Amicus Curiae Brief — Illinois v. Krull

sy iy. A ~ ais eee |» Supreme Court, u.s,

: FILED

ct soe () “| JUN 97

: “e ‘ie 2T 1986

wo L, JR. |

In the Supreme Court of the United States

OcTOBER TERM, 1985

STATE OF ILLINOIS, PETITIONER

Vv.

ALBERT KRULL, ET AL.

ON WRIT OF CEP '‘IORARI TO THE

SUPREME CC RT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General

STEPHEN 8S. TROTT

Assistant At:orney General

WILLIAM C. BRYSON

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

ROBERT J. FRICKSCN

Attorney

Department of Justice

Washington, D.C. 205380

(202) 633-2217

QUESTION PRESENTED

Whether evidence seized in reasonable reliance

upon a statute authorizing warrantless administra-

tive searches should be admissible, even though the

statute is subsequently found to violate the Fourth

Amendment.

(I,

TABLE OF CONTENTS

Page

Interest of the United States dias iis 1

Statement . 1

El Sate ce Re Aca 6

The evidence discovered as a result of the

statutorily-authorized administrative search in this

case should not be suppressed _.................--...--.-..... 9

A. The exclusionary rule should not be applied

when a law enforcement officer conducts a

search in reasonable reliance upon the statute

authorizing the search ............................-------.--- 9

B. The law enforcement officer who conducted the

search in this case could reasonably believe

that the statute authorizing the search complied

with the Fourth Amendment ................................ 23

EEE TEE RE Se eT : Yee 30

TABLE OF AUTHORITIES

Cases:

Alderman Vv. United States, 394 U.S. 165 —.............. 18

Almeida-Sanchez v. United States, 413 U.S. 266...... 16

Berger v. New York, 388 U.S. 41 ............................ 12

Bionic Auto Parts & Sales, Inc. v. Fahner, 518

F. Supp. 582, vacated, 721 F.2d 1072 .......... 4, 14, 24, 25,

26, 27

Brown V. Illinois, 422 U.S. 590 ..............-...22-22..22.-...-- 15

Camara V. Municipal Court, 387 U.S. 523 ................ 23

Colonnade Catering Corp. v. United States, 397

8 RE RS ne Se en 12, 23, 25

Donovan Vy. Dewey, 452 U.S. 594 .......... 12, 23, 24, 25, 26, 27

Elkins v. United States, 364 U.S. 206 —............0....... 11

Illinois v. Gates, 462 U.S. 213 20... cceee eee 18, 19, 22

(iI)

IV

Cases—Continued : Page

Marshall v. Barlow’s, Inc., 486 U.S. 307 -....... 12, 24, 25, 26

Michigan v. DeFillippo, 443 U.S. 31 ................ 6, 20, 21, 22

Michigan Vv. Tucker, 417 U.S. 483 .....................-.. 11, 15, 16

Payton v. New York, 445 U.S. 578 .......................----- 17

Rush v. Obledo, 756 F.2d 718 ........-........-----cc--cce0--0-e0 14

See v. City of Seattle, 387 U.S. 541 —..................... 23-24, 25

State v. Tindell, 272 Ind. 479, 399 N.E.2d 746 ........ 27

Stone v. Powell, 428 U.S. 466 ............-....----2--0-000----- 9, 18,19

Surface Mining Regulation Litigation, In re, 456

¥. Supp. 1301, aff’d in part and rev'd in part, 627

| RRA ashore. rt ete aR 14

United States v. Biswell, 406 U.S. 811 .................. 12, 23, 25

United States v. Burke, 517 F.2d 877 ...................... 29

United States v. Calandra, 414 U.S. 338 .................. 9, 10

United States v. Donovan, 429 U.S. 418 .................. 30

United States v. Dudek, 530 F.2d 684 ...................... 30

United States v. Harrington, 681 F.2d 612, cert.

denied, No. 84-1016 (Apr. 15, 1985) —.................. 29

United States v. Jamieson-McKames Pharmaceuti-

cals, Inc., 651 F.2d 532, cert. denied, 455 U.S.

| RRS PPR Sa NSA ROE Fes 12

United States v. Janis, 428 U.S. 483 0.0... 10, 1%

United States v. Johnson, 457 U.S. 587 .................... 17, 18

United States v. Leon, 468 U.S. 897 _........0000- oo. passim

United States v. Peltier, 422 U.S. 581 ..........0.......... 16, 17

United States v. Pennington, 635 F.2d 1387, cert.

Gomes GR: WE. Te bist chelates 29-30

United Stctes v. Raub, 637 F.2d 1205, cert. denied,

RS RS Eee Seek Wor aaa ee Seer ers 12

Constitution, statutes and rules:

U.S. Const. :

pe a SEE a ee ee ee SY 11

EN Sh ES Sn passim

Ill. Ann. Stat. ch. 95144 (Smith-Hurd) :

§3-116(c) (Supp. 1966) ..................................... 3

§ 4-103(a) (2) (Supp. 1986)... 3

§ 4-108(a) (4) (Supp. 1986) 3

fi a 2

§ 5-401(e) (Sapp. 1984-1985)............................2, 26, 28

v

Constitution, statutes and rules—Continued : Page

§ 6-401.2 (Supp. 1986)..........................-..-0--0000--- 2

§ 5-403 (Supp. 1986) NEES Pe ae aa 2, 26

29

5

RE I Oe IE tire tetrecesicccnescscicrccenemencercnvinemvooenesees

Ill. Sup. Ct. R. 603 Siiadeliienegionvas

Miscellaneous:

8 W. LaFave, Search and Seizure (Supp. 1986) ...... 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1985.

No. 85-608

STATE OF ILLINOIS, PETITIONER

v.

ALBERT KRULL, ET AL.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINCIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The issue in this case is whether evidence seized

by a law enforcement officer-in reasonable reliance

upon a state statute authorizing a warrantless ad-

ministrative search must be suppressed if the statute

is subsequently found to violate the Fourth Amend-

ment. The Courf’s analysis and resolution of that

question is likely to shape the development of the

“good faith” exception to the exclusionary rule recog-

nized in United States v. Leon, 468 U.S. 897 (1984).

This case therefore may have a significant impact

upon the admissibility of evidence in federal criminal

prosecutions.

