of their possessions by securing the
premises and forbidding removal of any of the contents
of the apartment. This action, however, did not violate
the Fourth Amendment. To the contrary, the officers’
decision to secure the premises accords with this Court’s
prescription for dealing with the situation where the
police have probable cause to believe that evidence or
contraband is present in a private area, namely, preserv-
ing the status quo pending the issuance of a search
warrant.
It is not disputed that the police officers had probable
cause to believe that contraband would be found in peti-
tioners’ apartment at the time they first entered. Quite
apart from the results of their extended surveillance of
petitioners, the officers had been informed by Rivudalla
that petitioners that afternoon had supplied him with
half a kilogram of cocaine. Rivudalla also had indicated
to the agents that Segura probably possessed more cocaine
in his apartment, reporting that he had not bought all
the cocaine that Segura offered for sale (J.A. 9-10). In-
deed, both courts below upheld the validity of the search
warrant based on the information known to the officers
before they entered the apartment (J.A. 13, 24), thus
recognizing the existence of probable cause at that point.
of a crime, but it cannot be maintained that these procedures ex-
pose the officers to liability for “seizing” those items without prob-
able cause. Indeed, the implication of petitioners’ contention is
that the specificity requirement of the Fourth Amendment can
never be satisfied by a warrant authorizing a seizure of specific
items expected to be found in a particular area (see United States
v. Place, No. 81-1617 (June 20, 1983), slip op. 4), because the police
necessarily will also “seize” many innocuous items not covered by
the warrant in the course of executing the search. By the same
token, it is difficult to say here that the officers “seized” the evi-
dence within the meaning of the Fourth Amendment simply because
they secured the apartment, when they had not yet even discovered
the evidence.
18
Given the existence of probable cause, we submit that
the police were entitled to secure the premises to pre-
serve the status quo, although, of course, they were not
entitled to secure it by making an entry unless exigent
circumstances existed.
Petitioners correctly state (Br. 23) that the Fourth
Amendment protects against both unreasonable searches
and unreasonable seizures. They seriously err, however,
in asserting (Br. 23) that there is no distinction be-
tween searches and seizures with regard to what precau-
tions satisfy the reasonableness standard and, based on
that premise, in arguing that the officers unlawfully se-
cured their premises in the absence of a warrant. In
fact, there is a sharp distinction between searches and
seizures with respect to the necessity for the prophylactic
measure of a warrant. Because seizures involve only an
interference with an individual’s possessory interest, and
hence are less intrusive than privacy-invading searches,
seizures on the basis of probable cause are generally per-
mitted without a warrant. See, e.g., Texas v. Brown,
No. 81-419 (Apr. 19, 1983), slip op. 8 (plurality opinion)
(“[O]ur decisions have come to reflect the rule that if,
while lawfully engaged in an activity in a particular
place, police officers perceive a suspicious object, they
may seize it immediately.”). See also id. at 2-3 (Stevens,
J., concurring); United States v. Place, No. 81-1617
(June 20, 1983), slip op. 5; Payton v. New York, 445 U.S.
573, 587 (1980); G.M. Leasing Corp. v. United States,
429 U.S. 338, 354 (1977). Indeed, even the more intru-
sive seizure of a person (1.e., an arrest), may be effected
in a public place without a warrant. United States v.
Santana, 427 U.S. 38, 41-42 (1976); United States v.
Watson, 423 U.S. 411 (1976) .*°
10 It is true that, in the absence of exigent circumstances, a war-
rant is necessary to effect an arrest in a home or an entry onto
private premises to effect a seizure of property, but that is because
of the invasion of privacy involved in the entry into the home (i.e.,
the search), not because of the intrusiveness of the arrest or seizure
itself. See Payton v. New York, supra, 445 U.S. at 587-590; GM.
Leasing Corp. V. United States, supra, 429 U.S. at 354.
19
It follows from these principles regarding extended or
permanent seizures that police may seize property that
they have probable cause to believe contains contraband
for the limited period necessary to obtain a search war-
rant. In Arkansas v. Sanders, 442 U.S. 753 (1979), the
Court held that a warrant was necessary to search on the
basis of probable cause a suitcase found in an automobile,
but it made clear that there was no such prerequisite to
seizure of the suitcase; rather, the Court explained that
the police acted “commendably” (id. at 761) in seizing
the suitcase and that the proper course of action for
police faced with such a situation would be to seize the
suitcase and take it to a magistrate to await the issuance
of a warrant. Jd. at 764 n.13. See also United States v.
Place, supra, slip op. 5 n.8; United States v. Chadwick,
supra, 433 U.S. at 13 & n.8; Chambers v. Maroney, 399
U.S. 42, 51-52 (1970). Such a seizure of a container is
merely a common application of a more general rule that
the police may take reasonable measures to prevent the
destruction of evidence and preserve the status quo pend-
ing issuance of a search warrant. See, e.g., Cupp V.
Murphy, 412 U.S. 291, 298 (1973) (Marshall, J., con-
curring! (approving a warrantless search of an arrestee
because “there was no way to preserve the status quo
while a warrant was sought”).
11 Indeed, the possible destruction of evidence is such a signifi-
cant concern that in some situations it may justify a warrantless
search. For example, the limited search incident to arrest is per-
mitted because of, inter alia, the danger of destruction of evidence,
even when the police have no particular reason to suspect that the
arrestee is concealing any evidence. Chimel v. California, 395 U.S.
752, 763 (1969). And, of course, if the police have sufficient reason
to believe that evidence is in danger of destruction before a search
warrant can be secured, exigent circumstances permit a warrant-
less entry even into a dwelling. See United States v. Santana, 427
U.S. 38, 48 (1976); Vale v. Lowisiana, 399 U.S. 30, 35 (1970);
Johnson Vv. United States, 388 U.S. 10, 15 (1948); United States
v. Rubin, 474 F.2d 262 (3d Cir. 1973).
