Reply Brief — Illinois v. Rodriguez

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In The .

Supreme Court of the United

October Term, 1989

THE STATE OF ILLINOIS,

_ Petitioner,

EDWARD RODRIGUEZ,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, First District

—+

REPLY BRIEF FOR PETITIONER

Nen F. Hartican

Att General

State of Illinois

Rosert J. Ruiz

Solicitor General

State of Illinois

Josern CLars

First Assistant Attorney General

Terence M. Mavsen*

Assistant Attorney General

100 West Randolph Street

Suite 1200

Chicago, Illinois 60601

Attorneys for Petitioner

"Counsel of Record

Creen. A. Parrer,

State’s Attorne

County of Coo

309 Richard J. Daley Center

Chicago, Illinois 60602

Renee DFARB,

THroporr Foros Burrzos,

Paut. Guarta,

Kevin Sweeney,

Assistant State's Attorneys,

Of Counsel.

COC oy ee Sta, 0 af

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the Judicially Created Rule

UNITED STATES V. MATLOCK BY FINDING

THAT GALE LACKED COMMON AUTHORITY

TO PERMIT A CONSENSUAL ENTRY. (Reply To

TABLE OF CONTENTS - Continued

Page

Ill. THIS COURT HAS JURISDICTION SINCE THE

LOWER COURT DECISION WAS BASED SO-

LELY ON THE UNITED STATES CONSTITU-

TION, AND IN FACT NO COURT HAS EVER

DECIDED THE ISSUE IN THIS MATTER UNDER

THE CURRENT CONSTITUTION OF THE STATE

OF ILLINOIS. (Reply To Respondent's Issue II) 16

TABLE OF AUTHORITIES

Page

Cases:

American Society of Mechanical Engineers v. Hydro-

level Corporation, 456 U.S. 556 (1982) ............. 11

Caldwell v. Mississippi, 472 U.S. 320 (1985) .......... 20

Chambers v. Maroney, 399 U.S. 42 (1970).............. 4

Franks v. Delaware, 438 U.S. 154 (1978).............. 14

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..... 8

Hill v. California, 401 U.S. 797 (1971)............ 3, 4, 6

Illinois v. Gates, 462 U.S. 213 (1983).............445. 17

Illinois v. Krull, 480 U.S. 340 (1987) .......... 12, 13, 15

Maryland v. Buie, _. U.S. ___ (No. 88-1369, Febru-

Se Ms EEE Sheds ocoenesedesocessdecveseseocococss 5

Maryland v. Garrison, 480 U.S. 79 (1987)............ 3, 4

Michigan v. Long, 463 U.S. 1032 (1983) ............ 4,19

New York v. Class, 475 U.S. 106 (1986)............... 20

People v. Bochniak, 93 Ill. App. 3d 575, 417 N.E. 2d

ER i et ae 18

People v. Callaway, 167 Ill. App. 3d 872, 522 N.E. 2d

nbn deca eke 6 peGeétneeeesees 18

People v. Daugherty, 161 Ill. App. 3d 394, 514 N.E.

i i icici cee Vesscknsboneebecees 18

People v. Miller, 40 Ill. 2d 154, 238 N.E. 2d 407

PP PACshehanoesecedsevccececsesoesenedevesecs ves 19

People v. Posey, 99 Ill. App. 3d 943, 426 N.E. 2d 209

DE Di Possesccuseseceneseevetseensbosaress 18

TABLE OF AUTHORITIES — Continued

People v. Shambley, 4 Ul. 2d 38, 122 N.E. 2d 172

(1954) (partially overruled on other grounds, Peo-

ple v. Nunn, 59 Ill. 2d 344, 304 N.E.2d 81 (1973)).... 19

People v. Stacey, 58 Ill. 2d 83, 317 N.E. 2d 24 (1974).... 18

People v. Vought, 174 Ill. App. 3d 563, 528 N.E. 2d

CURD COGN. FOU ccc ccccccccvcccccccccsesoness 18

Schneckloth v. Bustamonte 412 U.S. 218 (1973)....3, 6, 7

Stoner v. California, 376 U.S. 483 (1964) .............. 7

ae. © 8° Be PP 4

United States v. Chadwick, 433 U.S. 1 (1977)........... 1

United States v. Cortez, 449 U.S. 411 (1981)........... 4

United States v. Janis, 428 U.S. 433 (1976) ........... 13

United States v. Leon, 468 U.S. 897 (1984)........ 13, 15

United States v. Matlock, 415 U.S. 164 (1974)

posbaddaceetendessatebdisssaennsaen 3, 12, 14, 15, 16, 17

United States v. Mourning, 716 F. Supp. 279 (W.D.

TER, TEP cc ccc cPWocccccccoccesscocecceséseuveess 15

United States v. Ortiz, 714 F. Supp. 1569 (C.D. Cal.

SEES co vccccccccceccceccevcusedecsuccessossseeones 15

United States v. Peltier, 422 U.S. 531 (1975) .......... 13

United States v. Robinson, 414 U.S. 218 (1973)........ 11

United States v. Sharpe, 470 U.S. 675 (1985)........... 4

TABLE OF AUTHORITIES — Continued

Page

United States v. Villamonte-Marquez, 462 U.S. 579,

POW GREED s cove ce cccessWeccccccscccvcccececcesecess 5

United States v. Williams, 622 F.2d 830 (Sth Cir.

