Amicus Brief — Segura v. United States

NO. 82-5298

in the

Supreme Court

of the

Wnited States

OCTOBER TERM, 1982

ANDRES SEGURA AND LUZ MARINA COLON,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONERS

PAUL E. WARRURGH, JR. REX E. LEE

Axelrod & Warburgh Solicitor General

370 Lexington Avenue U.S. Department of Justice

New York, New York 10017 Washington, D.C, 20580

(212) 689-8970 (202) 623-2000

PETER J. FABRICANT Counsel for Respondent

Dickstein & Fabricant GENE REIBMAN

24 East 21st Street

New York, New York 10010

(212) 505-0050

600 N.E. Third Avenue

Ft. Lauderdale, FL 33304

(305) 467-8715

Counsel for Petitioners Counsel of Record for

Amicus Curiae, National

Association of Criminal

Defense Lawyers

PETITION FOR CERTIORARI FILED AUGUST 27, 1982,

CERTIORARI GRANTED FEBRUARY 22, 1983.

QUESTION PRESENTED

The issue on which Certiorari was granted is

“(w]hether the introduction into evidence of contraband

seized after a 19-hour hiatus between the illegal entry

into and seizure of Petitioner's dwelling and the obtaining

of a search warrant violates the Constitutional]

requirement that a magistrate find probable cause and

issue a warrant before the police violate the privacy of

the home?” (emphasis in the original)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................... i

py Pg By ys Fr ee ii

pe A Eg iys ys ee ee a iii

OPINION AND JUDGMENTS BELOW ......... 1

CONSTITUTIONAL PROVISIONS INVOLVED. 1

INTEREST OF AMICUS CURIAE ............. 1

SUMMARY OF ARGUMENT ................. 2

WOO EI sinks oe Grate eh oee cerned cere Lael 2

IIE. 500.9 dis MO ean eles ees bk 3

THE EVIDENCE SEIZED UNDER THE SEARCH

WARRANT SHOULD BE SUPPRESSED

A. The Privacy Interest Asserted in this Case

is Exceptionally Strong

B. The Evidence Was Seized at the Time the

Apartment Was Impounded, Not at the

Time the Warrant Was Executed

C. Suppression of All the Evidence Seized is

Required

SE (si Sak ono udonnsd wen contested 18

TABLE OF AUTHORITIES

Cases Pages

Boyd v. United States,

116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)... 7

Brown v. Illinois,

422 U.S. 590, 95 S.Ct. 2254,

45 L.Ed.2d 416 (1975) ................ 6, 11, 12,

Colorado v. Banister,

449 U.S. 1, 101 S.Ct. 42,65 L.Ed.2d1(1980)... 8

Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022,

Be MTOR oc shoe deeen sees 7

Dunaway v. New York,

422 U.S. 200, 99 S.Ct. 2248,

pe th 6

Florida v. Royer,

—___. U.S. ___, 108 S.Ct. 1319,

BE Rs re 8, 12, 13

Gouled v. United States,

255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647(1920).. 16

Hale v. Henkel,

201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652(1906)... 8

Johnson v. United States,

333 U.S. 10, 68 S.Ct. 367,

92 L.Ed. 436 (1948) .................. 7, 13,14

TABLE OF AUTHORITIES (Continued)

Cases Pages

McDonald v. United States,

335 U.S. 451, 69 S.Ct. 191,

Se as BUD onc es Sac ccc ccc cwncaccs 7,14

Mincey v. Arizona,

437 U.S. 385, 98 S.Ct. 2408,

gS ee er re 7

Parts Manufacturing Corp. v. Lynch,

129 F.2d 841 (2nd Cir. 1942),

cert. denied, 317 U.S. 674 (1942)............. 4

Payton v. New York,

445 U.S. 573, 100 S.Ct. 1371,

PR ee 7,8

Steagald v. United States,

—_—._ US. __, 101 S.Ct. 1643,

al eer ere 7

Taylor v. Alabama,

—_._. US. —.... 10 L. S.Ct. 3384,

Se OPPS OPP rere 6

Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868,

SP RCRD. 5 coe oc ccc ccc cee ns 12

United States vu. Agapito,

620 F.2d 324 (2nd Cir. 1980) cert. den.

Ne NUE «wehbe ov cues cbemess 3, 4,5

TABLE OF AUTHORITIES (Continued)

Cases

United States v. Brignoni-Ponce,

442 U.S. 873, 95 S.Ct. 2574,

45 L.Ed.2d 607 (1975) ................

United States v. Ceccolini,

435 U.S. 268, 98 S.Ct. 1054,

55 L.Ed.2d 268 (1978) ................

United States v. Cognato,

408 F. Supp. 1000, (D. Conn., 1976),

Affd. 1539 F.2d 703 (2nd Cir. 1976)

cert. denied, 430 U.S.956(1977).......