20
When, as here, police officers have probable cause to
believe that contraband is contained in a dwelling, the
same principles apply. As long as they do not invade a
privacy interest, the police are entitled to preserve the
status quo while they obtain a warrant by securing the
premises, and thus arguably “seizing” the dwelling and
its contents to prevent the destruction of evidence. Al-
though the Court has never been faced with a specific
challenge to an action securing the premises, the Court’s
opinions reflect the understanding that such a “seizure”
is reasonable under the Fourth Amendment. In Rawlings
v. Kentucky, 448 U.S. 98 (1980), police lawfully entered
a house armed with an arrest warrant. After unsuccess-
fully searching for the individual named in the warrant,
several police officers detained the occupants of the house
while fellow officers obtained a search warrant. This
Court considered and ultimately rejected the contention
that statements made by the detainees should be sup-
pressed as the fruits of an illegal detention. Jd. at 106-
110.° Significantly, however, the Court never doubted
the admissibility of the evidence discovered when the
warrant was executed, apparently assuming that the
officers were entitled to remain in the house to prevent
the destruction of evidence while the warrant was being
obtained. Similarly, in Mincey v. Arizona, 437 U.S. 385,
394 (1978), the Court held unconstitutional a warrant-
less search of an apartment where a homicide had been
committed, but it noted approvingly the use of a police
guard to prevent the destruction of evidence, suggesting
that this precaution should have been taken while the
officers obtained a search warrant. See also United States
v. Jeffers, 342 U.S. 48, 52 (1951) ; United States v. Ross,
655 F.2d 1159, 1196 (D.C. Cir. 1981) (Wilkey, J., dis-
senting), rev'd, 456 U.S. 798 (1982); United States v.
Hayes, 518 F.2d 675, 678 (6th Cir. 1975) ; 2 W. LaFave,
Search and Seizure § 6.5, at 451 (1978).
12 Under Michigan v. Summers, supra, it would appear that this
detention did not violate the Fourth Amendment.
21
In sum, given the officers’ probable cause to believe
that there was contraband in petitioners’ apartment, it
was reasonable under the Fourth Amendment for the of-
ficers to take steps to prevent destruction of that evidence
by securing the premises. That does not mean that the
officers were entitled to enter the apartment and infringe
petitioners’ privacy interest in their dwelling in the ab-
sence of exigent circumstances or some other justification
for entering, but it does mean that they were permitted
to station themselves in a place where they had a right
to be and prevent persons from entering the apartment
to destroy evidence until the warrant was issued. To the
extent such action is deemed a Fourth Amendment “sei-
zure,” it is not unlawful.”
In this case, of course, the officers did not simply se-
cure the premises from the outside; after Segura’s ar-
rest, they entered the apartment and thereafter remained
inside to secure the premises. This entry, which intruded
onto petitioners’ privacy interest and thus was a “search,”
poses a distinct question (discussed in Part B, infra) as
to whether the entry should result in suppression. But
it is important to note that, contrary to petitioners’ sug-
gestion (Br. 9, 11, 22-24), the fact that the officers re-
mained inside the apartment after this entry rather than
going back outside to secure the premises is irrelevant to
whether there was an illegal seizure. Petitioners’ argu-
ment that there was an illegal seizure rests on the of-
ficers’ “control” of the apartment in the sense that they
would not permit removal of its contents until the war-
rant was issued; this control would have been exercised
22
to the same extent whether the officers remained in the
apartment or guarded it from the outside. In other
words, while there is a sense in which it could be said
that items concealed in a house are constructively “seized”
by official action preventing access to the premises, the
degree of this seizure is the same whether the premises
are secured from outside or from within.
The one federal court whose decisions lend support to
petitioners’ seizure theory, the Ninth Circuit, has explic-
itly recognized this fact. In United States v. Lomas, 706
F.2d 886 (1983), police officers entered a hotel room,
stayed inside for 30 seconds to determine that no one was
there, and then locked the door when they exited so that
no one could enter without the assistance of the hotel
management. Relying on its earlier decision in United
States v. Allard, 634 F.2d 1182 (9th Cir. 1980), the court
of appeals held that this entry was not justified by exigent
circumstances and therefore that evidence later discovered
in the hotel room pursuant to a warrant search was sub-
ject to suppression as the product of an earlier illegal
seizure. The court explained that Allard was directed
at all “police attempts to maintain the status quo by
exercising control over a place while seeking a search
warrant.” 706 F.2d at 894. Hence, the court stated,
“(t}hough the officers here exercised control over a hotel
room by locking the door rather than waiting inside and
decided to seek a warrant before they entered the room
rather than afterward, these differences are not legally
significant.” Jbid.; footnote omitted. As explained above,
we strenuously disagree with the Lomas court (see id. at
894 n.3) and with petitioner that the police are not per-
mitted to take steps to preserve the status quo pending
the issuance of a warrant; indeed, the absurd result in
Lomas highlights the inadequacy of petitioners’ position."
4 Petitioners contend (Br. 40-44) that the police officers here
were not entitled to make use of the “impoundment alternative.”
It is not clear whether petitioners are focusing on the entry into
the apartment or whether they are arguing that the police needed
23
Accordingly, we maintain that no illegal seizure occurred
in this case, and we turn to the question whether the
search entailed in the entry into the apartment requires
suppression of the evidence in question.
B. The Evidence Seized Under The Warrant Is Not
Suppressible As The Fruit Of An Illegal Entry
The court of appeals held that exigent circumstances
did not justify the officers’ warrantless entry into peti-
tioners’ apartment because they lacked sufficient reason to
fear that evidence would be destroyed before the warrant
issued. Therefore, the entry and ensuing security search
violated the Fourth Amendment. Because the discovery
of the evidence in question here was not a product of
this illegality, however, but rather was derived from the
independent source of an untainted warrant, we submit
that the court of appeals correctly held that the evidence
was not a “fruit” of the illegality and hence should not
be suppressed.
a warrant to secure the premises from the outside—a contention
that we regard as manifestly erroneous. The phrase “impoundment
alternative” is apparently taken from the writings of two com-
mentators. See 2 W. LaFave, supra, §6.5(c), at 450; Note, Police
Practices and the Threatened Destruction of Tangible Evidence,
84 Harv. L. Rev. 1465, 1474-1489 (1971). Each of these commenta-
tors approves the use of the “impoundment alternative” in limited
circumstances. See 2 W. LaFave, supra, §6.5(c), at 454-455; 84
strictions on the power of police to secure premises from the outside
on the basis of probable cause. See 2 W. LaFave, supra, § 6.5(c),
at 451-452; 84 Harv. L. Rev. at 1478. Indeed, although Lomas
creates some uncertainty on this point, even the Ninth Circuit has
24
1. A Fourth Amendment Violation Requires Sup-
pression of Evidence Only When an Exploitation
of the Illegality Causes the Discovery of the
Evidence
From the inception of the exclusionary rule this Court
has recognized that not all evidence discovered after the
commission of a Fourth Amendment violation is subject
to suppression. The sanction of the exclusionary rule,
which has the harsh consequence of excluding probative
evidence from trial, is imposed only against the “fruit
of the poisonous tree’’; evidence untainted by the illegality
is not a suppressible fruit. As Justice Holmes explained
in Silverthorne Lumber Co. v. United States, supra, 251
U.S. at 392:
The essence of a provision forbidding the acquisition
of evidence in a certain way is that not merely evi-
dence so acquired shall not be used before the Court
but that it shall not be used at all. Of course this
does not mean that the facts thus obtained become
sacred and inaccessible. If knowledge of them is
gained from an independent source they may be
proved like any others, but the knowledge gained by
the Government’s own wrong cannot be used by it
in the way proposed.