STATEMENT

1. Illinois has adopted a comprehensive statutory

scheme designed to curb trafficking in stolen auto-

mobile parts. Persons who sell motor vehicles, deal

in automotive parts, process scrap metal, or engage

(1)

2

in similar businesses must obtain a license from the

Secretary of State (Ill. Ann. Stat. ch. 95%, § 5-301

(Smith-Hurd Supp. 1986)). The licensees are re-

quired to maintain records setting forth the identi-

fication numbers of all motor vehicles and automobile

parts that they purchase or sell (id. § 5-401.2). In

1981—when the events at issue in this case occurred—

the statute. required licensees to permit state officials

to inspect these records and to allow “examination of

the premises of the licensee’s established place of

business for the purpose of determining the accuracy

of required records” (id. §5-401(e) (Smith-Hurd

Supp. 1984-1985) ).’

On July 5, 1981, at approximately 10:30 a.m.,

Detective McNally, an officer of the Chicago police

department, visited Action Iron and Metal Co., a

wrecking yard operated by respondents.? When he

arrived, Detective McNally saw tow trucks bringing

automobiles into the yard and leaving without them.

McNally approached respondent George Lucas, iden-

tified himself as a police officer, and asked whether

1 The inspection provision stated (Ill. Ann. Stat. ch. 9514,

§ 5-401(e) (Smith-Hurd Supp. 1984-1985)) :

Every record required to be maintained under this Sec-

tion shall be open to inspection by the Secretary of State

or his authorized representative or any peace officer for

inspection at any reasonable time during the night or

day. Such inspection may include examination of the

premises of the licensee’s established place of business for

the purpose of determining the accuracy of required

records.

The legislature added several limitations to this administra-

tive inspection authority in 1982. See id. § 5-403 (Smith-Hurd

Supp. 1986).

2 Detective McNally’s regular assignment was to inspect

automobile wrecking yards pursuant to the state statute au-

thorizing such inspections (9/25/81 Tr. 12).

3

the yard was open for business. Lucas stated that

the yard was open and that he was in charge of pur-

chasing automobiles. McNally then asked Lucas

whether he could examine the yard’s au. parts

license and the records of its motor vehicle purchases.

Lucas stated that he did not know where the li-

cense and the formal records were located, but he

gave the officer a pad of paper that Lucas said was

a record of the vehicles that had been purchased by

Action Iron. Detective McNally examined the pad of

paper and then asked Lucas if he “had any objection

to my loking at the cars in the yard.” Lucas re-

plied, “ ‘Go right ahead.’” Pet. App. 5-6; 9/25/81

Tr. 24-26.

Detective McNally then looked at several vehicles

in the yard and made notations of their serial num-

bers. After using his mobile computer to check the

vehicle serial numbers against the identification num-

bers of siolen automobiles, McNally found that three

of the vehicles in the yard had been stolen. He also

noted that the vehicle identification number had been

removed from a fourth vehicle. The officer then seized

the vehicles and arrested respondent Lucas. Respond-

ent Krull, the holder of the license for the wrecking

yard, and respondent Mucerino, who was present in

the yard on the day of the search, were arrested

later. Pet. App. 6-7; 9/25/81 Tr. 8-9, 11-12, 18-19,

26. Respondents were charged with various criminal

violations of the Illinois motor vehicle statutes, in-

cluding possession of stolen motor vehicles, failure

to surrender proper certificates of title, and failure

to obtain a junking certificate (see Ill. Ann. Stat.

ch. 95%, §§ 4-103(a) (2) and (4), 3-116(c) (Smith-

Hurd Supp. 1986) ).

2. The trial court granted respondents’ motion to

Suppress the evidence. The court observed that the

day after the search at issue in this case, a federal

4

district court had declared the statute authorizing

the inspection of wrecking yards unconstitutional.

See Bionic Auto Parts & Sales, Inc. vy. Fahner, 518

F. Supp. 582 (N.D. Ill. 1981), vacated on other

grounds, 721 F.2d 1072 (7th Vir. 1983).° The trial

court in the present case adopted the reasoning of

the district court in Bione Auto Parts and held that

the “declaration of unConstitutionality [sic] of that

Statute affects all pending prosecutions not com-

pleted. And therefore, I’m going to sustain the mo-

tion based on the District Court’s ruling of unCon-

stitutionality [sic]” (9/25/81 Tr. 31).

The Illinois intermediate appellate court vacated

the trial court’s decision and remanded the case

for further proceedings (People v. Krull, No. 81-

2621 (Nov. 23, 1983)). The appellate court noted

that one of the State’s arguments was that suppres-

sion of the evidence was not appropriate because the

officer “acted in good faith when [he] relied on this

statute” (slip op. 2). The appellate court therefore

directed the trial court to make a determination re-

garding the good faith issue and to reconsider the

constitutionality of the statute in light of the sub-

sequent decision of the Seventh Circuit in the Bionic

Auto Parts case (Krull, slip op. 5).

On remand, the trial court reaffirmed its decision

granting the motion to suppress. It declined to re-

8 The district court in Bionic Auto Parts found that the

statute did not impose sufficient limitations upon law enforce-

ment officers’ discretion and therefore violated the Fourth

Amendment (518 F. Supp. at 585-586). The Iliinois legisla-

ture amended the statute in 1982 to limit the ti .ing, fre-

quency, and duration of the administrative searches. On the

appeal from the district court’s order, the Seventh Circuit

declined to address the validity of the origina: statute, but held

that the amended statute satisfied the requirements of the

Fourth Amendment (721 F.2¢ at 1075).

5

consider its original ruling regarding the constitu-

tionality of the statute, stating that its “original

ruling that this particular section is unconstitutional

wil! stand” (7/9/84 Tr. 9). The court further held

that a police officer’s good faith is relevant only in

cases in which the officer acts pursuant to a warrant.

The court therefore ruled that its decision to grant

the motion to suppress would not be affected even if

it found that Detective McNally had acted in good

faith (id. at 10).

3. The Supreme Court of Illinois affirmed (Pet.

App. 1-24).* The court noted that “some legisla-

tive schemes aithorizing warrantless administrative

searches have survived fourth amendment scrutiny”

because “the assurance of regularity afforded by a

warrant may be unnecessary where there has been a

long and extensive regulatory presence in a certain

industry” (id. at 12). The court found that “[t]here

is certainly a strong public interest in preventing the

theft of automobiles and the trafficking in stolen auto-

mobile parts” and that the statute at issue in this

case furthered that “strong public policy” (id. at

15). The court also found that it was “reasonable to

assuine that warrantless administrative searches are

necessary in order to adequately control the theft of

automobiles and automotive parts” (id. at 16). The

court concluded that the statute was unconstitutional,

however, because it “vested State officials with too

much discretion to decide wno, when, and how long to

search” (ibid.).

fhe court rejected the State’s argument that the

search could be upheld because the officer acted in

“ ‘good faith’ reliance” on the statute authorizing the

search. It observed that the authority cited by the

*The State appealed directly to the Supreme Court of

Illinois pursuant to Ill. Sup. Ct. R. 603.

