Amicus Curiae Brief — Adams v. Williams

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--IN THE

Supreme Court nf the United |

_OcroBER TERM, ‘1971

- No. 70-283

RODAK, IROL

| _ FREDERICK E. Apams, . Tg eg

2° 2S 7 oF * Petitioner,

_—V | .

Rosext WILLIAMS, | .

: . Respondent.

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ON WRIT OF CERTIORARI TO THE UNITED — COURT OF

APPEALS FOR THE SECOND CIRCUIT. ;

- «a.

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR LEAVE TO FILE BRIEF. AMICUS.

“3 CURIAE; BRIEF 4MICUS CURIAE >

- Burt NEvuBoRNE

New York Civi Liberties Union,

* New York, New York ‘0011,

_-Metvos L.. WuuF |

ew |. Jom M. Gora. ~ =

= American Civil Liberties Union

156 Fifth’ Avenue.

. New York, New York 10010.

Attorneys for. Amicus Curiae

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Nihon of the American Civ il Liberties Union for —

Leave to File Brief Amicus ialed ne ein pecan “1

Interest of Amicys S aseenncuses’ a ee 3

Introduction and: Summary of Argument ...... ose! aaa . 30

mF Police-citizen confrontations on less than prdb-

able.cause must be. confined to field investigations ,

of serious crimes involving a. reasonably immedi- :

ate threat to persons or property Tn. <n |

IL ‘No sufficient basis existed to initiate a . police-

citizen confrontation under Terry Vv. Ohio ae we 10°

.A. The Substantive: Quality of the ‘Information

Available to the. Police Officer -...... umn... 10

B. The Procedural Posture of the’ Information

- Available to the Police Officer -........------ 13

III.. The fruits of poliee-citizen confrontations on less.

than probable cause should not be admissible in

criminal prosecutions ...:......-.-..----2--- Lees ae 1T

_ A. Contraband Other Than Deadly Weapons Dis-

covered ‘Pursuant’ to a: Terry Frisk oe-coeecceeee--- 17

B. Deadly Ww eapons - Discov ered Pursuant — to a

: : Terr, y Frisk ........... eee peewee ee

Coxcuusio aeons oo Date sesecescnieeee OB

APPENDIX:

Form UF 250, New York City Police Deperient 23

PAGE

‘CA: aor

| PAGE |

TaBLe or Casrs AND OTHER: AUTHORITIES

Cases: * | . | Cone,

Aguilar v. Texas. 378 U.S; 108 (1964) tonne 8,9, 12

Beck v. Ohio, 379 U.S. 89° (1964) ceeseeecee 8, 10,11, 13

sovd v. United States, 116 U.S. 616 (1886) .....---2----6y-20

Brinegar v. United States, 3 B38 US. 160 (1949) oo... a,9.°

Chimel v. California, 395 U.S. 752 11969) ne 6,18

- Draper v. United States, 358 U.S. 307 (1959). ee ae — 9,15

a:) ss

Elkins v. United States, 364 TS. 239 (1960) ) stiri dt 6, 21

Garrity v.. New Jersey, 389 U.S. 493 eae Pan 6, 20

Henry v. United nates: 361 U.S. 98 (1959) ow. aes 10

Mapp v. Ohio, 367 US. 642" (1961) 2A, S49, 21

Marron vy. United States, 275. U.S. 192 (1927): een, AO

_Me€ray v. Illinois, 386.U S300 (1967) ee: 14,15

Olmstead V. United State Sy. 277 U. S: 438 (1928) ° os Q

. Papachristow: .: City: of Jacksonville, — US. —,

— 40 US. Law Week 4216 (1972) .. 4

Peters v. New York, 392 U.S. 40 °(1968) 20002... a. oO

Roviaro v. United Stgtes, 353 U:S. 53 (1957) a. V4

Shelley v. Kraemer, 334 U.S. 1 (1948) 2000. a a

Sibron v. New York, 392 U.S. 40 (1968) 0... 2, 3, 7,8, 18

. UP a: - PAGE

Spinelli v. United States, 393 U.S. 410 ( 1969) ....4, 8, 9, 11,13

Stanley v. Georgia, 394 US. 557, (1969) ...... weessecenees ee ke |

‘Terry v: Ohio, 392 U. : 1 (1968) $e gener passim

People v.V Menserdhin, 33 N. Y. 2d 489 (1969) seeccvsseneestecseesdy LG

-Weadeny. Hay den; 387 U.S. 294 (1967) . eee ee 9 ——

Weeks v. United States, 232 U.S. 383 (1914) csc 8

Wolf vy. Colorado, 338 U.S. 25 (1949) ee 8

Statute: 4

United States Code: | : |

| Title 42 U.S.C, 91988 sieeeey OL

| ‘United States Comstiiation: ;

