Amicus Curiae Brief — Anderson v. Creighton

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

No. 85-1520 Supreme Court, U.S.

Supreme Court of the United

OCTOBER TERM, 1986

| OCT 14 1986

F. SPANIOL, JR,

CLERK

RUSSELL ANDERSON,

Petitioner,

ROBERT E. CREIGHTON, JR., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE

AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF RESPONDENTS

MICHAEL AVERY

Avery & Friedman

6 Beacon Street

Boston, MA 02108

(617) 367-2626

SETH KREIMER

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, PA 19104

(215) 898-7447

DAVID RUDOVSKY*

Kairys & Rudovsky

1425 Walnut Street

Philadelphia, PA 19102

(215) 438-4541

*Counsel of Record

JACK D. NOVIK

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, NY 10036

(212) 944-9800

TABLE OF CONTENTS

Interest of Amicus. .....

Statement of the Case. .....

Summary of Argument. .......

Argument:

Because The Law Under The Fourth

Amendment Requiring Both Probable

Cause And Exigent Circumstances

Was Clearly Established, Petitioner

Has No Entitlement To A Qualified

Immunity Defense

A. Harlow v. Fitzgerald established

an objective legal test to de-

termine qualified immunity.

B. The governing legal standard

was clearly established.

C. The doctrines of probable cause

and exigent circumstances, based

as they are on settled standards

governing how a reasonable officer

should act, are not subject to an

immunity defense where an officer

enters a home without @ warrant.

D. The test proposed by petitioner

would work a radical change in

the scope and nature of the immu-

nity defense.

E. The purposes of qualified immunity

would be undermined by petitioner's

new doctrine.

Comehwuegaem. «© «© «© te 6

Page

TABLE OF AUTHORITIES

Cases:

Beck v. Ohio, 379 U.S. 89

Blackburn v. Snow, 771 F.2d 556

Brinegar v. United States, 338

U.S. 160

Clark v. Beville, 730 F.2d 739

Coon v. Ledbetter, 780 F.2d

1158

Creamer v. Porter, 754 F.2d

1311

Davis v. Scherer, 468, U.S.

183 (1984)

Deary v. Three’ Un-Named Police

Officers, 746 F.2d 185

Director General of Railroads v.

Kastenbaum, 263 U.S. 25

Entick v. Carrington, 19 How.

St. Tr. 1030

Floyd v. Farrell, 765 F.2d 1

Harlow v. Fitzgerald, 457 U.S.

800

Henry v. United States, 36l,

U.S. 98

Hobson v. Wilson, 737 F.2d 1

Illinois v. Gates, 462 U.S. 213

Llaguno v. Mingey, 763 F.2d

1560

Page

27,44

passim

Cases:

Malley v. Briggs, 106 S. Ct.

1092

Mitchell v. Forsyth; 105 S.

Ct. 2806

Moore v. Marketplace,

Restaurant, Inc. 754 F.2d

1336

Payton v. New York, 445 U.S.

573 (1980)

Pennsylvania v. Mimms, 434

U.S. 106

Saldana v. Garza, 684 F.2d

1159

Slakan v. Porter, 737 F.2d

368

Steagald v. United States, 451

U.S. 204 (1981)

Tennessee v. Garner, 105 S.Ct.

1694

Terry v. Ohio, 392 U.S. 1

Texas v. Brown, 460 U.S. 730

Trejo v. Perez 693 F.2d 482

United States v. Brignoni -

Ponce, 422 U.S. 873

United States v. Leon, 468

U.S. 897

iii

Page

29,31

passim

19,37

TABLE OF AUTHORITIES

Cases: Page

‘United States v. Perez, 700

F.2d 1232 17

United States v. Selberg,

630 F.2d 1292 18

Welsh v. Wisconsin, 466 U.S.

740 (1984) 16

Constitution and Statutes:

U.S. Const. Amend IV passim

Miscellaneous:

Newman, Suing the Law-

breakers; Proposals To

Strengthen The Section

1983 Damage Remedy, 87

Yale L.J. 447 (1978) 26

Restatement (Second) of

Torts, §121 Comment i 32

INTEREST OF THE AMICUS CURIAE!