See also United States v. Wade, 388 U.S. 218, 242
(1976); Nardone v. United States, supra, 308 U.S. at
341.
In Wong Sun, the Court reiterated that “the exclusion-
ary rule has no application [where] the Government
learned of the evidence ‘from an independent source.’ ”’
371 U.S. at 487, quoting Silverthorne Lumber Co. V.
United States, supra, The Court went on to explain that
even evidence derived in some way from a Fourth Amend-
ment violation should not be suppressed unless it was
sufficiently tainted by the illegality to be considered “fruit
of the poisonous tree.” It stated (371 U.S. at 487-488;
citation omitted) :
We need not hold that all evidence is “fruit of the
poisonous tree” simply because it would not have
25
come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is
“whether, granting establishment of the primary il-
legality, the evidence to which instant objection is
made has been come at by exploitation of that il-
legality or instead by means sufficiently distinguish-
able to be purged of the primary taint.”
See also Brown V. Illinois, supra, 422 U.S. at 599.
It is often difficult to determine whether the discovery
of evidence that is traceable to a Fourth Amendment vio
lation is sufficiently attenuated to permit its introduction
at trial under Wong Sun. But the Court’s statements in
Silverthorne Lumber Co. and Wong Sun make clear that
the attenuation question arises at all only if the illegality
is the “but-for” cause of the discovery of the evidence.
The indispensable first step to finding that evidence should
be suppressed is a determination that “the challenged
evidence is in some sense the product of illegal govern-
mental activity.” United States v. Crews, swpra, 445
U.S. at 471. Thus, in Crews, a witness identified the de-
fendant as her assailant based on a photograph taken of
him during a concededly illegal detention. That illegality,
however, was not a basis for suppressing the witness’s
in-court identification. That identification was founded
on the witness’s mental picture of her assailant formed
at the time of the crime, and thus it was not a product
of the illegal detention.
2. The Illegal Entry Did Not Cause the Discovery
of the Evidence in This Case
As explained in Part A, supra, there was nothing il-
legal about the officers’ acting to secure petitioners’ apart-
ment from the outside. What was illegal in the absence
of exigent circumstances was the search entailed in the
entry and security check of the apartment, which exposed
portions of the private interior of the apartment to the
view of the officers. The evidence in question here, how-
ever, did not derive from this illegal search. As in Crews,
26
“the Fourth Amendment violation * * * yielded nothing
of evidentiary value that the police did not already have
in their grasp” (445 U.S. at 475 (plurality opinion)
(footnote omitted) ), i.e., the entry was not a “but-for”
cause of the discovery of the evidence.
It is undisputed that the police officers did not dis-
cover any of the cocaine, cash, or narcotics records at
issue here in the course of their entry and security check
of petitioners’ apartment, nor did they see anything else
that contributed to their subsequent discovery of these
items.** These items were discovered only when the offi-
cers searched the apartment pursuant to a valid warrant
based on probable cause; indeed, the officers did not even
know for certain of the existence of the evidence in ques-
tion until it was found during the warrant search.
Plainly, this evidence was a product of the lawful war-
rant search, not the prior unlawfu! entry and security
search.
The warrant search itself, of course, was untainted
because, as both courts below recognized (J.A. 13, 24),
the underlying affidavit (J.A. 28-29) established probable
cause based on the information known to the officers be-
fore the illegality occurred. Thus, the source for the
warrant and the subsequent discovery of the evidence
antedated, and was completely independent of, the il-
legal entry; therefore the warrant search itself cannot
be characterized as a “fruit.” See United States v. Crews,
eupra, 445 U.S. at 471-472.
In sum, the illegal entry was simply irrelevant in the
traditional, causal sense to the discovery and seizure of
the evidence in question. If the officers had not entered
the apartment and conducted a security check, their svb-
sequent actions that resulted in the discovery of the
evidence would have been identical. They still would
As noted above (note 7, supra), the agents did discover a
scale, lactose, and some cellophane bags when they conducted the
security check, but the admissibility of chose items into evidence
is not in issue in this Court.
27
have obtained a search warrant, searched petitioners’
apartment in the same manner, and discovered the same
evidence that they did in the course of the warrant
search actually conducted here. Nothing seen during the
illegal entry contributed to the discovery of the evidence,
and thus finding the initial entry to be an illegal search
provides no basis for suppressing that evidence. See
People v. Arnau, 58 N.Y.2d 27, 444 N.E.2d 13, 17, 457
N.Y.S.2d 763, 767 (1982).
3. The Possibility that the Evidence Would Have
Been Destroyed Before the Warrant Issued is Not
a Valid Basis for Suppression
There is one sense in which it can be argued that the
evidence in question might not have been discovered but
for the illegal entry: if the officers had not entered, but
rather secured the premises from the outside, petitioner
Colon might have been able to destroy the evidence before
the warrant was issued and hence prevent its discovery
pursuant to the lawful search. Petitioners do not ap-
pear to advance this contention, but the theory was the
basis for the district court’s conclusion that the evidence
should be suppressed. See J.A. 15; see also United States
v. Allard, supra, 634 F.2d at 1187. For several reasons,
however, the possibility that the entry prevented the
destruction of evidence should not be held to convert evi-
dence discovered pursuant to a valid warrant search into
a suppressible fruit of an antecedent illegal entry.