Fourth Amendment ~ cee oweveeclnceeone POSSE |

Authority: . . ;

Skolnick, Justice Without Trial, 227-28 (1966) Tigeecneneee ~ 45°

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Supreme Cont of the United States:

‘Ocrozze TERM, 1971.

No: 70-283

2 me . : 7 te

Freperick EK. Apams,

Petitioner,

sty 2 :

Rosert, WILLIAMS, a

| _ Respondent.

—_>—

Motion of the American Civil Liberties Union for Leave

to File Brief Amicus Curiae

‘The American Civil Liberties. Union respectfully mov es,

e pursuant to Rule 42 of this Court’s Rules, for leave to file

the attached brief amicus urtae..feounsel for the peti- -

tioner has consented to the filing of the brief; counsel for

the respondent has withheld such ‘consent. Both letters

have been filed with the Clerk of the Court.

The American Civil Liberties Union is a nationwide, -

_ non-partisan organization of over 170,000 members solely _

dedicated to defending the liberties ‘guaranteed by the Bill

of Rights. One. of the most vital of those civil liberties is

the right of privacy premised on the Fourth Amendment .

a and reinforced by other Amendments as well. As a result

~. of ‘our concern. with this central constitutional safeguard, ' ;

- which nourishes so many: of our ‘society’s other values, we. °

have participated in many of this Court’s eases which have

defined the scope ‘of Fourth Amendment protection. ° Most

relevantly, we filed briefs amicus curiae in Terry v. Ohio,

B “see

392 U.S. 1 (1968).and Sibron v. New York, 392 U.S. 40

_ (1968), the two cases which bear directly on the issues

herein.

“The purpose’ of this brief is to suggest to the Court ie.

targer. doctrinal context in which the ‘specific issue must =

be decided. It is our understanding that amicus briefs

~have been filed urging: greater: police powers to initiate

street-eonfrontations with our citizeris. We think it vital .

that this Court, reaffirm the strict limits which must cir- .

-_ctimscribe such authofity. Wer diese that this brief: will

assist the Court in reconciling these interests.

. Respectfully submitted,

Macs L. WuLF |

\ o* American Civil Liberties aise

oo - Foundation ©

156 Fifth Avenue

New York, New York 10010

Attorney yee Movant |

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"In THE

- Suprenie Court of the Hnited Btutes

Ocrose Term, 1971

\No. 70-283

o~ = : : >

; Freperick E. ApaMs, a oe

° 4 : o,°

Petitioner,

—_—V. ‘ :

eo. Roserr Wis, | . | .

.* Respondent.

- :

Be OF THE seokan, CIVIL LIBERTIES UNION, —

a oe CURIAE

Entetest. of Amicus”

The interest of the American: Civil Liberties Union| is

set forth in the preceding motion for leave to file this brief.

Introduction and ‘Summary of Argument ,

The i issue in this case arises out of a police-citizen street

‘ confrontation of the kindanaly zed by this Court in Terry

v. Ohio, 399. U: S. 1 (1948) and Sibron v. New York, 392

U.S. 40 (1968). In_those ‘cases, amicus urged ‘that all such

confrontations must be~ gov erned§ by the strict require-—

ments of the Hgprth Amendmeat. We still adhere to that

analysis. But this Court disagreed; and accordingly this

brief is premised on the understanding that Terry and

Sibron provide the relev ant rules of decision bearing on the. |

issues here.

<Steiias

weeks ago,

Conv ersely, it is equally immportadt to note that’ the i issues

“here in no way involve this Court’ ‘ ‘ unbroken’ line. of au- -

_ thority which holds that police officers may not effect an!