United States v. Crews,

445 U.S. 463, 100 S.Ct. 1244,

63 L.Ed.2d 587 (1980)................

United States vu. Giordano,

416 U.S. 505, 94 S.Ct. 2820,

cope Ba eee

United States v. Haden,

397 F.2d 460 (7th Cir. 1968)...........

United States v. Lisk,

522 F.2d 228 (7th Cir. 1975) ...........

United States v. Mendenhall,

446 U.S. 544, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980)................

Pages

TABLE OF AUTHORITIES (Continued)

Cases Pages

United States v. Ross,

cess SIM ctecmcin GO arts GAOT,

fea 10

United States v. Segura,

633 F.2d 411 (2nd Cir. 1981)................. 3,4

United States v. Shaefer, Michael & Clairton,

637 F.2d 200 (8rd Cir. 1980)................. 11

United States v. Thomas,

613 F.2d 787 (10th Cir. 1980) ................ 4

United States v. United States District Court,

407 U.S. 297, 92 S.Ct. 2125,

OE ar 7

Vale v. Louisiana,

399 U.S. 30, 90 S.Ct. 1969,

Re ne en ee ne 7

Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407,

om eee 11

vi

TABLE OF AUTHORITIES (Continued)

Cases Pages

TEXTS

Lasson, The History And Development of the Fourth

Amendment of the Constitution of the United States,

Se: CE ss 5 oo5 ocak oun een peered 7

LaFave, Search and Seizure,

DR en et a ore ae eee 4,15

vii

OPINION AND JUDGMENTS BELOW

The opinion of the Second Circuit Court of Appeals

is reported at United States vu. Segura, 633 F.2d 411

(2nd Cir. 1981) and is reproduced at Joint Appendix,

Pages 17-27. The opinion of the United States District

Court for the Eastern District of New York (John R.

Bartels, District 1udge) is unreported and is reproduced

at Joint Appendix Pages 3-16.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Amendment IV Provides:

“The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shal! issue but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense

Lawyers, Inc., (hereinafter “NACDL”) is a District of

Columbia non-profit corporation founded in 1958. More

than 2,000 lawyers drawn from every state are members.

The NACDL membership is in daily contact with the

criminal justice system as advocates, law professors or

judges of our state and federal courts. The NACDL is

affiliated with the American Bar Association and is

awarded full representation in the ABA House of

Delegates. One of the NACDL’s stated objectives is to

promote the proper administration of justice through

its concern with the protection of individual rights and

the improvement of the criminal law and its practices

and procedures.

SUMMARY OF ARGUMENT

Privacy in the home is a core interest protected by

the Fourth Amendment and, as such, has received and

continues to deserve rigorous protection by this Court.

The seizure of the Petitioners’ apartment was a seizure

of its contents. It matters little whether the agents

rummaged through the apartment or whether they

just merely “secured” it, taking note of what they

would later seize under the warrant. The invasion of

privacy interests protected by the Fourth Amendment

occurred at the point of impoundment, not upon the

subsequent seizure under the warrant. The later issuance

of the warrant by the magistrate cannot cure the prior

unlawful seizure.

Suppression of evidence first seized without a

warrant and later re-seized pursuant to one is required

to vindicate the right of privacy and will enhance Fourth

Amendment values. This case cannot turn on whether

the unlawfully seized evidence was used to obtain the

warrant. Only suppression of all the evidence seized

will deter police entries of this nature.

FACTS

Amicus Curiae adopts the statement of facts set

forth in Petitioners’ Brief.

