Amicus Curiae Brief — United States v. Merchant

i) [Supreme Court, US.

[ FILED

No. 85-1672.~

OCT 6 1986

In the JOSEPH F. SPANIOL, JR.

Supreme Court of the United-States

OCTOBER TERM, 1986.

UNITED STATES OF AMERICA,

PETITIONER,

Vv.

WILLIAM D. MERCHANT,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT.

Brief for the American Civil Liberties Union and the

National Association of Criminal Defense Lawyers

as Amici Curiae Supporting Respondent.

NANCY GERTNER,

JupITH H. MIZNER,

SILVERGLATE, GERTNER, BAKER, FINE,

Goop & MIZNER,

88 Broad Street,

Boston, Massachusetts 02110.

(617) 542-6663

For Amici Curiae American Civil

Liberties Union and National

Association of Criminal

Defense Lawyers

On the Brief :

JONATHAN BACKMAN

BATEMAN & SLADE, INC

TABLE OF CONTENTS

Table of Authorities

STATEMENT OF INTEREST OF THE AMICUS

CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. THE SEARCH OF THE RESPONDENT'S

HOME WAS A LAW ENFORCEMENT SEARCH

USING A PROBATION SEARCH AS A PRETEXT;

IT WAS CONDUCTED WITHOUT PROBABLE

CAUSE, WITHOUT A WARRANT, AND OUTSIDE

THE SCOPE OF ANY EXCEPTION TO THE

WARRANT REQUIREMENT

A. The Ninth Circuit decision fits

within the existing framework of

decisional law concerning admin-

istrative searches, a framework

which appropriately balances the

needs of law enforcement and

administrative agencies against

the constitutional rights of

individuals

1. Law Enforcement Motive

2. Absence of Probation

Officer Approval, Partici-

pation, or Supervision

ii

The Ninth Circuit's conclusions

that the instant search was a

law enforcement search, using

the probation rationale only as

a pretext, should be sustained

II.THIS COURT SHOULD NOT EXTEND LEON

TO WARRANTLESS SEARCHES

A.

Leon and Sheppard Are Inappli-

cable to Warrantless Searches

The Government's Arguments Equat-

ing The Efforts of Officials to

Seek Judicial Clarification of

Merchant's Probation Status with

the Efforts of the Agents in Leon

to Obtain A Warrant Are Dis-

ingenuous

The Exceptions to the

Warrant Requirement Already

Incorporate A Reasonableness

Test

The Application of a Good Faith

Exception to Warrantless

Searches Would Seriously Under-

mine the Development of Clear

Decisional Law Delineating

Precise Exceptions to the

Warrant Requirement

CONCLUSION

29

33

36

a4

46

51

57

iii

TABLE OF AUTHORITIES

Cases

Camara v. Municipal Court,

387 U.S. 523 (1967)

Carroll v. United States,

267 U.S. 132 (1925)

Chimel v. California, 395

U.S. 752 (1969)

Coolidge v. New Hampshire,

403 U.S. 443 (1971)

Donovan v. Dewey, 452 U.S.

594 (1981)

Florida v. Meyers U.S. ;

104 S.Ct. 1852 (1984)

Freytas v. Superior Court,

60 Cal.App.3d 958, 132 Cal.

Rptr. 26 (1976)

Gagnon v. Scarpelli, 411

U.S. 778 (1973)

Grubbs v. State, 373 So.2d

905 (Fla. App. 1979)

Hudson v. Palmer, U.S. P

4

104 S.Ct. 3194 (1984)

20,48

47

47

31,47,53

20,22

49

18

15

27

22

iv

Illinois v. Gates, 462 U.S.

213 (1983) 3

Illinois v. LaFayette,

462 U.S. 640, (1983) 49,52

Katz v. United States,

389 U.S. 317 (1967) 40

Latta vw. Fitzharris, 521 F.2d

246 (9th Cir. 1975) 18

Mapp v. Ohio, 367 U.S.

643 (1961) 3

Marshall v. Berlow's Inc.,

436 U.S. 307 (1978) 23,48

Massachusetts v. Sheppard,

468 U.S. 981 (1984) 3-4,33,34

Michigan v. Clifford,

464 U.S. 287 (1984) 20

Michigan v. DeFillippo,

443 U.S. 31 (1979) 48

Michigan v. Tyler, 436 U.S.

499 (1978) 21,24

Morrissey v. Brewer,

408 U.S. 471 (1972) 17

New Jersey v. T.L.O.,

U.S. __, 105 S.Ct. 733

(1985) 19,24

Owens v. Kelley, 681

F.2d 1362 (llth Cir. 1982)

reh. den., 697 F.2d 1094

(1983) 15,20,23

People v. Burgener, 41

Cal. 3d 505, 224 Cal.Rptr.

112, (1986) 17

People v. Jackson, 412 N.Y.

2a 884, 46 N.Y.2dad 171 (1978) 16

People v. Mason, 5 Cal.3d

758, 97 Cal.Rptr. 302 (1971). 17,20

People v. Way, 319 N.Y.S.2d

16, 65 Misc. 22665 (Sp.Term. 1971). 18

Schneckloth v. Bustamonte, 412 18,48

U.S. 218 (1973)

South Dakota v. Opperman,

428 U.S. 364 (1976) 47

Spinelli v. United States,

393 U.S. 410 (1969). 39,40

State v. Age, 38 Or. App.

50k, 590 P.2d 759 (1979) 27

State v. Bollinger, 169 N.J.

Super. 553, 405 A.2d 432

(1979) 27

State v. Fogarty, 187 Mont.

393, 610 P.2d 140 (1980) 25

State v. Griffin, 131

Wis. 41, 388 N.W.2d 535

(1986) 19

vi

Steagald v. United States,

45 S. 204 (1981)

Terry v. Ohio, 392 U.S. 1 (1968)

hompson v. Louisiana,

U.S. , £05 S.Ct.

United States v. Belton,

433 U.S. 454 (1981)

JInited States v. Biswell,

406 U.S. 311, (1972)

United States v. Bradley, 571

F.2d 787 (4th Cir. 1978)

United States v. Consuelo-

Gonzales, 521 F.2d 259 (9th Cir.

