Amicus Curiae Brief — Illinois v. Rodriguez

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No. 88-2018

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JOSEPH F. SPANIOL, UR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

THE STATE OF ILLINOIS,

Petitioner,

Vv.

EDWARD RODRIGUEZ,

Respondent.

On Writ of Certiorari to the

Appellate Court of the State of Illinois

First Judicial District

BRIEF FOR THE PEOPLE OF TH STATE

OF CALIFORNIA AS AMICUS CURIAE

JOHN K. VAN DE KAMP

General

of the State of California

RICHARD B. IGLEHART

Chief Assistant Attorney General

JOHN H. SUGIYAMA

: Senior Assistant Attorney General

RONALD S. MATTHIAS

ry Attorney General

RD K. —e JR.

aS Street, Room 6000

Francisco, CA 94102

Tumgheeer'C (415) 557-0204

Attorneys

for Amicus Curiae

QUESTION PRESENTED

Does a police officer’s reasonable reliance upon a

third party’s apparent authority to consent to an entry or

a search constitute “unreasonable” conduct within the

meaning of the Fourth Amendment, thereby invoking the

exclusionary rule?

INTEREST OF THE PEOPLE

OF THE STATE OF CALIFORNIA | 1

SUMMARY OF ARGUMENT 3

ARGUMENT 4

A POLICEMAN’S REASONABLE

MISTAKE AS TO A THIRD PARTY’S

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TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton

483 U.S. 635 (1987) 12

Colorado v. Connelly

479 U.S. 157 (1986) 14

Glasson v. City of Louisville,

518 F.2d 899 (6th Cir.),

cert. denied, 423 U.S. 930 (1975) 12

Harlow v. Fitzgerald

457 U.S. 800 (1982) 12

Hill v. California

401 U.S. 797 (1971) 2,3

Illinois v. Gates

462 US. 213 (1983) 4

Illinois v. Krull

480 U.S. 340 (1987) 12

Lustig v. United States

338 U.S. 74 (1949) 12

Maryland v. Garrison

480 U.S. 79 (1987)

Michigan v

443 US. 31 (1979)

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TABLE OF AUTHORITIES: (Continued)

Michigan v. Tucker

417 US. 433 (1974)

People v. Bochniak

417 N.E.2d 722 (Il.App. 1981)

People v. Gorg

291 P.2d 469 (1955)

People v. Gurley

100 Cal.Rptr. 407 (1972)

People v. Hill

72 Cal.Rptr. 641 (1968)

People v. Howard

208 Cal.Rptr. 353 (1984)

People v. Roberts

303 P.2d 721 (1956)

People v. Robinson

116 Cal.Rptr. 455 (1974)

14

13

11

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iv 1

TABLE OF AUTHORITIES: (Continued) Page No. 88-2018

Stoner v. California IN THE

5 US Gee . SUPREME COURT OF THE UNITED STATES

United State v. Leon OCTOBER TERM. 1989

468 U.S. 897 (1984) 12

United State v. Whaley

781 F.2d 417 (Sth Cir. 1986) 12 THE STATE OF ILLINOIS,

Petitioner,

United States v. Calandra ™

414 US. 338 (1974) 3, 5 :

EDWARD RODRIGUEZ,

United States Vv. Jeffers Respondent.

342 US. 48 (1951) 12

United States v. Leon BRIEF FOR THE PEOPLE OF THE STATE

468 U.S. 897 (1984) : 4 | OF CALIFORNIA AS AMICUS CURIAE

United States v. Matlock

415 US. 164 (1974) 2,3 On Writ of Certiorari to the |

2

3 LaFave, Search and Seizure, pp. 262-263 (2d ed. 1987);

see, ¢.g., People v. Hill, 72 Cal Rptr. 641, 644 (1968), aff'd,

Hill v. California, 401 U.S. 797 (1971); People v. Robinson,

116 Cal.Rptr. 455, 460-461 (1974).

‘ne Illinois state courts have rejected the apparent

authority to consent concept, however, based on their

misreading of this Court’s decisions in Stoner v. California,

376 U.S. 483 (1964) and United States v. Matlock, 415 US.

164 (1974). See, e.g., People v. Bochniak, 417 N.E.2d 722,

724 (IApp. 1981).

Our interest in a doctrine which

recognizes that mistakes made by policemen acting

reasonably cannot be deterred by the exclusionary rule and

may not fairly be characterized as “unreasonable” conduct

under the Fourth Amendment, brings the State of

California before this Honorable Court as amicus curiae

in support of petitioner.