The American Civil Liberties Union

("ACLU") is a nationwide, non-partisan

Organization which has over 250,000

members. Since its founding in 1920,

ACLU has been concerned with the

protection of fundamental rights and

individual liberties that are guaranteed

by the Constitution of the United

States.

1. The parties have consented to

the filing of the brief, and their

letters of consent have been filed

with the Clerk of the Court under

Rule 36.2 of the Rules of this Court.

STATEMENT OF THE CASE2

This case arises from a warrantless

search of respondents' home by

petitioner, an FBI agent, and several

state police officers. These officers

were searching for one Vadaain David

Dixon, a suspect in a bank robbery that

had occurred over five hours before the

search at issue.

Ve In searching for the suspect,

petitioner first searched the homes of

Iris Dixon (the suspect's mother) and

Minnie Dixon (his grandmother) before

going to respondent's home, where they

arrived at 8:40 p.m. Respondent Robert

Creighton requested to see a search

warrant, but was told by a Sergeant De

Noma, petitioner's colleague in the

search, "we don't have a search warrant.

I don't need a search warrant; you watch

2. Amicus adopts the statement of

Respondents. We highlight here the

critical facts on the issue presented.

too much T.V." J.A. 44. A warrantless

search ensued. Respondent Sarisse

Creighton stated that when she asked for

a warrant, petitioner stated, "I don't

need a search warrant when I'm looking

for a fugitive." J.A. 50.

Y On the issue of exigent

circumstances, the record makes clear

that petitioner did not even consider

whether he needed a warrant to enter,

and if so, under what circumstance he

would be justified in entering without

one. See Affidavits of Robert and

Sarisse Creighton, supra.

The record shows that there was no

immediate or continuous pursuit of the

suspect. Similarly, there is no

assertion by petitioner that he had an

actual or reasonable belief that

evidence would be destroyed, or that the

suspect would escape if the officers

sought a warrant. J.A. 16-23.

Je With regard to the facts

relating to whether there was probable

cause to believe that Vadaain Dixon

would be at respondent's home, the

record shows the following:

Petitioner claims he had information

that Dixon's wife lived with respondent

up to November 9th (the robbery occurred

November 11th), J.A. 21, but the source

of his information, Probation Officer

William Johnson, contradicts him,

stating that the latest information he

had was November ist. J.A. 39, 41-42.

Further, petitioner represented that

"Vadaain Dixon has stayed on a daily

basis at the house of (respondent's)

with Cheryl Ann Donlin Dixon (his wife)

during his four-hour daily furloughs

from the Volunteers of America residence

from October 13 to approximately

November 9, 1983," J.A. 21. But

Probation Officer Johnson said only that

"Cheryl Dixon was picking Vadaain Dixon

up on a daily basis at the Volunteers of

America so that Vadaain Dixon and Cheryl

Dixon could spend his daily furloughs

together." J.A. 39 (emphasis added).

No basis is provided for petitioner's

assertion that the suspect spent time,

every day, at respondent's house.

The information relating to the

getaway car did not match respondent's

automobile. The getaway car was

described as two-tone burgundy or maroon

and silver (or possibly a darker color),

and possibly a Buick. Petitioner

determined that respondent's car was a

solid, single color, burgundy or maroon

Oldsmobile.

4. The trial court granted summary

judgement before any discovery was

allowed on the facts relating to

probable cause and exigent

circumstances.

SUMMARY OF ARGUMENT

In Harlow v. Fitzgerald, 457 U.S.

800 (1982), this Court established an

objective test to determine if an

official was entitled to qualified

immunity. If the plaintiff alleges

facts that demonstrate a constitutional

violation, the court is to determine, at

the summary judgment stage prior to full

discovery, whether the alleged conduct

violated clearly established law of

which a reasonable person would have

known. Whether there has in fact been a

constitutional violation is reserved for

the trial itself if no immunity is

found.