1975)

United States v. Gordon,

540 F.2d 452 (9th Cir.

1976)

United States v. Haliman,

365 F.2d 289 (3rd Cir. 1966).

United States v. Jarrad,

754 F.2d 1451 (9th Cir.

1985), cert.den.,

UeS- , 106 &§.Ct. 96

50

47

40,50

52

22

17

17,19,23

25,27

13

15

23

em ee

vil

United States v. Johnson, 457

U.S. 537 (1982)

United States v. Johnson,

722 F.2d 525 (9th Cir. 1983)

United States v. Lawson, 502

F.Supp. 158 D.Md. (1980)

United States v. Leon, 468

U.S. 497 (1984)

United States v. Merchant,

760 F.2d 963 (9th Cir. 1985)

United States v. Payton, 445

U.S. 573 (1980)

United States v. Ramsey,

431 U.S. 606 (1977)

United States v. Rea, 678

F.2d 382 (2d Cir. 1982)

United States v. Scott,

678 F.2d 32 (5th Cir. 1982),

reh. den., 683 F.2d 1373

United States v. Thomas,

729 F.2d 120 (2d Cir. 1984),

cert.den., U.S.

105 S.Ct. 15

/

United States v. Whiting,

781 F.2d 692 (9th Cir. 1986)

United States v. Williams,

622 F.2d 830 (5th Cir.

1980) cert.den., 449 U.S.

1127 (1981)

41

13,15

23

Passim

13

43

48

16

19,20,27

25-26

27

55

vill

United States v. Workman, 585

F.2d 1205 (4th Cir. 1978) 1

4

OV

United States ex. rel.

Coleman v. Smith, 395 F.Supp.

1155 (W.D.N.Y. 1975) 18

v. Colorado, 338 U.S. 25

?

O

wood v. State, 378 So.2d, l

(FP 5

a. App. 1980) 27

“nited States Constitution

Fourth Amendmen Passim

Miscellaneous

Ingber, "Defending the Citadel:

The Dangerous Attack of

'Reasonable Good Faith'",

~ *

31 Vanderbilt L. R. 1, 48 (1982) 56

arch and Seizure (1979)

2 42

sateae

Ww

@

0

~

©O-

~

O

+~-

Ls

Mertens & Wasserstrom, "The

Good Faith Exception to the

Exclusionary Rule: De-

regulating the Police and

Derailing the Law",

70 Georgetown L. J. 365,

1 (1981) 56

WwW ©

*

4

et POR OEE CF a

,v

‘o> .*

Note, 22 Stanford L. Rev.

129, 133 (1969) 17

White, The Fourth Amendment Rights

of Parolees and Probationers, 31

U. Pitt. L. R. 167, 175-81 (1969). 17

STATEMENT OF INTEREST OF THE AMICUS

CURIAE

The National Association of Criminal

Defense Lawyers, Inc. (NACDL) is a

District of Columbia non-profit corpora-

tion with a membership of more than 4,000

lawyers, including representatives of

every state. NACDL was founded over

twenty-five years ago to promote study

and research in the field of criminal

defense law, to disseminate and advance

the knowledge of the law in the field of

criminal defense practice and to

encourage the integrity, independence,

and expertise of defense lawyers.

Among NACDL's stated objectives is

the promotion of the proper and constitu-

tional administration of criminal

justice. Consequently, NACDL concerns

itself with the protection of individual

a9e=

rights and the improvement of the

criminal law, its practices and proced-

ures. A cornerstone of this organiza-

tion's objective, and of the criminal

justice system, is the fundamental con-

stitutional protection of an individual's

Fourth Amendment rights. NACDL is very

concerned about any decision that would

further undermine this constitutional

guarantee, as would adoption of the

position taken by the petitioner in the

instant case.

The Amicus Curiae Committee of the

NACDL has discussed this case and decided

that the issues are of such importance to

defense lawyers throughout the nation

that NACDL should offer its assistance to

the Court.

The American Civil Liberties Union

(ACLU) is a nationwide, nonpartisan

organization of over 250,000 members

—

dedicated to protecting and preserving

the liberties safeguarded by the

Constitution and the Bill of Rights. The

prohibition against unreasonable searches

and seizures contained in the Fourth

Amendment is critically important among

those safeguards. The ACLU has partici-

pated in many of the leading cases in

which this Court has given shape and con-

tent to the Fourth Amendment's guarantee.

In Mapp v. Ohio, 367 U.S. 643 (1961), the

ACLU filed the only brief before the

Court urging application of the ex-

clusionary rule to the states, and was

permitted by the Court to raise the point

at oral argument. 367 U.S. at 646 n.3.

The ACLU appeared as amicus curiae in

Illinois v. Gates, 462 U.S. 213 (1983)

and United States v. Leon, 468 U.S. 497

(1984), and represented the defendant in

Massachusetts v. Sheppard, 468 U.S. 981

o40

(1984). The ACLU appears here again be-

cause of its belief that it is crucial to

limit the application of the good faith

exception only to searches pursuant to a

warrant.

SUMMARY OF ARGUMENT

The government urges this Court to

extend the "good faith" exception to the

Fourth Amendment's exclusionary rule of

United States v. Leon, 468 U.S. 897

(1984), to a warrantless search allegedly

conducted as a probation search.+ While

amici and others have raised concerns

about the impact of the good faith ex-

ception to the exclusionary rule many

1 While we support the due process

claims of the respondent, that a defend-

ant may not be subject to a warrantless

search conducted pursuant to a probation

condition that was imposed in his

absence, without his knowledge and

without his consent, amici will address

wHe

times during the past several terms of

this Court, there can be no doubt that

these concerns apply with special signi-

ficance to extending the exception to

warrantless searches. Indeed, we believe

that this is perhaps the least appropri-

ate case in which to consider extending

the good faith exception; the application

of a good faith exception in this case

would be contrary to the rationale of

Leon and would substantially dilute the

protections of the Fourth Amendment.

The first question to be addressed

is whether, as the Ninth Circuit found,

law enforcement officials used a proba-

tion search as a pretext for conducting a

warrantless search. The second question

is whether, assuming the officers in-

tended to conduct a warrantless probation

only the Fourth Amendment issues.

aGa

search, but failed to comply with its

requirements, their conduct should some-

how be excused as having been in "good

faith" within the meaning of Leon.

As to the first issue, whether this

was a law enforcement search, this case

raises no new legal issues. The Ninth

Circuit's decision fits within well-

established decisional law which already

takes into account the Court's concerns

with reasonable police behavior and the

exigencies of criminal and administrative

investigations. Numerous cases have

recognized that government officials,

like probation officers, arson investi-

gators, or building inspectors, may have

a right to conduct warrantless searches

of a citizen's home or business for some

purposes and under specified conditions,

but are held to the full rigors of the

Fourth Amendment when they search with

ata

law enforcement motives.