‘arrest. without ‘meeting the rigorous Fourth Amendment

. requirements of probable cause,. Xo matter what type of —

criminal activ ity Js involv ed, an arrest can only be made -

on probable cause. As this. Court reaffirmed Jug a few |

We — our police to niake arrests only on “probable” :

cause”, a, Fourth and Fourteenth Amenilinent ‘stahd-

ard applicable. to the States as W ell as to the Federal |

Goyernment. Papachri LOU. City of Jacksonville,

— US. —, 40 U.S; Law W eek 4316, 4220 (1972)

(footnotes omitted). Ye eke

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' However, with regard to police-citizen confrontations on

Gna than: probable cause, ..elevant distinctions as to the . .

ind of criminal activity ‘to be prevented can be ‘made. In

aon such encounters can be justified only if limited to‘

oa investigations of serious crimes ° ” involving 4 reasonably

. immediate threat to. persons: or property. .Terry v: Ohio,

- Supra. This distiriction—between i investigations of serious _

criminal activities’ and. enforceinent of egislatign ° against -

“victimless, crimes” —is, implicit i in Many f this Court’s de-_

cisions. . It is. not. coincidental that ‘mahny of the major

Fourth Amendment decisions of’ this Court have eome in

the context of prbsecution# for : violations of morals legis- °

Jatin} Compare, e.g., Mapp v. Ohio, 367 U.S. 642 (1961)

(possession of obscenity) and., Spinelli. v. United States,

393 U.S. 410 ( 1969) (gambling), with Terry v. Ohio, supra

(armed robbery). Thus, wads further relaxation of the

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Fourth Amendment to encompass morals offenses pose

_ unique ‘dangers to. privacy. Brinegar v. ‘United States, 3

U.S. 160, 180-89 (1949) ‘(dissenting opinipn). Sesei ieghy

where, as here, the suspected criminal activity involves a

, erime such as possession of. far arcotics, the relaxed standards

of Terry x v. Ohio should be inapplicable, |

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~ Assuming arploato that the rationale of | Terry +f ex-

_. tended. from “serious” crimes: to thoge offenses designed

to shield persons from themselv es, nev ertheless, the officer

. here did not possess sufficiently trustworthy information

‘to justify the confrontation. Neither: the fact that the peti-

_” tioner was seated in an’ automobile in a high crime. aréa se

: late at night, nor the information. provided by an: alleged a

tipster satisfied the erry standard of “articulable suspi-

cion.” If there is to be a lowering of the quantum of infor- ~

_ mation necessary to- justify, a police-citizen encounter, it

is .particularly important. that police officers - be required

ie insure that~their action is based on something substan- —

tial. Moreover, the flimsy quality of the tip is made even

; more Suspegt by the police refusal to supply the tipster sO

that méaningful judicial review -could. be. accomplished.

~ McCrar y v. Illinois, 386 U.S. 360 (1967) ; People v.°Ver- «.

recchio, 23 N.Y.2d 489 (1969); And again, in the context

of this case, the combination of inadequate information’ and

inadequate procedure are particularly subversive of Fourth

Amendment values,

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Finally, even if defensive frisks by officers investigating

serious ‘erimes are to be aliowed on less than probable.

_ cause, it does not necessarily follow that the fruits of such

trisks should be admissible in a criminal pr osecution. Cer-

hee olxe an exploratory search for narcotics, then the Terry

exceptian will inexorably invite wholesale general searches. |

tainly, since the sole purpose | of the Ferry exception to the

‘pr obable cause requirement is the protection of. the officer,

i contraband other than deadiy weapons is discover ed.

should be inadmissible. Ifa frisk for lethal Weapons can

See Chintel v. California, 395 U.S. 2, 163 (1969). Simi-

larly, even

only purpose

‘there is no ——— for’ utilizing the informa-

tion ‘obtained by

standards. Boyd v. U nite States, 116 US. 616 (1886) : ef.

“Garrity v. New Jersey, 385 XS. 493 (1967). Such a rule

weuld further a critical purpose O&Kthe exclusionary rule—

“the imperative of judicial integritPX. Elkins | v. United

States, 364 U.S. 222. (1960). |

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s to the discowery of Jethal Weapons, since the

r allgjxing a search on less than probable .