6

State—Michigan v. DeFillippo, 448 U.S. 31 (1979)

—was inapposite because that case concerned an offi-

cer’s reliance upon a substaniive statute defining a

criminal offense. The court stated that “an arrest

and search made pursuant to a procedural statute,

not yet declared unconstitutional, * * * which au-

thorizes unlawful searches, will not be upheld, even

though the arrest and search were made in good-

faith reliance on the statute” (Pet. App. 20). The

court observed that the statute at issue here “did

not define a substantive criminal offense. Rather, it

directly authorizec. warr_ntless searches” (id. at 21).

The court therefore concluded that “[a]ny good-

faith reliance on such a [procedural] statute will not

cure an otherwise illegal search” (ibid.).°

SUMMARY OF ARGUMENT

The search of the automobile wrecking yard at

issue in this case was authorized by a state statute

that comprehensively regulated such businesses. This

Court repeatedly has recognized that aa administra-

tive search of a regulated b siness is permissible

under the Fourth Amendment without a warrant

and without a showing of probable cause, as long as

the statute authorizing the search satisfies certair

requirements. The Illinois Supreme Court found that

the statute authorizing the search at issue in this

case did not comply with these requirements (Pet.

App. 12-16), and petitioner has not sought review

of that determination. The sole question in this case,

therefore, is whether the exclusionary rule should be

applied to suppress the probative evidence that was

discovered in the search of the automobile wrecking

yard.

*The court also rejected the State’s contention that re-

spondent Lucas had consented to the search (Pet. App. 22-24).

7

We submit that this Court’s decision in United

States v. Leon, 468 U.S. 897 (1984), compels the

conclusion that the application of the exclusionary

rule is wholly inappropriate when a law enforcement

officer conducting an administrative search acts with

the objectively reasonable, although erroneous, belief

that the statute authorizing the search satisfied the

requirements of the Fourth Amendment. Since the

officer who conducted the search in this case reason-

ably believed that the Illinois statute complied with

the relevant constitutional standard, the evidence ob-

tained as a result of that search should not be sup-

pressed.

A. The weighing of the costs and benefits of ap-

plying the exclusionary rule leads to the same con-

clusion in this case as in the case of the warrant-

authorized searches that were at issue in Leon. The

purpose of the exclusionary rule is to deter police

misconduct. Yet the exclusionary rule will not have

that deterrent effect if the police reasonably believe

thai their conduct is lawful—either because it is

authorized by a presumptively valid warrant or be-

cause it is authorized by a presumptively valid stat-

ute. Nor is the exclusionary rule likely to have any

significant effect in deterring legislators froin enact-

ing unconstitutional statutes. Legislators are not

concerned with the outcome of particular criminal

prosecuticns, so it is highly unlikely that their legis-

lative actions will be affected by the application of

the exclusionary rule in a particular case. Moreover,

because the exclusionary sanction in any event will

apply in cases that arise after a statute has been held

unconstitutional, the marginal effect upon legislators

of requiring suppression in a case like this one will

be minimal. Beyond that, parties who are agerieved

by an allegedly unconstitutional statute can often

8

obtain relief by challenging the statute in a civil ac-

tion; the exclusionary rule is therefore not the only

available remedy for deterring Fourth Amendment

violations in the statutory context.

The costs of the exclusionary rule are at least as

great in the case of searches authorized by a statute

as they are in the case of searches authorized by a

warrant. ‘the principal cost, of course, is the loss

of probative ev’ Jenc2 from the cruth-seeking process

and the associated reduction in public confidence in

the criminal justice system. In addition, however,

there are special costs 2ssociated with the use of the

exclusionary rule in connection with statutorily-

authorized searches. Where a legislature has devised

particular law enforcement techniques to ‘elp combat

crime, the unduly broad application of the exclusion-

ary rule can discourage cautious officers from using

the investigative techniques authorized by the legis-

lature for fear that a good faith error on their part

will result in the suppression of important eviderce.

In that way, the purpose of the legislature in devis-

ing innovative law enforcement techniques may well

be thwarted by the uncertainty that results from the

threat of imposing the exclusionary sanction, even

though an officer’s conduct is objectively reusonable.

B. In this case, the officer’s reliance on the consti-

tutionality of the Illinois statute was clearly reason-

able. If the statute was unconstitutional, it was only

barely so; the flaw in the statute was at worst a

technical one. The statute certainly was not so pst-

ently unconstitutional that the office. should have

recognized its flaws and refused to exercise the au-

thority conferred by the legislature.

Moreover, the officer’s conduct in executing the

search was entirely reasonable. His actions were

consistent with the terms of the Illinois statute after

it was amended to answer the constitutional objec-

9

tions that were raised shortly after tle search in this

case. Therefore, to apply the exclusionary rule in

this case would be particularly pointless. It would

provide responderts with the windfall of suppres-

sion, even though the alleged constitutional error did

not result in a search that was any more intrusive

than the search could have been if the legislature had

enacted the more precise version of the statute in the

first place.

ARGUMENT

THE EVIDENCE DISCOVERED AS A RESULT OF

THE STATUTORILY-AUTHORIZED ADMINISTRATIVE

SEARCH IN THIS CASE SHOULD NOT BE SUPPRESSED

A. The Exclusionary Rule Should Not Be Applied When

A Law Enforcement Officer Conducts A Search In

Reasonable Reliance Upon The Statute Authorizing

Tke Search

1. It is by now well settled that the Constitution

does not require that the exclusionary rule be applied

in every case in which law enforcement officers fail

to comply with the Fourth Amendment. Thus, “[t]he

Fourth Amendment contains no provision expressly

precluding the use of evidence obtained in violation

of its commands, and an examination of its origia

and purposes makes clear that the use of fruits of

a past unlawful search or seizure ‘work[s] no new

Fourth Amendment wrong.’” United States v. Leon,

468 U.S. 897, 906 (1984), quoting United States v.

Calandra, 414 U.S. 338, 354 (1974). Instead, the

exclusionary rule is “a judicially created remedy de-

signed to safeguard Fourth Amendment rights gen-

erally throuy. its deterrent effect, rather than a

personal constitutional right of the party aggrieved.”

United States v. Calandra, 414 U.S. at 348 (footnote

omitted) ; see also Leon, 468 U.S. at 906; Stone v.

Powell, 428 U.S. 465, 486 (1976).