The court of appeals correctly rejected the district
court’s theory as “prudentially unsound” (J.A. 25). The
warrant requirement of the Fourth Amendment is not de-
signed to protect an individual’s ability to destroy evi-
dence or contraband in the time required to procure a
warrant, thereby preventing its discovery. In the words
of Judge Traynor, “[s]uspects have no constitutional
right to destroy or dispose of evidence,” and denying
them the ability to do so provides no basis for suppres-
sion. People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6,
28
9, cert. denied, 352 U.S. 858 (1956). Indeed, under 18
U.S.C, 2282, it is a criminal offense for any person “to
prevent the seizure or securing” of goods by destroying
or removing them before they are lawfully seized by the
authorities. See also 18 U.S.C. 1510 (obstruction of
justice). Surely, the costly remedy of the exclusionary
rule should not be invoked in order to safeguard the
ability of individuals to escape responsibility for one
crime by destroying evidence of it, committing in the
process a second criminal] offense.
Moreover, as the court of appeals pointed out (J.A.
25-26), suppression on this basis is self-contradictory.
An illegal entry can be the but-for cause of the discovery
of evidence in this sense only if there were persons
present in the apartment who would have removed or
destroyed the evidence before a warrant was obtained.”®
But in that case exigent circumstances would in fact exist
that would justify an entry into the apartment to pre-
vent the destruction of evidence. Put another way,
either (1) the evidence would have been destroyed before
the warrant issued if the officers had not entered the
apartment, in which case immediate entry was in fact
necessary, or (2) the evidence would not have been
destroyed before the warrant issued even if the officers
had not entered the apartment, in which case the entry
in no way was a but-for cause of the discovery of the
evidence. Under either assumption, there is no sound
16 Thus, it is clear that when police officers illegally enter an
apartment and find it unoccupied, the entry is not, even under the
district court’s theory, a but-for cause of the discovery of evidence
pursuant to a valid warrant. If no one is in the dwelling, the evi-
dence could not have been destroyed before the warrant search
because the officers lawfully could have prevented other persons
from entering the premises to destroy evidence. Therefore, the
district court’s theory does not explain cases such as United States
v. Lomas, supra, and United States v. Crozier, 674 F.2d 1293 (9th
Cir. 1982), petition for cert. pending, No. 82-819, where evidence
seize’ pursuant to an untainted warrant search was suppressed
because of a prior warrantless entry into unoccupied premises.
29
justification for suppressing the evidence discovered pur-
suant to the warrant search as the fruit of an illegal
entry.
The district court plainly was guilty of this precise
self-contradiction. It first found a Fourth Amendment
violation here by concluding that exigent circumstances
did not justify the entry because the officers “had- no
proof that anyone was in the apartment” (J.A. 14). The
court then turned around and, without reference to this
prior conclusion, held that the evidence was a fruit
because petitioner “Colon might well have destroyed the
evidence had she not been illegally excluded” from the
apartment (J.A. 15)."° We acknowledge that these two
statements are not inevitably inconsistent because, as the
court of appeals stated (J.A. 25-26), the officers’ en-
try did not necessarily comport with the Fourth Amend-
ment just because it later turned out that the apartment
was occupied. The validity of the officers’ determination
thac exigent circumstances existed turns on an objective
appraisal of the facts known to them when they entered
the apartment; it should not be vindicated on the basis
of hin sight. But, by the same token, the fact that the
officers were correct in believing that the apartment was
occupied, and hence that there were in fact exigent cir-
cumstances, cannot be ignored in considering whether the
exclusionary rule should apply.
Surely there is a logical problem in recognizing that
warrantless entry is generally permitted to prevent the
destruction of evidence, yet holding that in a particular
case evidence must be suppressed because its destruction
17 The officers did have probable cause to arrest Colon, and thus
it is odd to say that she was “illegally excluded” from the apart-
ment. The district court apparently was referring to the fact that
she was arrested in her apartment without a warrant (see Payton
v. New York, supra), although the constitutional infirmity in such
an arrest is the invasion of privacy associated with the warrantless
entry (or search), not the arrest itself, which is justified by
probable cause. See page 18, supra.
" * ere?
80
was prevented by an entry that is held illegal only be-
cause there was an insufficient basis to suspect that evi-
dence might be destroyed. The anomalousness of the dis-
trict court’s approach is compounded by the fact that,
if the apartment is unoccupied when the officers enter,
the entry cannot even arguably be said to have aided the
discovery of the evidence by preventing its destruction, in
which event it is entirely impossible to contend that the
evidence is a fruit. See note 16, supra. Thus, as the
court of appeals noted (J.A. 26), the district court’s
fruits theory has the bizarre consequence of penalizing
the officers for being right. The evidence is suppressed
when the officers were correct in their belief that the
Was _bparement gf occupied and hence the entry was in fact
necessary, yet the evidence is admitted when the officers
were incorrect in their belief and the apartment was
unoccupied. This results in suppression in the very cases,
and only those cases, where there were in fact exigent
circumstances; if the officers’ entry was unjustified, the
evidence would be admitted, but if the officers’ entry
actually prevented individuals from successfully destroy-
ing evidence, the district court would have the exclusion-
ary rule applied to suppress the evidence and thereby ef-
fectively complete the criminal’s thwarted effort.
Even if suppression on this basis were not so self-
contradictory, the evidence in question here cannov be
characterized as a “fruit” under established attenuation
principles. The possibility that the evidence would have
been destroyed if the officers had not entered to se
cure the premises establishes, at most, a tenuous “but-
for” connection between the discovery of the evidence and
the illegality.’* It is well established, however, that but-
18 Indeed, the court of appeals rejected the district court’s theory
in part because it rests on “wholly speculative assumptions” con-
cerning whether Colon would have destroyed the evidence were
it not for the illegal entry—i.e., the court doubted whether there
was any “but-for’ connection at all. We do not rely on this possi-
bility that the evidence would not have been destroyed as being
31
for causation is only the starting point of the inquiry
whether evidence is a suppressible fruit. The exclu-
sionary rule requires suppression only when the evidence
has been discovered by “ ‘exploitation of the illegality’ ”;
suppression is not appropriate when the connection be-
tween the illegality and the evidence is sufficiently at-
tenuated that its discovery is “ ‘by means sufficiently dis-
tinguishable to be purged of the primary taint.’” Wong
Sun v. United States, supra, 371 U.S. at 488 (citation
omitted). See also Rawlings v. Kentucky, supra, 448 U.S.
at 106; United States v. Ceccolini, 485 U.S. 268, 274-
275 (1978).