PPP TT rt ee _15

STATUTES AND CONSTITUTIONAL PROVISIONS:

Ill. Comst. 1870, Art. I], sec. 6 2... 6c cece 19

> Ge, Bee GU B GIR. Gevccccvcccccccccsesescce 19

Ill. Rev. Stat. 1985, Ch. 38, sec. 12-4(a) ...........45.. 9

Ill. Rev. Stat. 1985, Ch. 38, sec. 107-11, 107-12....... 11

ee ee OP PE be cocccescccecenceceséecccess 18, 19

Se Gets Cle, Gite GOB. S cccccccccccvcccccccccevces 18

Sy OS PEPPPITITTITIIT TTT 18

i es i ON son brcecsocecesccecoesdods passim

MISCELLANEOUS:

Chicago Police Department Patrol Division General

SE CEE Gen cacccccccecescsceesceccccences: 10

Chicago Police Department Training Bulletin, Vol.

Ss © GY OD MPa cdncccecceceesscceccececes 11

Chicago Police Department General Order, 82-8

Pere errr rT rrr rT Tyr TTT TTT rrr 11

Handbook for Domestic Violence Victims (Springfield,

Ill.: Iinois Coalition Against Domestic Violence,

EEE TTT eT TrrrTTiTT Tt tT TTT Tie 10

vii

TABLE OF AUTHORITIES — Continued

Page

Wayne R. LaFave, Search and Seizure, a Treatise on

the Fourth Amendment, 2nd Ed., Vol. 3, 1987, page

BED ccccddececedeccdotnccdcbbesbeedédcastedatedaces 7

NiCarthy, Ginny, The Ones Who Got Away: Women

Who Left Abusive Partners (Seattle: The Seal

POR, Se osc conve ceccccsocevcecoecsesenseaneuss 10

Se —

THE ILLINOIS APPELLATE COURT HAS MISIN-

In reaching Fourth Amendment determinations, this

Court has been guided at all times by reasonableness. “Our

fundamental inquiry concerning Fourth Amendment issues is

whether or not a search or seizure is reasonable under all the

circumstances.” United States v. Chadwick, 433 U.S. 1, 9

(1977). Throughout the past two centuries, this Court has

always favored reasonable conduct on the part of police

officers. In this case, the police went to arrest a man who had

beaten his girlfriend and broken her jaw. They reasonably

believed she had the authority to allow the entry into the

police officers who reasonably relied on the facts and circum-

stances presented to them. Such reasonable reliance is the

essence of the apparent authority doctrine. Since the officers

reasonably believed they were acting under an established

exception to the warrant requirement, and since the informa-

tiom known to them indicated that their entry into the apart-

ment was lawful, their search was both reasonable and

constitutional under the Fourth Amendment.

In response to petitioner's argument, respondent and am-

icus have chosen to focus on different considerations. Amicus

takes the extreme position that the information known to the

officers at the time they entered the apartment is irrelevant.

amicus argues that only consent from someone with actual

authority can justify an entry or search, and that consent from

a person with only apparent authority should always be re-

jected. While respondent joins this argument, he fails to give

this Court any substantive legal analysis in support of this

position, and instead simply stresses that the officers did not

in fact possess a reasonable belief that Gale Fisher had the

requisite authority to let them into the apartment. By failing

to adequately challenge the theoretical bases of the apparent

authority doctrine, respondent's brief is most unpersuasive.

(1)

The Legality Of An Entry Or Search Conducted Un-

der An Exception To The Warrant Requirement Must Be

Determined By The Information Available To The Police

When The Search Is Made.

Amicus argues that no matter how valid a consent to enter

appears to be, it may be unconstitutional for the police to rely

on it. It is also the position of amicus that encouraging police

officers to seek consents would violate privacy interests pro-

tected by the Fourth Amendment. Respondent makes a curso-

ry statement to the same effect. These arguments are not

supported by any precedent from this Court. They should be

rejected for the following reasons:

1. This Court has repeatedly held that in situations

where a warrantless search is permissible, its

legality will be determined by the information

available to the police at the time.

2. Searches with consent are perfectly constitu-

tional and infringe on privacy rights less than

many other kinds of searches.

Searches performed with consent are a well established

and perfectly constitutional exception to the warrant require-

ment. United States v. Matlock, 415 U.S. 164 (1974); Schnec-

kloth v. Bustamonte, 412 U.S. 218 (1973). Amicus, however,

takes the absolutist position that a valid consent must come

from someone with actual authority, and that consent from

someone with only apparent authority should not be counte-

nanced by the Fourth Amendment, no matter how valid it

appears to be. That position is untenable because it would

make the legality of all consensual entries or searches depend,

not on the facts and circumstances known at the time, but on

facts which might not be known until months or years later.

Also, that position is contrary to the rule of law followed by

this Court in other kinds of warrantless searches which are

recognized as exceptions to the warrant requirement. The

general rule is that the legality of a warrantless search is

determined by the information available when the search is

performed. It follows that if the police reasonably believe that

they have received a valid consent to enter or search, then that

entry or search is lawful.

For example, this Court has held that the legality of a

search incident to arrest is to be determined by the informa-

tion available to the police at the time. If the police have

information showing probable cause to arrest, it does not

matter if that information later turns out to be false. Hill v.

California, 401 U.S. 797 (1971). In Hill, the officers mis-

takenly but reasonably arrested the wrong man. This Court

held that the search incident to the mistaken arrest was consti-

tutional.