Nor does this case raise any unique

factual problems. This Court has never

had any difficulty in sorting out proper

administrative searches from improper or

pretextual law enforcement searches, and

this case presents none. It was a search

conducted exclusively by law enforcement

officers, for law enforcement purposes,

without consultation with, or participa-

tion by, probation officers.

With respect to the second issue,

even if this Court agrees that the

officers attempted a probation search,

but erred with respect to whether or not

the defendant had proper notice of the

conditions of his probation, it should

not extend Leon. Leon legitimized the

conduct of an officer who had consulted

with a neutral magistrate, presented the

facts of his investigation which he

aQe=

believed provided probable cause for a

particularly described search, and

received the magistrate's imprimatur. The

extension the government urges would

excuse the conduct of an officer who

opted to invade a citizen's privacy with-

out any prior judicial screening of the

basis for, or the scope of, a particular

search. Excusing good faith mistakes

about probable cause, where the law en-

forcement officer has obtained a warrant,

has a far less dramatic impact on

personal privacy than excusing mistakes

about whether to obtain a warrant in the

first instance.

The government's claim that seek-

ing judicial clarification of the defend-

ant's probationary status was the equiva-

lent of the actions of the Leon officers

in securing a warrant is totally dis-

ingenuous. This "judicial clarification"

ae

process was far from the equivalent of a

warrant review. It did not deal with the

proposed search at all. The officers

sought only a determination that respond-

ent was, in fact, on probation. While

they had decided to search if the court

held that he was on probation, they never

bothered to disclose that fact to the

judge. Nor did they apprise the judge of

their suspicions that respondent was vio-

lating the terms of his probation.

Rather, they found an exception to the

warrant requirement, sought judicial

approval that the exception applied

(without disclosing their motives), and

used it as a pretext to conduct a

warrantless search. If the Court labels

government efforts to obtain this kind of

perfunctory approval "good faith", and

equivalent to the good faith of the

officers in Leon who sought a warrant for

=i@@

the particular search they wished to

conduct, it will be trivializing the

warrant process.

The dangers to the ability of courts

to deter Fourth Amendment violations if

Leon is extended to warrantless searches

cannot be overstated. A new excuse for

constitutional violations, perhaps more

egregious than the violation in Leon,

would be created--that an officer made a

reasonable mistake about whether his

conduct fit within an exception to the

warrant requirement. The likely result is

that the numbers of warrantless searches

would increase and the central protection

of the Fourth Amendment would be under-

mined.

Amici are particularly troubled

about the impact on the development of

the decisional law if Leon is extended to

warrantless searches. While it had been

elie

argued that Leon would have an adverse

effect on decisional law regarding pro-

bable cause, there is no doubt that the

impact on the law of warrantless searches

would be even more substantial. It is

critically important that judges deline-

ate with precision the bright-line cate-

gories defining when a warrant is consti-

tutionally required. Since the finding

of "good faith" mistake in failing to

obtain a warrant could obviate the need

to determine whether the officer's con-

duct was constitutionally permissible,

there will necessarily be less incentive

for courts to precisely define the narrow

and limited exceptions to the warrant

requirement.

Moreover, there is no need for a

good faith exception to the warrant re-

quirement to address the Court's con-

cerns. The existing exceptions to the

ol2e

warrant requirement already permit courts

to take into account the reasonable needs

of law enforcement, the exigencies of a

criminal investigation, and even the

perceptions of officers in the field.

In sum, we believe the harm to the

privacy rights of citizens that would

result from expanding the "good faith"

exception to warrantless searches would

be incalculable and the government's

effort to do so here should be rejected.

ARGUMENT

I. THE SEARCH OF THE RESPONDENT'S HOME

WAS A LAW ENFORCEMENT SEARCH USING A

PROBATION SEARCH AS A PRETEXT; IT WAS

CONDUCTED WITHOUT PROBABLE CAUSE, WITHOUT

A WARRANT, AND OUTSIDE THE SCOPE OF ANY

EXCEPTION TO THE WARRANT REQUIREMENT

The government has argued that the

warrantless search of respondent's home

was a probation search undertaken in good

faith. The Ninth Circuit disagreed,

concluding that the officers used

-l|3-

respondent's probation status as a

pretext for an unconstitutional law

enforcement search. United States v.

Merchant, 760 F.2d 963, 969 (9th Cir.

1985). In effect, whether or not

respondent was in fact on probation at

the time of the warrantless search is

irrelevant. Whatever limited rights a

probationer may have vis a vis probation

officers, he has the full panoply of

Fourth Amendment rights vis a vis law

enforcement officers and any other

officials who are acting outside the

needs of the probation system. United

States v. Johnson, 722 F.2d 525, 527 (9th

Cir. 1983); United States v. Gordon, 540

F.2d 452, 453-54 (9th Cir. 1976). See

generally 3 LaFave, Search and Seizure,

Sec. 10.10, at 435-443 (1979).

-14=-

A. The Ninth Circuit decision fits

within the existing framework of

decisional law concerning admin-

istrative searches, a framework

which appropriately balances the

needs of law enforcement and

administrative agencies against

the constitutional rights of

individuals

Although this Court has never

addressed warrantless searches of proba-

tioners, its decisions in cases involving

regulatory searches provide a framework

to analyze this case, one which already

takes into account the circumstances of

the search, including the officer's

motives and the legitimate needs of law

enforcement. 2

“ Respondent argues that, as a matter

of s:ate law, the search conducted by law

enfc.cement officers here, wholly without

the participation or knowledge of the

probation authorities, was not a proba-

tion search. However, whether or not

California law specifically prohibits law

enforcement officers from conducting

warrantless searches under the instant

circumstances, federal constitutional

law, as Section I demonstrates, clearly

-1|5-=-

1. Law Enforcement Motive

Warrantless searches undertaken by

officials for the purpose, not of super-

vising probation,? but rather of investi-

gating criminal behavior, violate the

probationer's right to be free from

unreasonable searches and seizures.

United States v. Johnson, supra; United

States v. Hallman, 365 F.2d 289 (3:d Cir.

does. The state could no more authorize

every law enforcement officer to conduct

warrantless searches of any and all pro-

bationers than it could authorize every

law enforcement officer to conduct

warrantless searches of business

premises. Any such authorization would

necessarily be bound by the limits of the

Fourth Amendment.

3 Although a number of the cases cited

herein address the rights of parolees,

they are used interchangeably with

probation cases since "there is no

difference between the constitutional

status of probationers and parolees."