Petitioner's claim that an official

is entitled to immunity where he "could

reasonably have believed that his

warrantless entry .. . was justified,"

Brief, at 30, would work a radical

change in the governing Harlow standard.

It would turn an “objective” and "purely

legal test", Mitchell v. Forsyth, 105 S.

Ct. 2806, 2816, n.9 (1985) into a

subjective, fact-bound determination.

Further, it would (1) defeat Harlow's

decided preference for efficient and

early resolution of the immunity issue;

(2) confuse the distinct legal immunity

and factual violation of law inquiries;

and (3) effectively immunize police

misconduct, particularly in the Fourth

Amendment area.

Petitioner also appears to claim

that unless the particular conduct of

which an official has been accused has

previously been held illegal, then he

acted reasonably and thus is entitled to

immunity. This argument simply ignores

reality. Fourth Amendment cases arise

in an almost infinite variety of factual

situations. Under petitioner's

standard, almost every official could

claim that he did not know that the law

applied to his particular conduct no

matter how clear the law. It is

illogical to argue that where an officer

has acted unreasonably, that is, without

probable cause and exigent

circumstances, he can claim that his

conduct was reasonable. Moreover,

petitioner suggests a vagueness in

Fourth Amendment principles where none

exists.

This case demonstrates the fallacy

of petitioner's position. Not only is

che law of warrantless arrests in the

home, of exigent circumstances, and of

probable cause quite clear, but it

provides quite explicit standards of

conduct. On the facts as alleged by

respondent there is no question that the

officer violated these clearly

established legal standards, of which he

reasonably should have been aware.

Whether petitioner in fact aad probable

cause and whether there were exigent

circumstances is a question for a jury

after a trial.

In Harlow, this Court struck a

ree)

delicate balance that fully protects the

officer, yet allows redress for

misconduct. On summary judgment, the

officer has immunity if the law was not

clearly established, and at trial he has

a defense if the facts show that he

acted reasonably under the

circumstances, i.e., the probable cause

and exigent circumstances standards have

been met. Petitioner's new approach,

which would wreck the balance struck in

Harlow, must be rejected.

ARGUMENT

BECAUSE THE LAW UNDER THE FOURTH

AMENDMENT REQUIRING BOTH PROBABLE CAUSE

AND EXIGENT CIRCUMSTANCES PRIOR TO A

WARRANTLESS ENTRY INTO A HOME WAS

CLEARLY ESTABLISHED, PETITIONER HAS NO

ENTITLEMENT TO A QUALIFIED IMMUNITY

DEFENSE.

A. Harlow v. Fitzgerald Established An

Objective Legal Test To Determine

Qualified Immunity.

In Harlow v. Fitzgerald, supra, this

Court redefined the doctrine of

qualified immunity and announced a

fundamental change in its scope and

application. To allow for pretrial

adjudication of the issue, the Court

discarded the subjective element of good

faith and focused instead on the state

of the law at the time of the alleged

constitutional violation.

We therefore hold that

government officials

performing discretionary

functions generally are

shielded from liability

for civil damages insofar

as their conduct does not

violate clearly

established statutory or

constitutional rights of

which a reasonable person

clearly established.

would have known...

Reliance on the objective

reasonableness of an

official's conduct, as

measured by reference to

clearly established law

should avoid excessive

disruption of government

and permit the resolution

of many insubstantial

claims on summary judgment

Tos ae Until this

threshold immunity

question is resolved,

discovery should not be

allowed. If the law was

clearly established, the

immunity defense

ordinarily should fail,

since a reasonably

competent public official

should know the law

governing his conduct.

at 818-819. Harlow created an

objective test for determining whether

the applicable legal standard was

beliefs of the official involved --

whether malicious or in good faith--

are now irrelevant to the issue of

The subjective

immunity. 3 Once a court determines that

a legal standard governing the govern-

mental action at issue was clearly

established, there is no qualified

immunity. The factual question whether

the officer's conduct violated the

established constitutional standard is

resolved at trial.

