Reply — Arizona v. Peterson

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

—— oe

FILED

OCT 26 1992

BRACE OF THE CLERK

NO. 92-490 (4)

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF ARIZONA,

Petitioner,

-VS-

FLOYD ORVILLE PETERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS

REPLY TO BRIEF IN OPPOSITION

GRANT WOODS

Attorney General of

the State of Arizona

PAUL J. MCMURDIE

Chief Counsel

Criminal Appeals Section

JACK ROBERTS

Assistant Attorney General

(Counsel of Record)

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4686

Attorneys for PETITIONER

TABLE OF CONTENTS

TABLE OF AUTHORITIES

FACTS

CONCLUSION

TABLE OF AUTHORITIES

Cases Page

United States v. De Leon-Reyna

930 F.2d 396 (5th Cir. 1991) 9,10,13

United States v. Leon

468 U.S. 897 (1984) er

United States v. Stevens

509 F.2d 683 (8th Cir. 1975) as ie ee

United States v. Towne

870 F.2d 880 (2d Cir. 1989) 9,13

Whiteley v. Warden

401 U.S. 560 (1971) a ee ee ee & |

Authorities

United States Constitution

Fourth Amendment 8

nah

FACTS

While not directly questioning the

reasonableness of Detective Moreno's

actions after he checked with Flagstaff

police and determined they had a copy of

the arrest warrant in their files as well

as in the computer, Respondent implies

that Moreno should also have checked with

the Justice Court that issued the warrant

before arresting him. (Brief in

Opposition at 2.) Petitioner pointed out

at page 6 of the Petition that Detective

Moreno discovered the existence of the

arrest warrant at 5:00 p.m. The Justice

Court was closed.

Petitioner emphasizes that the

administrative mistake that occurred here

was exactly that: a mistake. Reentry of

the warrant into the police computer

could not have been a pretext for

arresting Respondent because reentry

occurred almost 7 months before

Respondent committed the burglary in

September 1987.

Whiteley v., Warden

Respondent contends that “expanding”

the good-faith exception of United States

v. Leon to cover the instant case "flies

squarely in the face of the legal

premise” in Whiteley. (Brief in

Opposition at 4.) Petitioner disagrees.

Sheriff Ogburn of Carbon County,

Wyoming, signed a complaint before a

justice of the peace that contained

absolutely nothing except Ogburn's

conclusion that Harold Whiteley and Jack

Daley committed burglaries the day

before. Whiteley v. Warden, 401 U.S.

560, 562-63 (1971). The justice of the

peace issued an arrest warrant. On the

basis of the complaint and warrant,

Sheriff Ogburn issued a state-wide radio

bulletin for the arrest of Daley and

ott

Whiteley. Id. at 563-64. Relying upon

that bulletin, Laramie police arrested

Daley and Whiteley. A search of the car

revealed tools and old coins taken in the

burglaries. Id. at 563. The prosecution

used this evidence. Id. at 56l.

In deciding Whiteley, this Court's

first conclusion, apparently undisputed

by the State of Wyoming, was that Sheriff

Ogburn's complaint was a mere conclusion

devoid of any facts to support probable

cause for the issuance of the arrest

warrant. Id. at 564-65. The Court

rejected the contention that Laramie

police independently possessed sufficient

information for probable cause to

arrest. Id. at 565-67.

Wyoming made one more argument: the

Laramie police reasonably assumed that

whoever authorized the bulletin had

probable cause to seek the arrest of

Daley and Whiteley. Id. at 568. This

Court said:

We do not, of course, question

that the Laramie police were

entitled to act on the strength of

the radio bulletin. Certainly

police officers in executing

arrest warrants are entitled to

assume that the officers

requesting aid offered the

magistrate the information

requisite to support an

independent judicial assessment of

probable cause. Where, however,

the contrary turns out to be true,

an otherwise illegal arrest cannot

be insulated from challenge by the

decision of the instigating

officer to rely on fellow officers

to make the arrest.