: cause—the. prothction” of the ‘office r—has been secytred,

vaarture from .Fourth Amendment

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‘

Police-citizen confrontations on Jess. than, probable

cause must be confined to field investigations of serious

crimes involving a | reasonably immediate threat to. oa .

sons or property. :

a Terry v. Ohio, 392 US. I (1968), this Court® em-

: powered police officers to initiate police-citizen confronta- _

tions upon “articulable suspicion” less than probable cause -

that serious criminal activity was afoot, and to conduct a

limited “defensive” frisk of persons so confronted when

the police officer involved reasonably believes such per-

sens to be armed and dangereus. As Mr. Justice Harlan’s

coneurrence in, Terr y noted, the threshold analytical’ issue

in such cases {s the nature of the suspected criminal activ-

ity which would justify a police officer in initiating, a

_ police-citizen encounter: on: less than probable cause. 392

_U.S..at 33. The corrosive impact upon the Fourth Amend-

_ thent of permitting serious intrusions upon personal liberty

on less than probable: cause requires that a Terr: y “frisk” .

be confined to. inv estigations. of serious criminal activity =~.

- posing a reasonably immediate threat to’ persons or prop- © | —

erty. In the absence of such a reasonably. immeédiate,threat,

no ‘relaxation of traditional probable ‘cause safeguards

. ‘is constitutionally tolerable. ;

G Terr Y, the police officer was. codMoutea with iiforma-

tion’ which raised’ an “articulablé suspicion” | that a serious

crime . (burglary) was imminent. Accordingly, this -Court

| reeognized his right to initiate .a forcible police-citizen en- -

‘counter and to, conduet a defensive frisk. However, in. —

Sibronv. New York, 392 U.S. 40 (1968), where the suspected vai

criminal activ ity was possession of narcotics, a ¢rime- not

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probable cause.

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Thus, y ‘en serious” crimes, such as murder, rape ‘and.

robbery are reasonably, ‘suspected,’ Terry s sanctions a forci-

ble inves: igative encounter between a policeman and a

suspect coupled with'a narrow defensive frisk on mere

“articulable suspicion.” However, when “morals” offenses,

‘such as gambling, prostitution oF possession of narcotics

are, suspected, Sibron forbids a forcible investigative en-

eounter, with its attendant defensive frisk, on less than

e

probable cause. . . ¢% 3

It is, we submit, no coincidence that those cases -which

have shaped the growth of-the Fourth Amendment in the

20th century have ov erwhelmingly involved police. attempts

-- to enforce “victimes ss criines” by the most effective means

“open to them-—sy stematic intrusions into the sphere of per-

sonal privacy protected by the F ourth Amendhent.

Thus, Weeks v. United States, 232 U.S. 383 (1914) in-

| voly ed an arrest for violating anti- gdinbling laws; Wolf +.

- Colorado, 338 U.S. 25 (1949) involved conspiracy of a prac-

_ticing physician to: commit abortion: Mapp v. Ohio, 367

U.S. 643 (1961) involved possession of obscenity ; Beck .

Ohio, 379 U.S. 89 (1964) involved possession of gambling’

slips; Aguilar v. Texas, 378 US. 108. (1964) involved

possession of narcotics; Silron v. New York, -392 U.S. 40

(1968), involved pos ssession of narcotics: and Spinelli, v.

United States, 393 U.S. 410 (1969), involved Violation of

gambling laws. On the other hand, cases involving “ serous”

as napeees to “vietimless” criminal activity. have received

The substantive standards which govern reasonable suspicion :

are discussed in Point II, infra.

posing an immediate threat to person or property, this

. Court. refused: to sanction a Te rry- type frisk on less than—

y

9

a far different reception in hid Court. Draper v. United

States, 358 U.S. 307 (1959) involved the sale of heroin;

Warden v, Hayden: 387 U.S. 294 (1967) involved armed

robbery; McCray v. Lllenois | 386 U.S. 300 (1967) invalved:

the sale of heroin; Terry v. Ohio, 392 U.S. 1 (1968) involved

armed robbery; and Peters v. N ew York, 392 U.S. 40 nee)

_ involved burglary.

