# Amicus Brief — Segura v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1296%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 796

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1296%3A7. Public record. Not legal advice.