Amicus Curiae Brief — Powell v. Nevada

DEC 14 1993

No. 92-8841 <_/ OFFICE OF THE CLERK

In The_

SUPREME COURT OF THE UNITED STATES

October Term, 1993

KITRICH POWELL, Petitioner

v.

THE STATE OF NEVADA, Respondent.

On Writ of Certiorari

To the Supreme Court of Nevada

BRIEF FOR THE STATES OF UTAH, ARIZONA,

CONNECTICUT, HAWAII, IDAHO, KANSAS,

KENTUCKY, LOUISIANA, MASSACHUSETTS,

MONTANA, NEW JERSEY, OKLAHOMA, OHIO, AND

SOUTH CAROLINA, AS AMICI] CURIAE IN SUPPORT OF

RESPONDENT

JAN GRAHAM

Utah Attorney General

CAROL CLAWSON

Utah Solicitor General

J. KEVIN MURPHY

*Assistant Attorney General

236 State Capitol

Salt Lake City, UT 84114-0810

Telephone: (801) 538-1021

*Counsel of Record

(Other Counsel Listed on Inside Cover)

yi

"BEST AVAILABLE COPY;

No. 92-884]

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

KITRICH POWELL, Petitioner

v.

THE STATE OF NEVADA, Respondent.

On Writ of Certiorari

To the Supreme Court of Nevada

BRIEF FOR THE STATES OF UTAH, ARIZONA,

CONNECTICUT, HAWAII, IDAHO, KANSAS,

KENTUCKY, LOUISIANA, MASSACHUSETTS,

MONTANA, NEW JERSEY, OKLAHOMA, OHIO, AND

SOUTH CAROLINA, AS AMICI] CURIAE IN SUPPORT OF

RESPONDENT

JAN GRAHAM

Utah Attorney General

CAROL CLAWSON

Utah Solicitor General

J. KEVIN MURPHY

* Assistant Attorney General

236 State Capitol

Salt Lake City, UT 84114-0810

Telephone: (801) 538-1021

*Counsel of Record

(Other Counsel Listed on Inside Cover)

Honorable Grant Woods

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007

Honorable John M. Bailey

Chief State’s Attorney

State of Connecticut

340 Quinnipiac Street

Wallingford, Connecticut 06492

Honorable Robert A. Marks

Attorney General of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

Honorable Larry EchoHawk

Attorney General of Idaho

Statehouse Room 210

Boise, Idaho 83720

Honorable Robert T. Stephan

Attorney General of Kansas

Second Floor, Kansas Judicial Center

Topeka, Kansas 66612-1597

Honorable Chris Gorman

Attorney General of Kentucky

Capitol Building

Frankfort, Kentucky 40601

Honorable Richard P. leyoub

Attorney General of Louisiana

Department of Justice

P.O. Box 94005

Baton Rouge, Louisiana 70804-9005

Honorable Scott Harshbarger

Attorney General of Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

Honorable Joseph P. Mazurek

Attorney General of Montana

Justice Building

215 North Sanders

Helena, Montana 59620-1041

Honorable Fred DeVesa

Attorney General of New Jersey

Department of Law and Public Safety

Richard J. Hughes Justice Complex

25 Market Street

Trenton, New Jersey 08625-0086

Honorable Susan B. Loving

Attorney General of Oklahoma

State Capitol

2300 North Lincoln Blvd.

Room 112

Oklahoma City, Oklahoma 73105

Honorable Lee Fisher

Attorney General of Ohio

State Office Tower

17th Floor

30 East Broad Street

Columbus, Ohio 43215-3428

Honorable T. Travis Medlock

Attorney General of South Carolina

P.O. Box 11549

Columbia, South Carolina 29211

QUESTION PRESENTED

Amici, focusing on the end result sought by petitioner,

respectfully submit that the question presented is:

Did the Nevada Supreme Court correctly decline to

retroactively apply the Fourth Amendment exclusionary

remedy against statements made by petitioner, who received

a probable cause determination four days after his warrantless

arrest, given that the "McLaughlin" rule, announced while

petitioner's conviction was not yet final, requires a judicial

probable cause determination within forty-eight hours of such

an arrest?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI]

STATEMENT OF FACTS AND PROCEEDINGS

SUMMARY OF ARGUMENT

ARGUMENT

PETITIONER CANNOT INVOKE THE EXCLUSIONARY

REMEDY FOR THE FOURTH AMENDMENT "FORTY-

EIGHT HOUR RULE” VIOLATION THAT HE

ALLEGES

A. Powell Seeks to Suppress a Voluntary

Statement, Solely Upon Narrow, Fourth

Amendment "Prompt Probable Cause

Determination” Grounds.

B. Because the Challenged Judgment

Turned on State Law, Rather than the

Nevada Court’s Retroactivity Analysis,

This Certiorari Proceeding Should be

anata

S The Nevada Court’s Judgment Can be

Affirmed on the Ground that the

Exclusionary Remedy Should Not be

Applied Against Petitioner’s Post-

Arrest Statement.