Respondent attempts to circumvent the precedent of Hill

by categorizing the reasonable mistake on the part of the

officers as “unavoidable.” (Resp. Br. 25) Nowhere in Hill is

the concept of “unavoidability” discussed. The main focus of

both Hill and Maryland v. Garrison, 480 U.S. 79 (1987) was

that when police officers reasonably rely on the facts and

circumstances presented to them, even if their assessment of

those facts later turns out to be incorrect, their conduct is not

proscribed by the Fourth Amendment. In fact, in Hill, the

mistake which resulted in a warrantless arrest was not neces-

sarily unavoidable. Indeed, arrestee Miller specifically told

the officers he was not Mr. Hill, the resident of the dwelling.

Nevertheless, based on all the facts presented to the officers,

their mistake in arresting Miller was reasonable.

Amicus does not join respondent in this “unavoidability”

analysis, but simply emphasizes that Hill’s arrest was based

on probable cause. This fact does not distinguish Hill from

the instant case; the police unquestionably had probable cause

to arrest respondent for aggravated battery. The attempt to

distinguish Garrison based upon the presence of a warrant is

also tenuous. It should be noted that in Garrison no warrant

actually authorized the search performed by the police offi-

cers. Rather, this Court held that the search was justified by

the reasonable belief of the officers that a warrant, which

actually was for different premises, authorized the search in

question.

Another exception to the warrant requirement involves

searches Of automobiles. Chambers v. Maroney, 399 U.S. 42

(1970). This Court has ruled that the legality of a warrantless

search of an automobile is to be determined by the facts

known to the police at the time they searched the vehicle.

Michigan v. Long, 463 U.S. 1032 (1983). In Long, the police

Saw a hunting knife in a car and then searched for more

weapons. There were no other weapons in the automobile, but

some marijuana was found. This Court found the search to be

constitutional.

Another exception to the warrant requirement is a “stop

and frisk” based on a reasonable suspicion that the subject is

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968).

This Court has made it very clear that the legality of a pat-

down search after a Terry stop is to be judged according to the

facts known to the officer at the time of the stop. United

States v. Sharpe, 470 U.S. 675 (1985); United States v. Cor-

tez, 449 U.S. 411 (1981).

In the recent Buie case this Court held that a warrantless

“protective sweep,” designed for protection of law enforce-

ment officers after an arrest, is justified by the apparent

danger to the officers rather than by facts that become known

after the search is complete. Maryland v. Buie, nee

(No. 88-1369, February 28, 1990).

Thus the general test applied under a recognized excep-

tion to the warrant requirement is that the legality of the

search will be determined by the information known to the

police at the time of the search, whether that information later

turns out to be true or false. Amicus argues that it would

violate the Fourth Amendment to follow the same rule in

cases involving a consent to search or enter. That argument is

without merit.

In fact the position taken by amicus is fundamentally

unsound in that it would turn the question of the legality of a

search or entry based on consent into a guessing game. Am-

icus argues that, even when the police believe reasonably and

in good faith that they have a valid consent to enter, the entry

must be ruled illegal if it turns out later that the consent was

given by someone with apparent rather than actual authority.

Police officers, however, are entitled to know whether they

are complying with the Fourth Amendment or not. Any Fourth

Amendment ruling by this Court should be one which the

police are able to follow in practice. Therefore, this Court

should hold that a search or entry based on consent is valid if

the police, relying on the objective facts and circumstances

known to them at the time, reasonably belicve that they have

a valid consent to search or enter.

Amicus argues that this rule would erode privacy rights

protected by the Fourth Amendment. It is well-established

that the reasonableness of a particular practice is determined

by “balancing its intrusion on the individual's Fourth Amend-

ment interests against its promotion of legitimate govern-

mental interests.” United States v. Villamonte-Marquez, 462

U.S. 579, 588 (1983). If this Court were to accept respon-

dent's arguments and reject the doctrine of apparent authority,

this would chill the use of consensual searches by law en-

forcement officers who would not be able to confidently rely

on the totality @f the facts and circumstances presented to

them at the time. In Schnetkloth, this Court recognized the

important and overriding governmental interest in protecting

its Own citizenry through the investigation of crime.? To this

end, this Court recognized the importance and need for con-

sent searches as an effective tool of law enforcement. Indeed,

this Court noted that in some situations, “a search authorized

by a valid consent may be the only means of obtaining

important and reliable evidence.” supra at 227.

In fact, a search with consent is a lesser invasion of

privacy than many other kinds of searches. When the police

seck a consent to search, they give notice to some person

having authority over the premises and they give that person

an opportunity to refuse consent. Most other searches by

police officers involve neither notice nor an opportunity to

refuse. Furthermore, in Hill, supra, Mr. Hill’s privacy rights

were affected by the search of his residence which was

incident to Mr. Miller’s arrest. Nevertheless, as in Hill, rea-

sonable police conduct, on balance, outweighed any minor

intrusion of respondent's privacy rights.