As Mr. Justice W Hite noted -in his concurrence in Spinelli

v. United States, supra, at 423-29, “tension” exists between

- eases such as Aguilar and Sptnelli and cases such as Dr aper.°

Amicus respectfully sugg ests that the source of that “‘ten-

sion” may be found in Mr. Justice Jackson’s dissent in

Brinegar v. United States, 338 U.S. 160, 180-89 (1949),

_where he recognized the “special dangers which morals

legislation pose to the Fourth Amendment. This Court has

Tecognized in case after case, that any relaxation of the

protection of the Fourth Amendment in the area of victim-

less crimes, exposes the “right to be let alone” 2 to relentless

pressure from law enforcement agencies seeking to enforce

morals legislation. Given. the fact that under the best of

circumstances, the detection of “victimless crimes” involves

significant intrusiens into the sphere of privacy protected

by the Fourth Amendment, the relaxation of probable cause

- announced in Terra ry in the context of serious crimes should

not be extended to police investigations of alleged Vv iolations

of criminal laws designed primarily to protect persons

— themselves. ; a

~ Since, in the instant case, the suspected criminal achivitk

which triggered Officer Connolly’s s encounter with Williams

involv ed os of naréotics, the relaxed standards of

2 Bhat Vv. United States, 277 US. 438. 478 (1928) (dissent-

ing opinion).

10

T erry should be inapplicable and the propriety of Officer

_Connolly’s search must be tested against traditional Fourth

| confrontation under Terry v. Ohio.

Amendment requirements of probable cause. Under such

traditional standards, the searches involved herein were

iit! unlawful. Beck v. Ohio, supra: | 3

No sufficient basis existed to initiate a police-citizen

Even if the rationale of 7 erry. v. Ohio, supra, is extended

from “serious” crimes to those offenses designed to shield .

_persons from themiselwves, the information av ailable to the

" police, officer here did not satisfy the standard of “articu-

‘lable suspicion’ ’ of criminal activ ity required to initiate a

police-citizen confrontation. . Neither the substantive qual-

ity of the information av ailable to Officer Connolly nor the

procedural posture in which it, was presented to the review-

ing: court, justified police insistence upon a forcible en-

counter. .

A. The Substantive Quality of the Information

Available to the Police Officer

Officer Connolly relied upon two elenients i in determihing

- to initiate the police-citizen encounter which culminated in

this appeal. —_

First, he relied upon his personal observation of Williams

sitting alone in a parked car at 2:15 A.M. ina “high-crime” :

area. As Chief J udge. Friendly, pointed out below, such

~ an, observation alone. could not even, remotely have justified

an encounter, between Officer Connolly, and Williams. See,

e.8.y panes v. United States, 361 U S. 98 (1959). AS this _ |

11

Court has repeatedly emphasized, a a policeman’ S subjective :

“huriches,’¢ even though formed in good faith, ‘may not °

found the basis of a -police-citizen confrontation. E.g.,

Béck v. Ohio, supra; Terry v. Ohio, supra:

Second, the officer relied n the alleged® existence of an ;

“unnamed tipster who is safd to- have informed: Officer

- Connolly that Williams was’ armed with a pistol and had

narcotics in his possession. Even if one accepts -the

existence of the informer, the quality of .his “tip” was ©

- insufficient to create the “articulable suspicion” of criminal

activity required by Terry. At no time did the tipster’

inform Officer Connolly of the source of his “knowledge”

_ that Williams’ was engaged in criminal activity; nor was

any attempt made by Officer Connolly to explore the basis

of the tipster’s, information, to insure that it was not based

| upon mere rumor-or hunch. ©. 8. _ cae v: United States,

- supra. \

While “hearsay” saformation may support the basis for

a police-citizen encounter, the quality of such “hearsay”

information must be subject to scrutiny to insure that -

‘rumor or hunch did not trigger an informant’s actions. As

Mr. Justice Harlan observed in Spinelli, an informant’s

tip must rest upon something more substantial than “a

casual rumor circulating in the underworld” or “an offhand

remark heard at a neighborhood bar.” 393 U.S. at 416-17.

Thus, in the instant case, where the unnamed tipster’s

* Chief Judge Ffiendly observed below: |

“It is cause for no small wonder that on the first suppres- |

‘ sion hearing, Officer Connolly never mentioned the informer

but said he had responded to a police signal. In the subse-

quent hearing the informer appeared and the ‘signal disap-.

ais ie ed F.2d at 36, n. 4.