10

In addition, “[a]s with any remedial device, the

application of the rule has been restricted to those

areas where its remedial objectives are thought most

efficaciously served.” United States v. Calandra, 414

U.S. at 348; see also Leon, 468 U.S. at 908 (“[c]lose

attention to [the rule’s] remedial objectives has char-

acterized [the Court’s] recent decisions concerning

the scope of the Fourth Amendment exclusionary

rule”). The propriety of applying the exclusionary

rule in a particular situation turns upon “weighing

the costs and benefits” of withholding from the truth-

seeking process reliable evidence obtained in violation

of the Fourth Amendment. Leon, 468 U.S. at 907;

see also id. at 908-913 (cataloging circumstances in

which the Court has found suppression of evidence

unwarranted because the possible benefits of suppres-

sion did nct outweigh the costs of applying the ex-

clusionary rule); United States v. Janis, 428 U.S.

433, 454 (1976); United States v. Calandra, 414

U.S. at 351-352.

This Court held in Leon that because “the mar-

ginal or nonexistent benefits produced by suppressing

evidence obtained in objectively reasonable reliance

on a subsequently invalidated search warrant cannot

justify the substantial costs of exclusion,” the exclu-

sionary rule should not be applied when an officer

reasonably relies upon a search warrant issued by a

magistrate (468 U.S. at 922). The balance of the

relevant factors in the present context plainly shows

that suppression is similarly unjustified. As we

demonstrate below, the societal costs of applying the

exciusionary rule when an officer conducts a search

in reasonable reliance upon a subsequently invali-

dated statute far outweigh the highly unlikely possi-

bility that suppression of the evidence will result in

the deterrence of official misconduct.

11

2. The distinction between this case and Leon is

that in Leon the search was authorized by a warrant

issued by a magistrate, while in this case the search

was authorized by a statute enacted by a legislature.

That distinction does not support a difference in

result or even a significant difference in analysis.

As the Court stated in Leon, the purpose of the ex-

clusionary rule is to “deter police misconduct” (468

U.S. at 916).° The rule is not designed to punish

magistrates for issuing improper warrants or legis-

lators for erroneously enacting unconstitutional stat-

utes. The effect upon legislators of exclusion there-

fore is simply not relevant in assessing the efficacy

of the rule. Yet even if the proper purposes of the

exclusionary rule included deterring legislators from

enacting unconstitution?l statutes, the suppression of

evidence obtained in reasonable reliance upon a stat-

ute would not be likely to have any such deterrent

effect.

First, this Court’s observation that “there exists

no evidence suggesting that judges and magistrates

are inclined to ignore or subvert the Fourth Amend-

ment” (Leon, 468 U.S. at 916) applies with equal

force to legislators.’ There is no indication that

* The benefit thought to be derived from the exclusionary

rule is that the suppression of probative evidence will deter

Fourth Amendment violations by removing any incentive

that law enforcement agents might have to engage in such

unlawful conduct. Leon, 468 U.S. at 906, 909-918. As this

Court has observed, “[t]he 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 dirregard it.” Elkins v. United

States, 364 U.S. 206, 217 (1960) ; see also Michigan v. Tucker,

417 U.S. 438, 447 (1974).

* The oaths taken by members of Congress and state legis-

lators must include a commitment to support the federal Con-

stitution (U.S. Const. Art. VI, Cl. 3).

12

either Congress or the state legislatures have en-

acted any significant number of statutes permitting

searches violative of the Fourth Amendment. Legis-

latures generally have confined their efforts to au-

thorizing searches of specific categories of busi:esses,

and the resulting statutes typically have been held to

be constitutional. See, e.g., Donovan v. Dewey, 452

U.S. 594 (1981); United States v. Biswell, 406 U.S.

311 (1972); Colonnade Catering Corp. v. United

States, 397 U.S. 72 (1970); United States v.

Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d

532 (8th Cir. 1981), cert. denied, 455 U.S. 1016

(1982) ; United States v. Raub, 637 F.2d 1205 (9th

Cir.), cert. denied, 449 U.S. 922 (1980); 3 W.

LaFave, Search and Seizure § 10.2, at 132-134 n.89.1

(Supp. 1986) (collecting cases).* There has been no

showing of the kind of compelling need to discourage

state and federal legislators from enacting unconsti-

tutional] statutes that would be required to justify the

“extreme sanction of exclusion” (Leon, 468 U.S.

at 916).

Second, and more important, the application of the

exclusionary rule is unlikely to have any significant

deterrent effect upon the actions of Congress or a

state legislature. Legislators enact statutes for gen-

eral, programmatic purposes, not to permit particu-

lar conduct in connection with a particular criminal

investigation. Their goal is to enact a statute that

* Just as a magistrate sometimes may err in deciding to

issue a warrant, legislatures have sometimes enacted statutes

that do not comply with the Fourth Amendment. See, e.g.,

Marshall v. Barlow’s, Inc., 486 U.S. 307 (1978); Berger v.

New York, 388 U.S. 41 (1967). However, these lapses do not

indicate that legislators are attempting to subvert the Fourth

Amendment. The enactment of these statutes more likely re-

flects legislators’ good faith, but erroneous, assessment of the

relevant Fourth Amendment standards.

13

will be held constitutional; the admissibility of evi-

dence in the particular case in which the constitu-

tional issue will be decided is wholly irrelevant to

that goal. For that reason, legislators are far more

likely to be influenced by the courts’ substantive

Fourth Amendment rulings regarding the validity of

statutes than by the courts’ applicati 1 of the exclu-

sionary rule in particular cases.

The question whether the exclusionary rule should

be applied in cases such as this one—where the

search was conducted before an adjudication of the

statute’s constitutionality—is likely to affect only a

small number of prosecutions. That is because after

a statute is declared unconstitutional, evidence ob-

tained pursuant to that statute would be subject to

suppression on the ground that a police officer’s reli-

ance on the constitutionality of the statute would

no longer be objectively reasonable. The applicability

of the exclusionary rule in the present setting there-

fore will be of far less concern to legislators than

the underlying Fourth Amendment ruling, which will

determine the overall validity of the statutory scheme

and will affect the admissibility of evidence in all

cases subsequent to the first definitive constitutional

ruling. As a result, it is highly unlikely that the

application of the exclusionary rule in this context

would have any effect upon the legislators’ actions.

A third reason that the exclusionary rule is not a

necessary or appropriate method of deterring legis-

latures from enacting unconstitutional statutes is

that statutes often can be challenged in other, more

effective ways. In many circumstances, persons sub-

ject to searches pursuant to an allegedly unconstitu-

tional statute can bring a pre-enforcement action

seeking a declaration that the statute is unconstitu-

tional and an injunction barring law enforcement

14

officers from conducting searches pursuant to the

statute, Indeed, this course of action was followed

with respect to the very statute that is at issue in

this case. See Bionic Auto Parts & Sales, Inc. v.