ARGUMENT

THE EVIDENCE SEIZED UNDER THE SEARCH

WARRANT SHOULD BE SUPPRESSED

The Second Circuit Court of Appeals held the

search warrant issued by the Magistrate in this case to

be valid, United States vu. Segura, 633 F.2d 411, 414

(2nd Cir. 1981), Amicus curiae does not challenge that

conclusion. To the Second Circuit, the issuance of the

warrant was sufficient to validate the search and seizure

under the authority of it irrespective of the

unreasonableness of the entry into the apartment in

the first instance. (Id. at 416-417). To reach its result,

the Second Circuit had to proceed on two assumptions:

that the warrantless entry into and impoundment of

the apartment was not a seizure of its contents and,

that the warrant somehow sufficiently intervened into

the agents’ continuous unlawful possession of the contents

of the apartment to purge the taint of the initial seizure.

The District Court put the focal issue well: [t]he real

problem in this case is the effect of the search warrant

issued after the premises were illegally secured.” (Joint

Appendix at 13). The Second Circuit based its result

exclusively on its earlier decision in United States v.

Agapito, 620 F.2d 324 (2nd Cir. 1980) cert. denied 449

U.S. 834 (1980). Agapito was a case factually similar to

this in which DEA agents unlawfully entered the

defendants’ hotel room after arresting them in the

hotel lobby. After holding possession of the room for

almost 24 hours, the agents obtained a warrant and, on

authority of the warrant, opened a suitcase they had

seized, but had not opened, on their initial unlawful

entry. After finding an untainted residue of information

in the warrant sufficient to meet the probable cause

standard, the Court, without further discussion, sustained

the seizure of drugs found in the suitcase.

+ Agapito, as in this case, is notable for the lack of

discussion of the issue of whether the execution of the

lawful warrant was tainted by the agents’ prior unlawful

entry into an area in which the defendants had justifiable

expectations of privacy. United States u. Agapito, supra,

620 F.2d at 333-338; United States v. Segura, supra, 663

F.2d at 414. Citation by the Agapito panel to Mr. Justice

Powell’s dissent in part in United States v. Giordano,

416 U.S. 505, 554-556, 94 S.Ct. 1820, 40 L.Ed.2d 341

(1974), and to the opinion in Parts Mfg. Corp. v. Lynch,

129 F.2d 841, 842-843 (2nd Cir. 1942), cert. denied, 317

U.S. 674 1942) and United States vu. Cognato, 408 F.

Supp. 1000, 1005 (D. Conn. 1976), Affd. 539 F.2d 703

(2nd Cir. 1976), cert. den., 430 U.S. 956 (1977), makes it

reasonably apparent that under the Second Circuit's

rationale, if no tainted evidence is used to obtain the

warrant, whatever transpired prior to its issuance is a

constitutional irrelevancy. United States v. Agapito,

supra, 620 F.2d at 638.

The Second Circuit’s apparent reluctance to describe

its result in the language of the attenuation cases strongly

suggests that this case resembles but does not tightly

fit that mold. This clearly is not a case where illegally

gathered primary evidence leads to and taints other

evidence. See, United States vu. Crews, 445 U.S. 463,

470-471, 100 S.Ct. 1244, 1249, 1250, 63 L.Ed.2d 537

(1980). 3 LaFave, Search and Seizure, Ch. 11.4 at P. 612

(1978). The officers apparently had probable cause to

obtain a warrant, did not get one, and then impounded

Petitioner’s apartment and held it for some 19 hours

before obtaining the warrant and seizing evidence under

the authority of it. By treating the question raised in

this case as a “use” problem the Second Circuit has

misdirected the inquiry. Proper analysis requires

resolution of whether the Petitioners’ protected Fourth

Amendment interests were invaded by the agents and

if so, whether preservation of Fourth Amendment values

calls for suppression of all the evidence seized. The

analytical model employed by the Second Circuit to

decide this case is insufficient because it ignores

consideration of these two factors which are the heart

of the suppression cases.

“. , . considerations relating to the exclusionary

rule and the constitutional principles must play

a factor in attenuation analysis. ... The

penalties visited upon the Government, and in

turn upon the public, because its officers have

violated the law must bear some relation to

the purpose which the law is to serve.” United

States v. Ceccolini, 435, U.S. 268, 279, 98 S.Ct.

1054, 1061-1062, 55 L.Ed.2d 268 (1978).