_

information may have been the result of casual rumor or

_ subjective hunch, ° Officer Connolly was not justified in

initiating a forcible encounter without exploring its founda-

‘tion at greater length. Just as Officer Connolly’s own

‘subjective -hunch could not have justified: his forcible ‘en- 7

"- counter with Williams, the unverified subjective hunch of an

unnamed informant cannot found the basis for the sub- °

stantial interference with the person permitted under

Terry. It would be a strange rule of law indeed which

forbade a police officer from acting oh his own subjective

“hunch,” but encouraged him to act ‘on the unverified

‘subjective hunches of anonymous tipsters. . At the’ very

least, ‘therefore, Officer Connolly was under a threshold

substantive obligation to explore the source of his tipster’s

information before acting upon i |

- Such a ‘threshold obligation is all the more important in

view of the’ relaxation in Terry of the quantum of*-sub-—

stantive information needed to justify a “stop and frisk.”

Given.the lowering in Terry of the quantum. of information

needed to justify a police-citizen encounter, police officers _

must be placed under a strict duty to insure that the —

information upon which they ultimately initiate a forcible

encounter with a citizen is founded upon something more: !

substantial than. an anenymous tipster’s. “hunch.”” Cf. “

Aguilar v. Texas, supra. Such a duty w ould safeguard the

critical Fourth. Amendment values of. privacy which are |

the hallmark of a free society, w vhite permitting expeditious

*Such an exploration nest not unduly interfere with expedi-

tious police action. In this ease, Officer Connolly might have

satisfied the requirement by merely asking his informant. “How ‘do

you know?” In other situations, where it is obvious that a tipster’s

information is based upon something more substantial than mere

rumor or hunch, additional investigation might be unnecessaty. ©

-

. ; . : 13

cay)

nF!

and effective investigation of tips based upon credible’

f oundations. ue .

B. The Procedural Posture of the Information. Available

to the Police Officer .

This Court has repeatedly emphasized the importance

of insuring meaningful judicial review .of the circumstances

surrounding police-citizen €neeunters in order to assure. |

‘that the protections of the Fourth Amendment. are not

relegated solely to the good faith of. the police. E. g., Beck

v. Ohio, supra; Aguilar v. Tezas, supra; “Spinelli v. United

States, supra. As this Court Stated in Terry:

° “The scheme of the Fourth Amendment ‘becomes mean...

ingful only when it is assured that at some point the :

_ conduct of those ‘char ged with enforcing the laws can

be subjected to the more detached, neutral. scrutiny

of a judge who must evaluate the reasonableness: of

_a particular search or seizure in light of the particu-

lar circumstances. . And in making that assessment it

. is imperative that the facts be judged against an. ob-_

| jective’ standard. ... Any thing less would. invite in-

‘ trusions upon siristitntonalls guar anteed rights based

. on nothing more substantial than inarticulate hunches, .

a result this Court has consistently refused to sanc- ©

tion.” 392 U. S. at 21-22 (footnotes omitted).

Howey er, the procedural posture in which the informa.

tion which allegedly justified Officer Connolly’s inv estiga-

- tive frisk of Williams was presented to, the rev iewing

court made ‘the “detached, neutral serutiny of a judge”

all but impossible.

- Most importantly, the identity of Qficer Connilly’s al-

leged tipster was never revealed. Nor was any explanation

*

14

offered at the suppression hearing as to why resort to |

an anonymous hearsay tipster was necessary to advance |

a any compelling state interest. Cf. Roviaro y. United States,

353 U.S. 53 (1957).

Although in McCray y. - Ilinois, 386 U.S. 300 (1967), a

5-4 majority of this Court sustained the use of an anony-

mous informant to- establish probable cause for an arrest,

~ the. circumstances surrounding the McCray tip were,

, nevertheless, subject to nieaningful judicial review. In

McCray, the informant had been successfully. utilized by

the police officer in question on tw enty separate occasions

. and had personally observed the defendant selling nar-

~eoties at a specific. location. The substantive specificity of

the’ informant’ S ‘allegations, coupled with the readily veri-—

’ fiable use of fhe informant on numerous prev ious’ occa- ~

sions, permitted a reviewing court to exercise a meaningful

review .of the reasonableness of. the police encounter at

<issue in McCray. However, with the_ relaxation of the '

requirement of substantive content in Terry, the internal °

specificity of an informant’s allegations can no longer he.