The Court's emphasis on the

"objective reasonableness" of an

official's conduct "as measured by

reference to clearly establish law,"

Harlow, supra, at 818, was followed in

Davis v. Scherer, 468 U.S. 183 (1984)

and Mitchell v. Forsyth, 105 S. Ct. 2806

(1985). Davis leaves no doubt about the

impact of Harlow upon the qualified

3, The intent, subjective belief

and reasonableness of the official may,

however, be quite relevant to whether a

constitutional violation occurred,but

this is an inquiry independent of

immunity.

immunity defense. The Court made it

clear that the “totality of the

circumstances" test of previous cases,

which mandated inquiry into both the

objective reasonableness of the

defendant's conduct and the subjective

state of mind, has been replaced by

Harlow's formulation. The Court noted

that Harlow had "rejected the inquiry

into state of mind in favor of a wholly

objective standard." Davis, supra, at

191.

In Mitchell v. Forsyth, supra, the

Court ruled that warrantless national

security electronic surveillance

conducted two years before such conduct

was first held to be unconstitutional

(and where the Court had expressly

reserved decision on the question) was

not actionable in light of the plainly

unsettled nature of the governing

principles. In analyzing the nature of

a trial court's decision on a summary

judgment motion seeking qualified

immunity, the Court held:

All it need determine is a

guestion of law: whether

the legal norms allegedly

violated by the defendant

were clearly established

at the time of the

challenged actions. Id.

at 2816 (emphasis added).

B. The Governing Legal Standards Were

Clearly Established.

Ve The Law Was Clear That, Absent

Probable Cause And Exigent

Circumstances, A Warrantless

Arrest In The Home Violates The

Fourth Amendment.

In Payton v. New York, 445 U.S. 573

(1980) thisgCourt resolved a long-

standing Fourth Amendment issue by

requiring police officers to obtain a

warrant before effectuating an arrest of

a felony suspect inside that person's

house. Steagald v. United States, 451

U.S. 204 (1981) extended the Payton

principle to searches of homes of third

parties, requiring a search warrant

prior to entry of these premises. In a

search for felony suspects, the Court

ruled that an arrest warrant

did absolutely nothing to

protect petitioner's

privacy interest in being

free from an unreasonable

invasion and search of his

home. Instead, peti-

tioner's only protection

from an illegal entry and

search was the agent's

personal determination of

probable cause. In the

absence of exigent

circumstances, we have

consistently held that

such judicially untested

determinations are not

reliable enough to justify

an _ entry into a person's

home to arrest him without

a warrant, or a search of

a_home for objects in the

absence of a search

warrant.

Id. at 212-214.

Be The Grounds For Claiming

Exigent Circumstances Were Well

Established,

The important privacy interests

protected by the warrant requirement

are not to be lightly subordinated to

claims of exigent circumstances. In

Welsh v. Wisconsin, 466 U.S. 740 (1984),

the Court reiterated the "few. . . and

carefully delineated" exceptions to the

warrant requirement and emphasized that

"the police bear a heavy burden when

attempting to demonstrate an urgent need

that might justify warrantless searches

or arrests." Id. at 749-50. Indeed,

such a search is per se unreasonable,

unless exigent circumstances are shown.

[TjJhe Court decided in

Payton v. New York, supra,

that warrantless felony

arrests in the home are

prohibited by the Fourth

Amendment, absent probable

cause and exigent

circumstances.

[T]he Court has recognized

only a few such emergency

conditions, see, e@.g.,

United States v. Santana,

427 U.S. 38, 42-43 (1976)

(hot pursuit of a fleeing

felon); Warden v. Hayden,

387 U.S. 294 (1967)

(same); Schmerber v.

California, 384 U.S. 757,

ie i (19 66 )

(destruction of evidence);

Michigan v. Tyler, 436

U.S. 499, 509 (1976)

(ongoing fire), and has

actually applied only the

*hot pursuit" doctrine to

arrests in the home, see

Santana, supra.