Fahner, 518 F. Supp. 582 (N.D. Ill. 1981), vacated

on other grounds, 721 F.2d 1072 (7th Cir. 1983).°

The availability of this form of relief, which gen-

erally cannot be used to challenge the validity of in-

dividual warrant-authorized searches, makes the case

for using the exclusionary rule as a remedy even less

compelling here than in cases involving searches

based upon a warrant.

Finally, there is no need to use the exclusionary

rule to deter legislatures from enacting unconstitu-

tional statutes, because under the principles set forth

in Leon, evidence obtained pursuant to clearly uncon-

stitutional statutes is already subject to suppression.

If a legislature enacts a statute that is flagrantly

unconstitutional, it is likely that law enforcement

officers’ reliance on that statute—even before the

statute is struck down by a court—would be found

to be objectively unreasonable. In that setting, the

analysis set forth in Leon would require the suppres-

sion of the evidence seized under the authority of the

statute. While Leon teaches that the exclusionary

rule “cannot be expected, and should not be applied,

to deter objectively reasonable law enforcement activ-

ity” (468 U.S. at 919), police conduct that is “fla-

grantly abusive of Fourth Amendment rights” is the

kind of conduct that is most likely to be influenced by

® Similar pre-enforcement actions have been brought to

challenge other statutes authorizing administrative searches.

See, e.g., Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985) ; Jn re

Surface Mining Regulation Litigation, 456 F. Supp. 1301

(D.D.C. 1978), aff’d in part and rev’d in part, 627 F.2d 1346

(D.C. Cir. 1980).

15

the sanction of exclusion. Brown v. Illinois, 422 U.S.

590, 610-611 (1975) (Powell, J., concurring); see

also Leon, 468 U.S. at 923; Michigan v. Tucker, 417

U.S. 433, 447 (1974) (“[t]he deterrent purpose of

the exclusionary rule necessarily assumes that the

police have engaged in willful, or at the very least

negligent, conduct”). Accordingly, the rule for which

we contend would not leave searches conducted pur-

suant to a statute altogether immune from the ex-

clusionary rule, even before the statute was chal-

lenged in court. It would simply confine the exclu-

sionary rule to the cases of flagrantly unconstitu-

tional statutes, where the rule could reasonably be

expecied to have a useful deterrent effect.

In the more typical case involving a statute that is

not obviously unconstitutional, the threat of the ex-

clusion of evidence in a particular case will not deter

either the legislature or the police. If a well-trained

officer reasonably believes that a proposed search is

constitutional, the threat of exclusion will not deter

the officer from conducting the search, ‘because the

officer would have no reason to believe that any evi-

dence discovered in the search was in danger of being

suppressed. Application of the exclusionary rule thus

cannot deter unconstitutional conduct when the officer

reasonably believes that his conduct is constitutional.

As the Court stated in Leon, “[W]here the officer’s

conduct is objectively reasonable, ‘excluding the evi-

dence will not further the ends of the exclusionary

rule in any appreciable way; for it is painfully ap-

parent that .. . the officer is acting as a reasonable

officer would and should act in similar circumstances.

Excluding the evidence can in no way affect his

future conduct unless it is to make him less willing

to do his duty.’” 468 U.S. at 919-920 (citation omit-

ted); see also Brown v. Illinois, 422 U.S. at 611-

612 (Powell, J., concurring); Michigan v. Tucker,

16

417 U.S. at 447 (“[w]here the official action was

pursued in complete good faith * * * the deterrence

rationale loses much of its force”). Thus, suppress-

ing evidence nbtained as the result of an officer’s rea-

sonable reliance upon a statute authorizing him to

conduct a search will not have the deterrent effect

that is the only benefit to be derived from the exclu-

sionary rule.

In United States v. Peltier, 422 U.S. 531 (1975),

the Court reached precisely the same conclusion in a

closely analogous context. The Court had held in

Almeida-Sanchez v. United States, 413 U.S. 266

(1973), that warrantless nonborder searches con-

ducted without probable cause violated the Fourth

Amendment, even though the searches were con-

ducted pursuant to a statute authorizing such

searches “within a reasonable distance” of the border.

Almeida-Sanchez was decided four months after the

search at issue in Peltier; the question in Peltier was

whether Almeida-Sanclice sheuld be applied retroac-

tively to require the suppression of evidence obtained

as a result of that search.

The Court noted that the Border Patrol agents

who conducted the search in Peltier acted “in reli-

ance upon a validly enacted statute, supported by

longstanding administrative regulations and continu-

ous judicial approval [in] stopp[*.g] and search-

[ing] [the defendant’s] automobile” (422 U.S. at

541). Observing that deterrence is the sole justi-

fication for the exclusionary rule, the Court stated

that “evidence obtained from a search should be

suppressed only if it can be said that the law enforce-

ment officer had knowledge, or may properly be

charged with knowledge, that the search was un-

constitutional under the Fourth Amendment” (id. at

542). Since the agents who conducted the search in

17

Peltier could not be charged with such knowledge,

the Court concluded that “nothing in the Fourth

Amendment, or in the exclusionary rule fashioned

to implement it, requires that the evidence * * * be

suppressed” (ibid.).

The analysis in Peltier applies with equal force

in this case. As in Peltier, the application of the

exclusionary rule when an officer acts in reasonable

reliance upon a statute simply will not afford the

deterrence that the rule is designed to provide.”®

1 The approach to the retroactivity issue taken by the Court

in United States v. Johnson, 457 U.S. 537 (1982), does not

undercut this analysis. The question in Johnson was whether

to accord retroactive effect to the decision in Payton v. New

York, 445 U.S. 573 (1980), which »rohibited a warrantless

nonconsensual entry into a suspect’s home to effect a routine

arrest. In holding that Payton applied retroactively, the Court

was concerned with ensuring the fair treatment of persons

who were in the same situation as the defendant in Payton.

If the decision had not been accorded retroactive effect, the de-

fendant in Payton would have obtained the benefit of the rule

announced in that case, while others whose cases were pend-

ing on review at the time would have been denied that benefit.

See 457 U.S. at 554-556.

The Court in Johnson did reject the government’s argument

that Peltier indicated that only decisions addressing settled

Fourth Amendment issues should be applied retroactively. It

stated thet “[fJailure to accord any retroactive effect to

Fourth Amendment rulings would ‘encourage police or other

courts to disregard the plain purport of our decisions and to

adopt a let’s-wait-until-it’s-decided approach’” (457 U.S. at

561 (citation omitted; emphasis in original) ). However, this

statement does not preclude the adoption of the reasonable-

ness exception to the exclusionary rule for which we contend

in the present case. That exception would not enab’: an

officer to disregard the “plain purport” of a decision of this

Court; if the only reasonable interpretation of this Court’s

decision was that the officer’s conduct was unconstitutional,

the officer would not be able to show that he reasonably be-

lieved that his conduct was constitutional. In that setting,

18

3. Even if the application of the exclusionary rule

in this context could have some marginal deterrent

effect, that effect would be insufficient to outweigh

the rule’s “substantial social costs.” Leon, 468 U.S.