Under the attenuation test set forth in Wong Sun, this
is the clearest case imaginable for finding that particu-
lar evidence is not a fruit. Even accepting the assump-
tions that establish such a causal connection (see note
18, supra), the connection between the illegality and
the discovery of the evidence is indirect and quite at-
tenuated—the possibility that the evidence would have
been destroyed but for the illegality. The evidence was
actually discovered pursuant to an untainted warrant
search, which is plainly a “means sufficiently distinguish-
fatal to petitioners’ claim because, in our view, it was quite likely
that Colon would have attempted to destroy the evidence before
the warrant was obtained and that that likelihood established
exigent circumstances that justified the warrantless entry. See
pages 38-40, infra. We note, however, that the district court’s sup-
pression of all of the evidence does rest on a dubious speculation.
Assuming that Colon did attempt to destroy the evidence inside
the apartment before the warrant issued, it is unlikely that she
could have completed the task of destroying the large quantity of
evidence that existed without creating telltale noises or odors that
would have alerted the officers stationed outside and provided them
with a justification for entering the apartment to prevent further
destruction of the evidence. See J.A. 25. Thus, even if the agents
had not entered petitioners’ apartment when they did, it is likely
that some of the evidence would have remained and been discovered
during the warrant search, and therefore it is doubtful that the
discovery of every item of evidence can be said to be causally
connected to the illegality.
82
able to be purged of ihe primary taint” (Wong Sun v.
United States, supra, 371 U.S. at 488). By the same
token, there is little basis for finding that the evidence
was discovered by “exploitation of [the] illegality.” bid.
After the entry and limited security check, the officers con-
ducted no search for evidence until a warrant was ob-
tained. The decision to await a search warrant despite
their premature and unexpected entry, which they be-
lieved to be necessitated by exigent circumstances, is
antithetical to the concept of “exploiting” an illegal entry.
Compare Brown V. Illinois, supra.
Accordingly, apart from the Ninth Circuit (see United
States v. Lomas, supra; United States v. Allard, supra),
the courts of appeals generally have held that evidence
discovered in the course of an untainted warrant search
is admissible despite a prior entry to secure the premises
that was not justified by exigent circumstances. See
United States v. Perez, 700 F.2d 1232, 1237-1238 (8th
Cir. 1983); United States v. Beck, 662 F.2d 527, 530
(8th Cir. 1981); United States v. Kinney, 638 F.2d 941,
945 (6th Cir.), cert. denied, 452 U.S. 918 (1981) ; United
States Vv. Fitzharris, 683 F.2d 416, 421 (5th Cir. 1980),
cert. denied, 451 U.S. 988 (1981) ; United States v. Kor-
man, 614 F.2d 541, 547 (6th Cir.), cert. denied, 446
U.S. 952 (1980); United States v. Edwards, 602 F.2d
458, 469 n.12 (lst Cir. 1979) (dictum); see also United
States v. Bosby, 675 F.2d 1174, 1180-1181 (11th Cir.
1982) (illegal search of briefcase not ground for suppres-
sing documents found in subsequent warrant search of
briefcase by another officer); People v. Arnau, supra
(N.Y. Ct. App.) (expressly rejecting Allard); People v.
Barndt, 199 Colo. 51, 604 P.2d 1173, 1175-1176 (1980) ;
State v. Fenin, 154 N.J. Super. 282, 287, 381 A.2d
364, 367 (1977).
In short, the discovery of the evidence pursuant to the
untainted warrant search here was not a fruit of the
illegal entry; rather, it is a classic example of evidence
obtained through a source independent of the illegality
that is therefore not subject to suppression. In the words
of Judge Sobeloff: “It is one thing to say that officers
shall gain no advantage from violating the individual’s
rights; it is quite another to declare that such a viola-
tion shall put him beyond the law’s reach even if his guilt
can be proved by evidence that has been obtained law-
fully.” Sutton v. United States, 267 F.2d 271, 272 (4th
Cir. 1959).
C. The Conduct Of The Police Here Provides No Basis
For Applying The Exclusionary Rule To Suppress
Evidence That Is Not The Fruit Of An Lllegality
Petitioners contend that the officers here were guilty
of “flagrant” ‘Br. 40, 42) and “disgraceful police mis-
conduct” (id. at 35-36) and demonstrated a “disgraceful
and purposeful disregard * * * of the Fourth Amend-
ment” (id. at 37). Petitioners appear to argue that gen-
eral considerations of deterrence justify suppression of the
evidence here even if it is not subject to suppression
under traditional exclusionary rule principles. This con-
tention is both theoretically and factually unsound.
a. First, there is no theoretical basis for the con-
tention that the flagrancy of police misconduct in a par-
ticular case warrants suppression of evidence not sup-
pressible under ordinary Fourth Amendment principles
because not traceable to the misconduct. See generally
United States v. Payner, 447 U.S. 727 (1980). Because
of the harsh consequences of applying the exclusionary
rule, this Court has restricted its application to those
'* This Court has adverted many times to the costs of the ex-
clusionary rule. There is a compelling “public interest in prose-
cuting those accused of crime and having them acquitted or con-
victed on the basis of all the evidence which exposes the truth.”
Alderman Vv. United States, 394 U.S. 165, 175 (1969). The appli-
cation of the exclusionary rule in a given case undermines this
interest and may allow “[t]he criminal * * * to go free because
the constable has blundered.” People v. Defore, 242 N.Y. 18, 21,
150 N.E. 585, 587, cert. denied, 270 U.S. 657 (1926). Moreover,
this consequence can give rise to a public perception of unfairness
that can have the “effect of generating disrespect for the law and
administration of justice.” Stone v. Powell, supra, 428 U.S. at
34
situations where its purposes—principally the deterrence
of police misconduct—are best served. United States Vv.
Calandra, supra, 414 U.S. at 348. The Court has de-
termined that the policies of the exclusionary rule do not
warrant suppression when the discovery of the challenged
evidence has an independent untainted source or when the
connection between the evidence and the illegality has
been sufficiently attenuated under the Wong Sun test.
These principles reflect a genera] determination that in
such situations the incremental deterrent benefits that
would flow from suppression do not outweigh the sub-
stantial societal costs of suppression. See, e.g., United
States v. Ceccolini, supra, 485 U.S. at 275-276. Even
where the police misconduct can be termed “flagrant,”
it is appropriate to adhere to that general determina-
tion. This does not reflect a condonation of the police con-
duct. It simply represents a limitation of the application
of the exclusionary rule, in accordance with its underly-
ing policies, to situations where it is an appropriate
remedy; the mere fact that an illegality has occurred does
not provide a sufficient basis to suppress evidence un-
connected to that violation. See United States v. Payner,
supra, 447 U.S. at 733-7386; see also United States v.