Owens v. Kelley, 681 F.2d 1362, 1367 n. 8

(llth Cir. 1982), reh. den., 697 F.2d

1094 (1983), citing Gagnon v. Scarpelli,

411 U.S. 778 (1973).

216@

1966). Although the probation officer's

dual function of rehabilitating the

probationer and protecting society may,

under strict limitations, empower him to

conduct searches outside the usual Fourth

Amendment strictures,* this special power

is necessarily limited by the extent to

which probation imposes special re-

straints on the permissible activity of

4 A substantial minority of courts

have held that although there may be a

reduced burden for the issuance of a

warrant, “a probation officer is required

to obtain a warrant prior to conducting a

search of a probationer's home unless the

search falls within a judicially rec-

ognized exception to the warrant require-

ment." United States v. Rea, 678 F.2d

382, 388 (2d Cir. 1982); United States v.

Workman, 585 F.2d 1205, 1207-1208 (4th

Cir. 1978); People v. Jackson, 412

N.Y.S.2d 884, 887, 46 N.Y.2d 171 (1978).

-l|7-=-

the probationer.*> While probationers

3 Two theories have been used to

justify unlimited warrantless searches of

probationers and parolees. The first,

the "constructive custody" theory of

probation and parole, held that such

massive invasions of privacy were

possible because probationers were

entitled to no more constitutional

protection than prisoners. White, The

Fourth Amendment Rights of Parolees and

Probationers, 31 U. Pitt. L. R. 167, 175-

81 (1969). See also People v. Mason, 5

Cal.3d 758, 97 Cal. Rptr. 302, (1971).

However, reliance on this theory to deny

constitutional protections was vigorously

attacked by the commentators, see, e.gq.,

3 LaFave, supra, at 423-425; White,

Supra at 180; Note, 22 Stanford L. Rev.

129, 133 (1969), and has been generally

rejected by the courts. See Morrissey v.

Brewer, 408 U.S. 471, 482 (1972); Gagnon

v. Scarpelli, 411 U.S. 778 (1973)

(extending Morrissey to probationers) ;

People v. Burgener, 41 Cal. 3d 505, 224

Cal.Rptr. 112, 126-28 (1986). See also

United States v. Bradley, 571 F.2d 787,

789 (4th Cir. 1978); United States v.

Consuelo-Gonzales, 521 F.2d 259, 263 (9th

Cir. 1975). The other theory used to

justify searches of probationers and

parolees is the assertion that these

citizens waive their Fourth Amendment

rights by accepting the conditions of

their release. See 3 LeFave, supra, at

426-431. While this theory must be

understood in the light of subsequent

=ife

may lose some of their Fourth Amendment

protection with respect to searches pur-

suant to the conditions of their release,

they are entitled to all constitutional

safeguards vis-a-vis government officials

acting with law enforcement motives.

Latta v. Fitzharris, 521 F.2d 246, 250-51

(9th Cir. 1975); People v. Way, 319

N.Y.S.2d 16, 65 Misc. 22665 (Sp.Term.

cases, e.g., Schneckloth v. Bustamonte,

412 U.S. 218 (1973) (waiver of

constitutional right must be knowing and

voluntary); United States ex. rel.

Coleman v. Smith, 395 F.Supp. 1155

(W.D.N.Y. 1975), the issue is irrelevant.

Whatever this Court's determination as to

respondent's probationary status on the

date of the search, there is no question,

as the government concedes, that

respondent did not know that he was on

probation at the time. Thus, he could

not possibly have consented to the

specific term of his probation that he

submit to warrantless searches at any

time. Cf. Freytas v. Superior Court, 60

Cal.App.3d 958, 132 Cal.Rptr. 26 (1976).

-19=<

1971) .® Warrantless searches which are

not undertaken for probation purposes

simply cannot pass constitutional muster.

United States v. Scott, 678 F.2d 32, 34

(Sth Cir. 1982), reh. den., 683 F.2d

1373; United States v. Consuelo-Gonzalez

supra; State v. Griffin, 131 Wis. 41, 388

N.W.2d 535, 540-46 (1986).7

6 As the Court noted in New Jersey v.

T.L.O., U.S. , 405 §.Ct. 733, 745

(1985):

([T)he mere fact that law enforcement

may be made more efficient can never

by itself justify disregard of the

Fourth Amendment. The investigation

of crime would always be simplified

if warrants were unnecessary. But

the Fourth Amendment reflects the

view of those who wrote the Bill of

Rights that the privacy of a

person's home and property may not

be totally sacrificed in the name of

maximum simplicitly in enforcement

of the criminal law.

7 Although some courts in the past had

concluded that a probationer had a lesser

constitutional interest in his privacy

than the ordinary citizen, see e.g.,

-20-

This Court has so held in a number

of other administrative settings. In

Michigan v. Clifford, 464 U.S. 287

(1984), the Court addressed the admissi-

bility of evidence discovered ina

warrantless search of a burned building

People v. Mason, supra, this approach

confuses the right of the probationer to

be free from unreasonable government

invasions of his privacy with the

reasonableness of the government's

actions in intruding on privacy under

certain circumstances. The question is

not whether a probationer's Fourth

Amendment rights are diminished in some

abstract way because of his status as "a

probationer," but whether, despite proba-

tioner's constitutional interest in

privacy, the government's needs with

respect to supervising him during

probation justify certain intrusions into

his privacy that would not be permissible

in the case of an ordinary citizen. See

United States v. Scott, supra, 678 F.2d

at 34-35; Owens v. Kelley, supra, 681

F.2d at 1366-9; 3 LaFave, supra, at 43l.

Cf. Donovan v. Dewey, 452 U.S. 594 (1981)

(warrantless investigatory search of

mines constitutional because of needs of

regulatory system for quick and frequent

inspections); Camara v. Municipal Court,

387 U.S. 523 (1967).

=%ie

after the cause of the fire had already

been determined. In suppressing the

evidence, the Court found that the

officials' objective in undertaking a

warrantless search was critical to its

validity.

"The object of the search is

important even if exigent circum-

stances exist. Circumstances that

justify a warrantless search for the

cause of a fire may not justify a

search to gather evidence of

criminal activity once that cause

has been determined. If, for ex-

ample, the administrative search is

justified by the immediate need to

ensure against rekindling, the scope

of the search may be no broader than

reasonably necessary to achieve its

end. A search to gather evidence of

criminal activity not in plain view

must be made pursuant to a criminal

warrant upon a showing of probable

cause."