4

2

Ie

(1) Compliance with Then-Existing Law. Ib | TABLE OF AUTHORITIES

(2) No "Flagrant" Misconduct, or CASES CITED

Causation. te)

Page

(3) No Future Deterrence, Wasteful Cost. 20)

: Brown v. Illinois, 422 U.S. 590 (1975)... ........ passim

D. This Court Should Articulate a Two-

Part, "Violation Plus Remedy" Caldwell v. Mississippi, 472 U.S. 320 (1985) ........ 13

Pleading Rule for Fourth Amendment-

Grounded Motions to Suppress Chambers V. Maroney, 399 U.S. 42 (1970) ree eeu es eee 22

Evidence. + ae

Chapman v. California, 386 U.S. 18 (1967) . Lee eeees 22

CONCLUSION 24

County of Riverside v. McLaughlin, _—_-*U.S. ___,

Fe ef ee passim

Deutscher v. State, 95 Nev. 669, 601 P.2d 407

(1979), vacated, US. __,111 S.Ct

re _

Gerstein v. Pugh, 420 U.S. 103 (1975). ........ passim

Griffith v. Kentucky, 479 U.S. 314 (1987)... .. 6, 10 12-14

- Illinois v. Gates, 462 U.S. 213 (1983). ............. 1]

Illinois v. Krull, 480 U.S. 340 (1987)......... 8, 16-17

Linkletter v. Walker, 381 U.S. 618 (1965).......... 12

Mapp v. Ohio, 367 U.S. 643 (1961). .......... 1, 10, 24

iV

Michigan v. DeFillippo, 443 U.S. 31 (1979) ... .8, 16, 17

Michigan v. Long, 463 U.S. 1032 (1983) ........ 13-23

Miranda v. Arizona, 384 U.S. 436 (1966)... . 3, 4, 11, 19

New York v. Harris, 495 U.S. 14 (1990)... ....... 8, 20

Payton v. New York, 445 U.S. 573 (1980).......... 20

Powell v. State, 108 Nev. 700, 838 P.2d 921

aa as oak 6 oe ee ee ae eae passim

Schall v. Martin, 467 U.S. 253 (1984)... 2.0.0.0... 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). ..... 1]

Soldal v. Cook County, __: U.S. ____, 113 S. Ct.

Or eer eT ER Tee ere eee 16

Stone v. Powell, 428 U.S. 465 (1976)...... 13, 20, 22-23

Tehan v. United States, 382 U.S. 406 (1966)....... 6, 12

United States v. Leon, 468 U.S. 897 (1984) ....... 21, 23

Weeks v. United States, 232 U.S. 383 (1914). ....... 1,2

Withrow v. Williams, _ U.S. __, 113 S. Ct.

oy Seo rece erent Cease 11

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

Oe eS rn passim

a sie vivsceceseuca suns 14

ee INS Cle i As wadlns os ccos cade 15

Nevada Revised Statute § 47.040 (1986)........... 15

_ Nevada Revised Statute § 171.178 (1986)........ passim

Nevada Revised Statute § 174.105 (1992)........... 15

Nevada Revised Statute § 174.125 (1992)........... 15

OTHER AUTHORITIES

Durham, The New Judicial Federalism and the Policy

Making Role of State Supreme Courts, 2 Emerging Issues

in State Constitutional Law 219 (1989)........ rere 14

vi

No. 92-8841

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

KITRICH POWELL, Petitioner

v.

THE STATE OF NEVADA, Respondent.

On Writ of Certiorari

To the Supreme Court of Nevada

BRIEF FOR THE STATES OF UTAH, ET AL., AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICI

Amici are states who, through their chief law

enforcement officers, seek to bring criminals to justice on the

strength of relevant evidence. Amici acknowledge a

concurrent obligation to honor the Fourth Amendment right

of all citizens to be free from unreasonable searches and

seizures.

The latter obligation is commonly enforced through

the judicially-created exclusionary remedy of Weeks v. United

States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643

(1961), whereby evidence obtained through Fourth

Amendment violations is suppressed from use at criminal

trials. Amici support a policy that reasonably limits that

remedy’s application to instances in which its purpose--the

deterrence of Fourth Amendment violations, is well worth its

cost--the loss of relevant evidence from criminal trials. In

this brief, submitted under Rule 37.5, Rules of the Supreme

Court of the United States, amici will demonstrate that no

such benefit can be achieved by the remedy’s application in

this case.

STATEMENT OF FACTS AND PROCEEDINGS

The Crime

The Nevada Supreme Court summarized the evidence

upon which Powell’s trial jury found him guilty of murder.

Over a period of about two months, Powell repeatedly

physically abused Melea Allen, the four-year-old daughter of

Powell’s girl friend. The last of these episodes severely

injured Melea’s head and neck, causing her to lapse into a

coma on November 3, 1989. At that time, Powell took Melea

to a Las Vegas hospital, where she died on November 8,

1989. Powell v. State, 108 Nev. 700, 838 P.2d 921, 923

(1992) (J.A. 2-21).

The Two Statements to Police

In finding Powell guilty, the jury heard, and

necessarily discredited, two statements in which Powell had

sought to exculpate himself. The statements were made

during two police interviews.

The first interview occurred at the hospital about an

hour after Powell arrived there with Melea on November 3.

The interview lasted about forty minutes, during which

Powell was twice allowed to leave, to smoke cigarettes (R.

814-16; 838 P.2d at 925, J.A. 7). In that pre-arrest interview,

Powell stated that Melea’s injury had been caused by an

accidental fall from his shoulders during the previous day.

He admitted that he occasionally spanked Melea to discipline

her, but denied otherwise striking her or intentionally injuring

her (838 P.2d at 924, J.A. 5; R. 814-16). At about 3:00 p.m.,

roughly an hour and a half after the interview, Powell was

arrested for child abuse (Br. for Petitioner, at 7).