466 U.S. at 749-750.4

The Eighth Circuit had also clearly

delineated the limited situations in

which the exigent circumstances

exception would apply. See, United

States v. Perez, 700 F.2d 1232, 1237

4. Moreover, Welsh indicates the

general agreement among the

Justices of the limited grounds

for claiming exigent circumstances (a

clearly demonstrated need to prevent

escape, injury to others or destruction

of evidence) that would in fact be

frustrated by resort to the warrant

process. Welsh, supra, at 749-750; Id.

at 759. (White, J., dissenting).

(8th Cir. 1983), cert. denied,104S.ct. 3587

(1984); United States v. Selberg, 630

F.2d 1292, 1295-96 (8th Cir. 1980).

Under this standard, petitioner has

to demonstrate at trial that he had

reason to believe that the suspect would

destroy evidence, injure others, or

escape. Surely no such showing has been

made pre-trial. There is no evidence of

hot pursuit, no reason to believe that

the suspect would injure his own family

members, and there is no basis for

believing that any evidence would be

destroyed. And given the critical fact

that a warrant could be secured by a

quick phone call, see Fed. R. Crim. P.

41(c), any pre-trial claim to exigent

circumstances on this record is simply

untenable.

Be The Test For Determining

Probable Cause Was Well

Established.

Both the concept and application of

the probable cause requirement are well

settled. In Texas v. Brown, 460 U.S.

730, 742 (1983), this Court stated:

"As the Court frequently

has remarked, probable

cause is a flexible,

common-sense standard. It

merely requires that the

facts available to the

officer would ‘warrant a

man of reasonable caution

in the belief,' Carroll v.

United States, 267 U.S.

132, 162 (1925), that

certain items may be

contraband or stolen

property or useful as

evidence of a crime; it

does not demand any

showing that such a belief

be correct or more likely

true than false. A

‘practical, nontechnical

probability that

incriminating evidence is

involved is all that is

required. Brinegar Vv.

United States, 338 U.S.

160, 176 (1949).

Thus, for example, if an officer

arrests a robbery suspect on the

strength of a mistaken identification,

probable cause exists for the arrest

even though the defendant is later found

innocent. Indeed, this type of mistake

is exactly the kind of reasonable error

that is incorporated in the probable

cause concept. No doctrine of "good

faith" or qualified immunity is

necessary to provide the police officer

with a defense, because he already has

one.

This case presents no difficulty in

determining whether the law was clearly

established. The constitutional

principle at issue -- that no search of

a third party's house for a suspect can

be conducted without a warrant unless

there is both probable cause to believe

that the suspect is present and exigent

circumstances excusing the absence of a

warrant -- is a precise subprinciple of

the Fourth Amendment, clearly

establishing the limit on governmental

authority in a particular area of police

work. No narrower principle is needed

to define the limits of police authority

and this Court has provided the

essential guidelines for tie probable

cause and exigent circumstances

determinations.

Thus, when plaintiffs allege facts

that, if true, would entitle them to

relief under clearly established legal

principles, the constitutionality of

police activity should be determined on

a fact-bound, case by case analysis

under which the officer will receive the

full benefits and protections of the

reasonableness standard that controls

probable cause and exigent circumstances

determinations. This standard "protects

both the officer and the citizen."

Henry v. United States, 361 U.S. 98, 102

(1959).

C. The Doctrines Of Probable Cause

And Exigent Circumstances,

Based As They Are On

Settled Standards Govern-

ing How A Reasonable

Officer Should Act, Are

Not Subject To An Immunity

Defense Where An Officer

Enters A Home Without A

Warrant.

Under Payton and Steagald petitioner

has the burden of demonstrating both

probable cause to believe that the

suspect would be found in respondent's

premises and that exigent circumstances

existed to justify the entry without a

warrant. These are factual inquiries

that are not amenable to resolution on

summary judgment under Harlow. Because

the standards governing these constitu-

tional issues are well settled, the

question is not what constitutional rule

applies; rather, it is whether a given

set of facts violates the standard

established by a known rule. Once the

trier of fact determines that an officer

acted without probable cause or exigent

circumstances, i.e., that he acted

unreasonably, the inquiry ends. A

defendant cannot then claim a qualified

immunity where, under a clearly

established constitutional principie, he

has by definition acted unreasonably and

in violation of the Constitution.