Id. at 294-295.8

8 See also, Michigan v. Tyler, 436 U.S.

499, 511 (1978) ("([Wje hold that an entry

to fight a fire requires no warrant, and

that once in the building, officials may

remain there for a reasonable time to in-

vestigate the cause of the blaze. There-

-22-

Implicit in the cases upholding

warrantless searches as part of an ad-

ministrative scheme is the necessity for

careful judicial scrutiny of the motives

of the searching officials. Because

warrantless administrative searches can

only satisfy constitutional mandates if

they are “essential” to the enforcement

of the regulatory scheme, United States

v. Biswell, 406 U.S. 311, 316 (1972),

Hudson v. Palmer, U.S. _, 104 S.Ct.

3194, 3201 (1984), and "specifically

tailored to address [its] concerns,"

Donovan v. Dewey, supra, 452 U.S. at 603,

the court must determine whether the

searches were conducted solely for the

administrative purposes for which they

after, additional entries to investigate

the cause of the fire must be made

pursuant to the warrant procedures

governing administrative searches.")

(Emphasis added).

=23<

were sanctioned. Otherwise, the

"authority to make warrantless searches

devolves almost unbridled discretion upon

executive and administrative officers"

Marshall v. Barlow's, Inc., 436 U.S. 307,

323 (1978).% See United States v.

Jarrad, 754 F.2d 1451, 1455 (9th Cir.

1985); cert. den., U.S. » 406 8.CE.

96; Owens v. Kelley, supra, 681 F.2d at

1369; United States v. Consuelo-Gonzales,

supra, 521 F.2d at 267.

That the concerns of the administra-

tive officer with broader search powers

may occasionally overlap those cf the

police officer is not determinative. In-

9 See also, United States v. Lawson,

502 F.Supp. 158, 165 (D.Md. 1980) ("Once

the purpose shifts from administrative

compliance to a quest for evidence to be

used in a criminal prosecution, the

government may constitutionally enter the

premises only upon securing a warrant

supported by full probable cause.").

=2ée

deed, in most of the administrative

search cases the law enforcement officer

and the administrative official shared

the same concerns.19 This suggests that

the Court must carefully analyze the

objective circumstances of the search

(including those discussed below) and not

accept at face value the law enforcement

officer's claimed administrative purpose.

Finally, that in some cases it may

be difficult to parse out the official's

10 In some cases, the administrative

official is searching for information of

value in the criminal investigation as

well. For example, information bearing

on the goal of an arson prosecution was

also relevant to the arson investigator's

goal of finding the cause of the fire in

Michigan v. Tyler, supra; information

bearing on drug offenses was also

relevant to the school officials' goal of

disciplining students in New Jersey v.

T.L.O, supra. Alternatively police

officers may argue, as do petitioners

here, that they have a general interest

in seeing to it that all rules, including

probation rules, are obeyed.

=25<

true purposes does not affect the instant

case. There is no such problem here; the

facts are clear. (See section I(C)).

2. Absence of Probation Officer

Approval, Participation, or

Supervision

Quite apart from the purpose of the

search, warrantless searches of proba-

tioners conducted by police without the

authorization, supervision or participa-

tion of a probation officer, as here,

plainly infringe on probationers' con-

stitutional rights. E.g. United States

v. Consuelo-Gonzales, supra, 521 F.2d at

266; State v. Fogarty, 187 Mont. 393, 610

P.2d 140 (1980). Neither the special

needs of the probation system, nor the

special relationship between the proba-

tion officer and the probationer -- the

two factors which together have been held

to validate warrantless probation

searches in certain contexts, United

-26-

States v. Thomas, 729 F.2d 120, 123 (2d

Cir. 1984), cert.den., U.S. ,» 205

S.Ct. 158 -= can possibly justify the

invasion of constitutional rights which

flows from permitting any law enforcement

official, acting wholly outside the

probation system, to conduct a

warrantless search merely because of a

person's status as a probationer.

Thus, whether, as a matter of state

law,+1 police officials may assist a

probation officer in conducting a

warrantless search, or may undertake a

search with the probation officer's

authorization but in his absence, is not

determinative. If such a search is to

withstand a constitutional challenge, the

supervising probation officers must par-

ticipate in a fashion sufficient to

-27<

justify the special incursions on the

probationer's Fourth Amendment rights.

United States v. Scott, supra; United

States v. Consuelo-Gonzales, supra, 521

F.2d at 266 (invalidating search of

probationer by law enforcement agents

because although "[p]robation author-

ities...have a special and unique

interest in invading the privacy of

probationers, [(t]jhis special and unique

interest does not extend to law enforce-

ment officers generally").1+2 united

States v. Whiting, 781 F.2d 692, 696 (9th

Cir. 1986) ("A warrantless border search

is valid only if conducted by officials

specifically authorized to conduct such

12 See also Wood v. State, 378 So.2d

110 (Fla. App. 1980); State v. Bollinger,

169 N.J.Super. 552, 405 A.2d 432 (1979);

State v. Age, 38 Or.App. 501, 590 P.2d

759 (1979); Grubbs v. State, 373 So.2d

905, 909 (Fla. App. 1979).

ye

searches.").

While a probationer may feel

intruded upon when a probation officer

whom he knows and presumably trusts comes

to the door and asks to have a loox in-

side the house, that cannot compare to

the feelings of fear and helplessness

which result when a number of armed and

unknown law enforcement officials present

themselves and demand entrance. Lacking

the warrant which tells the citizen that

there is a judicial officer who is aware

of what is happening and who has author-

ized, and limited the scope of the in-

vasion, such intrusions are bound to

instill terror in the individual, his

family and his friends present at the

search. Extending that authority to an

unlimited multitude of government

officials would violate sacred principles

at the core of the Fourth Amendment's

-29°-

historic function.

B. The Ninth Circuit's conclusions

that the instant search was a

law enforcement search, using

the probation rationale only as

a pretext, should be sustained

By every measure, the search con-

ducted by the officers in this case was a

law enforcement search masquerading as a

probation search, as the Ninth Circuit

found. There was no special probation

purpose for this search. Moreover, none

of the justifications for probaticna

searches applied. It was not a search

legitimized by the "special needs" of the

probation system or the "special

relationship" of the probation officer to

the probationer.

Respondent was never assigned a

probation officer. The state made no

efforts to rehabilitate, counsel or

supervise his activities. The assistant

district attorney, after receiving

=%0<

reports of gunfire on respondent's

property, did not contact the probation

department. Rather, without informing

the court of respondent's suspected

activity, or of her earlier conversations

with law enforcement officers about

conducting a search of respondent's

residence, or of her plans to search if

the court announced respondent was on

probation, she appeared before the

sentencing judge on a motion for

clarification or modification of

respondent's probation. The search

followed on the heels of the court's

order. It was conducted entirely by law

enforcement officers without consultation

with, or the participation of, probation

officers.