It is the relationship between the unlawful impoundment

and the seizure under the warrant that must occupy

center stage. By drawing a distinct line between

suppression and admission at the use and exploitation

of the evidence illegally seized on the first search and

the valid warrant as the predicate for the second, the

Second Circuit created a per se rule under which the

later search and seizure under authority of the warrant

will always be lawful. See, United States vu. Agapito,

supra, 620 F.2d at 338.

This Court has on several occasions rejected the

logic that the later adherence to one constitutional

right will, of its own force, cure an earlier deprivation

of another. In Brown v. Illinois, 422 U.S. 590, 601-603,

95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), this Court refused

to accept the argument that giving Miranda warnings

will alone s* ciently sanitize a confession made during a

period of detention resulting from an unlawful arrest.

Instead, the Court viewed the admissibility of the

Mirandized confession “in light of the distinct policies

and interests of the Fourth Amendment”, 422 US. at

602:

“If Miranda warnings, by themselves were

held to attenuate the taint of an unlawful arrest,

regardless of how wanton and purposeful the

Fourth Amendment violation, the effect of the

exclusionary rule would be substantially deleted.

. . . Any incentive to avoid Fourth Amendment

violations would be eviscerated by making the

warnings, in effect, a ‘cure-all’ and the

constitutional guarantee against unlawful search

and seizures could be said to be reduced to ‘a

form of words’. Brown wv. Illinois, supra, 422

U.S. 602-603.

In Dunaway v. New York, 442 U.S. 200, 217-219, 99

S.Ct. 2248, 60 L.Ed.2d 824, (1979) and Taylor u Alabama,

—___. U.S. ___, 102 S.Ct. 2664, 2669, ___ L.Ed.2d ___.,

(1982), the Court followed Brown and held that the

question of suppression must be viewed in light of the

interests the Fourth Amendment is designed serve

and the deterrent purposes of the exclusionary rule.

Viewed from this perspective, the Second Circuit simply

pulled up too short. Notwithstanding the intervention

of the warrant, application of established Fourth

Amendment principles compels the conclusion that the

evidence taken by the DEA agents under authority of

the warrant should be suppressed.

A. The Privacy Interest Asserted in this Case Is

Exceptionally Strong

A long unbroken line of this Court's decisions hold

simply and directly that the Fourth Amendment requires a

warrant to be secured prior to the entry and search of

an individual’s home unless certain well-defined and

narrow exigent circumstances are found to be present.

Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642,

1647, 68 L.Ed.2d 38 (1981); Payton vu. New York, 445

U.S. 573, 583-590, 100 S.Ct., 1371, 63 L.Ed.2d 639 (1980);

Mincey v. Arizona, 437 U.S. 385, 391-395, 98 S.Ct. 2408,

57 L.Ed.2d, 290 (1978); United States v. United States

District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32

L.Ed.2d 752 (1972); Coolidge vu. New Hampshire, 403

US. 443, 481, 91 S.Ct. 2022, 2045, 20 L.Ed.2d 564 (1971);

Vale v. Louisiana, 399 U.S. 30, 33-34, 90 S.Ct. 1969, 26

L.Ed.2d 209 (1970); McDonald v. United States, 335

U.S. 451, 455-456, 69 S.Ct. 191, 93 L.Ed. 153 (1948);

Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct.

367, 369, 92 L.Ed. 436 (1948); Boyd uv. United States, 116

U.S. 616, 625 6 S.Ct. 524, 529, 29 L.Ed. 746 (1886).

Lasson, The History and Development of The Fourth

Amendment to the Constitution of the United States,

4th Ed. (1970) at 120. “Physical entry into the home,” in

this Court's words, “is the chief evil against which the

wording of the Fourth Amendment is directed.” United

States v. United States District Court, supra, 407 U.S.

at 313.

“In terms. that apply equally to seizures of

property and'to seizures of person, the Fourth

Amendment has drawn a firm line at the

entrance to the house. Absent exigent

circumstances, that threshold may not

reasonably be crossed without a warrant. Payton

v. New York, supra, 445 U.S. 590.

B. The Evidence Was Seized at the Time the Apartment

Was Impounded, Not at the Time the Warrant Was

Executed

Granting probable cause for the issuance of the

warrant and assuming regularity in all other respects,

the narrow question is whether the seizure took place

under it or under the prior unlawful entry by the DEA

agents. It is clear that seizure, not use, is the operative

Fourth Amendment factor. Florida v. Royer, ___. US.