Respondent’s argument is premised on a theory of waiv-

er, which was specifically rejected by this Court in Schnec-

kloth v. Bustamonte, 412 U.S. 218 (1973). The argument is as

unpersuasive now as it was some two decades ago when

Justice Stewart, writing for the majority, stated: “Similarly, a

‘waiver’ approach to consent searches would be thoroughly

inconsistent with our decisions that have approved ‘third

party consents.’ Schneckloth supra, at 245.3

2 “If the search is conducted and proves fruitless, that in itself may

convince the police that an arrest with its possible stigma and embarrass-

ment is unnecessary, or that a far more extensive search pursuant to a

warrant is not justified. In short a search pursuant to consent may result in

considerably less inconvenience for the subject of the search.” Schnec-

kloth, supra at 228.

3 The reasoning behind the Court’s rejection of a waiver analysis in

the area of the Fourth Amendment and specifically regarding consent

searches was due to the fact that the “. . . Fourth Amendment stands as a

(Continued on following page)

- Respondent also attempts to persuade this Court that it

should not adopt an apparent authority to consent doctrine

because it would not comport with concepts of agency law.

Respondent's argument is gleaned from this Court's decision

in Stoner v. California, 376 U.S. 483 (1964). Such reliance is

misplaced.

In Stoner, this Court held that a person who occupies a

hotel room does not grant authority to a hotel clerk to let the

police into that room. The officers were aware that the third

party giving consent was not authorized by the occupant to

give such consent. Thus, Stoner dealt solely with the question

of actual authority and did not decide or discuss the question

of whether a search may be justified by consent from a person

with apparent authority.¢

In sum, when an exception to the warrant requirement

applies, this Court has looked to the information available to

the police at the time of the search in determining whether

that search is reasonable under the Fourth Amendment. The

same rule should be followed when a search or entry is based

on consent. Any Fourth Amendment rule should be one which

the police are able to follow, and searches should not be ruled

invalid because of facts which become known long after the

search has been performed. A rejection of this rule would

have a chilling effect on the use of consensual searches which

(Continued from previous page)

protection of quite different constitutional values.” Schneckloth at

241-242. While the court recognized the propriety of such analysis in the

context of a defendant's right to a fair trial the court stated“. . . it would

be next to impossible to apply to a consent search the standard of an

intentional relinquishment or abandonment of a known right or privi-

lege...” supra at 246.

* See R. LaFave, Search and Seizure, A Treatise on the Fourth

Amendment, 2nd Ed., Vol. 3, (1987), page 262, fn. 96 wherein Professor

LaFave states that, “Stoner involved a mistake of law rather than a

mistake of fact, which does not come within the apparent authority

doctrine.”

are a significant and integral part of effective law enforce-

ment. Therefore, when police officers reasonably rely on

objective facts and circumstances which indicate that they

have obtained a valid consent to search or enter then that

search or entry is valid under the Fourth Amendment.

(2)

Officers Entress and Gutierrez Were Right To Act

Promptly To Protect A Victim Of Domestic Violence, And

The Record Shows That They Reasonably Believed That

The Victim Had Authority To Let Them Into The Apart-

ment Where She Had Been Injured.

Respondent argues that the Chicago police officers who

arrested him did not have a reasonable belief that Gale Fisher

had authority to permit entry into the California Avenue.

The basic question before this Court is whether, as a

matter of law, a search or entry is proper under the Fourth

Amendment when the police reasonably believe that they

have searched or entered with valid consent. Although the

usual function of this Court is to rule on principles of law, not

on particular facts, Goodman v. Lukens Steel Co., 482 U.S.

656, 665 (1987), the facts of this case underscore the necessi-

ty for adoption of the apparent authority to consent doctrine.

The actions of Officers Entress and Guiterrez were not

only proper, but highly commendable. They acted promptly

and effectively on a complaint of serious domestic violence.

Furthermore, the record shows that those officers reasonably

believed that Gale Fisher had authority to let them into the

apartment where her jaw had been broken.

When Officers Entress and Gutierrez talked to Gale Fish-

er at her mother’s home, Ms. Fisher obviously had been

beaten up. (J. App. 32) She had a black eye, a swollen

jawbone sticking out to the side, a distorted face, bruises on

her neck and, although this was not known until later, her jaw

had been broken. (J. App. 32, 46, 73) Like many victims of

domestic violence, she was somewhat reluctant to press

charges. (J. App. 22) It is a reasonable inference that she was

upset and emotional. The officers believed that they were

dealing with a serious felony. In fact, they later asked that

charges of aggravated battery be approved against respondent.

(J. App. 32-33) Ill. Rev. Stat. 1985, ch. 38, sec. 12-4(a).

The officers knew that Gale Fisher had been beaten up by

her boyfriend in the apartment at 3519 South California, that

all or most of her personal possessions were there, that she

had a key to the apartment and that she called it “our apart-

ment.” The only reasonable conclusion from that information

was that she had authority to allow entry.

Respondent argues that Officers Entress and Gutierrez

were required to cross-examine Gale Fisher about her living

arrangements. It would not have been proper or feasible to

treat a severely beaten victim in that fashion. In the world of

real crimes and real people the police must often get informa-

tion from victims who are in fear, injured, inarticulate or

hysterical. A reasonable warrantless search does not require

questioning victims of violent crimes as if they were hostile

witnesses in a courtroom.