November 3, 1989 was a Friday. Under Nevada

Revised Statutes section 171.178(3) (1986) (NRS 171.178),

described by the Nevada Supreme Court as a "timely

arraignment” rule, 838 P.2d at 925, J.A. 7, Nevada law

enforcement authorities were then permitted seventy-two

hours, exclusive of nonjudicial days, to bring an arrestee

before a magistrate. While he was not thus “arraigned” on

November 3, Powell acknowledges that an "arresting officer’s

declaration" form was completed that day, according to a date

stamp, within an hour after his arrest (Br. for Petitioner, at 7).

It is not known whether the "declaration of arrest" went

straightaway to a magistrate at that time.

On Tuesday, November 7--still within the "timely

arraignment" period of NRS 171.178--two police officers read

the jailed Powell his silence and counsel rights, per Miranda

v. Arizona, 384 U.S. 436 (1966). Powell waived those rights,

and a second interview commenced (838 P.2d at 925, J.A. 7;

R. 820, 3629-85).

During that post-arrest interview, Powell explained

Melea’s head and neck injuries consistently with his pre-arrest

statement: she had accidentally fallen from his shoulders, he

claimed, on the day before he brought her to the hospital (R.

827, 3646). Powell asserted that various other, older injuries

observed by medical personnel were caused by other, minor

accidents, and by his physical discipline of Melea (R. 3671-

78). He again denied that he had ever intended to injure

Melea (R. 3683-85).

Also on November 7, a magistrate found probable

cause to arrest Powell on the child abuse charge. It appears,

and for purposes of this Court’s review amici assume, that

this finding was made ex parte (838 P.2d at 924, J.A. 5).

The following day, after Melea died, the charge against

Powell was changed from child abuse to murder. On that

charge, Powell first appeared before a magistrate on

November 13, 1989 (Powell’s Opening Br. to Nevada

Supreme Court, at 1; R. 4888). That "arraignment" was

untimely under NRS 171.178.

The "Timely Arraignment" Argument

On appeal to the Nevada Supreme Court, Powell

complained of the NRS 171.178 “timely arraignment"

violation. He did not equate that violation to a Fourth

Amendment violation, or invoke the Fourth Amendment in

any way. And while he inaccurately asserted a violation of

Miranda v. Arizona, 384 U.S. 436 (1966), in connection with

one or both of his statements to police, he did not allege that

either statement was involuntary. Nevertheless, in conclusory

fashion, Powell argued that because of the NRS 171.178

violation, his “conviction should be reversed and the

Appellant should be set free" (Opening Br. to Nevada

Supreme Court, at 82-85; R. 4969-72).

The Nevada court rejected that sweeping demand,

determining that Powell’s pre-arrest statement was admissible

because it was voluntarily made, in a noncustodial setting.

838 P.2d at 925, J.A. 7 ("he was not coerced or involuntarily

detained in any way"). The court then held that Powell’s

November 7 post-arrest statement was also admissible because

under Nevada caselaw, the NRS 171.178 "timely arraignment"

requirement was waived when Powell, upon receipt of his

"Miranda" warnings, agreed to speak to the police without

counsel present. Jd, J.A. 6-7 (citing Deutscher v. State, 95

Nev. 669, 601 P.2d 407 (1979) (waiver of "Miranda" rights

also waives timely arraignment, at which defendant would be

informed of same rights), vacated on other grounds, __ U.S.

__, 111 S. Ct. 1678 (1991)). As with the pre-arrest

statement, the Nevada court found no record evidence that the

post-arrest statement was involuntary. Jd, J.A. 7 (referring

to both statements).

Importation of Fourth Amendment Issue

But before thus disposing of Powell’s state statute-

based argument, the Nevada court "initially note[d]" County

of Riverside v. McLaughlin, __ U.S. __, 111 S. Ct. 1661

(1991), in which this Court held that a judicial probable cause

determination must be made within forty-eight hours of a

warrantless arrest, including nonjudicial days. 838 P.2d at

924, J.A. 5. The McLaughlin "forty-eight hour" rule,

announced before Powell’s conviction was final, gave a

bright-line definition to this Court’s earlier holding, in

Gerstein v. Pugh, 420 U.S. 103, 125 (1975), that the subject

of a warrantless arrest must "promptly" receive a judicial

probable cause determination.

The Nevada court did not explain why it chose to

"note" McLaughlin. Nevertheless, it ruled that “(t]he

McLaughlin case renders NRS 171.178(3) unconstitutional

insofar that it permits an initial appearance up to seventy-two

hours after arrest and instructs that non-judicial days be

excluded from the calculation of those hours." 838 P.2d at

924, J.A. 6. That ruling evidently assumed that a post-arrest

probable cause determination, and the arrestee’s initial court

appearance or “arraignment,” would necessarily occur in the

same proceeding. The court stated: "Based on McLaughlin,

we hold that a suspect must come before a magistrate within

forty-eight hours, including non-judicial days, for a probable

cause determination." /d (emphasis added).

In a footnote, the Nevada court then explained that its

new, McLaughlin-based rule would not apply retroactively to

Powell’s case. This explanation was based upon a three-

factor retroactivity analysis set forth in Tehan v. United

States, 382 U.S. 406 (1966), that examines (1) the purpose of

the new rule; (2) the reliance on the prior, contrary rule; and

(3) the effect that retroactive application of the new rule

would have on the administration of justice. 838 P.2d at 924

n.1 (citing Tehan), J.A. 6. Emphasizing the third factor, the

Nevada court observed: “Were McLaughlin to be applied

retroactively, untold numbers of prisoners would be set free

because they were not brought before a magistrate within

forty-eight hours." /d.