—_. 1038 S.Ct. 1319, ___ L.Ed.2d ____ (1983). This

Court has most recently stated: “if there is no

detention —no seizure within the meaning of the Fourth

endment —then no constitutional rights have been

infringed.” Florida uv. Royer, supra, ___ U.S. ___, 103

S.Ct. at 1324.

The decisions define the word “seizure” functionally.

Giving the literal import of the word its due, this Court

held in Florida v. Royer, supra, n.9, ___ U.S. at ___.,

103 S.Ct. at 1327, that Royer’s property was seized

when the police took possession of it without his consent.

See also, Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 379,

50 L.Ed. 652 (1906): [. . . a seizure (of papers)

contemplates a forcible dispossession of the owner. . . .”}

Colorado v. Banister, n.3, 449 U.S. 1, 4, 101 S.Ct. 42, 65

L.Ed.2d 1 (1980): [". . . the stopping of a vehicle and

the detention of its occupants constitute a seizure. . . .”}

United States v. Mendenhall, 446 U.S. 544, 554, 100

S.Ct. 1870, 64 L.Ed.2d 497 (1980): [person “seized” when

“reasonable person would have believed that he was

not free to leave.”}; United States v. Shaefer, Michael &

Clairton, 637 F.2d 200, 202 (3rd Cir. 1980): [weigh bills

“obtained” from truck driver by police and “photocopied

and later returned” were seized}; United States u Thomas,

613 F.2d 787, 793 (10th Cir. 1980); (“(a) ‘seizure’ is taking

of property ... [it] involves ‘a forcible or secretive

dispossession’”]; United States v. Lisk, 552 F.2d 228,

230 (7th Cir. 1975): [seizure is taking of property]; United

States vu. Haden, 397 F.2d 460, 465 (7th Cir. 1968): [seizure

involves forcible or secretive dispossession].

Applying the functional definition of seizure to

the facts of this case, it is evident that Petitioner's

apartment, and everything in it, was seized if not on

the agents’ initial entry, then during their continued

unreasonable nineteen-hour possession of it. After the

agents encered the apartment, they separated Petitioners

from their property and asserted full dominion and

contro] over it. The agents continuously occupied the

apartment for nineteen hours to “secure” it, i.e., to

hold it against all others. It is hard to imagine under

these circumstances that Petitioners could remove, use

or even touch any item of property in the apartment.

Indeed, when Petitioner Colon requested her handbag,

the officers rifled through it and removed its contents.

Very recently, in United States v. Ross, ___ US.

___., 102 S.Ct. 2157, 2170 __ L.Ed.2d ____ (1982), this

Court noted in sustaining a search that:

“A lawful search of a fixed premises generally

extends to the entire area in which the object

of the search may be found and is not limited

by the possibility that separate acts of entry

or opening may be required to complete the

search....

When a legitimate search is underway and

where its purpose and its limits have been

precisely defined, nice distinctions between

closets, drawers and containers . . . must give

way to the prompt and efficient completion of

the task at hand.”

Just as Petitioners are entitled to no such “nice

distinctions” when the search is lawful, the police are

similarly not entitled if the search is unlawful. The

“container” unlawfully seized was Petitioners’ home.

Everything in it was simultaneously seized.

As the officers’ possession of the apartment, and

the items in it, was continuous, exclusive, forceful and

adverse to the Petitioners’ interest in those items, the

apartment and its contents were clearly seized.

C. Suppression of All the Evidence Seized is Required

The next question is whether the search warrant

broke the casual chain of illegality. As noted, the Second

Circuit viewed the issuance of the warrant as the end-

all of this case. Under the Second Circuit’s rationale

10

the deterrence aspect of Fourth Amendment

jurisprudence is lost. According to the Second Circuit,

as long as anything taken in the illegal search was not

used to obtain the warrant, the unlawful break-in is

irrelevant.

The test for measuring “the point at which the

detrimental consequences of illegal police action becomes

so attenuated that the deterrent effect of the exclusionary

rule no longer justifies its cost,’ Brown v. Illinois,

supra, 422 U.S. at 607, (Powell, J., concurring in part),

is that of Wong Sun v. United States, 371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441 (1963):

“The. . . question in such a case is ‘whether

granting the establishment of the primary

illegality, the evidence to which instant objection

is made has been come at by exploitation or

instead by means sufficiently distinquishable

to be purged of the primary taint’” Jd, at

487-488.