401 U.S. at 568. This Court was saying

that where in fact there never was

probable cause to support issuance of the

arrest warrant, the reliance of the

arresting officer on the issuance of the

warrant would not suffice to permit

introduction of the evidence.

This Court decided Whiteley 13 years

before United States v. Leon and before

the widespread use of computers in =

enforcement. Whiteley had nothing to do

with the good-faith exception the Court

considered in Leon. On the basis of

affidavits, the officer in Leon obtained

a facially valid search warrant. 468

U.S. at 902. A reviewing court later

determined that the information in the

affidavits was insufficient to establish

probable cause, recognized the good faith

of the officer who relied upon the

magistrate's issuance of the warrant, but

refused to create a good-faith exception

to the exclusionary rule. Id.

at 903-04.

Carving out an exception to the

exclusionary rule, this Court said that

"the officer's reliance on the

magistrate's probable-cause

determination, and on the technical

sufficiency of the warrant he issues,

must be objectively reasonable." Id.

at 922. Immediately after that statement

the Court included a footnote clarifying

that “officer” should be read to include

not only those who executed the warrant,

but also those who originally obtained it

Or provided information material to the

probable-cause determination. Id. at 923

n.24. The Court's reference to Whiteley

v. Warden was in footnote 24. The

Citation to Whiteley appears limited to

those situations where the officer

obtaining the warrant presented only a

"bare-bones" affidavit, then relied on

the ignorance of his fellow officers to

make the search.

Respondent's argument is that the

arrest warrant had been recalled (he

terms it “invalid"), so it made no

difference how the warrant got back into

the computer or how reasonable Detective

Moreno's reliance was on the information

he obtained from the Flagstaff Police

Department. That contention misses the

Crux of Leon, which is the objectively

reasonable behavior of the officer under

all the circumstances. It was a fact in

Leon that the affidavits did not

establish probable cause for the search

eiie

Warrant -- but this Court recognized an

exception nonetheless. A key distinction

between this case and Whiteley is that

Respondent has never questioned that the

magistrate who originally issued the

arrest warrant had probable cause to do

SQ. Respondent below never made any

contention that the officer who

Originally sought the arrest warrant

presented false information or a

bare-bones affidavit incapable of

establishing probable cause. The

adminstrative mistake by which the

warrant was reentered into the computer

did not invalidate the Original

conclusion of probable cause to issue the

warrant.

The “collective knowledge" premise that

Respondent draws from Whiteley may be

properly applied when the officer seeking

the warrant presents false information or

only conclusory allegations to the

magistrate -- as Sheriff Ogburn did in

aSa

Whiteley. However, under Leon that

concept is inappropriate as a basis for

Suppression when probable cause did exist

and police made the arrest on the basis

of a mistaken reéntry of the Warrant into

the computer system. Petitioner reminds

the Court that Respondent below never

argued, and no state court found, that

the Flagstaff police maliciously

reentered the recalled Warrant, or that

the Flagstaff police exhibited a

continuing pattern of negligent conduct

resulting in repeated mistakes involving

warrants.

In short, Respondent's position is that

whenever the police, as Opposed to the

magistrate, make any kind of mistake, the

Fourth Amendment mandates Suppression of

inherently reliable Physical evidence.

This Court did not Say that in Leon and

Should take this case to make that clear.

Federal Circuits

Respondent says that, with the exeption

of one circuit case, there is no

disagreement about suppression of the

evidence in circumstances of this kind.

Clearly the Second Circuit refused to

Suppress the evidence in a case in which

at least the conduct of the New Hampshire

authorities “in maintaining the arrest

warrant could have been found to warrant

Suppression. United States v. Towne, 870

F.2d 880 (2d Cir. 1989), cert. denied,

490 U.S. 1101 (1990). Although Towne may

stretch the limits of Leon -- with

indications of deliberate misconduct not

present in this case -- the Second

Circuit properly focused on the

objectively reasonable reliance of the

arresting officer on the outstanding New

Hampshire warrant.