In a warrantless search the govern-

ment has the burden of justifying its

failure to obtain a warrant. E.gq.,

-3]l-

Coolidge v. New Hampshire, 403 U.S. 443,

454-455 (1971). It is apparent that on

these facts it cannot. The government's

suggestion that this had to be a

probation search since the searching

officers had no information that a crime

under California law had been committed

is insufficient.13 If the police

officers knew nothing about respondent,

except that there were reports of gunfire

on his property, they would have been

warranted in investigating further for

possible criminal violations. Hearing a

gun discharge could raise the suspicion

of criminal gun violations or, for that

13 The officers had heard reports that

a gun had been discharged on respondent's

property. Since it was not a crime for

an individual to have a gun, unless that

individual had been convicted of a felony

and, as of that moment, respondent had

not, the only offense, they maintain, was

a probation offense.

=329<

matter, suspicions about a host of other

offenses, including murder. To say that

a law enforcement investigation begins

only the moment a fully formed crime is

known to have occurred is nothing short

of absurd.

Indeed, it was precisely because the

officers did not have sufficient evidence

of a criminal offense to seek a warrant

that they sought to use respondent's

probation status. If they had considered

this to be a law enforcement investiga-

tion, they would have been required to

refrain from searching until further

investigation produced evidence meeting

the probable cause standard and to obtain

a warrant. Rather than taking the

constitutional path, they looked

elsewhere for pretexts. The fact that

respondent might have been on probation

was fortuitous since it meant that

=-33<

respondent would be subject to rules far

more elaborate than those in the criminal

code.

However, the Constitution expressly

bars a law enforcement officer from

taking advantage of a probationer's

status in just this fashion, namely as a

pretext to avoid the rigors of the Fourth

Amendment.

II. THIS COURT SHOULD NOT EXTEND LEON TO

WARRANTLESS SEARCHES

United States v. Leon, supra, and

Massachusetts v. Sheppard, supra, announ-

ced an exception to the exclusionary rule

for evidence obtained during unconstitu-

tional searches in which police reason-

ably rely on a warrant. The government

now asks this Court to extend that "good-

faith" exception to warrantless searches.

We urge this Court to reject that

extension.

————E eee eee nnn a= —- = —

— ——_ — ~

-34-

First, the rationale of Leon and

Sheppard does not apply to warrantless

searches: The premise of Leon and

Sheppard is that the "deterrence object-

ive" of the exclusionary rule is not

furthered where an officer has reasonably

relied on a warrant. At the same time,

the cost to individual privacy is

diminished, the Court found, where a

magistrate has reviewed the basis for the

search.

The balance is totally different

where the officer has avoided the warrant

requirement. Wrongfully searching with-

out a warrant can be effectively deterred

by sending a strong message that warrant-

less searches will be tolerated only

under limited and carefully scrutinized

circumstances. Moreover, the costs to

personal privacy are substantial whenever

the police intrude upon a person's home

-35-

without prior judicial approval.

Second, the law concerning ex-

ceptions to the warrant requirement

already takes into account this Court's

concerns with the needs of law enforce-

ment and the deterrence of unreasonable

police conduct. Creating a new excuse

for a constitutional violation -- where

an officer claims to have made a "reason-

able" mistake about whether one of the

"reasonable" exceptions to the warrant

requirement applied to his conduct --

would dramatically and unnecessarily

dilute the Fourth Amendment.

Third, there is perhaps no area of

Fourth Amendment jurisprudence in which

clear and precise judicial rulemaking is

more necessary than in the decisional law

defining the exceptions to the warrant

requirement. A good faith exception for

a warrantless search will discourage

=%6<

courts from considering whether police

conduct fits within an exception to the

warrant requirement. The principle focus

will shift to whether the officer made a

reasonable mistake in concluding that his

conduct fell outside the warrant require-

ment, rather than whether the conduct

violated constitutional strictures.

A. Leon and Sheppard Are Inappli-

cable to Warrantless Searches

The warrant requirement is at the

heart of this Court's analyses in Leon

and Sheppard. The Court reiterated the

Constitution's strong preference for the

warrant as a more reliable safeguard to

privacy than the hurried judgment of line

officers involved in criminal investiga-

tions. United States v. Leon, supra, 468

U.S. at , 104 §.Ct. at 3417. Indeed,

the Court described its decision as the

"good faith exception for searches

=37<

conducted pursuant to warrants." Id. at

3427.

When the Court balanced costs

against benefits, it concluded that a

good faith exception was justified in

warrant searches because applying the

exclusionary rule in that limited class

of cases would impair society's quest for

truth without a concomitant benefit to

the effectuation of Fourth Amendment

guarantees. There is no deterrence

interest, the Court concluded, when

police officers are behaving in object-

ively reasonable reliance on the legal

deter mination of a magistrate.14 In

14 As the Court stated:

This is particularly true, we

believe, when an officer acting with

objective good faith has obtained a

search warrant from a judge or

magistrate and acted within its

scope. In most such cases, there is

no police illegality and thus

-38-

effect, where the officer did all that he

could reasonably be expected to do by

securing a warrant, he cannot be faulted,

with certain exceptions,1>5 when the

nothing to deter. It is the magis-

trate's responsibility to determine

whether the officer's allegations

establish probable cause and if so,

to issue a warrant comporting in

form with the requirements of the

Fourth Amendment. In the ordinary

case, an officer cannot be expected

to question the magistrate's

probable cause determination or his

judgment that the form of the

warrant is technically sufficient.

[O]nce the warrant issues there is

literally nothing more the policeman

can do in seeking do to comply with

the law. [citations omitted]"

United States v. Leon, supra, 468 U.S. at

, 104 S.Ct. 3420. See also, Id., 468

U.S. at _, 104 S.Ct. at 3450 (Stevens,

J., concurring in part and dissenting in

part). Indeed, the Court essentially

defined objectively reasonable behavior

in terms of the officer's efforts to

secure a warrant.

15 There are a few exceptions: 1) where

the warrant was based on an affidavit "so

lacking in indicia of probable cause as

to render official belief in its

existence entirely unreasonable,"; 2)

-39-

warrant is subsequently invalidated. At

the same time, because the officer sought

the intervention of a magistrate prior to

a search, the Court can be reasonably

confident that an officer's behavior will

not seriously undermine privacy rights.