3

SUMMARY OF ARGUMENT

This Court has held that law enforcement officers

may rely upon the consent of a third party who has actual

to permit a warrantless search of another’s

the difference between the third party’s actual

authority and apparent authority to consent lies in a police

officer’s reasonable mistake of fact. Hill v. California, 401

U.S. 797 (1971) and Maryland v. Garrison, 480 U.S. 79

(1987), doth overlooked below, teach that a policeman’s

reasonable mistake of fact is not "unreasonable" conduct

ARGUMENT

A POLICEMAN’S REASONABLE MISTAKE

AS TO A THIRD PARTY’S ACTUAL AUTHORITY

TO CONSENT IS NOT, WITHIN THE MEANING OF

THE FOURTH AMENDMENT, "UNREASONABLE"

CONDUCT INVOKING THE EXCLUSIONARY RULE

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ignores the teaching of Maryland v. Garrison, 480 U.S. 79,

88 (1987) and Hill v. California, 401 U.S. at 804, that an

Officer’s mistake of fact, if reasonable in the tort law

sense, may be reasonable in the constitutional sense.

Second, the state court suppressed evidence without

considering the propriety of imposing the exclusionary rule,

thereby ignoring the teaching of United States v. Calandra,

414 US. 338, 348 (1974), that "[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."

6

A. A Police Officer’s Reasonable Mistake of

Fact Is Not "Unreasonable" Conduct Under

he Fourth Amendment

In this case, the officer’s belief that the consenting

party had actual authority to permit a police entry

constituted a reasonable mistake of fact. Gail Fisher told

Officer Entress that Edward Rodriguez had beaten her

earlier that day at the South California Street apartment

where they had been living, where she kept her clothes

and furniture, and to which she possessed a key. Fisher

told Officer Entress that Rodriguez was sleeping in the

apartment and admitted the police with her key in order

to facilitate his arrest. Officer Entress had gained the

impression that Fisher was presently residing at the South

California address. While arresting Rodriguez, police

officers seized narcotics which they observed in plain view.

After a hearing, the trial court suppressed this

evidence, concluding that Fisher lacked actual authority to

consent to the police entry because: (1) her name was not

on the lease and she did not pay rent; (2) the apartment

was not her usual place of residence; (3) Fisher enjoyed

access to the apartment only when Rodriguez was present;

(4) she did not bring guests to the apartment; (5) Fisher

had removed her children and her clothing to her

mother’s residence, where she contacted the police.

Officer Entress believed that Gail Fisher resided at

the South California address. Had Fisher in fact been a

resident there, his assumption that she possessed legal

authority to admit him would have been correct. In short,

the officer’s mistake was one of fact, not law.

7

Although mistaken, the officer’s belief was

reasonable because it was based on a presumptively

reliable citizen-informant’s statements that she had been

living in the apartment, that she had been there earlier

that day, and that her clothing and furniture remained

there. These representations, together with Fisher’s

present possession of a key to the apartment, would lead

a reasonably well trained police officer to believe that

Fisher had actual authority to admit others into the flat.

The state trial court erred in failing to inquire into

the reasonableness of Officer Entress’ belief4/ The state

appellate court ratified this error on the authority of

United States v. Matlock, which expressly reserved the

question of apparent authority. 415 U.S. at 177 n.14.

Instead, the Illinois courts should have been guided by this

Court’s decisions in Hill v. California, supra, and Maryland

v. Garrison, supra.

Hill v. California excused a police officer’s

reasonable mistake of fact. Having probable cause to

believe Hill had committed armed robbery, the police

went to his apartment without a warrant. Miller, “who fit

the description of Hill received from various sources,"

answered the door. 401 U.S. 799, 803. The officers,

discrediting Miller’s personal identification, his explanation

for his presence in Hill’s apartment, and his professed

1. The state courts’ rejection of the apparent

authority doctrine having foreclosed this inquiry, factual

findings favorable to the State must be assumed for

ignorance of a pistol and ammunition clip in plain view,

arrested Miller believing he was Hill.

"They were quite wrong as it turned out,

and subjective good-faith belief would not in itself

justify either the arrest or the subsequent search.

But sufficient probability, not certainty, is the

touchstone of reasonableness under the Fourth

Amendment and on the record before us the

officers’ mistake was understandable and the arrest

a reasonable response to the situation facing them

at the time." 401 U.S. at 804.