909; see also Illinois v. Gates, 462 U.S. 213, 257-258

(1983) (White, J., concurring) (“any rule of evi-

dence that denies the jury access to clearly probative

and reliable evidence must bear a heavy burden of

justification, and must be carefully limited to the

circumstances in which it will pay its way by deter-

ring official lawlessness”); United States v. Janis,

428 U.S. at 454 (in the absence of “appreciable deter-

rence,” application of the exclusionary rule is not

appropriate) ; Alderman v. United States, 394 U.S.

165, 174-175 (1969).

This Court has repeatedly recognized the exclu-

sionary rule’s “heavy costs to rational enforcement

of the criminal law.” Stone v. Powell, 428 U.S. at

500 (Burger, C.J., concurring); see also Leon, 468

U.S. at 907 (“[t]he substantial social costs exacted

by the exclusionary rule * * * have long been a

source of concern”). The rule excludes from consid-

eration at trial evidence that is both relevant and

trustworthy, thereby subverting the truthfinding

function of both judge and jury. Stone v. Powell,

428 U.S. at 489-490; United States v. Janis, 428 U.S.

at 448-449,

Moreover, as the Court observed in Leon (468 U.S.

at 907-908 (footnote omitted) ) :

applying the exclusionary rule would be appropriate. Thus,

the Court’s conclusion in Leon that “nothing in Johnson pre-

cludes adoption of a good-faith exception tailored to situations

in which the police have reasonably relied on a warrant issued

by a detached and neutral magistrate but later found to be

defective” (468 U.S. at 912 n.9) also applies with respect to

the reasonableness exception at issue in this case.

19

An objectionable collateral consequence of this

interference with the criminal justice system’s

truth-finding function is that some guilty de-

fendants may go free or receive reduced sen-

tences as a result of favorable plea bargains.

Particularly when law enforcement officers have

acted in objective good faith or their transgres-

sions have been minor, the magnitude of the

benefit conferred on such guilty defendants of-

fends basic concepts of the criminal justice

system.

Such results may well “generatje] disrespect for the

law and administration of justice” (Stone v. Powell,

428 U.S. at 491). |

An additional cost is imposed upon society when

evidence is excluded even though the officer who ob-

tained the evidence reasonably believed that he was

acting in conformity with the requirements of the

Fourth Amendment. To the extent that the exclu-

sionary rule will have any deterrent effect at all in

that situation, it is likely to have a chilling effect

upon legitimate police activities. Since the police

officer’s reasonable belief in the constitutionality of

his actions could not ensure the admissibility of evi-

dence obtained pursuant to a search, a cautious offi-

cer might be unwilling to engage in any but the most

well-settled, traditional law enforcement activities in

order to avoid the possibility of suppression. Such

excessive caution might well lead an officer to forgo

certain investigative conduct, even though that con-

duct would be entirely consistent with the Fourth

Amendment. As Justice White has observed, “[t]o

the extent the rule operates to discourage police from

reasonable and proper investigative actions, it

hinders the solution and even the prevention of

crime.” Illinois v. Gates, 462 U.S. at 258 (concur-

ring opinion); see also Leon, 468 U.S. at 919-920.

20

This chill upon permissible law enforcement activi-

ties is a matter of special concern in the present con-

text because if the exclusionary rule is applied to

cases such as this one, law enforcement officers may

be deterred from using investigative powers that

were specifically granted by the legislature, even

though those powers fully comply with the Fourth

Amendment. To apply the exclusionary rule in that

manner would thwart the will of the legislature by

discouraging law enforcement officers from making

use of authority set forth in a valid statute. Instead

of deterring unconstitutional law enforcement activ-

ity, exclusion might well deter constitutional conduct

specifically authorized by the legislature, with the

result that unlawful activity will go undetected, or

more efficient law enforcement techniques designed

by the legislature for use in combatting crime wil!

go unused. The costs associated with applying the

exclusionary rule in cases involving presumptively

constitutional statutes are therefore potentially even

greater than the costs of excluding evidence obtained

pursuant to a presumptively valid warrant.

4. In refusing to recognize an exception to the

exclusionary rule in this case, the Illinois Supreme

Court relied in large part upon this Court’s decision

in Michigan v. DeFillippo, 443 U.S. 31 (1979). The

Illinois court concluded that DeFillippo requires the

Suppression of evidence whenever the evidence is

obtained pursuant to a search that is authorized by

a statute subsequently found to be unconstitutional.

We submit that the Illinois court erred in concluding

that the substantive Fourth Amendment rule set

forth in DeFillippo controls the entirely different

question presented in this case regarding the proper

scope of the exclusionary rule.

The defendant in DeFillippo was arrested for vio-

lating a local ordinance that required any person

a

21

stopped by the police to identify himself and to pro-

duce evidence of his identity. A search incident to

the arrest disclosed that the defendant was in pos-

session of illegal drugs. The defendant was tried on

a drug charge; prior to trial he sought to suppress

the evidence obtained in the search incident to the

arrest on the ground that the local ordinance that

was the basis for the arrest was unconstitutional.

This Court held that the search did not violate the

Fourth Amendment because it was incident to a

valid arrest. The appropriate test for evaluating the

validity of the arrest, the Court stated, was whether

the officer had “ ‘probable cause’ to justify an ar-

rest” (443 U.S. at 37). The Court stated that the

unconstitutionality of the ordinance did not preclude

the arresting officer from possessing probable cause

because “[a] prudent officer, in the course of deter-

mining whether [the defendant] had committed an

offense under all the circumstances shown by this

record, should not have been required to anticipate

that a court would later hold the ordinance uncon-

stitutional” (id. at 37-38). Since “the conduct ob-

served violated a presumptively valid ordinance” (id.

at 37), the officer “had probable cause to believe

[the defendant] was committing an offense in his

presence” (id. at 40).

The Court distinguished the local ordinance in-

volved in DeFillippo from “statutes which, by their

own terms, authorized searches under circumstances

which did not satisfy the traditional warrant and

probable-cause requirements of the Fourth Amend-

ment” (443 U.S. at 39). Observing that several of

its previous decisions had invalidated searches con-

ducted in reliance upon procedural statutes of this

type, the Court stated, “[w]Je have held that the

exclusionary rule required suppression of evidence

| |

22

obtained in searches carried out pursuant to statutes,

not previously declared unconstitutional, which pur-

ported to authorize the searches in question without

probable cause and without a valid warrant” (<bid.).