The Courts of Appeals have widely

recognized that probable cause is a

"clearly established" constitutional

standard and therefore acts undertaken

without probable cause are not subject

to a qualified immunity. See, e.g.,

Creamer v. Porter, 754 F.2d 1311 (5th

Cir. 1985); Deary v. Three Un-Names

Police Officers, 746 F.2d 185 (3d Cir.

1984); Clark v. Beville, 730 F.2d 739

(11th Cir. 1984); Trejo v. Perez, 693

F.2d 482 (5th Cir. 1982). See also

Slakan v. Porter, 737 F.2d 368 (4th Cir.

1984); Coon v. Ledbetter, 780 F.2d 1158

(5th Cir. 1986); Blackburn v. Snow, 771

F.2d 556 (1st Cir. 1985). Petitioner

ignores this logical and well-settled

application of Harlow to the fact-bound

probable cause question. He calls for a

new standard that would provide immunity

if an official "reasonably" should not

have known that his particular conduct

was unreasonable.

In Llaguno v. Mingey, 763 F.2d 1560

(7th Cir. 1985) (en banc), the Court

analyzed the problem as follows:

The good sense of Harlow

in withdrawing the issue

of immunity from the jury

is particularly evident in

a case such as this where

the police are charged

with having acted without

probable cause. The

question whether they had

probable cause depends on

what they reasonably

believed with reference to

the facts that confronted

them, as the judge

instructed in the passage

we quoted earlier. To go

on and instruct the jury

further that even if the

police acted without

probable cause they should

be exonerated if they

reasonably (though

erroneously) believed that

they were acting

reasonably is to confuse

the jury and give the

defendants two bites at

the apple.

Id. at 1569 (emphasis added).

In Moore v. Marketplace Restaurant,

Inc., 754 F.2d 1336, 1358 (7th Cir.

1985), Judge Posner concurring, stated:

But what was perfectly

clear when these arrests

were made, as now, is that

an arrest is not proper

without probable cause.

So if there was no

robable cause, there was

no immunity; if there was

probable cause, then, as

just pointed out, there

was immunity. The issue

of immunity will thus be

resolved automatically by

the jury's resolution of

the issue of probable

cause;. . . (emphasis

added).

Judge Jon O. Newman has cogently

explained why no immunity should be

permitted where the officer has failed

to show probable cause:

™ 25

But however well-

intentioned this second

ingredient of the good

faith defense, it involves

nearly circular reasoning

that promotes confusion

and sometimes defeats

meritorious claims. For

example, the victim's

cause of action for an

arrest in violation of his

Fourth Amendment rights

requires an arrest without

probable cause. To make

out his case, the

plaintiff must establish

that a reasonably prudent

police officer, under all

the circumstances, would

not have had probable

cause to believe that he

had committed a crime.

Then, under Bivens, the

officer still has a

defense if acted in good

faith and has a reasonable

belief in the validity of

his action, that is, if he

reasonably believed that

he did have probable

cause. But if the

plaintiff's own case

requires him to show an

arrest that was not

reasonably based on

probable cause, what does

the defense mean? Surely

the officer could not

reasonably believe that

there was probable cause

for an unlawful arrest,

for an unlawful arrest is

by definition an arrest

for which a prudent police

officer could not

reasonably believe there

was probable cause.

Newman, Suing The Lawbreakers: Proposals

to Strengthen the Section 1983 Damage

Ready, 87 Yale L.J. 447, 460 (1978).

This Court's cases defining probable

cause demonstrate the broad latitude

given police officers to search or

arrest. See, e.g., Brinegar v. United

States, 338 U.S. 160 (1949); Beck v.