Consequently, although Miller was later released, evidence

discovered during a search of Hill’s apartment incident to

Miller’s arrest was held admissible against Hill.

Hill did not reach this conclusion by reasoning

either that the police had “probable cause" to arrest

Miller, or that exclusion of evidence cannot deter

reasonable mistakes of fact. Accordingly, Hill holds that

a policeman’s reasonable mistake of fact in identifying a

person lawfully subject to arrest is not an “unreasonable”

Following the Hill rationale, Maryland v. Garrison

held that a police officer’s reasonable mistake of fact in

identifying the premises to be searched under a warrant is

not conduct “unreasonable” under the Fourth Amendment.

480 US. at 88.

Garrison indicates that Fourth Amendment

reasonableness may depend as much upon what the police

9

should find out as upon what they know’ The Illinois

courts’ criteria for determining actual authority offers a

useful standard for assessing the adequacy of Officer

Entress’ investigation. Since actual authority “is, of course,

not to be implied from the mere property interest a third

party has in the property," United States v. Matlock, 415

US. at 171 n. 7, the officer’s failure to demand Ms.

Fisher’s lease or rent receipts is not constitutionally fatal.

Were the law otherwise, policemen might be asked to

while away their duty hours in the county recorder’s office

or to file quiet title actions. Contra, People v. Superior

Court, 83 Cal.Rptr. 732, 735 (Cal.App. 1976).

Officer Entress reasonably inferred from the

circumstances that the South California address was

Fisher’s usual residence. That he interviewed Fisher in

her mother’s home did not undermine that inference given

Rodriguez’s beating of Fisher earlier that day.

Fisher’s possession of a key was compelling

evidence of unlimited access to the apartment. No

competent officer would expect Fisher to have a key if

she could enter only when Rodriguez was present, for he

could admit her as easily as the key.

Nor was Officer Entress required to question Fisher

about whether she invited guests to the apartment, for an

affirmative response would add little to what Entress had

learned, and a negative response would have been

2. “The validity of the warrant must be assessed on

the basis of the information that the officers disclosed,

pm ‘discover and disclose, to the issuing

US. at 85.

10

consistent with Fisher’s refusal to tell the officer whether

Rodriguez was involved with narcotics.

Finally, discovering that Fisher had removed her

two children from the apartment would have suggested to

any reasonably competent officer only that she did not

want them beaten, too.

Actual authority to consent to a police entry “rests

on mutual use of the property... ." United States v.

Matlock, 415 U.S. at 171 n. 7. Officer Entress reasonably

concluded that Gail Fisher enjoyed joint access and

mutual use of the South California premises. Therefore,

the officer was not constitutionally derelict in failing to

undertake a time-consuming investigation that offered little

prospect of yielding convincing contrary evidence.

B. A Police Officer’s Reasonable Mistake of

Law Is Not “Unreasonable” Conduct Under

the Fourth Amendment

11

reasonable basis for the officers’ belief that the clerk had

authority to consent to search. Ibid.

The officers’ mistake in Stoner was of law, not fact;

the police knew that the consenting party was the hotel

clerk, but did not know the scope of his legal authority to

admit strangers into guests’ rooms. Stoner is easily

distinguished, as by some, based on the difference

between an officer’s mistake of fact and his mistake of

law. E.g., 3 LaFave, supra, at 262 n.96. Such a

distinction, however, overlooks the central point of Stoner

and requires absurd results in the application of the

apparent authority rule.

The actions of the police in Stoner were not

constitutionally unreasonable because their mistake was

one of law, rather than of fact; instead, their conduct was

unreasonable in the tort law sense, i.e., it fell below the

behavioral norm of a reasonably well trained officer.

First, the officers’ conduct violated state law./ "The sine

qua non of the operation of the rule of Gorg is an honest

belief based on reasonable grounds." People v. Hill, 72

Cal.Rptr. at 644 n. 5. Four years before the Stoner search

the California Supreme Court had declared: “The entry

of the officers cannot be justified on the ground that they

reasonably believed in good faith that the [apartment]

manager had authority to consent thereto." People v.

3. It is one thing to say that Fourth Amendment

reasonableness does not depend on the law of the

particular state in which the search occurs, California v.

Greenwood, 100 L.Ed.2d 30, 39 (1988), and another

thing to say that a well trained officer need not know

the state law limits on his authority.