Although it is true that the decisions cited by the

Court directed the suppression of evidence, those de-

cisions addressed substantive Fourth Amendment

rules, not the issue of when the exclusionary rule

should be applied. The statement in DeFillippo con-

cerning statutes that authorize searches violative of

the Fourth Amendment therefore must have been

intended to make clear that searches conducted pur-

suant to such statutes do violate the Fourth Amend-

ment, in contrast to the arrest in DeFillippo, which

the Court specifically found did not violate the

Fourth Amendment (443 U.S. at 39-40). The Court

in Leon specifically acknowledged this fact by citing

both DeFillippo and the cases identified in DeFillippo

and stating that “[t]he substantive Fourth Amend-

ment principles announced in those cases are fully

consistent with our holding here” (468 U.S. at 912

n.8 (emphasis added) ).

The determination whether the exclusionary rule

should apply to remedy a particular Fourth Amend-

ment violation is, of course, a question that is en-

tirely separate from whether a Fourth Amendment

violation exists in the first place. Because the

DeFillippo decision did not address the availability

of the reasonable mistake exception to the exclu-

sionary rule for evidence obtained in searches au-

thorized by statute, the language from DeFillippo

on which the Illinois Supreme Court relied does not

foreclose the recognition of such an exception in this

case. See Illinois vy. Gates, 462 U.S. at 256 n.12

(White, J., concurring) (observing that “[t]he re-

sults in these cases may well be different under a

ey

23

‘good-faith’ exception to the exclusionary rule”). To

the contrary, for the reasons we have discussed, this

Court’s precedents concerning the exclusionary rule

strongly support the recognition of such an exception,

because the costs of withholding probative evidence

from the truth-seeking process far outweigh any

benefits that could be obtained by applying the ex-

clusionary rule in this setting.

B. The Law Enforcement Officer Who Conducted The

Search In This Case Could Reasonably Believe That

The Statute Authorizing The Search Complied With

The Fourth Amendment

This Court has several times upheld the constitu-

tionality of statutes authorizing warrantless admin-

istrative inspections. See Donovan v. Dewey, 452

U.S. 594 (1981); United States v. Biswell, 406 U.S.

311 (1972); Colonnade Catering Corp. v. United

States, 397 U.S. 72 (1970). The Court has explained

that warrantless inspections are permissible in such

cases because the authorizing statute serves as “a

valid substitute for a warrant.” Donovan v. Dewey,

452 U.S. at 603.

In order to serve that function, the statute au-

_thorizing the search must satisfy three prerequisites.

First, the statute must be directed at a specific in-

dustry that is pervasively regulated. That require-

ment ensures that the administrative inspection

scheme will not invade legitimate expectations of pri-

vacy with regard to business records and premises.

See Donovan vy. Dewey, 452 U.S. at 600; United

States v. Biswell, 406 U.S. at 316-317.

Second, there must be a compelling public interest

in performing inspections without a warrant. See

Donovan v. Dewey, 452 U.S. at 600-602; United

States v. Biswell, 406 U.S. at 315-317; Camara v.

Munictpal Court, 387 U.S. 523, 538 ( 1967); See v.

24

City of Seattle, 387 U.S. 541 (1967). The require-

ment that the legislation be directed at industries in

which there is an objectively discernible public need

for warrantless inspections serves as a substitute for

the Fourth Amendment’s requirement that a neutral

party determine that there is a sufficient justification

for issuing the warrant.

Third, the statute must restrict the discretion of

the agents who conduct the inspections. See Donovan

v. Dewey, 452 U.S. at 599, 601; Marshali v. Barlow’s,

Inc., 486 U.S. 307, 323 (1978). That requirement

serves some of the same functions as the “particu-

larity” requirement of the Fourth Amendment ap-

plicable to warrant-authorized searches.

The statute at issue in this case clearly satisfied

at least two of these requirements. First, as the

Seventh Circuit noted in upholding the constitution-

ality of the amended statute, the Illinois statute is

directed at a pervasively regulated industry—the

automotive parts industry—which the State of IIli-

nois has for many years supervised through a system

of licensing and inspection (Bionic Auto Parts &

Sales, Inc. v. Fahner, 721 F.2d at 1079). Second, as

both the Seventh Circuit and the Illinois Supreme

Court acknowledged, the Illinois statute was designed

to serve the strong public interest in preventing the

theft of automobiles and trafficking in stolen automo-

tive parts (Pet. App. 15; 721 F.2d at 1077-1078).

Those courts also found that the legislature acted

reasonably in concluding that warrantless adminis-

trative inspections were necessary to the effectiveness

of the inspection system (Pet. App. 15-16; 721 F.2d

at 1078).

The defect in the statute found by the Illinois

Supreme Court related to the third requirement for

a valid administrative inspection statute. The court

25

concluded that the statute vested the law enforce-

ment officials with “too much discretion to decide

who, when, and how long to search” (Pet. App. 16;

see also Bionic Auto Parts & Sales, Inc. v. Fahner,

518 F. Supp. at 585-586).

Regardless of the correctness of that determina-

tion, we submit that it is beyond dispute that Detec-

tive McNally reasonably could have believed that the

search he conducted pursuant to the statute was

valid under the Fourth Amendment. Two separate

theories support the reasonableness of his conduct.

1. The question of the constitutionality of the

statute is a close one, and the court’s objection to the

statute is quite technical. Unlike the statutes dis-

cussed in this Court’s decision in Marshall v. Bar-

low’s, Inc., supra, and See v. City of Seattle, supra,

the Illinois statute was directed at a single, perva-

sively regulated industry in which the public interest

clearly justified warrantless inspections. On the basis

of those factors alone, this Court’s decisions in Colon-

nade Catering Corp. v. United States, swpra, and

United States vy. Biswell, supra, provide substantial

support for the constitutionality of the Illinois stat-

ute. See also Donovan v. Dewey, 452 U.S. at 601

(distinguishing Marshall vy. Barlow’s, Inc., swpra, on

the ground that the administrative search provisions

in that case were not tailored to the “numerous and

varied businesses regulated by the statute’).

To be sure, the Illinois statute did not contain

detailed provisions regulating the timing of inspec-

tions. The statute, however, required the inspections

to be performed at “reasonable” times, and it con-

tained restrictions on the nature and purpose of the

inspections. It also limited the scope of the inspec-

tions to (1) the records that the businesses were

required to maintain, and (2) the business premises,

26

but only to the extent necessary to determine the

accuracy of the required records. Ill. Ann. Stat. ch.

95%, §5-401(e) (Smith-Hurd Supp. 1984-1985).