Powell now assails the Nevada court’s non-

retroactivity decision as erroneous under Griffith v. Kentucky,

479 U.S. 314 (1987). Despite the mistaken retroactivity

analysis used by the Nevada court, amici will demonstrate

that, for a number of reasons, the court’s judgment, affirming

Powell's conviction, should not be disturbed.

SUMMARY OF ARGUMENT

Powell’s inconsistently-framed argument really asks

this Court to apply the Fourth Amendment exclusionary

remedy against the post-arrest statement he made to police,

and to reverse his conviction. Aside from the alleged

“prompt probable cause determination" violation, Powell

alleges no other official misconduct that might call the

admissibility of his post-arrest statement into question. The

initial validity of Powell's arrest is uncontested. Thus only

a quite narrow Fourth Amendment issue is presented.

On this issue, the Nevada court used an outmoded

analysis to determine that the McLaughlin "forty-eight hour

rule" for obtaining a probable cause determination should not

apply retroactively to Powell. Under current analysis (which

may arguably be inapplicable to this case), a new rule of

criminal procedure applies to all cases pending on direct

review, as was Powell's, when the rule is announced.

However, the Nevada Supreme Court’s mistake does

not compel relief from its judgment. As a threshold matter,

the structure of the Nevada court’s opinion reveals that its

discussion of McLaughlin, along with its retroactivity

analysis, was not dispositive of the appeal. The dispositive

issue was the one actually presented by Powell--a state

Statutory violation and the appropriate remedy for the

violation. Because the Nevada court decided that issue under

independent state law, federal question jurisdiction is absent,

and this Court should dismiss Powell's certiorari petition.

If jurisdiction is retained, the Nevada Supreme Court's

judgment can be affirmed on several alternative grounds that

were not identified by that court. Foremost among such

= ot.

grounds is the principle, found in Jllinois v. Krull and

Michigan v. DeFillippo, that when state authorities act in

conformity with law that has not yet been ruled

unconstitutional, suppression of evidence derived from such

action is inappropriate. Because Powell’s probable cause

determination was timely under then-existing statutory

guidelines and this Court’s pre-McLaughlin caselaw, Nevada

authorities did nothing that the exclusionary remedy should

deter, and Powell’s post-arrest statement was admissible under

the Fourth Amendment.

Next, as this Court held in Brown v. Illinois, even

when authorities violate the Fourth Amendment, subsequent

statements by a criminal suspect should not be suppressed if

the violation was not flagrant or designed to elicit the

statements. A similar “causation” analysis, in New York v.

Harris, holds that where probable cause to arrest is

established, error in the manner of making the arrest does not

require the exclusionary remedy. Such analysis of this case

demonstrates that Powell’s post-arrest statement was not

caused by, or the “fruit” of, any McLaughlin “forty-eight

hour” violation, and therefore was properly admitted at his

trial.

Further, use of the exclusionary remedy against

Powell’s post-arrest statement cannot advance deterrence of

future McLaughlin violations. The clarity of McLaughlin, by

itself, already serves as ample deterrence. It would also be

very difficult, at this late date, to resolve the factual

ambiguities necessary to prove a McLaughlin violation, and

whether such violation stems from law enforcement

misconduct or judicial error. A harmless error analysis--

appropriate were a remand granted to clarify the facts--would

probably defeat any prospect for a new trial. Therefore, an

evidentiary remand at this point would waste judicial

resources, and should not be granted.

The arguments for affirmance highlight the important

Fourth Amendment principle that a criminal defendant who

wishes to invoke the exclusionary remedy must do more than

merely prove some Fourth Amendment violation. He or she

must also demonstrate that the exclusionary remedy--not itself

a constitutional right--is appropriate under the circumstances

of the case. Re-articulation of this principle is needed to

guide future litigants and courts, and is urged by amici.

ARGUMENT

PETITIONER CANNOT INVOKE THE

EXCLUSIONARY REMEDY FOR THE FOURTH

AMENDMENT "FORTY-EIGHT HOUR RULE"

VIOLATION THAT HE ALLEGES

A. Powell Seeks to Suppress a Voluntary

Statement, Solely Upon Narrow, Fourth

Amendment "Prompt Probable Cause

Determination" Grounds.

The issue before this Court should be made clear.

Powell presents only a Fourth Amendment "prompt probable

cause determination” issue, under County of Riverside v.

McLaughlin, __ U.S. _, 111 S. Ct. 1661 (1991), regarding

the four-day interval between his warrantless arrest and the ex

parte, judicial probable cause finding that upheld the arrest.

Amici agree that Powell's "timely arraignment” right, and the

question of whether he waived that particular right (Br. for

Petitioner, at 19-23), are not before this Court. See

McLaughlin, 111 S. Ct. at 1668-71, and Gerstein v. Pugh,

420 U.S. 103, 122-25 (1975) (probable cause determination

and other pretrial proceedings, serving different functions,

may be combined or separate).

The relief sought by Powell should also be clarified.

In the conclusion to his brief, he formally asks only for a

remand to the Nevada Supreme Court “for further

proceedings" in light of McLaughlin and Griffith v. Kentucky,

479 U.S. 314 (1987) (Br. for Petitioner at 24). But Powell

elsewhere asserts--although in self-contradictory fashion--that

“reversal of the conviction,” and "the exclusionary remedy of

the Fourth Amendment or a remedy under state law" are

"require[d]" or “appropriate” for the allegedly unreasonable

delay in the probable cause determination after his arrest (Br.

for Petitioner, at 1, 8, 10, 11). Amici do not perceive this

Court to be at liberty to order an undefined "remedy under

state law" for the federal violation alleged by Powell.