Nevertheless, complete information about Gale Fisher’s

living arrangements would have shown that during the eight

months before respondent’s arrest she had been in the apart-

ment at 3519 South California almost every day with respon-

dent’s consent and approval. From December, 1984 to July 1,

1985 she lived there and after July 1 she was there virtually

every day and many nights as well. (J. App. 55, 73) Thus,

respondent is incorrect in his claim that more investigation

would have easily resolved the question of whether Gale

Fisher had actual authority to let the officers into the apart-

ment. That question has been litigated in this case for the last

five years and illustrates the fallacy of defendant’s argument

and the inherent difficulty of evaluating actual authority. On

July 26, 1985, however, the information known by the offi-

cers indicated that Gale Fisher had authority to open the

apartment door and let them in.-

Officers Entress and Gutierrez had a severely beaten

victim to protect and did not have five years to decide what to

do. The point of maximum risk for a victim of domestic

violence is when she defies her abuser and tries to break away

from him. Handbook for Domestic Violence Victims (Spring-

field, Ill: Illinois Coalition Against Domestic Violence,

1986), pp. 5-6; See NiCarthy, Ginny, The Ones Who Got

Away: Women Who Left Abusive Partners (Seattle: The Seal

Press, 1987). Officers Entress and Gutierrez did exactly what

every police officer should do in serious domestic violence

cases, which is to promptly arrest the offender.

After Gale Fisher became a potential witness against

respondent he attacked her again, breaking her cheekbone in

four places. (J. App. 81-82) It was only then that Ms. Fisher

went to respondent’s lawyer’s office and signed an affidavit

claiming for the first time that she had lacked actual authority

to let the police into the apartment. (J. App. 84-85) But the

information known to the police on July 26, 1985 clearly

indicated that Gale Fisher had the right to let them into the

apartment where respondent had broken her jaw a short time

before.

Respondent argues that the officers used the arrest as a

pretext to search for drugs, but that argument is factually false

and legally irrelevant. Respondent asserts, with no support in

the record, that Tactical Unit Officers like Entress and Gutier-

rez were primarily narcotics investigators. (Resp. Br. 39) That

is a regrettable misstatement of fact, since Tactical Units have

general law enforcement responsibilities and do not specialize

in narcotics cases.5 The Chicago Police Department, of

course, has a narcotics division, but that unit was not involved

in this case in any way.

However, even if the arresting officers had intended to

look for narcotics, the entry into the apartment would still

have been perfectly proper under the law as stated by this

> In 1985 the duties of Tactical Units were governed by Chicago

Police Department Patrol Division Special Order 79-11 (1979). That

order said: “Tactical units have been created to provide district command-

ers with flexibility in the assignment of personnel in dealing with special

problems, and to expand and extend patrol operations. They are not to be

considered citizen’s dress officers or follow up investigators, and the

activities of tactical teams are to be directed toward the patrol mission of

protection of property and the prevention of crime.”

Court. United States v. Robinson, 414 U.S. 218 (1973). It is

undisputed that the drugs in respondent’s apartment were in

plain view and were first observed within 30 to 90 seconds

after the police entered. (J. App. 18, 27-28) In Robinson, a

criminal defendant argued that a traffic arrest had been a

pretext to search for narcotics. This Court held that as long as

there was probable cause to arrest and the arrest was normal

police practice, the defendant’s argument about a pretextual

arrest could be disregarded. Robinson, 414 U.S. at 221 n. 1. In

a case of serious domestic violence, Chicago Police Depart-

ment policy requires an “immediate arrest.” Chicago Police

Department Training Bulletin, Vol. 29, no. 7 (May 9, 1988).°

Respondent also argues under agency law that Gale Fish-

er lacked apparent authority from respondent to allow entry

into the apartment. (Resp. Br. 22-24) That argument is irrele-

vant because agency law has nothing to do with this case.

Rather the question is whether under-the Fourth Amendment

the officers reasonably concluded that they had a valid con-

sent to enter. However, Gale Fisher had lived in the apartment

from December until July with respondent’s consent and ap-

proval. During July she was in the apartment almost every

day and many nights, also with respondent’s consent and

approval. Thus even under agency law it is likely that respon-

dent had given her apparent authority to let people into the

apartment. American Society of Mechanical Engineers v. Hy-

drolevel Corporation, 456 U.S. 556 (1982).

It is far more important that all the facts known to the

officers on July 26, 1985 indicated that Gale Fisher had

107-11 and 107-12, “the police could have obtained a summons signed by

a judge or a notice to appear signed by a police officer issuing the notice

to appear and mailed either of those documents to respondent command-

ing him to appear in court on a certain date and time.” (Resp. Br. 27)

However, under Chicago Police Department General Order No. 82-8 a

summons should only be issued when the offense is a petty offense or a

Class C misdemeanor and it may never be issued when there is a

reasonable likelihood that the offense will continue or recur or that life or

property will be endangered if the offender is not arrested.

authority to let them into the apartment where respondent had

broken her jaw. Officers Entress and Gutierrez knew that Gale

Fisher had a key to that apartment. They knew that most or all

of her personal property was there. They knew that she

referred to the residence as “our apartment.” Any reasonable

person would have concluded from this information that Gale

Fisher lived in the apartment or at least had constant access to

it and control over it. Any police officer performing his duty

would have acted promptly under these circumstances to

arrest the man who had just committed a serious act of

domestic violence.’ Since the officers acted reasonably, the

arrest and search were lawful under the Fourth Amendment.

If Tuis Court Does Not Recognize Apparent Authority

As An Exception To The Warrant Requirement, Where

There Is No Police Misconduct And No Possibility Of

Deterring Future Police Misconduct, Competent And Rel-

evant Evidence Should Not Be Subjected To The Strictures

Of the Judicially Created Rule Of Exclusion And The

Good Faith Exception To The Exclusionary Rule Should

Be Applied.