12

Roberts, 303 P.2d 721, 722 (1956). Second, the officers’

actions in Stoner were contrary to then-existing decisions

of this Court. As Stoner explained, "[a]t least twice this

Court has explicitly refused to permit an otherwise

unlawful police search of a hotel room to rest upon the

consent of the hotel proprietor." 376 U.S. at 489 (citing

United States v. Jeffers, 342 U.S. 48 (1951) and Lustig v.

United States, 338 U.S. 74 (1949)).

Stoner does not foreclose application of the

apparent authority doctrine to an officer’s reasonable

mistake of property law; Stoner simply rejects an officer’s

subjective good faith as an excuse for his unreasonable

mistake of constitutional law. Cf. Anderson v. Creighton,

483 U.S. 635, 641 (1987); Ilinois v. Krull, 480 U.S. 340,

355 (1987); United States v. Leon, 468 U.S. 897, 923

(1984); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); Glasson v.

City of Louisville, 518 F.2d 899, 910 (6th Cir.), cert. denied,

423 US. 930 (1975).

Robinson, 116 Cal.Rptr. at 461. Fourth Amendment goals

are not jeopardized by forgiving an officer’s ignorance of

a law he has no duty to know.

Further, the mistake of fact/mistake of law

13

F.2d 417, 421 (Sth Cir. 1986). Unfortunately, "[wJhat is an

error of fact and what is an error of law in a given matrix

is not always capable of easy resolution." People v.

Washington, 186 Cal.Rptr. 3, 5 (1982). Worse, this

approach "begs the question . . . in that the seminal issue

is that of reasonableness." People v. Howard, 208 Cal.Rptr.

353, 358 (1984).

C. The Exclusionary Rule Does Not Deter A

Policeman’s Reasonable Mistakes

In Michigan v. Tucker, 417 U.S. at 447, this Court

explained:

"The deterrent purpose of the exclusionary

rule necessarily assumes that the police have

engaged in willful, or at the very least, negligent,

conduct which has deprived the defendant of some

right. By refusing to admit evidence gained as a

result of such conduct, the courts hope to instill in

those particular officers, or their future

counterparts, a greater degree of care toward the

rights of an accused. Where official action was

pursued in complete good faith, however, the

deterrence rationale loses much of its force."

The deterrent effect of the exclusionary rule is

weakest where the illegality sanctioned results from a

reasonable police misapprehension of relevant facts. A

decision suppressing evidence may instruct the police as to

the law they must follow henceforth, but such a decision

cannot alter their perception of facts in future cases. As

14 15

recognized in People v. Gurley, 100 Cal.Rptr. 407, 419 : CONCLUSION

1972):

an the china ealaeiiaiamiiatinatiiealite The judgment of the Appellate Court of the State

on the evidence before them . . . the exclusion of of Illinois should be reversed and the case should be

evidence seized with [defendant’s] apparent consent remanded for further proceedings.

will not prevent similar conduct in the future under

similar conditions. No deterrence is involved if the DATED: December 14, 1989

officers acted facts as

" General

entitled to, and will, so act again in the future. ee

Cf. Colorado v. Connelly, 479 U.S. 157, 166 (1986).

RICHARD B. IGLEHART

No deterrence results, either, from suppressing Chief Assistant Attorney General

i resulting from a policeman’s reasonable

coapprubinaion ef tour ts us an al a eA ‘a

Accordingly, the exclusionary rule was misapplied below Senior Assistant Attorney Gene

when the state court suppressed evidence without taking RONALD S. MA

into account the reasonableness of the officer’s good faith eee iiiiney Genet

mistake. See United States v. Calandra, 414 US. at 348.

CLIFFORD K. THOMPSON, JR.

Deputy Attorney General

Attorneys for Amicus Curiae

‘

CLIFFORD K. THOMPSON, JR., a member of

the Bar of the Supreme Court of the United States,

states:

That his business address is 455 Golden Gate

Avenue, Room 6000, in the City and County of

San Francisco, State of Californis; that .: December 14,

1989, he served true copies of the attached Brief for the

People of the State of California as Amicus Curiae in the

above-entitled matter on counsel for petitioner by placing

same in envelopes addressed as follows:

‘the Attorney General

Wes . & 7 S

hag. « 3h

fit

Said envelopes were then sealed and deposited in

the United States mail] at San Francisco, California, with

the postage thereon fully prepaid. ;

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CLIFFORD K. , JR.

Deputy Attorney General