Respondent has misread the Fifth

Circuit's en banc holding in United _

States v. De Leon-Reyna, 930 F.2d 396 (5th

Cir. 1991) (en banc). Respondent states at

page 7 of the Brief in Opposition that the

Fifth Circuit upheld the warrantless stop

and arrest because "any one of the above

factors would have given .. . enough

probable cause to stop the welding truck."

The district court granted De Leon-Reyna's

motion to suppress. The district court

concluded that without “the putative false

registration . . ., the remaining

circumstances do not justify a stop." 930

F.2d at 398. Moreover, the district court

found that the Border Patrol Agent's

failure to use code words to communicate

the license plate numbers created the error

leading to the erroneous information

relayed to him by the dispatcher. Id. A

panel of the Fifth Circuit affirmed,

finding insufficient reason for an

investigatory stop once the erroneous

license plate information was excluded.

Id. at 399.

=) =

The Fifth Circuit en banc clearly held

that the Border Patrol Agent's good-faith

reliance on the license report information,

"as forming a part of the total

circumstances he evaluated in determining

whether to stop the vehicle, was

objectively reasonable ...." Id. at

399. Although in dictum the Fifth Circuit

hinted that the stop may not have violated

the Fourth Amendment even without the

erroneous license plate information, that

court specifically stated that it was

deciding the case “on the Leon-Williams

exception to the exclusionary rule without

determining that the stop violated the

Fourth Amendment ... ." Id. at 401 n.5.

After Whiteley, but prior to Leon, the

Eighth Circuit upheld the search of a

defendant and the vehicle in which he was

riding on the basis of computer information

that had not been timely updated. In

United States v. Stevens, 509 F.2d 683 (8th

O_O e6V~~7~7~"7—7—o—mOoOoOeOeeeeee aa...

Cir.), cert, denied, 421 U.S. 989 (1975),

two St. Louis officers observed several

traffic violations committed by the driver

of a car in which Lawrence Stevens was a

passenger. They stopped the car. Upon

learning that the driver had no license,

they ran a license check and learned that

the car was wanted in connection with a

burglary committed 3 weeks earlier. 509

F.2d at 686. Subsequently, the police had

all occupants get out of the car. Ina

pat-down frisk, an officer found a shotgun

shell in Stevens' pocket. A second officer

removed a sawed-off shotgun from beneath

the seat where Stevens had been Sitting.

Id. Evidence at the suppression hearing

established that the "wanted" label on the

Car (in connection with the burglary)

should have been removed from the police

computer before the officers Stopped the

car -- but it was not. Id. n.2. The

Eighth Circuit upheld the search of Stevens

alta

and the car on the basis of the somewhat

Stale computer information. Id. at 687-88.

Towne, De Leon-Reyna, and Stevens show

that at least three federal circuit courts

-- one sitting en banc -- have extended the

reasoning of Leon to circumstances

involving good-faith reliance upon computer

information even when, in one case (De

Leon-Reyna), the agent made the mistake

that resulted in his receiving erroneous

license plate information. Thus, the

disagreement with the Arizona Court of

Appeals is not limited to just one court,

as Respondent would have the Court believe.

State Courts

At page 14 of the petition, Petitioner

cited one state Supreme court case and

three appellate cases from other states

that disagree with the reasoning of the

Arizona Court of Appeals. The amicus brief

filed on October 14 contains additional

alto

Citations at pages 4 and 5 to state

appellate cases, some in accord with the

the Arizona Court of Appeals, and some not

in accord.

CONCLUSION

At least three federal circuit courts,

one state supreme court, and three other

state appellate courts have reached a

conclusion diametrically opposed to that of

the Arizona Court of Appeals. Several

other state supreme courts are in agreement

with the reasoning of the Arizona appellate

court. The State of Arizona believes that

this division in authority, which does

exist despite Respondent's attempt to

minimize it, and the indisputable fact that

the same kind of mistake is bound to recur

in this computerized age, warrants the

Court's exercise of discretion in reviewing

this case.

Petitioner respectfully asks the Court to

grant certiorari and to reverse the Arizona

Court of Appeals.

Dion

aAA.

DATED this as day of October, 1992.

Respectfully submitted,

GRANT WOODS

Attorney General