While the restrictions on the inspectors’ discretion

were not as detailed as those in the statute upheld

by this Court in Donovan v. Dewef, supra, they were

more elaborate than those found to be inadequate in

Marshall v. Barlow’s, Inc., supra.

One measure of how close the original Illinois

statute came to satisfying constitutional require-

ments is the fact that the Seventh Circuit upheld the

amended version of the statute, even though the

amendments made only minor changes in the original

statutory scheme. See Bionic Auto Parts & Sales,

Inc. v. Fahner, 721 F.2d 1072 (7th Cir. 1983). The

principal changes in the amended statute were: (1)

to provide that the inspections would take place dur-

ing work hours; (2) to provide that each inspection

would not last more than 24 hours; (3) to permit a

representative of the licensee to be present during an

inspection; and (4) to ensure that no more than six

inspections of one business location would be con-

ducted within any six-month period. See II]. Ann.

Stat. ch. 95%, § 5-403 (Smith-Hurd Supp. 1986).

Those changes were plainly directed at extreme cases

of abuse of the regulatory process. The original

statute, which permitted inspections to occur only at

a reasonable time and to include the examination of

the premises only to the extent necessary to deter-

mine the accuracy of the required records, could well

have been construed to require inspectors to conduct

themselves according to standards at least as restric-

tive as those that ultimately were embodied in the

amended statute.

Because the question of the constitutionality of the

Illinois statute was a close one, and because the

ER

27

defect in the statute, if any, was technical and could

have been cured by judicial construction, it would be

particularly inappropriate to apply the exclusionary

rule in this case. The unconstitutionality of the

statute was not so clear that law enforcement officers

could not “reasonably presume it to be valid.” United

States v. Leon, 468 U.S. at 923. Instead, it would

have taken a most extraordinary police officer to

appreciate the constitutional arguments for and

against the Illinois statute and to conclude that the

Statute was unconstitutional, albeit just barely so.

Moreover, at the time of Detective McNally’s entry

into respondent’s wrecking yard there had been no

court decision invalidating the Illinois statute or even

suggesting that the statute was constitutionally in-

firm. In fact, the Indiana Supreme Court had re-

cently upheld the constitutionality of a similar stat-

ute permitting warrantless searches in the motor ve-

hicle industry. State v. Tindell, 272 Ind. 479, 399

N.E.2d 746 (1980). In light of the then-recent deci-

sion in Donovan v. Dewey, swpra, even the federal

district court that subsequently struck down the IIIi-

nois statute suggested that the constitutional question

was a difficult one (see Bionic Auto Parts & Sales,

Inc. v. Fahner, 518 F.Supp. at 584, 586). Under

those circumstances, Detective McNally could not

reasonably have been expected to entertain doubts

about the validity of the statute and to decline to

exercise the statutory inspection authority.

2. A related reason for not applying the exclu-

sionary rule in this case is that Detective McNally

did not conduct his inspection in an unreasonable

manner. In fact, Detective McNally’s inspection was

conducted in a fashion that apparently would have

satisfied all of the requirements of the amended Ii-

nois statute that was upheld by the Seventh Circuit.

28

The inspection was conducted during business hours

(9/25/81 Tr. 25); it was apparently of short dura-

tion, and it certainly did not approach the 24-hour

limit imposed by the amended statute (id. at 8-9, 11,

16); and there is no suggestion in the record that

the inspection was part of a pattern of harassment

of respondents’ business by repeated, unjustified in-

spections within a short period of time.

In addition, Detective McNally was specifically

assigned to inspect automobile wrecking yards

(9/25/81 Tr. 12), and he performed his inspection

not on a whim, but only after he saw several vehicles

being towed into respondents’ premises (id. at 25).

Beyond that, the inspection was limited to the re-

quired records of vehicle transactions and the yard

where the vehicles were kept (Pet. App. 5-7).™

1 Respondents contend (Br. in Opp. 18) that Detective Mc-

Nally’s inspection of the yard where the vehicles were stored

was broader than the statute permits. Both the original and

amended statutes, however, permitted the inspecting agent to

examine the premises of the licensee’s place of. business “for

the purpose of determining the accuracy of required records.”

Ill. Ann. Stat. ch. 9514, § 5-401(e) (Smith-Hurd Supp. 1984-

1985). Respondent Lucas showed Detective McNally a record

of the automobiles he had purchased for the business, which

was the only version of the business’s records that Lucas was

able to produce (9/25/81 Tr. 26). Checking the automobiles

in the yard was the only way Detective McNally could deter-

mine the accuracy and completeness of that record. In any

event, the Illinois Supreme Court did not address the question

whether Detective McNally exceeded the limits of his statu-

tory authority when he ventured from the office into the

wrecking yard and examined the vehicles that were stored

there. That question, and the consequences that would flow

from any such violation, are matters regarding the construc-

tion of the state statute that the Illinois courts can address

on remand.

29

Thus, the constitutional complaint in this case was

not with the conduct of the inspecting officer, but

with the language of the authorizing statute. If the

officer had conducted precisely the same inspection

under the amended statute, the inspection would have

been lawful.

To apply the exclusionary rule under these condi-

tions would be especially inappropriate, since there

was nothing about Detective McNally’s conduct that

should have been deterred. His conduct was entirely

reasonable, and the search that he conducted would

have been entirely permissible if it had been author-

ized by a better-drafted statute. It would extend the

exclusionary rule far beyond any legitimate bounds

to suppress evidence in a case such as this one, in

which the officer behaved reasonably and the subject

of the search was not prejudiced by the asserted con-

stitutional error. Compare United States v. Burke,

517 F.2d 377, 386 (2d Cir. 1975) (suppression of

evidence inappropriate where violation of Fed. R.

Crim. P. 41 resulted in search by an unauthorized

officer, but did not result in a violation of Fourth

Amendment, and did not result in a more abrasive

search than would have occurred absent the viola-

tion); United States v. Harrington, 681 F.2d 612,

615 (9th Cir. 1982), cert. denied, No. 84-1016 (Apr.

15, 1985) (lack of authority of officer conducting a

search does not require suppression if other officers

could have conducted same search) ; United States v.

Pennington, 635 F.2d 1387; 1890 (10th Cir. 1980),

cert. denied, 451 U.S. 988 (1981); United States v.

Dudek, 530 F.2d 684, 688-689 (6th Cir. 1976); see

generally United States v. Donovan, 429 U.S. 413,

432-439 (1977).

80

CONCLUSION

The judgment of the Supreme Court of Illinois

should be reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN 8S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

ROBERT J. ERICKSON

Attorney

JUNE 1986

&. 8. COvERnmEnT paimtine orrice, 1906 491507 20255