(Reply to Respondent’s Issue V

and to Issue II Raised by Amicus)

Respondent stands alone in asserting that “this Court has

never announced any ‘good faith exception to the exclusion-

ary rule,’ ” (Resp. Br. 41) and boldly condemns commentators

“who should know better.” (Resp. Br. 42) Amicus admits

However, as it must, that a “good faith” exception to the

exclusionary rule does exist. /ilinois v. Krull, 480 U.S. 340

7 Although respondent argues that the officers had time to secure a

warrant, it should be noted that the dissent in Matlock urged that the

consent search in that case was unconstitutional because the police did

not seek a warrant, even though there was time and opportunity to do so.

415 U.S. at 178-188 (Douglas, J. dissenting) The majority did not adopt

such a principle. Since the officers here believed they were acting under a

valid exception to the warrant requirement, they would not have inter-

rupted their investigation and expended time to secure a warrant.

(1987); United States v. Leon, 468 U.S. 897 (1984). Neverthe-

less, it is claimed that this exception should apply only when

a search is authorized by an invalid warrant or statute, and not

when police officers reasonably believe the entry or search to

be lawful.

This argument is contrary to the policy behind the exclu-

sionary rule. The primary purpose of the exclusionary rule is

to deter police misconduct. United States v. Janis, 428 U.S.

433, 446 (1976). When police officers conduct a search with

what they reasonably believe is valid consent based on the

objective facts and circumstances presented to them, there is

no police misconduct and no possibility of deterrence. A

secondary purpose of the exclusionary rule is to promote the

integrity of the judicial system by excluding evidence un-

lawfully obtained by the police. United States v. Peltier, 422

U.S. 531, 536-540 (1975). However, the integrity of the

judicial system would certainly not be promoted by the exclu-

sion of relevant evidence which was obtained by what the

police reasonably believed were lawful means.

While the presence of a neutral magistrate in Leon was a

significant fact, petitioner submits it did not represent the

underlying basis of the “good faith exception” to the exclu-

sionary rule. The underlying rationale is clear: Competent and

relevant evidence should not be subjected to the strictures of

the judicially created rule of exclusion, where its deterrent

purpose would not be served by this sanction. The main focus

of the Leon decision was on the conduct of the police officers

who acted in objective good faith reliance on the facts pre-

sented to them.

Respondent and amicus allege that to extend Leon and

Krull and apply a reasonable good faith belief exception to

the exclusionary rule in this case would, in essence, make

police officers the judges of their own conduct. That assertion

is patently false. While there is no magistrate or legislature

present in this case prior to the search, the decisionmakers in

reality are the courts, because the validity of a search based

on consent is always subject to later review by the courts.

Police officers could not simply claim that they reasonably

believed they had a valid consent to search or enter, they

would have to prove that claim at a hearing on a motion to

suppress evidence. Petitioner asks only that the police be

given a chance to prove in court that they reasonably believed

they had a valid consent before beginning a search.

Amicus argues that tliowing an exception to the exclu-

sionary rule here would encourage police misconduct by al-

lowing officers to falsely claim that they reasonably believed

that a search was based on a valid consent. However, judges

routinely determine whether the police acted reasonably

based on the information available to them. At a hearing on a

motion to suppress evidence, the possibility of judicial error

is no greater when the search was based on consent than it is

when the search was incident to an arrest or authorized by a

warrant. See Franks v. Delaware, 438 U.S. 154 (1978). Offi-

cers will know that their conduct in obtaining a consent to

search can later be challenged in court.

There is simply no reason for this Court to deter the

police from attempting to obtain consents to search. Searches

based on consent are constitutionally valid and do not infringe

on any legitimate expectation of privacy. United States v.

Matlock, 415 U.S. 164 (1974). In fact in some ways searches

with consent infringe on privacy rights to a lesser extent than

other kinds of searches. In a consensual search, notice is

given that a search will take place and someone having

authority over the premises has an opportunity to decide

whether to grant or refuse permission to search. Notice and an

Opportunity to refuse are not present in other kinds of

searches. Application of the exclusionary rule in this case

would, however, serve to chill the use of all consensual

searches by law enforcement officers. (See Brief for the

United States as Amicus Curiae Supporting Petitioner, pp.

14-15).

Respondent and amicus argue as if this Court was being

urged to allow an exception to the exclusionary rule which

would apply when officers acted with subjective good faith.

That is just not so. Petitioner asks this Court to adopt, not a

“subjective good faith” exception to the exclusionary rule, but

rather an “objectively reasonable belief” exception. As this

Court has said, “ . . . the standard of reasonableness we adopt

is an objective one; the standard does not turn on the subjec-

tive good faith of individual officers.” /ilinois v. Krull, 480

U.S. 340, 355 (1987). The exclusionary rule should not apply

when officers search with what they believe to be a valid

consent and that belief is objectively reasonable on the basis

of the information available to them. That standard will allow

for effective judicial review of the actions of police officers.®

WHERE GALE FISHER REFERRED TO THE APART-

MENT AT 3519 SOUTH CALIFORNIA AVENUE AS HER

APARTMENT, RETAINED POSSESSION OF A KEY TO

SUCH APARTMENT WHICH SHE TERMED HER KEY,

AND KEPT ALL HER POSSESSIONS EXCEPT THREE

BAGS OF CLOTHING AT THE APARTMENT, THE IL-

LINOIS APPELLATE COURT MISINTERPRETED

UNITED STATES v. MATLOCK BY FINDING THAT

GALE LACKED COMMON AUTHORITY TO PERMIT

A CONSENSUAL ENTRY.

