Opposition Brief — Bagley v. United States

“HUGHES ANDERSON BAGLEY, JR., PETITIONER

ag Cena UNITED STATES OF AMERICA

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ON PETITION FOR A WRIT OF CERTIORARI

ae ~.10 THE UNITED STATES COURT OF APPEALS

agers "| FORTHE RIGHTH CIRCUIT

_ BRIEF FOR THE UNITED STATES IN OPPOSITION

2 ee KENNETH W. STARR

he | _ ~~ Acting Assistant Attorney General

JOEL M. GERSHOWITZ

5 eee i _ Department of Justice

Be Washington, D.C. 20580

ae & es i. (202) 514-2217

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QUESTION PRESENTED

Whether petitioner was entitled to expungement

of the records of his arrest and indictment for re-

ceipt of weapons by a convicted felon where the dis-

trict court suppressed the weapons as the products of

an illegal search and the indictment was subsequently

dismissed. —

(I)

A

TABLE OF CONTENTS

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SS REST A 1

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3

6

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

One 1958 Plymouth Sedan v. Pennsylvania, 380

at a a 6

Rogers v. Slaughter, 469 F.2d 1084 (5th Cir.

SAS EEE ISIS OD 3

United States v. Calandra, 414 U.S. 338 (1974).... 6

United States v. Friesen, 853 F.2d 816 (10th Cir.

De ROR IR ESE Re eal 3

United States v. Linn, 513 F.2d 925 (10th Cir.),

cert. denied, 423 U.S. 836 (1975) ........................ 3,4

United States v. McMains, 540 F.2d 387 (8th Cir.

er sesbasabeqpnvvioniiinsoan 3

United States v. Schnitzer, 567 F.2d 536 (2d Cir.

1977), cert. denied, 4235 U.S. 907 (1978) —.......... 3,4

Constitution and statutes:

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EERE Te ae a 2

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I A an cesiansndenennannesiinns 2

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(IIT)

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-125

HUGHES ANDERSON BAGLEY, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH Clu Cult

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW -

The opinion of the court of appeals (Pet. App. 19-

25) is reported at 899 F.2d 707. The judgment of

the district court (Pet. App. 1-18) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on March 14, 1990. A petition for rehearing was de-

- nied on April 19, 1990. Pet. App. 26: The petition

for a writ of certiorari was filed on July 18, 1990.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

As part of an ongoing criminal investigation,

law enforcement officers arrested petitioner and ac-

quired a locked briefcase belonging to him. They

opened the briefcase without obtaining a search war-

rant and discovered two handguns inside. Pet. App.

19-20. A grand jury indicted petitioner, charging

him with receipt and possession of firearms by a

previously convicted felon, in violation of 18 U.S.C.

922(g)(1)' and 18 U.S.C. App. 1202(a) (1982).

Petitioner moved to suppress the guns on the ground

that they were seized in the course of an illegal

search. The district court granted the motion and,

on the government’s motion, dismissed the indictment.

Pet. App. 19-20. Following the dismissal, petitioner

moved for the expungement of all the records of his

arrest and indictment. The district court denied the

motion. Pet. App. 1-13.

Petitioner appealed. The court of appeals weighed

the government’s need to retain the records for ef-

fective law enforcement purposes against the harm

to petitioner caused by the retention and concluded

that the district court did not abuse its discretion by

declining to order expungement. Pet. App. 21-22.

The court found that petitioner’s arrest information

and indictment constituted “valuable law enforce-

ment records,” Pet. App. 22, and that petitioner

had failed to show that the government would misuse

the records or that he would otherwise suffer serious

adverse consequences if the records were retained,

Pet. App. 23. In rejecting petitioner’s argument

that expungement of the records was required by the

1 The indictment alleged a violation of 18 U.S.C. 922(h) (1),

but that appears to be a typographical error; the conduct

described in the indictment violates 18 U.S.C. 922(g) (1).

3

Fourth Amendment exclusionary rule, the court ex-

plained that the requirements of the exclusionary

rule were met when the district court barred the

government from using the weapons as evidence at

trial. Pet: App. 22-23.

ARGUMENT

Petitioner renews his contention that the records

of his arrest and indictment should be expunged.

The court below properly rejected this fact-bound

claim; it merits no further review.

Expungement is a remedy that lies within the

equitable discretion of the district court, and “relief

usually is granted only in ‘extreme circumstances.’ ”’

United States vy. Schnitzer, 567 F.2d 536, 539 (2d

Cir. 1977), cert. denied, 435 U.S. 907 (1978): see

also United States v. Friesen, 853 F.2d 816, 817-818

(10th Cir. 1988); United States v. McMains, 540

F.2d 387, 389, 390 (8th Cir. 1976); Rogers v.

Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972). In

determining whether such circumstances are present,

courts have balanced the government’s interest in re-

taining arrest records against the harm to the de-

fendant that retention of the records may cause.

Schnitzer, 567 F.2d at 539; United States v. Linn,

513 F.2d_925, 927 (10th Cir.), cert. denied, 423 U.S.

836 (1975).

The courts below correctly struck the balance in

this case against expungement. The retention of ar-

rest records serves the important function of prec-

moting effective law enforcement. Such records help

to meet the “ ‘compelling public need for an effective

and workable criminal identification procedure.’ ” *

2In any particular case, the court must consider not only

the government's need to maintain a specific arrest record; in

addition, “the genera! need of the government for a system of

4

Schnitzer, 567 F.2d at 539. Congress explicitly rec-

ognized this need in 28 U.S.C. 534(a), which re-

quires the Attorney General to acquire and retain

criminal identification and crime records.

-While an arrest record can give rise to adverse

consequences for the person arrested, see, ¢.9.,

Schnitzer, 567 F.2d at 539, petitioner has failed in

this Court or in the courts below to point to any

particular harm that he would suffer if the govern-

ment retained his records. See Pet. App. 23; see, ¢..,

Linn, 513 F.2d at 928. Nor has he explained how

retention of the records will add significantly to the

potential for harm already created by his previous

criminal records. Pet. App. 12.

Petitioner does not claim that he was a victim of

police harassment, that his conviction was sought for

illegal purposes, that the government will misuse the

retained records, or any other special circumstance

necessitating expungement in this case. And, of

course, in dismissing the indictment, the government

did not concede petitioner’s innocence; to the con-

trary, the court of appeals correctly noted that “[pe-

titioner’s] guilt is clear apart from the intervention

of the exclusionary rule.” Pet. App. 22.

In fact, as both courts below e®served, this case is

indistinguishable “from every other case where sup-

pression of a key piece of evidence results in the dis-

missal of the case,” Pet. App. 12, and “ ‘it [is] diffi-

cult to imagine that expun[ction], a remedy to be

used in extreme circumstances, should be exercised

every time a case is dismissed because evidence is

suppressed.’” Pet. App. 24 (quoting district court).

Indeed, as the court of appeals observed, Pet. App.

records must add considerable weight to the government side

of the balance.” Schnitzer, 567 F.2d at 540 n.6.

5

23, “[a]lthough mistaken and unlawful, the officers’

actions in this case were not taken in flagrant viola-

tion of the fourth amendment.” The exclusionary

rule served the function in this case for which it was

designed: it prohibited the government from using

against petitioner at trial evidence that was obtained

in violation of petitioner’s Fourth Amendment rights.

Accordingly, as the court of appeals observed, “| peti-

tioner] received his fourth amendment remedy when

the district court suppressed [his] weapons for trial

purposes.” Pet. App. 22-23.° The exclusionary rule

requires no more.

In any case, we doubt the validity of petitioner’s

premise that the retention of arrest records in these

circumstances significantly threatens the deterrent

function of the exclusionary rule. It is improbable

that a police officer would engage in conduct he knew

to be illegal, risking a civil action for damages and

departmental disciplinary measures, for the sole pur-

pose of creating records. But even assuming that

some incremental deterrence would be obtained by

requiring expungement of the records produced as a

result of a Fourth Amendment violation, the maxi-

mization of deterrence has never been this Court’s

sole touchstone in deciding whether to apply the ex-

clusionary rule or other sanction to a particular class

of case. Rather, in recognition of the costs imposed

by the exclusionary rule, the Court has restricted the

application of the rule “to those areas where its re-

medial objectives are thought most efficaciously

* Contrary to his assertion, Pet. 10, the cases cited by

petitioner do not conflict with the result in this case. None

of the cases concerned application of the exclusionary rule, or

a consideration of whether the remedy dictated by that rule

should include expungement of records.

6

served.” United States v. Calandra, 414 U.S. 338,

348 (1974). The negligible amount of additional de-

terrence that might conceivably result from expunge-

ment does not justify its adoption in the ordinary

4

case.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Acting Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

OCTOBER 1990

Nor is petitioner helped, see Pet. 19-22, by the fact that

the exclusionary rule applies to forfeiture proceedings. See

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693

(1965). A forfeiture is “clearly a penalty for [a] criminal

offense,” id. at 701; maintenance of arrest records is not.

WU. S. GOVERNMENT PRINTING OFFICE, 1990 262203 20144

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