The relief Powell actually seeks, amici believe, is the

federal, Fourth Amendment exclusionary remedy, suppressing

the statement he made to Nevada authorities during the

allegedly “unreasonable” delay before his probable cause

determination. See Mapp v. Ohio, 367 U.S. 643 (1961)

(evidence obtained by state authorities by violation of Fourth

Amendment is subject to exclusionary remedy); Brown v.

Illinois, 422 U.S. 590 (1975) (ordering suppression of

incriminatory statements given after an illegal arrest). Only

that post-arrest statement--not the pre-arrest statement taken

at the hospital--is encompassed in Powell’s argument (Br. for

Petitioner, at 8). Suppression of that "prejudicial" post-arrest

statement, Powell assumes, will require that he receive a new

trial.

10

Powell does not allege any other type of constitutional

transgression that might call the admissibility of his post-

arrest statement into question. The Nevada Supreme Court

found that Powell received and voluntarily waived his

"Miranda" rights before making that statement, and found no

indication that the statement itself was involuntary. 838 P.2d

at 925, J.A. 7.

Despite that uncontested finding, Powell broadly

alludes to the "oppressiveness” of "illegal custody,” and to the

detrimental "effect of prolonged detention upon the reliability

of statements elicited from a suspect" (Br. for Petitioner, at

11). However, Powell has never alleged that his post-arrest

Statement was in fact involuntary under the “totality of the

circumstances” analysis of Schneckloth v. Bustamonte, 412

U.S. 218, 223-27 (1973). Therefore, his evident attempt to

insinuate an “involuntariness" argument into this certiorari

proceeding should be rebuffed. Cf. Withrow v. Williams, __

U.S. __, 113 S. Ct. 1745, 1750-54 (1993) (distinguishing

values served by suppression of evidence under Fourth

Amendment, Fifth Amendment, and Due Process

voluntariness principles).

Finally, Powell does not argue that his arrest was

unsupported by probable cause. A magistrate did find such

probable cause, and that finding would be accorded great

deference even if Powell had contested it. JIlinois v. Gates,

462 U.S. 213, 236 (1983). The only “illegal custody” that

Powell alleges therefore began at roughly 3 p.m. on Sunday,

November 5--forty-eight hours after his warrantless arrest and

therefore exceeding the later-prescribed "reasonable delay"

period of McLaughlin. \t ended when, on November 7, the

magistrate found probable cause.

1]

In short, the issue presented by Powell is even

narrower than he admits (Br. for Petitioner, at 3). He

demands an exclusionary remedy against a voluntary

statement, made during a two-day period when his custody

would have been presumptively unreasonable under

McLaughlin, 111 S. Ct. at 1670. As follows, Powell's

demand should be rejected.

B. Because the Challenged Judgment Turned

on State Law, Rather than the Nevada

Court’s Retroactivity Analysis, This

Certiorari Proceeding Should be Dismissed.

As a threshold matter, this Court should reconsider its

grant of certiorari to review Powell's argument that the forty-

eight hour rule of McLaughlin ought to be retroactively

applied to his benefit. That argument, rejected by the Nevada

Supreme Court, was not dispositive of its ultimate judgment.

Powell has a _ well-supported point regarding

retroactivity. The retroactivity analysis of Tehan v. United

States, 382 U.S. 406 (1966), used by the Nevada Supreme

Court in this case, is identical to that of Linkletter v. Walker,

381 U.S. 618 (1965). That analysis has been supplanted by

Griffith v. Kentucky, 479 U.S. 314 (1987). Now, "a new rule

for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct

review or not yet final, with no exception for cases in which

the new rule constitutes a ‘clear break’ with the past.”

Griffith, 479 U.S. at 328. The Nevada court mistakenly

failed to recognize this.

The Nevada court’s mistake arguably demonstrates a

flaw in the Griffith rule, or at least a need to limit its reach.

12

The rule’s application to this case, as urged by Powell, might

compel retroactive appellate suppression of his post-arrest

Statement, and perhaps a new trial. This is unwarranted,

especially in a case like this one, where the alleged Fourth

Amendment error is wholly unrelated to the reliability of

trial. Sec Stone v. Powell, 428 U.S. 465, 489-91 (1976). To

avoid such a result, it could be argued that the McLaughlin

forty-eight hour requirement does not address the "conduct of

criminal prosecutions," and therefore falls outside the ambit

of the Griffith retroactivity rule. Cf. Gerstein v. Pugh, 420

U.S. 103, 122 (1975) (post-arrest probable cause

determination is not a "critical stage" in a prosecution).

But such argument need not be addressed, because the

Nevada Supreme Court’s retroactivity analysis was not

actually dispositive of Powell’s appeal. The dispositive

analysis was the NRS 171.178 “timely arraignment" analysis,

and was based entirely upon adequate, independent state law

grounds.

Amici are mindful of this Court’s preference for a

“plain statement” that a state court’s judgment rests upon

adequate and independent state law grounds. See Michigan

v. Long, 463 U.S. 1032, 1044 (1983). No such statement

appears in the Nevada court’s opinion. However, the "plain

Statement" rule only applies where the independent state

ground is not otherwise "clear from the face of the opinion."

Long, 463 U.S. at 1040-41; Caldwell v. Mississippi, 472 U.S.

320, 327 (1985). In this case, the structure of the Nevada

court’s opinion, and its silence as to any matter that might

have lifted the normal procedural bar to Powell’s McLaughlin

argument, make it clear that the court’s judgment rests upon

independent state law.