(Reply To Respondent's Issue 1)

During the eight months before petitioner was arrested,

Gale Fisher was in the apartment at 3519 South California

almost every day with respondent’s consent and approval.

Nevertheless, respondent now argues that she lacked actual

authority to permit entry into that apartment. Gale Fisher had

that authority, however, from December, 1984 until July 26,

1985 since she shared that apartment with respondent.

8 While amicus correctly notes that some federal courts have re-

jected the application of Leon's good faith exception to non-warrant

searches, (See Brief for A-C at 22). Amicus fails to mention thot there are

federal courts which have applied the good faith exception to nc . warrant

searches. United States v. Mourning, 716 F.Supp. 279 (W.D. Tex. 1989),

wherein the Court relied on United States v. Williams, 622 F.2d 830 (Sth

Cir. 1980) (en banc) and specifically applied the good faith exception to

prevent exclusion of evidence seized in a warrantless consent search. See

United States v. Ortiz, 714 FSupp. 1569 (C.D. Cal. 1989).

Before July 1, 1985, Gale Fisher lived in the apartment

with respondent, so there is no doubt that during that period

she had actual authority to allow entry. After July 1, Gale

Fisher never completely moved out. She left most of her

possessions in the apartment and planned to return there after

her child was toilet trained. (J. App. 40-41) She was in the

apartment virtually every day and many nights, sometimes

spending the entire night there. (J. App. 55, 73) Thus Gale

Fisher never lost the access and control that gave her actual

authority to allow entry to the apartment.?

Respondent argues that Gale Fisher was not his wife, nor

was she the lessee of the apartment at 3519 South California.

However, exactly the same situation existed in the Matlock

case, in which this Court upheld a consent to search given by

a woman who was neither the wife of the respondent nor the

lessee of the apartment. United States v. Matlock, 415 U.S.

164 (1974). Therefore, as in Matlock, Gale Fisher had actual

authority to give a valid consent to enter.

Ill

THIS COURT HAS JURISDICTION SINCE THE LOW-

ER COURT DECISION WAS BASED SOLELY ON THE

UNITED STATES. CONSTITUTION, AND IN FACT NO

COURT HAS EVER DECIDED THE ISSUE IN THIS

MATTER IN A CASE ARISING UNDER THE CURRENT

CONSTITUTION OF THE STATE OF ILLINOIS.

(Reply to Respondent's Issue II)

Respondent asserts that the lower court decided this case

under the Illinois Constitution and this Court accordingly

lacks jurisdiction. The opinion of the Appellate Court of

Illinois clearly belies this allegation and affirmatively demon-

strates that this case was decided solely under precedents

from this and other courts applying the Fourth Amendment to

the United States Constitution.

9 The fact that the trial judge was unable to resolve the conflict in

testimony regarding how Gale Fisher came to possess the key to the

apartment, underscores the need for an apparent authority test.

The Illinois Appellate Court’s opinion here did not cite

any Illinois constitutional provision or statute, nor did it cite

any case applying any Illinois constitutional provision or

statute. In fact no court has ever decided a case under the

current Illinois Constitution on the legality of a search per-

formed with the permission of someone having apparent au-

thority to consent. Since the Illinois Appellate Court decided

this case solely under the Fourth Amendment, this Court has

jurisdiction to review the matter. 28 U.S.C. § 1257(3).

Initially, petitioner would point out that respondent never

mentioned the Illinois Constitution in either the trial court or

the Appellate Court. In the trial court, respondent's motion to

suppress evidence and his argument to the trial judge made no

mention of the Illinois Constitution. (Trial Court Record

104-110, 124-129, 178) In the Illinois Appellate Court re-

spondent cited the Fourth Amendment, three decisions of this

Court and four other federal court decisions, but never men-

tioned any Illinois constitutional provision or statute. (Ill.

App. Ct., Brief for Defendant-Appellee, pp. ii, 8) It is inap-

propriate for respondent to make an argument for the first

time in this Court when he never made that argument in state

court. /llinois v. Gates, 462 U.S. 213 (1983). Moreover, it is

highly improbable that the Appellate Court of Illinois would

have decided this case on grounds which were never raised by

respondent or discussed by the lower court.

The opinion of the Appellate Court of Illinois unques-

tionably indicates that this case was decided by that court

solely on federal constitutional grounds. The court cited only

cases applying the Fourth Amendment and did not cite any

case applying any Illinois constitutional provision or statute.

The only precedent discussed at length by the Illinois Appel-

late Court, and the only case quoted in the opinion below, is

this Court’s opinion in Matlock. United States v. Matlock, 415

U.S. 164 (1974). It is true, as respondent points out, that

Matlock did not resolve the precise issue in this case. 415

U.S. at 177 n. 14. However, the fact that the Illinois Appellate

Court announced that it was guided by the Matlock decision

and indeed quoted extensively from it, establishes that this

case was decided under the Fourth Amendment and not under

any other provision.