Indeed, the opinions suggest that failure

to apply a good faith exception to

warrant searches could well have tne un-

desirable effect of discouraging resort

to warrants. United States v. Leon, 468

U.S. at _, 104 S.Ct. at 3417 ("the

preference for warrants is most

appropriately effectuated by according

‘great deference' to a magistrate's

determination"), quoting Spinelli v.

where the warrant was based on an

affidavit the affiant knew to be false;

3) where the issuing magistrate abandoned

his judicial role; 4) where in certain

circumstances the warrant was clearly

facially deficient. United States v.

Leon supra, 468 U.S. at _, 104 S.Ct.

-40-

United States, 393 U.S. 410, 419 (1969).

Where the Court concludes that a

police officer wrongfully conducted a

warrantless search, the same analysis

leads to a completely different con-

clusion. Warrantless searches "are per

se unreasonable -- subject only to a few

specifically established and well-defined

exceptions." Katz v. United States, 389

U.S. 317, 337 (1967). Accord Thompson v.

Louisiana, 496 U.S. 17 (1984). The

police officer who decides to conduct a

warrantless search has not done all that

"he can do in seeking to comply with the

warrant [requirement]." United States v.

Leon, supra, 468 U.S. at _, 104 S.Ct. at

3420. Instead, he has unilaterally

chosen to disregard the constitutionally

prescribed course for the approval of a

3421-3422.

efile

search.

Deterrence of similar future errors

will be effectuated by excluding the

fruits of his error. On the one hand,

where the law is clear that a warrant is

required, the officer's conduct could not

be characterized as "good faith" and

there can be no dispute that deterrence

requires exclusion. On the other hand,

where the law is ambiguous, or unsettled,

or the facts unclear, the Constitution

compels the officers to "err on the side

of constitutional behavior" by obtaining

a warrant. United States v. Johnson, 457

U.S. 537, 561 (1982). Exclusion is

likewise essential to encourage "erring"

on the side of warrants.

Creating a good faith exception for

warrantless searches would have precisely

the opposite effect of that sought by the

Court in Leon. It would provide added

-42-

incentives for law enforcement officers

to avoid a warrant and take their chances

that a court will subsequently label

their actions "good faith." An important

commentator on the Fourth Amendment

explains:

(Pjerhaps of ultimate importance,

there is the fact that a broader

good faith exception, applicable

even when the police conduct did not

have the prior approval of the

magistrate, would be perceived and

treated by police as a license to

engage in the same conduct in the

future. That is, the risk in such

tampering with the exclusionary rule

‘is that police may feel that they

have been unleashed' and conse-

quently may govern their future

conduct by what passed the good

faith test in court rather than on

the traditional Fourth Amendment

standards of probable cause, exigent

circumstances and the like.

1 LaFave, Sec. 1.2, at 35 (1986 Supp.),

quoting Schlesinger, Exclusionary

Injustice: The Problem of Illegally

Obtained Evidence (1977).

At the same time, the impact on

a49e

personal privacy is qualitatively

different in warrantless search cases

than it was in Leon. The right to be

free from warrantless searches and

seizures stands at the heart of the evils

which the Fourth Amendment sought to

avoid.1® The Court's "strong preference

for warrants," United States v. Leon,

Supra, 468 U.S. at , 104 §.Ct. at

3417, stems from its recognition that,

however intrusive a search pursuant to a

warrant lacking in probable cause or

16 See United States v. Payton, 445

U.S. 573 (1980). As Justice Frankfurter

explained in Wolf v. Colorado, 338 U.S.

25, 27-28 (1949):

The security of one's privacy

against arbitrary intrusion by the

police--which is at the core of the

Fourth Amendment--is basic to a free

society...The knock at the door,

whether by day or by night, as a

prelude to a search, without author-

ity of law but solely on the author-

ity of the police did not need the

commentary of history to be

condemned....

2440

sufficient particularity, that intrusive-

ness pales in comparison with that en-

gendered by a warrantless invasion into

one's home.

B. The Government's Arguments

Equating The Efforts of

Officials to Seek Judicial

Clarification of Respondent's

Probation Status with the

Efforts of the Agents in Leon to

Obtain A Warrant Are Dis-

ingenuous

The government claims that the

actions of these officials in seeking

judicial approval are the equivalent of

the actions of the Leon officers in

securing a warrant. This argument is

totally disingenuous. The government

officers here plainly had the time to

investigate further and, if they had

probable cause, to seek a warrant. But

rather than taking the time to do what

the Constitution required them to do,

they chose only to seek clarification

ee EC — = eee

-45-

that respondent was on probation. In

effect, they used the judge not for the

purpose of reviewing any particula-

search, but for the purpose of legiti-

mizing their intent to conduct a warrant-

less search.

Far from being the equivalent of a

warrant review, this "judicial clarifica-

tion” process did not deal with the pro-

posed search at all. Rather than seeking

the narrow and precisely defined author-

ity of a search warrant, these officers

sought, without constitutional justifica-

tion, to clothe themselves with the broad

based discretion of an administrative

officials. The officers did not apprise

the judge of their intentions to search

the property. They did not spell out

where they planned to search and why, as

would an officer in a warrant applica-

tion. Indeed, they presented no facts

-46<

even describing their suspicions of

probation violations -- although they had

all the relevant facts at their disposal.

The order that they received was not,

like a warrant, limited to time, place

and scope. If the perfunctory ceremony

these officials went through in the

instant case is held to be good faith, or

worse, equivalent to the efforts of the

officers in Leon to obtain a warrant, we

will have trivialized the warrant process

and returned to the days of general

searches.

Cc. The Exceptions to the Warrant

Requirement Already Incorporate

A Reasonableness Test

Limiting the good-faith exception to

cases involving warrant searches would

not impair the ability of law enforcement

officers to effectively perform their

duties; the existing exceptions to the

warrant requirement have been developed

-47<

with a careful eye to the reasonable

needs of law enforcement.

This Court has already carved out a

number of exceptions to the warrant re-

quirement, holding warrantless searches

within those specifically defined cate-

gories to be constitutionally permissible

under two general theories -- that time

constraints or other circumstances make

obtaining a warrant too costly for law

enforcement, or that the nature of the

intrusion justifies a less than probable

cause standard. See e.g., Terry v. Ohio,

392 U.S. 1 (1968) (stop and frisk on

reasonable suspicion); Carroll v. United

States, 267 U.S. 132 (1925 (automobile

search); Chimel v. California, 395 U.S.

752 (1969) (search incident to arrest);

South Dakota v. Opperman, 428 U.S. 364

(1976) (inventory search); Coolidge v.

New Hampshire, 403 U.S. 443 (1971) (plain

-48<-

view); Schneckloth v. Bustamonte, 412

U.S. 218 (1973) (consent search); and

United States v. Ramsey, 431 U.S. 606

(1977) (border search); Camara v.