In Brown v. Illinois, supra, the Court articulated

factors to which it would look to determine whether

the illegality had been sufficiently severed to purge

the “primary taint”. In Brown, the defendant was held

in custody as a result of an illegal arrest and while held

gave inculpatory statements which were used against

him at trial. The Supreme Court of Illinois held that

the giving of Miranda warnings to defendant made the

statements sufficiently voluntary to purge the taint of

the arrest. This Court reversed, holding that the

voluntariness of the statements was merely the beginning

of the inquiry.

11

“, . . Miranda warnings thus far have not been

regarded as a means of remedying or detering

violations of Fourth Amendments or rights.

. . « The exclusionary rule, however, when

utilized to effectuate the Fourth Amendment,

serves interests and policies distinct from those

it serves under the Fifth. /t is directed at all

unlawful searches and seizures, not merely

those which happen to produce incriminating

or maternal testimony as fruits.” Brown v Illinois,

supra, 422 U.S. at 601, (emphasis added).

Whether taint may be removed, according to Brown, is

measured by the “temporal proximity” between the

constitutional violation and the evidence sought to be

suppressed, “the presence of intervening circumstances”

and, “particularly, the purpose and flagrancy of the

official misconduct.” Brown wv. Illinois, supra, 422 U.S.

603-604.

1. Temporary Proximity

The impoundment of Petitioners’ apartment for

an unreasonably long period of time without any

measurable attempt to obtain a warrant was not relevant

to the Second Circuit.

Certainly, the length of a warrantless occupation

bears on its reasonableness. Florida v. Royer, supra,

___._:; U.S. ___, 103 S.Ct. at 1328-1329. An intrusion of

even short duration may constitute a seizure. United

States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct.

2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1,

16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The District

12

Court rightly focused on the length of the warrantless

occupation of Petitioners’ apartment. The District Court

held that the “18-20 hour delay in the issuance of the

warrant, during which the agents remained in illegal

possession of the premises, rendered the execution of

the warrant unreasonable. .. .” (Joint Appendix at

15). Thus, even if the warrant’s issuance is viewed

apart from the unlawful entry and impoundment, the

two became enmeshed, as the District Court correctly

observed, at the point of execution. The taint of the

illegal occupation of the apartment cannot dissipate

when the very evidence re-seized under the warrant is

present and available for that re-seizure through the

initial unlawful warrantless seizure. Evidence unlawfully

taken in the first instance cannot be “held” by police to

be later re-seized under a warrant. Florida vu. Royer,

supra, __ U.S. ___, 103 S.Ct. at 1327. Circular argument

of this nature has repeatedly been rejected by this

Court. See, e.g., Johnson v. United States, supra, 333

USS. at 16-17: [". . . the Government is obliged to justify

the arrest by the search and at the same time to justify

the search by the arrest. This will not do.”] The District

Court’s point seemed to have been missed by the Court

of Appeals. It was the unlawful preservation of evidence

for seizure that concerned the District Court when it

stated that “[t]he evidence would not inevitably have

been discovered . . . Colon might well have destroyed

it.” (Joint appendix at Page 15).

In sum, whatever might be said for a brief intrusion

into the apartment or for a short detention of property

cannot be said in this instance. The illegality of a

warrantless impoundment of property magnifies

geometrically with the passage of time because of the

13

requirement that the warrant precede, not follow, the

entry and seizure. When property is unlawfully held

by the authorities for an unreasonably long time, the

ability to rummage uncontrolled through the owner's

private personal effects and possessions also magnifies

geometrically.

2. Intervening Circumstances

The warrant added nothing to what was already

done. The agents were in possession of Petitioners’

property to the exclusion of Petitioners’ rights to do it.

All the warrant could do was authorize a re-seizure of

what was already in the agents possession. The warrant

and magistrate serve their function before a search

and seizure, not after it. McDonald v. United States,

supra, 335 U.S. 445-456; Johnson vu. United Stated, supra,

33 U.S. In this regard, it is well to cite here the observation

of Mr. Justice Douglas in McDonald v. United States,

supra:

“The Fourth Amendment ... marks the

right of privacy as one of the unique values of

our civilization... . The presence of a search

warrant serves a high function. . . The right

of privacy was deemend too precious to entrust

to the discretion of those whose job is the

detection of crime and the arrest of criminals.”