The Appellate Court of Illinois also cited six Illinois

precedents in its opinion, but all of those precedents are

Fourth Amendment decisions. (J. App. 103) Each of those six

precedents cites the Fourth Amendment, or key Fourth

Amendment decisions of this Court, or both. None of those

precedents cited by the Illinois Appellate Court so much as

mentions the Illinois Constitution. Since all of the precedents

relied upon by the Illinois Appellate Court were Fourth

Amendment decisions, and since that court did not cite the

Illinois Constitution or any case based on that constitution, it

is clear that the lower court opinion here was based solely on

the Fourth Amendment. !°

Respondent seems to believe that if there are Illinois

precedents on searches based on consent by persons with

apparent authority, then those precedents must be based on

independent state law grounds. That is just not so. The Illinois

courts can and must enforce the United States Constitution.

U.S. Const., Art. VI. When state courts decide federal consti-

tutional issues, then this Court has jurisdiction to review

those decisions. U.S. Const., Art. III, sec. 2; 28 U.S.C.

§ 1257(3). When considering the issue in this matter the

Illinois courts have always relied on the Fourth Amendment

and have never relied on the current Illinois Constitution.

Therefore, this Court has jurisdiction to review the Fourth

Amendment decision in this case.

Petitioner also asserts that the trial judge in this case,

when granting the motion to suppress evidence, made his

decision on state law grounds. That is not true and it would

not matter even if it were true, since it is the decision of the

10 Those six state precedents cited by the Illinois Appellate Court

were People v. Stacey, 58 Ill. 2d 83, 317 N.E.2d 24 (1974); People v.

Vought, 174 Ill. App. 3d 563, 528 N.E.2d 1095 (2d Dist. 1988); People v.

Callaway, 167 Ill. App. 3d 872, 522 N.E.2d 337 (Sth Dist. 1988); People

v Daugherty, 161 Ill. App. 3d 394, 514 N.E.2d 228 (2d Dist. 1987);

People v. Posey, 99 Ill. App. 3d 943, 426 N.E.2d 209 (Sth Dist. 1981);

People v. Bochniak, 93 Ill. App. 3d 575, 417 N.E.2d 722 (1st Dist. 1981).

Illinois Appellate Court which is being reviewed here. 28

U.S.C. sec. 1257(3). In his findings the trial judge did not

mention the Illinois Constitution or any precedent based on

the Illinois Constitution. But Judge Schreier did cite the

Miller decision as “controlling,” and Miller is explicitly based

on the Fourth Amendment and does not cite any Illinois

constitutional provision or statute. People v. Miller, 40 Ill. 2d

154, 238 N.E.2d 407 (1968). (J. App. 93)

In fact, respondent tacitly concedes that none of the

recent Illinois decisions dealing with the issue in this case

rely on any state constitutional provision. (Resp. Br. 18-19, n.

11) Respondent does, however, rely on the Shambley case

from 1954 as establishing a rule based on the Illinois Consti-

tution governing searches with consent from persons with

apparent authority. People v. Shambley, 4 Ill. 2d 38, 122

N.E.2d 172 (1954) (partially overruled on other grounds,

People v. Nunn, 59 Ill. 2d 344, 349, 304 N.E.2d 81 (1973)).

Shambley does no such thing. For three reasons the Shambley

decision has no application to this case: (1) it says nothing

about searches authorized by a person with apparent authority

to consent, (2) it was decided on the basis of an Illinois

constitutional provision which was superceded 20 years ago,

and (3) it was never cited or relied upon by any judge or

litigant during proceedings in the Illinois courts in this case.!!

This Court has held that respondent, in order to succeed

with his independent and adequate state grounds argument,

must show some “plain statement” by the lower court that it

decided the case on the basis of state law. Michigan v. Long,

463 U.S. 1032, 1041 (1983). Respondent has not even at-

tempted to meet his burden under Long. There is no statement

in the opinion of the Appellate Court of Illinois, plain or

otherwise, that it was deciding the case on the basis of the

Illinois Constitution. On the contrary, that opinion does not

refer to the Illinois Constitution or to any other provision of

State law, nor does it cite any precedent decided on state law

grounds. Therefore, under Long this Court “ . . . will accept as

'! See Ill. Const. 1970, Art. I, sec. 6; Ill. Const. 1870, Art. Il, sec. 6

the most reasonable explanation that the state court decided

the case the way it did because it believed that federal law

required it to do so.” 463 U.S. at 1041. Accord: New York v.

Class, 475 U.S. 106, 109-110 (1986); Caldwell v. Mississippi,

472 U.S. 320, 326-328 (1985).

CONCLUSION

For the reasons stated above and in their principal brief,

petitioner respectfully requests that this Honorable Court re-

verse the judgment of the Appellate Court of Illinois, First

District, and remand the matter to the Illinois courts for

further proceedings.

Respectfully Submitted

New F. HarticGan

Attorney General,

State of Illinois,

Rosert J. Ruz

Solicitor General

State of Illinois

JoserpH CLapPs

First Assistant Attorney

General

Terence M. Mapsen*

Assistant Attorney General

100 West Randolph Street

Suite 1200

Chicago, Illinois 60601

Attorneys for Petitioner

*Counsel of Record

Ceci. A. Parree,

State’s Attorney

County of Cook

309 Richard J. Daley Center

Chicago, Illinois 60602

Rente GoLprars,

THeopore Fotios Burtzos,

Paut Gutratta,

Kevin SWEENEY,

Assistant State’s Attorneys,

Of Counsel.

| eT ae ee ree a ee ee

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