Morrison, 449 U.S. 361, 365-366 (1981) (Sixth Amend-
ment) (“(t]he remedy in the criminal proceeding is
limited to denying the prosecution the fruits of its
transgression”).
This is not to say that the flagrancy of police conduct
is completely irrelevant in considering the proper ap-
plication of the exclusionary rule. To the contrary, it
is undoubtedly a relevant consideration in certain con-
texts. For example, in the “fruits” area itself, the
flagrancy of the police conduct is recognized as a ma-
terial factor in the attenuation inquiry, provided there
is a causal connection between the illegality and the evi-
490-491 (footnote omitted). See generally Jllinois v. Gates, No. 81-
430 (June 8, 1983), slip op. 12-18 (White, J., concurring in the
judgment).
dence. See Rawlings v. Kentucky, supra, 448 U.S. at 109-
110; Brown v. Illinois, supra, 422 U.S, at 604.”
“Flagrancy” is only part of the inquiry, however; it is
not alone a basis for suppression. Where, as here, the il-
legality and the discovery of the evidence are unrelated,
established Fourth Amendment principles reject the im-
position of the suppression remedy, even if the police ac-
tion can be characterized as “flagrant.”
b, Petitioners also appear to suggest (Br. 40-41) that,
regardless of the flagrancy of the officers’ conduct in this
particular case, suppression is necessary as a general rule
in circumstances such as these in order to deter police
from entering premises unlawfully in every case in which
they are seeking a search warrant. That is, petitioners
suggest that unless an illegal warrantless entry is pun-
ished in every case by suppression of all after-acquired
evidence—even if the discovery of the evidence is not
causally connected to the illegality—police officers will be
encouraged to commit flagrantly illegal entries while
awaiting a warrant on the theory that they have nothing
to lose. This concern is unfounded.
First, the assertion that adherence to the independent
zource doctrine in this context will materially encourage
substantial Fourth Amendment violations ignores the
practicalities of the situations in which the issue arises.
The officers, having decided that probable cause exists and
that a warrant should be produced, ordinarily have every
reason to expect that their investigation will not be
hampered by awaiting the magistrate’s action on the
warrant application. Accordingly, if they possess little
* Similarly, if the Court were to adopt the so-called “good
faith” exception to the exclusionary rule (see Jllinois Vv. Gates,
supra (White, J., concurring); United States v. Williams, 622
F.2d 830 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127
(1981) )--a question now pending before it (see United States v.
Leon, cert. granted, No. 82-1771 (June 27, 1983)—the flagrancy
or “bad faith” of the officers’ conduct would be a critical factor
in considering the application of the exclusionary rule in a par-
ticular case.
36
or no reason to fear the destruction of evidence or the
escape of suspects while awaiting the warrant, they have
little incentive to make a prewarrant entry. Such a
course of action would serve only to expose them to the
risk of civil liability without materially furthering their
law enforcement goals. It is only when they entertain
substantial fears that prompt action to secure the prem-
ises is necessary that they are likely to “jump the gun.”
But while they may sometimes be mistaken in such in-
stances in their conclusion that the circumstances are
sufficiently exigent to justify a warrantless entry, their
improper action will in the nature of things generally
occur only when the premature entry results from a
marginal miscalculation rather than a gross or flagrant
violation,
Moreover, admission of untainted evidence subsequently
seized pursuant to a valid search warrant does not elimi-
nate every deterrent to an illegal entry. Even if the
court of appeals’ decision is affirmed, there remain sub-
stantial disincentives to purposeful police entries in the
absehce of exigent circumstances. The illegal entry itself
automatically results in a search, and it can reasonably
be argued that items seen in plain view when the officers
enter are fruits of the entry. Thus, in this case, several
items of evidence were ordered suppressed by the court
of appeals because they were first discovered during the
initial entry and security check. See J.A. 26-27. In
21 Because no cross-petition was filed in this case, the correct-
ness of this aspect of the court of appeals’ holding is not before
this Court. We note, however, that the holding is open to ques-
tion. Even if the sighting of the evidence in plain view during
the warrantless entry makes the evidence a fruit of that entry, it is
also true that the warrant search provides a concurrent “inde
pendent source” for its discovery. Moreover, under the “inevitable
discovery” doctrine, evidence that is the fruit of an illegality may
nevertheless be admitted at trial if it is shown that the evidence
would inevitably have been discovered anyway even if the illegality
had not occurred. See Brewer Vv. Williams, 430 U.S. 387, 406-407
n.12 (1977) (dictum). The courts of appeals have universally
37
addition, there may be probative evidence suppressed as
a fruit in connection with the apprehension of persons
inside the premises, such as the revolver and cash seized
here from petitioner Colon’s purse (see J.A. 13) or state
ments made by an arrestee. See, e.g., Taylor v. Alabama,
No. 81-5152 (June 23, 1982). See also Gilbert v. Cali-
fornia, 388 U.S. 263, 273-274 (1967) (lineup identifica-
tion). Moreover, at the time the warrantless entry to
secure the premises is made, the police officers do not
know for certain that a warrant will actually issue, and
thus they are not in a substantially different position
from officers in any situation where a warrantless entry
is contemplated. See United States v. Apker, 705 F.2d
293, 307 (8th Cir. 1983). Yet it has never been thought
necessary to reject the established “fruits” analysis in
order to deter all warrantless entries. Finally, a de
liberate violation of the Fourth Amendment exposes the
officers to possible civil liability. Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971).
This is not to say that suppression would have no
incremental deterrent effect on illegal entries, only that,
as in other areas of Fourth Amendment law, the limited
deterrent benefit is outweighed by the substantial cost
of suppression. In short, there is no special reason for
excepting this case from the general principle that the
adopted the inevitable discovery doctrine (see, e.g., United States
v. Apker, 705 F.2d 293, 306-307 (8th Cir. 1983); United States v.
Fisher, 700 F.2d 780, 784 (2d Cir. 1983) ; United States v. Romero,
692 F.2d 699, 704 (10th Cir. 1982), and cases cited therein), and
its validity is now before this Court (Williams v. Niz, 700 F.2d 1164
(8th Cir. 1983), cert. granted, No. 82-1651 (May 31, 1983) ). Unless
the evidence would have been destroyed before the warrant was
obtained, which is not a possibility when the premises are unoccu-
pied, evidence seen during a warrantless security check would
inevitably have been discovered anyway during the later execution
of a search warrant and hence should be admissible under the
inevitable discovery doctrine. See United States v. Fitzharris,
supra, 633 F.2d at 421; contra, United States v. Griffin, supra.