13

An alert reading of the opinion reveals that the

Nevada court did not regard any Fourth Amendment issue to

be properly before it. Instead, it "noted" McLaughlin in the

section of its opinion that bears the heading "Delay in

Appearing Before a Magistrate." 838 P.2d at 923, J.A. 4

(italics in original). That heading identifies the "timely

arraignment" issue that was actually advanced in Powell’s

briefs to that court (Opening Br. to Nevada Supreme Court,

at 82; Reply Br., at 1; R. 4969, 5107). The McLaughlin

discussion merely prefaced the dispositive analysis. That

analysis relied entirely upon state law, interpreting the "timely

arraignment" requirement of NRS 171.178, and defeated

Powell’s argument on appeal.

In other words, the Nevada court "noted" McLaughlin

in dictum or, at best, as an advisory opinion. While this

Court’s "case or controversy” jurisdiction, U.S. Const. Arr.

Il, § 2, counsels against such opinions, cf. Griffith, 479 U.S.

at 322, state courts may feel no such constraints. See

Durham, The New Judicial Federalism and the Policy Making

Role of State Supreme Courts, 2 Emerging Issues in State

Constitutional Law 219, 229 (1989) (noting absence of state

court “case or controversy" restrictions). Accordingly, the

Nevada court probably felt permitted, even obliged, to point

out what it perceived as a flaw in the state "timely

arraignment” statute.

Correspondingly, the Nevada court almost certainly

perceived, correctly, that Powell had waived any Fourth

Amendment argument under McLaughlin. In fact,

McLaughlin was decided on May 13, 1991-before either of

Powell’s state appellate briefs were filed, on October 10,

1991 and February 3, 1992, respectively (R. 4997, 5122).

Therefore, on appeal, Powell did not merely forfeit the issue

14

by default. Rather, Properly chargeable with awareness of

McLaughlin, he knowingly waived any appellate argument

under it.

Had the Nevada court deemed it central to the appeal,

one would expect its McLaughlin discussion to appear under

a separate heading, apart from the "timely arraignment”

violation actually argued by Powell. F urther, the court would

have specified its reason(s) for addressing an issue that had

been waived. Perhaps those reasons would have included the

“plain error" exception that Powell Suggests to this Court (Pet.

for Cert., at 2; Br. for Petitioner, at 16-18 & nn.).

The court did no such thing. Contrary to Powell’s

Suggestion, the Nevada court never cast its McLaughlin

discussion in terms of "error" at all--"plain" or otherwise.

Nor did it find a McLaughlin "violation" (ci. Br. for

Petitioner, at 4). Rather, the court merely expressed its view-

-albeit purporting to "hold," 838 P.2d at 924--that the NRS

171.178 “timely arraignment" statute ran afoul of

McLaughlin. The court never held that it meant to lift the

procedural bar of waiver--a bar that is an established

component of Nevada law. E.g., NRS § 47.040 (1986)

(Nevada "timely objection" rule, with "plain error" exception);

NRS §§ 174.105, 174.125 (1992). In short, the Nevada court

did nothing to make its discussion of McLaughlin dispositive

of its ultimate judgment.

Accordingly, this Court lacks federal question

jurisdiction, under 28 U.S.C. § 1257 (1988), to review the

Nevada Supreme Court’s judgment. This Court should

therefore dismiss Powell’s certiorari petition, as improvidently

granted.

15

ol The Nevada Court’s Judgment Can be

Affirmed on the Ground that the

Exclusionary Remedy Should Not be

Applied Against Petitioner’s Post-Arrest

Statement.

If this Court retains jurisdiction, the Nevada Supreme

Court’s mistaken retroactivity analysis still does not require

reversal of its judgment. A judgment can be affirmed upon

alternative grounds not identified by the court that entered it:

this can even be done by reversing an intermediate ruling

made en route to the judgment. Soldal v. Cook County, __

U.S. __, 113 S. Ct. 538, 543 n.6 (1992). In this case, there

are several alternative grounds upon which the Nevada court’s

judgment should be affirmed.

(1) Compliance with Then-Existing Law. This

Court has stated that "a conviction will not be vacated on the

ground that the defendant was detained pending trial without

a determination of probable cause." Gerstein v. Pugh, 420

U.S. 103, 119 (1975) (Br. for Petitioner, at 8). However,

even if it is assumed that a McLaughlin forty-eight hour

violation might require the exclusionary remedy and reversal

in some cases, that remedy is not appropriate in this case.

Under the principle embodied in JI/inois v. Krull, 480

U.S. 340, 349-50 (1987), and Michigan v. DeFillippo, 443

U.S. 31, 37-38 (1979), the exclusionary remedy does not

apply to evidence obtained by law enforcement conduct that

conforms to then-existing law. While Powell relegates this

principle to a footnote (Br. for Petitioner, at 12 n.7), it

provides the foremost ground for affirming the Nevada

court’s judgment.

16

In advancing this ground, amici indulge, as does

Powell (Br. for Petitioner, at 6), the Nevada court’s

assumption that at the time of Powell’s warrantless arrest,

judicial probable cause determinations in Nevada were subject

to the same time deadline as the "speedy arraignment"

provision of NRS 171.178. See 838 P.2d at 924, J.A. 6.

Powell’s judicial probable cause determination was made well

within that seventy-two hour deadline, excluding, as the

Statute permitted, the intervening weekend. Id., J.A. 5.