335 U.S. at 453, 455-456.

3. Purpose and Flagrancy

Flagrancy lies at the core of this case. The entry

into and the impoundment of Petitioners’ apartment

14

was inexcusable. In doing it the DEA agents not only

violated the Petitioners’ rights, but also violated the

express unambiguous instructions of their superior. It

has been suggested that the more flagrant a violation

of the Fourth Amendment, the more the need for

suppression of evidence. Brown wv. Illinois, supra, 422

U.S. at 604-605; 3 LaFave, Search and Seizure, Ch. 11.4

at p. 616. Here, there can be no question on this record

that the break-in was an intentional, bad faith infringement

of the Petitioners’ rights. The agents apparently had

probable cause to obtain a warrant throughout the

entirety of this transaction and neither presented any

rational excuse for not obtaining one nor came within

any exception to the warrant requirement.

4. Suppression of the Evidence Seized under Authority

of the Warrant Will Serve the Purpose of the

Exclusionary Rule

The purpose of the exclusionary rule has frequently

been commented upon by this Court.

“The Court in Wong Sun, as is customary,

emphasized that application of the exclusionary

rule on Toy’s behalf protected Fourth

Amendment guarantees in two respects: ‘in

terms of deterring lawless conduct by federal

officers,’ and by ‘closing the doors of the federal

courts to any use of evidence unconstitutional

obtained. Ibid. These considerations of

deterrence and of judicial integrity, by now,

have become rather commonplace in the Court's

cases. See, e.g., United States v. Peltier, 422

U.S. 531, 535-538, 95 S.Ct. 2313, 2316-2318, 45

L.Ed.2d 374; Untied States v. Calandra, 414

15

U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561

(1974); Terry v. Ohio, 392, U.S. 1, 12-13, 28-29,

88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). ‘The

rule is calculated to prevent, not to repair. Its

purpose is to deter —to compel respect for the

constitutional guaranty in the only effectively

available way —by removing the incentive to

disregard it.’” Elkins v. United States, 364,

U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d

1669 (1960). Brown v. Illinois, supra, 422 U.S.

at 599-600.

Keeping the purpose of the rule in focus, the factors

specific to this case strongly suggest its application.

No mere innocent, unknowing or technical violation of

the Fourth Amendment is involved. Centrally implicated

is whether the police may unlawfully break into the

homes of citizens. The right of privacy is a concept

central to the American value system and has been

institutionalized in this Court’s decisions for almost

one hundred years. The right of privacy has been

described as “indispensable to the ‘full enjoyment of

personal security, personal liberty, and private property’;

[it is] to be regarded as the very essence of constitutional

liberty.” Gouled v. United States, 255 U.S. 298, 302,

304, 41 S.Ct. 261, 65 L.Ed. 647 (1920). To allow this very

fundamental American idea to be eroded because the

evidence derived from a police break-in is not used in

some fashion against a defendant in a criminal case

perceptibly depreciates a concept that historically has

made our society measurably different and measurably

better than others. It may be reasonably assumed that

run of unlawful police entries into the home will be

clandestine, professional affairs designed not to be

16

discovered and not to turn up evidence to be used, but

to confirm suspicions of criminality or even the existence

of probable cause. Application of the doctrinal basis of

the Second Circuit’s decision in this case would allow

confirmatory searches as long as nothing seen or taken

is “used”. Predicating enforcement of Fourth Amendment

values on use, rather than upon a determination of

whether a search or seizure occurred and whether a

warrant was required, will vest the police with unbridled

discretion to invade the most private sanctuaries of

the innocent and the guilty alike.

17

CONCLUSION

Application of existing Fourth Amendment doctrine

as articulated by this Court should result in suppression

of all the evidence seized in this case. Suppression of

the evidence seized is a result consonant with established

principles of Fourth Amendment jurisprudence. A decision

favoring the Government would severely undermine

values lying at the core of the Fourth Amendment;

would stand the warrant clause on its ear; and, would

encourage unlawful secret confirmatory searches.

Respectfully submitted,

GENE REIBMAN, ESQUIRE

600 N.E. Third Avenue

Ft. Lauderdale, FL 33304

(305) 467-8715

Counsel for Amicus Curiae,

National Association of

Criminal Defense Lawyers