counted upon to provide a reviewing court with a “handle”

to review the propriety of police action under the Fourth’

Amendment. In the absence of the: objective criteria of —

Me internal consistency and corroboration which ordinarily

permit a reviewing court to exercise meaningful judicial -

review in probable cause situations, a magistrate, faced: .

with. the dilemma of affording meaningful judicial review

_ in “articulable suspicion” casas under Terry, must: be as-—

sured at a minimum, that ‘th alleged tipster actually

exists.. The inevitable result ‘of sanctioning the use of

anonymous tipsters in “articulable suspicion” cases would

‘be to place the values of.:the Fourth’ ‘Amendment wholly

at the mercy of police officers. A rev lewing magistrate,.

RE (Ry he

Ohad

15

deprived of any opportunity to verify the existence of any-

thing more, than an “inarticulate hunch,” would be reduced

to a rubber stamp, and thé Fourth Amendment would be

reduced to a mere admonition—to be ignored at will.

As Chief Judge Friendly noted below, in framing a gen-

eral rule to control: the mis-use of. unnamed informers in

“articulable suspicion” cases, the danger of post-hoc police

_ fabrication of a non-verifiable tipster cannot be ignored.

The highly delayed and suspicious emergence of the un-.

named tipster'in the instant: case bears mute witness to

- the capacity for abuse inherent in a rule sanctioning anony-

mous hearsay which does not even satisfy the substantive. .

content criteria of McCray. See, generally, Skolnick, Jus-

tice Without Trial, 227-28 (1966). t fa :

. Just as this- Court. ruled in Spinetli . United States,

supra, that’ police may not initiate a forcible. encounter

upon the unverified tip of an unnamed , informer, so a

igistrate seeking to perform his duties” conscientiously

under Terry should not be compelled to accept the existence

of an unnamed, unverifiable tipster whose storx, by défini-

tion, Jacks the sufficient detail. present in -b¢ th Draper ad

United States, supra and McCray v. Illinois, supra. a

_. Where, as here, an alleged informant a) is anonymous; |

b) is, not objectiv ely credible; ¢) does not divulge the

basis for his “knowledge”; d) recites vague and general

information not subject to internal corroboration; and e)

does not demonstrate any basis for renfaining unnamed;

a magistrate’ is wholly prevented from conducting the

- “neutral,” “detached” review of. police conduet Which’ is

at the heart of the Fourth Amendment. Accordingly, po-

‘lice encounters based upon such alleged informer tips can-

©

6

- P . .

\

9 oad cad cic

¥ oe eR RAT TEMA

16 .

&..» co

’ .

not be condoned without, i in the: word - Chief Judge

Friendly: | ;

- “open[ing] the sluice gates for. ‘serious and unintended |

. erosion of the protection of the Fourth Amendment. ”

436, F.2d at 39.

_ In People 'v. Verrecchio; 23.X.Y.2d 489, 245-N.E.2d 222

(1969),. the New York Court of Appeals directed that the

identity of an alleged informer be revealed when his vague

and unverified accusation was the sole basis of a police-

citizen encountér. The Court recognized that -without. some _

form of. independent corroboration of the alleged inform- .

: er’s existence, a rev iewing magistrate is: rendered power-

less to perform his duty:

. Thus, in. “articulable suspicion” cases, a police. officer

“must be under a minimal threshold procedural obligation

tox ascertain the- identity of his alleged informant, and to

| make his identity known to the reviewing magi trate—or

else ] Sagi some acceptable, alternative evidence of his

existent ' fe

_ %

hy

* i ee , j . bl ‘ . »

- 3 The Police Departn nt of. : the City of New York has promul- ..

gated a form (UF 250) which must- ‘be completed by patrolmen '

acting in “articulable suspicion”. cases under Terry. The form, a

‘eopy of which is reproduced’as.an appendix to this brief, require’

the disclosure of am informant’s identity. No justification .exists ‘\

for tolerating the initiation of, police-citizen: éncounters without

* eomplying with the minimal procedural —— spelled out. by

Form UF. 250.. a : }

¥

2-

w!