38
exclusionary rule does not require suppression of evidence
that is not the fruit of an illegality.
c. Even assuming arguendo that petitioners are correct
in asserting that suppression of evidence not discovered
as the result of an illegal entry might be appropriate if
the police acted in bad faith (cf. Williams v. Nix, 700
F.2d 1164 (8th Cir. 1983), cert. granted, No. 82-1651
(May 31, 1983) (bad faith exception to inevitable dis-
covery doctrine))}, the underlying factual premise of
their argument in this case is manifestly erroneous. The
police officers here simply did not act in bad faith or
engage in flagrant misconduct. Indeed, while we have
not asked this Court to rule on the fact-bound question
whether there were exigent circumstances, in our view it
is an extremely close question whether the officers’ ac-
tions violated the Fourth Amendment at all. At most,
they were guilty of committing a good faith mistake in
making the difficult on-the-spot determination whether
the existing circumstances were sufficiently exigent to
justify a warrantless entry to prevent the destruction of
evidence.
The court below correctly recognized (see J.A. 21-23)
that a warrantless entry and protective sweep to prevent
the destruction of evidence is permitted if officers have
sufficient reason to believe that someone is on the prem-
ises who is likely to destroy the evidence before a search
warrant is obtained. See, e.g., United States v. Santana,
427 U.S. 38, 43 (1976); Johnson v. United States, 333
U.S. 10, 15 (1948); United States v. Martino, 664 F.2d
860, 869-870 (2d Cir. 1981), cert. denied, No. 81-6755
(June 28, 1982) ; United States v. Wiga, 662 F.2d 1325,
1329-1333 (9th Cir. 1981), cert. denied, 456 U.S. 918
(1982). The court held that there were no exigent cir-
cumstances here, however, because the officers did not
have sufficient reason to believe that the apartment was
occupied or that the occupants were about to destroy
evidence; but this holding is at least open to question
under the facts of this case.
39
First, there is no doubt that the agents had probable
cause to believe that there was evidence in the apart-
ment, as is manifested by the issuance of the search war-
rant. See page 17, supra. Second, they had strong rea-
son to believe that, if the apartment were occupied, the
occupants would be alerted that something was wrong
and would attempt to destroy the evidence before the
warrant was obtained. Rivudalla had told the police that
Segura was scheduled to call him that evening at 10:00
p.m. to find out whether he had been able to sell the
cocaine (J.A. 18; H. Tr. 151). Rivudalla’s failure to be
present to receive the scheduled call because of his arrest
might well have suggested to the occupants that he had
been arrested or at least that something was amiss; by
the same token, Segura’s arrest and his resulting failure
to return to his apartment that night would also have
given the occupants of the apartment reason to consider
destroying the evidence. See, e.g., United States Vv.
Campbell, 581 F.2d 22, 26 (2d Cir. 1978).
These facts alone did not establish exigent circum-
stances because the officers initia!ly had insufficient reason
to believe that the apartment was occupied. The officers
did not hear any noise coming from the apartment, and,
accordingly, they did not enter, but rather established
surveillance from the outside. The situation changed,
however, when Segura returned to the apartment building
alone at 11:15 p.m. and was arrested. At that point, the
agents realized that Colon, whom they had assumed was
with Segura (see H. Tr. 394), was probably in the apart-
ment (her residence) given the lateness of the hour. The
realization that the apartment was probably occupied,
coupled with the other information known to the officers,
gave rise to a reasonable basis for suspecting that the
evidence might be destroyed if entry was postponed until
a warrant was obtained the next day. While the court
2 Contrary to petitioners’ contention (Br. 19-21), therefore,
this case is quite different from Vale v. Louisiana, supra, where
the Court held a warrantless entry and evidentiary search illegal
40
of appeals considered these factors and held that they
did not establish a sufficient degree of suspicion that evi-
dence might be destroyed to justify a warrantless entry,
the exigent circumstances question is plainly a close
question of law, and the officers’ commission of a Fourth
Amendment violation, if there was a violation at all,
manifestly resulted from a good faith misjudgment in a
difficult situation.
The other actions taken by the officers, both before and
after the entry, buttress the conclusion that they acted in
good faith at all times. First, after Rivudalla’s arrest,
they contacted the United States Attorney’s office to
attempt to obtain a search warrant rather than acting
on their own initiative. See United States v. Campbell,
supra, 581 F.2d at 27 & n.9. When the Assistant United
States Attorney informed them that a warrant could not
be obtained until the following day,** the officers carried
out the attorney’s instructions to secure the premises
from the outside. Only when the situation changed did
the officers enter the apartment on the basis of their
belief that a substantial danger existed that evidence
because it was not justified by any exigency. 399 U.S. at 35. That
conclusion rested largely on the Court’s finding that the search
took place after the officers had “satisfied themselves that no one
else was in the house.” Jd. at 34.
23 Jt is not clear why a greater effort was not made to obtain
a search warrant when the officers first sought one, and we do not
condone the failure to do so. Given that no warrant was available
that night, however, we contend that the police officers acted in
good faith at all times and that their conduct, to the extent it vio
lated the Fourth Amendment, cannot be characterized as flagrant
misconduct. We note that, subsequent to the events in this case,
the United States Attorney circulated an internal memorandum
reemphasizing that search warrants should be sought when at all
possible, regardless of the hour, in order to avoid the need for war-
rantless entries to secure premises. (A copy of this memorandum is
being lodged with the Court and furnished to counsel.) Accordingly,
there is no reason to expect that the failure to attempt to contact a
magistrate because of the lateness of the hour will be repeated in
future cases.
41
would be destroyed,** and they then took no action beyond
that reasonably necessary to preserve the evidence. They
limited the privacy intrusion to a security check for the
presence of persons (which was proper conduct if there
were in fact exigent circumstances) and did not make
any evidentiary search until the warrant was issued.