Municipal Court, 387 U.S. 52 (1967)

(administrative building search) }

Marshall v. Barlow's Inc., 436 U.S. 307

(1978) (administrative business search).

Moreover, the Court has exhibited

flexibility in applying these exceptions

to particular cases. The Court has

naturally considered the reasonableness

of the searching officer's behavior

where, for example, the officer has

reasonably searched pursuant to the

authority of an ordinance subsequently

invalidated. See e.g., Michigan v.

DeFillippo, 443 U.S. 31 (1979). And in

limited categories of cases the Court has

relieved the officer of the burden of

demonstrating that the particular

=49-

warrantless search at issue was supported

by the need for prompt action or the

limited nature of the intrusion. See

e.g., Illinois v. LaFayette, 462 U.S.

640, 643-647 (1983) (inventory search

permissible irrespective of exigent

circumstances because "the inventory

search is a well-defined exception to the

warrant requirement"); Florida v. Meyers

__U.S.__, 104 S.Ct. 1852 (1984) (auto-

mobile exception applied to uphold search

of impounded vehicle despite vehicle's

lack of mobility).

However, with respect to unsettled

or ambiguous areas, the Court has refused

to delegate the initial authority to

determine the nature and scope of except-

ions to the warrant requirement to the

officer in the field. For example, it

has not sanctioned what were described by

the government as "reasonable errors" on

-50-=-

the part of police seeking to create a

new exception to the warrant requirement,

Thompson v. Louisiana, U.S. , 105

S.Ct. 409 (1984) (rejection of "murder

scene" exception); Steagald v. United

States, 451 U.S. 204 (1981) (rejection of

a warrantless search of a person's home

pursuant to an arrest warrant for another

individual).

The extension of the good-faith

exception to every warrantless search

would have precisely this effect. It

would encourage an officer to rely on his

own conclusion that an exception to the

warrant requirement was implicated, since

the question of whether or not the search

was reasonable under the Fourth Amendment

would be replaced with the question of

whether an officer reasonably believed

that to be the case. Unlike the good

faith rule in Leon, where the offisers'

ee

-5l-

obligations under the Warrant Clause had

already been met, the extension of the

exception here would recast the Fourth

Amendment's specific proscriptions as a

general and vague reasonableness require-

ment, thereby eviscerating then.

D. The Application of a Good Faith

Exception to Warrantless

Searches Would Seriously Under-

mine the Development of Clear

Decisional Law Delineating

Precise Exceptions to the

Warrant Requirement

In Leon, the Court dismissed the

concern that the good faith exception

would stifle the development of the

Fourth Amendment law in warrant cases

because it concluded that judges would

continue to examine the constitutionality

of the magistrate's issuance of a warrant

before turning to the question of the

reasonableness of the police officer's

reliance on it. However, the concern for

the lack of development of decisional law

-52-

applies with special significance to the

application of the good faith exception

to warrantless searches.

First, there is no area of Fourth

Amendment law where clearly articulated

judicial rules are more necessary than in

the area of exceptions to the warrant

requirement. See United States v.

Belton, 433 U.S. 454 (1981). Only by

sending clear signals to the police about

the limited scope of the exceptions to

the warrant requirement can the Court

ensure that these officials will abide by

the constitutional mandates. Thus, this

Court has frequently opted to define

warrantless searches by categories rather

than by engaging in post-hoc case by case

analysis. For example, the Court has

created a generic “inventory search"

category, Illinois v. Lafayette, supra,

or a generic "car search" category,

-53-<

Coolidge v. New Hampshire, supra, rather

than requiring the police to independ-

ently demonstrate exigent circumstances

in each case. Moreover, while, at the

very minimum, Leon told officers to get a

warrant, extending the good faith

exception to warrantless searches would

muddy the very rules concerning when a

warrant was required.

Second, if a good faith exception is

applied to warrantless searches, there

will be an increased risk that reviewing

courts will gloss over the constitional

violation. In a search warrant case, the

reviewing court can function vis a vis

the magistrate's order to search, much

like an appellate court vis a vis a lower

court's decision. As in appellate review,

there is a judicial judgment, i.e., a

search warrant, and a fixed pre-search

record, i.e., the affidavit in support of

-54-

the warrant. Like an appellate court

deciding whether there is a constitu-

tional violation, followed by a deter-

mination of whether there is harmless

error, a district court can determine

whether the magistrate erred in issuing

the search warrant, and only then turn to

the reasonableness of the police conduct.

In a warrantless search case, in

contrast, the court will have no prior

judicial order, and no fixed pre-search

record. The only issue the court will be

reviewing will be the police officer's

conduct. Morever, if Leon were extended

to warrantless searches, there is every

reason to believe that the post-search

record will be cast largely in terms of

the police officer's good faith. Finally,

Since the good faith issue will arise

largely at the boundaries of the law,

where the law is unsettled, unclear, or

-55-

never before addressed, the reviewing

court will have every incentive to decide

only whether the police reasonably

believed that a warrantless search was

permissible under the circumstances,

without expressly reaching the question

of whether or not there was a constitu-

tional violation. Indeed, one of the

first "good faith" cases, United States

v. Williams, 622 F.2d 830 (5th Cir.

1980) cert.den., 449 U.S. 1127 (1981),

which involved a warrantless search,

illustrates these dangers. The court

disposed of the case without deciding the

precise violation committed by the

officer.

The result of this will be a stagna-

tion in the development of the Fourth

Amendment in the context of warrantless

searches. Today's bright line rules and

categorical exceptions will shade into a

-56-

murky blend of cases in which warrantless

searches are excused post-hoc as “reason-

able". Judicial oversight of police be-

havior in an area as central to personal

privacy as this will necessarily suffer.

See generally, Ingber, "Defending the

Citadel: The Dangerous Attack of

‘Reasonable Good Faith'", 31 Vanderbilt

L.R. 1, 48 (1982); Mertens & Wasserstron,

"The Good Faith Exception to the

Exclusionary Rule: Deregulating the

Police and Derailing the Law", 70

Georgetown L. J. 365, 431 (1981).

-57=-

CONCLUSION

For all the foregoing reasons, the

decision below should be affirmed.

Respectfully submitted,

NANCY GERTNER

JUDITH H. MIZNER

SILVERGLATE, GERTNER,

BAKER, FINE, GOOD & MIZNER

88 Broad Street

Boston, MA 02110

(617) 542-6663

For Amici Curiae

American Civil Liberties

Union and

National Association of

Criminal Defense Lawyers

On the Brief: Jonathan Backman