Ohio, 379 U.S. 89 (1964); Illinois v.

Gates, 462 U.S. 213 (1983). If an

officer acts upon information which is

insufficient to meet this not very

demanding test, it is untenable for

petitioner to claim that the officer is

entitled to immunity on a theory that

the law had not clearly established that

his particular conduct was illegal. If

an officer did not have a sufficient

basis to make a “practical, common-

sense" decision that a "fair

probability" of crime or evidence

existed, he cannot have acted in an

objectively reasonable manner.

Similarly, if he cannot show hot

pursuit, danger of destruction of

evidence, or danger to others, he cannot

reasonably claim that exigent

circumstances excuse the lack of a

warrant. As the Court below recognized,

further discovery is necessary since

this case presents sharp factual

disputes on exactly what information

petitioner relied. 766 F.2d at 1273-

75.°

2 Indeed, petitioner did not even

consider whether he needed a warrant

to enter, and if so, under what

circumstances he would be justified

in entering without one. Respondent

Robert Creighton submitted an

affidavit stating that a member of

the search party (which included

petitioner) told him in response to

Petitioner's reliance on Malley v.

Briggs, 106 S.Ct. 1092 (1986), is

misplaced. In Malley, the Court again

stressed the “objectively reasonable"

standard in determining qualified

immunity. In the context of a case in

which the officer did exactly what the

Fourth Amendment requires, submitting

the facts to a neutral magistrate for

determination of probable cause, the

Court recognized "where officers of

reasonable competence could disagree on

(the) issue," immunity would be granted.

Once the magistrate has acted, the

his request to see a warrant: "We

don't have a search warrant. I

don't need a search warrant; you

watch too much TV." J.A. 44.

Respondent Sarisse Creighton stated

that when she asked petitioner for a

search warrant he said "I don't need

a search warrant when I'm looking

for a fugitive." J.A. 50. Plainly,

petitioner ignored the teachings of

Payton and Steagald. It is,

therefore, facetious for him to

Claim that he acted "reasonably."

officer should receive immunity in close

cases. Here, by contrast, the officer

disregarded the warrant requirement.

There has been no independent evaluation

of probable cause and therefore the

Briggs rationale is inapplicable.

Indeed, the Court stressed the unique

nature of the «c2se as one involving

submission of facts to secure a warrant.

Id. at 1098, n.6. Just as Leon did not

decide good faith exception to the

exclusionary rule in the context of a

warrantless arrest, Briggs went no

further than a discussion of qualified

immunity in the context of that case.

If petitioner had c**ained a warrant,

but a court later found no probable

cause for its issuance, the immunity

issue would be presented in a signifi-

cantly different context. The exigent

circumstances issue would be moot and

there would be compliance with the

express mandate of the Fourth Amendment

-- submission of the decision to a

magistrate. Thus, in this case,

depending on whether a warrant was

sought, different standards must control

the immunity question.

The unprecedented nature of peti-

tioner's claim is further demonstrated

by the lack of any "common law counter-

part" to the immunity asserted. Malley

v. Briggs, supra, at 1095. At common-

law a determination that an officer

lacked probable cause in warrantless

action was sufficient to establish

liability. In Director General of Rail-

roads v. Kastenbaum, 263 U.S. 25, 27-28

(1923), the Court stated:

The gist of it is an

unlawful detention, and

that being shown the

burden is on the defendant

to establish probable

Cause for the arrest ..

But the standard applied

to defendant's conscious-

ness is external to it.

The question is not

whether he thought the

facts to constitute

probable cause, but

whether the court thinks

they did. Holmes on the

Common Law, 140. Probable

cause is a mixed question

of law and fact. The

court submits the evidence

of it to the jury, with

instructions as to what

facts will amount to

probable cause if proved

- « « But, as we have

seen, good faith is not

enough to constitute

probable cause. That

faith is not enough to

constitute probable cause.

That faith must be

grounded on facts within

the knowledge of the

(arresting officer),

which in the judgment of

the court would make his

faith reasonable.