Compare Vale v. Louisiana, 399 U.S. 30 (1970) (war-
rantless evidentiary search).*° In sum, the officers at no
time sought to subvert the warrant process; all their
actions were taken with the understanding that no evi-
™ Petitioners erroneously assert (Br. 44) that the officers flouted
the instructions of both the Assistant United States Attorney and
_Agent Palumbo in effecting the entry. The officers in fact closely
followed the attorney’s advice. As petitioners note (ibid.), he ad-
vised the officers (through Agent Palumbo) to secure the premises
from the outside, which they did for almost five hours. The
Assistant United States Attorney also advised the officers that
they were allowed to enter the premises without a warrant if
exigent circumstances arose; specifically, the attorney told Agent
Palumbo “if you have reason to believe that there was somebody
inside that could dispose of whatever was inside * * * you should
go into the premises * * * to secure the premises” (H. Tr. 445).
In accordance with these instructions, Agent Palumbo directed
several officers to enter the apartment to secure the premises
after Segura was arrested (see H. Tr. 155-156).
2% Petitioners also erroneously claim (Br. 45) that the occupants
of the apartment were illegally arrested. It is clear that the officers
had probable cause to arrest petitioner Colon. Her arrest was
illegal in the sense that the officers should not have entered the
apartment to arrest her in the absence of exigent circumstances
(Payton v. New York, supra), but this is the same illegality that
is the focus of this case. That Colon’s arrest was illegal for this
reason does not suggest any misconduct on the part of the police
officers that is not already inherent in the entry to secure the
premises. Petitioners also appear to suggest that the arrests of
the other occupants were illegal for lack of probable cause. They
point to no finding, however, that there was no probable cause for
the arrests; indeed, such an assumption is substantially under-
mined by the fact that two of the other occupants were indicted.
See note 2, supra.
42
dentiary search would be undertaken unless and until
the warrant they were in the process of seeking was
obtained, and their actions were aimed at facilitating
that end.
Petitioners object (Br. 45) that the length of time
between the entry and the issuance of the warrant—19
hours—evidences the police officers’ bad faith. This is
simply not so. While 19 hours might often be an un-
reasonable length of time to secure premises pending the
issuance of a warrant, and this delay perhaps could have
been shortened somewhat here, in the circumstances of
this case the amount of time consumed before the warrant
issued does not indicate any bad faith. Petitioners’ ob-
jection essentially is that the warrant was not obtained
until 6:00 p.m. the following day rather than first thing
in the morning. But this delay was occasioned by the
fact that the police officers and attorneys involved in the
case focused their energies on expediting the initia] ap-
pearance of petitioners and the other arrestees before
a magistrate (see Fed. R. Crim. P. 5(a)) rather than
on procuring a warrant as quickly as possible (H. Tr.
161, 449-450). It must be emphasized that petitioners,
the two residents of the apartment, both had been arrested
and were in custody. The fact that their apartment was
secured against entry by them or others therefore did
not really affect them, and the delay in getting the war-
rant did not inconvenience them.?* Thus, while it would
have been incumbent on the officers to procure a warrant
as expeditiously as possible if the securing of the prem-
ises had the effect of restricting individuals’ access to
their home, in the circumstances here it was reasonable
for the officers to place a higher priority on other duties,
26 Accordingly, the assertion (Br. 45) that the delay in obtaining
the warrant “prevent[ed] the normal use of the dwelling for an
absurdly extended period of time” is simply inaccurate.
43
such as a speedy judicial appearance, rather than obtain-
ing a warrant as quickly as possible.”
Petitioners also object (Br. 47-48) that the affidavit
for the search warrant did not include the observations
made by the officers during the security check.** This
objection is mystifying. The function of the magistrate
7 Petitioners contend (Br. 45-47) that it was flagrant miscon-
duct for the officers to remain inside to secure the premises after
the illegal entry. This objection is misconceived. Given that the
officers had already invaded petitioners’ privacy by conducting a
security check of the apartment and that petitioners were in
custody, it made no practical difference whatsoever (except to the
officers’ comfort) whether the officers proceeded to secure the
premises by sitting in the apartment or standing outside the door.
Petitioners’ reliance (Br. 47) on a quote from Professor LaFave’s
treatise is misplaced because the “ ‘more intrusive step’” referred
to there is the entry itself (and consequent search) not the act of
remaining inside the premises once the entry has already taken
place.
Petitioners also object that the officers were free “to rummage
around” the premises before the warrant issued, suggesting (Br.
45) that the officers perjured themselves at the suppression hear-
ing. The short answer to this contention is that the record un-
equivocally demonstrates that the officers did not conduct an evi-
dentiary search except pursuant to the warrant (see H. Tr. 375-
385), and the courts below plainly credited the officers’ testimony
in this regard. More fundamentally, however, petitioners’ objection
highlights the crucial defect in their position. There is no reason
to doubt the officers’ testimony that they did not conduct an evi-
dentiary search before the warrant arrived because there would
have been no advantage for them in doing so. They expected to
receive shortly a warrant authorizing them to conduct such a search
lawfully. In the same way that a hypothetical pre-warrant search
would not have gained the officers access to any evidence that they
could not gain with the warrant, the illegal entry also did not gain
them any advantage with respect to the discovery of evidence.
That is, the valid warrant was an untainted source for the discovery
of the evidence completely independent of the illegal entry.
2* The actual validity of the warrant is not before this Court
because it limited the grant of certiorari to Question 1 presented
by the petition (see J.A. 33). Petitioners apparently raise this
point as evidence of the “flagrancy” of the officers’ misconduct.
44
is not to assess whether the police correctly determined
that exigent circumstances justified a warrantless entry
to prevent the destruction of evidence. Rather, the
magistrate’s function is to make a probable cause de-
termination, and thus he was not misled in any way by
the alleged omission. There was no reason for the police
to include possibly tainted information in the warrant
application, thus creating a ground for challenging the
validity of the warrant; rather, they acted prudently and
properly in drafting the affidavit to specify the basis for
probable cause on which they first determined to seek the
search warrant—before the warrantless entry.
In sum, the illegality in this case, to the extent there
was a Fourth Amendment violation at all, was the result
of a good faith misjudgment by police officers with re-
spect to a difficult legal determination. That illegality
did not contribute to the discovery of the evidence in
question, which was found during the execution of an
untainted warrant search. Accordingly, well-established
principles dictate that the policies underlying the ex-
clusionary rule do not justify suppression of the evidence.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
Rex E. LEE
Solicitor General
D. LOWELL JENSEN
Assistant Attorney General
ANDREW L, FREY
Deputy Solicitor General
ALAN I. HOROWITZ
Assistant to the Solicitor General
PATTY MERKAMP STEMLER
Attorney
JULY 1983
WR os. 8. eovernmext paowrias orice, 1963 411707 44
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