Because they obtained a probable cause determination

that was timely under their governing statute, and because

that statute had not yet been ruled unconstitutional, Nevada

authorities committed no error that justifies application of the

exclusionary remedy. Statutes are presumptively valid, and

law enforcement authorities are expected to follow them,

"until and unless they are declared unconstitutional.”

DeFillippo, 443 U.S. at 37-38. The only "possible exception"

to this principle is adherence to "a law so grossly and

flagrantly unconstitutional that any person of reasonable

prudence would be bound to see its flaws." Id.; accord Krull,

480 U.S. at 349-50.

By no stretch of imagination could NRS 171.178 be

deemed "grossly and flagrantly unconstitutional" at the time

of Powell’s 1989 arrest. In fact, both the statute and the

actual timing of Powell’s probable cause determination

conformed to a pre-McLaughlin statement by this Court,

Suggesting that a delay of five days between a warrantless

arrest and a judicial probable cause determination was

permissible. See Schall v. Martin, 467 U.S. 253, 277 n. 28

(1984) (citing Gerstein, 420 U.S. at 124 n. 25). Further, in

Gerstein, 420 U.S. at 123, this Court had “recognize[d] the

desirability of flexibility and experimentation by the States"

17

ee a

in providing prompt probable cause determinations, and

meeting other pretrial requirements, for warrantlr ss arrestees.

NRS 171.178 certainly did not overextend the

flexibility that this Court granted in Gerstein. Because

Nevada authorities complied with the law as it then existed--

eighteen months before the McLaughlin forty-eight hour rule

was announced, they committed no "misconduct" that the

exclusionary remedy should deter.

(2) No "Flagrant" Misconduct, or Causation. In

Brown v. Illinois, 422 U.S. 590 (1975), this Court rejected a

"but for" or "per se" analysis for application of the

exclusionary remedy against a statement made after an

improper arrest. 422 U.S. at 603. The correct analysis, the

Court held, looks at the temporal proximity of the arrest and

the statement, the presence or absence of intervening

circumstances between the arrest and the statement, "and,

particularly, the purpose and flagrancy of the official

misconduct." Jd. at 603-04 (emphasis added). In this case,

even if a McLaughlin violation was committed, as Powell

insists (Br. for Petitioner, at 4), it would not, under Brown,

justify suppression of his post-arrest statement.

The "temporal proximity” factor does not fit this case

very well, because the McLaughlin forty-eight hour violation

alleged by Powell was not a circumscribed event, like the

illegal arrest in Brown. Rather, that post-arrest "violation"

lasted about two days, until probable cause to arrest Powell

was confirmed by the magistrate, and appears to have

encompassed the time when Powell made the statement in

question.

18

Again, however, there is no evidence that Powell was

subjected to unusually coercive police conduct at any time

during his post-arrest confinement. This gives rise to a

significant "intervening circumstance” under Brown. Powell

makes no claim that he misunderstood his "Miranda"

warnings, given just before making his post-arrest statement.

Accordingly, those warnings should have accomplished their

purpose: dispelling the inherently "compelling atmosphere"

in which the statement was made. See Miranda v. Arizona,

384 U.S. 436, 465 (1966). Therefore, on the facts of this

case, Powell's waiver of "Miranda" rights was a powerful--

perhaps conclusive--intervening circumstance between the

alleged McLaughlin violation and his post-arrest statement.

Cf. Brown, 422 U.S. at 603 (warnings alone may not dispel

"taint" of Fourth Amendment misconduct).

The "purpose and flagrancy" factor, holding

“particular” importance under Brown, weighs even more

heavily against suppression of Poweli’s statement. There is

no evidence that Nevada authorities, who had probable cause

to arrest Powell in the first place, delayed the judicial

probable cause determination beyond the not-yet-announced

McLaughlin deadline with the purpose of thereby extracting

a staternent from Powell. That delay can hardly be viewed as

“calculated to cause surprise, fright, and confusion,” as this

Court characterized the at-gunpoint arrest, unsupported by

probable cause, that took place in Brown. 422 US. at 596,

606. And the Nevada authorities certainly cannot be faulted

for failing to predict that long after Powell's arrest, they

would be held to a new promptness standard for obtaining a

post-arrest probable cause determination. Thus Powell's

claim of a "flagrant" Fourth Amendment violation (Pet. for

Cert., at 6) must fail.

19

In like fashion, this Court reversed a state court order

to suppress an arrestee’s statement in New York v Harris, 495

U.S. 14 (1990), because it had not been caused by a

preceding Fourth Amendment violation. While having

probable cause, officers in Harris had violated the Fourth

Amendment by entering the suspect's home, without consent.

to make a warrantless arrest. /d. at 16-17 (citing Payton v

New York, 445 U.S. 573 (1980)). This Court held that the

statement in question, made after the arrestee was removed to

the police station and upon waiver of "Miranda" rights, was

not "the fruit of having been arrested in the home rather than

someplace else.” /d. at 19.

Similarly, in this case, Powell's post-arrest statement

to the Nevada police was not caused by the delay in his

judicial probable cause determination. He had given a

substantially identical, voluntary pre-arrest statement, in

which he denied wrongdoing. There is no sign, had his post-

arrest interview occurred within the later-announced

McLaughlin deadline, that Powell would have passed on the

opportunity to repeat that denial. In the terms of Harris, the

Statement in question was not the “fruit” of interviewing

Powell on November 7, rather than on November 5.

(3) No Future Deterrence, Wasteful Cost. Perhaps

Powell's vague prayer for relief reflects a desire to remand

this case back to the Nevada courts, to decide whether

application of the exclusionary remedy against his post-arrest

statement is required. No such remand is appropriate. If

Powell were granted suppression upon such remand, it would

have no meaningful deterrent effect against future “forty-eight

hour" McLaughlin violations—deterrence that is the prime

purpose of the Fourth Amendment exclusionary remedy

Stone v. Powell, 428 U.S. 465, 492 (1976).

20

_— Oe ee

Amici believe that the McLaughlin rule, by itself,

deters future violations. The rule gives a bright-line meaning

to this Court's prior holding, in Gerstein v. Pugh, 420 U.S.

103 (1975), that the subject of a warrantless arrest must

receive a "prompt" judicial probable cause determination.

With a bright-line standard now in place, future "promptness”

violations should be quite rare. Future violations will be

further deterred by the mere prospect that when an arrestee is

held beyond forty-eight hours without a probable cause

ruling, the responsible authorities will be haled into court to

explain themselves. McLaughlin, 111 S. Ct. at 1670.

Suppressing Powell's statement, because of the long-past

“violation” in this case, would not meaningfully enhance the

built-in deterrence of McLaughiin.

Against a non-existent deterrent benefit, the cost of a

remand would be excessive and, for Powell, probably futile.

Despite Powell’s protestations (Br. for Petitioner, at 3-4), no

“finding” of a McLaughlin violation was made. In fact, if the

November 3, 1989 date stamp on the “declaration of arrest”

notice of Powell’s arrest, there would be no such violation--or

at least not one attributable to law enforcement authorities.

At most, there would be judicial delay in reviewing the arrest.

The exclusionary remedy, aimed only at law enforcement

misconduct, not judicial error, would therefore not apply.

United States v. Leon, 468 U.S. 897, 916-17 (1984).

If law enforcement-caused delay were presumed, it

would still be necessary to explore whether "bona fide”

powerful reasons justified or excused the delay. McLaughlin,

111 S. Ct. at 1670 (delay past forty-eight hours only raises

presumption of "prompt probable cause determination”

violation). This would be a difficult, costly task, given the

years that have elapsed since the events in dispute. That cost

would not be worth the non-existent benefit that would be

achieved were a "48 hour” violation confirmed on remand.

Cf. Stone v. Powell, 428 U.S. at 493.

Even if Powell did show that suppression was

appropriate, it would seem only fair to re-examine, upon

remand, the Nevada Supreme Court's unanalyzed, rather

offhand assertion that the post-arrest statement in question

was “clearly prejudicial.” 838 P.2d at 924, J.A. 5. That

assertion actually referred to both Powell's pre-arrest and

post-arrest statements. Because the former statement was not

subject to suppression, the admission of the substantially

identical post-arrest statement was, in all probability, harmless

beyond a reasonable doubt. See Chambers v. Maroney, 399

U.S. 42, 52-53 (1970) (erroneous failure to suppress evidence

for Fourth Amendment violation can be harmiess); Chapman

v. California, 386 U.S. 18, 20-24 (1967).

In sum, under this Court’s sound precedent and the

particular circumstances of this case, the cost of suppressing

Powell’s post-arrest statement, or of finding the facts that

might justify suppression, fails to justify the paltry deterrent

"forty-eight hour” violations. On this basis, the Nevada

Supreme Court's judgment should be affirmed.

D. This Court Should Articulate a Two-Part,

"Violation Plus Remedy" Pleading Rul: for

Fourth Amendment-Grounded Motions to

Suppress Evidence.

The foregoing argurnents for affirmance highlight an

important Fourth Amendment principle: A criminal

defendant, wishing to suppress probative evidence, cannot

succeed by merely proving that the evidence was obtained in

connection with some Fourth Amendment violation. Instead,

suppression depends upon a showing that the exclusionary

remedy--not itself a constitutional right--is appropriate under

the circumstances of the case. See Stone v. Powell, 428 U.S.

465, 486 (1976); United States v. Leon, 468 U.S. 897, 905-13

(1984). Amici endorse this principle.

All too often, however, this principle seems lost upon

both litigants and the courts that adjudicate Fourth

Amendment issues. In this case, for example, the Nevada

court appears to have assumed, without analysis, that the

exclusionary remedy would necessarily attend any "forty-eight

hour" violation under McLaughlin. See 838 P.2d at 924 n.1,

J.A. 6. Powell apparently wishes to promote this assumption

of “automatic suppression" whenever a Fourth Amendment

violation is shown.

This Court should re-articulate, in no uncertain terms.

that this assumption is false. A two-part, "violation plus

remedy” showing is required. This is, in essence, a rule of

Fourth Amendment pleading.

Properly observed, this rule has the desired effect of

targeting, for the exclusionary remedy, the kind of intentional

Fourth Amendment violations against which all citizens

23

should be protected. After all, Brown v. Illinois, 422 U.S.

590 (1975), teaches that “flagrant” violations are the proper

target of that remedy. Mapp v. Ohio, where the remedy was

held applicable to the states, similarly involved deliberate

disregard of Fourth Amendment rights. 367 U.S. 643, 644-45

(1961). No such deliberate violation occurred in this case.

CONCLUSION

The state court judgment at bar rested entirely upon

state law grounds, and is not subject to review by this Court.

Further, there are powerful alternative reasons to affirm the

Nevada Supreme Court’s judgment. Accordingly, by

dismissal of certiorari or by affirmance, that judgment should

be left intact.

JAN GRAHAM

Utah Attorney General

CAROL CLAWSON

Utah Solicitor General

J. KEVIN MURPHY

Assistant Attorney General

(Counsel of Record)

DECEMBER 1993

24