.

The fruits of police-citizen confrontations on less

‘than probable eause should not be admissible in crimi-

nal proseciftions, —s>_. ee ;

A

The defensive frisk authorised by T erry asa protective ;

device for police officers engaged in field investigation of

serious crime was a significant dilution of the protection of

the Fourth Amendment. ‘Nevertheless, the demonstrated

risk which a policeman faces during the inv estigation of a

. suspected “serious” crime appeared to compel the narrow,

limited relaxation of probable cause enunciated in Terry. .

However, it does not follow that merely because this Court

has recognized the “necessity” of such a defensiv e frisk, its

_ fruits. may indiscriminately. fourtd the basis for criminal

prosecution. The question remains of the extent, if any, to

~-which 1) non- lethal contraband and 2) dangerous" weapons .

discovered pursuant to-a Ferry frisk may be utilized by the,

State’ ina subsequent: criminal prosecution.

3

A. Contraband . Other Than Deadly Weapons Discovered

Pursuant to a Terry Frisk —

‘The sole purpose of the limited expeptiog to the probable

cause protection of the Fourth Amendment sanctioned in

“Perry was the .self-protection of the inv estigating officer.

_ When. the fruits of a Terry frisk, however, do not consist |

inflicted serious injury upon -

of material. capable of havin;

the inyestigating offiéerno justification exists for | _per-

., mitting its use in a‘ fminal prosecution. A.Terry frisk i 1s

a — limited purpose intrusion described ‘by Mn °

Justice Stewart in his concurrence in Stanley: v. Georgia,

394 US. 557, 569 (1969), which may not: be Permitted. to.

ae

”

—~ py ign

Fe

ga”

.

, ?

~

e .

ws “ thi protectio of the: Fourth Amendment. Cr. “Sibro on VIN ew

Fork, supra;. Marron V. United States, 275 US. 192 (1927).

Unles s mate rial, incapable of inflicting. serious injury is

+>:

‘fuded:. fom “the fruits of a Terry frisk, the pressures

to utilize the exéeption in'Terry as a devi ice to justify mere | .

general ‘. earches for. contraband on: less than. _probable ;

- cause” will inexorable. If non-lethal contftaband is re- -

; moved fron the potential ‘fruits of a Terry frisk, this Court

will invite. whétesale refinements of the Sibron: fact pat- -

\ “tern without the’ possibility of meaningful judi¢ial review.

- The “essentially subjective. ‘élement. of fear which osten-

* sibly differentiated Sibron from Terry is, of : ‘course, eX-

‘tremely difficult to. subject to. meaningful judieial review.

‘In effect, therefore, if police may hope, to diseov er non-

- lethal ? contraband’ pursuant, to a ‘Te erry ‘frisk, we. may

ai anticipate’ a -significant—and - yinrev iéwahle—decline in the

~ threshold of fear exhibited by metropolitan police seeking: |

toe enforce laws against gambling: . prostitution: and nareoties

posséssion.. ‘The. result would be the de facto ‘eminciation

ie ofa subjective Standard which this C ourt expheitly rejected .

achat 392 U.S: at 21-22. oie

+

| It may be argued ‘that, since the purpose of the. exelu- .

rk sionary tule is tke deterrence of unlawful. police-citizen’ con-.

_ frontations and since the police-citizen, confrontation epito-—

* shined in T err y-is lawful, no basis exists for imposing’ an ~

“exclusionary Fule ipon the fruits of such a confrontation.

* Howey er, this Court in Terry was. careful to: limit its sane-—

. tioning of frisks on less than pr obable cause solely to “pro-

tective ee ‘search{es} for weapons.” Id. at 26, and eXx-

-pressly emphasized that. “Tt]he SCOPE of [a T erry], ‘search,

must be strictly tied to and justified by the circumstances’

‘which. rendered its initiation permissible. ” Id. at-19. See

also, Chimet ¥. —— 395° U. S. 52, 763, (1969). By |

cee _ ae

Se . - . * es

< ° tie

‘\

B. Deadly weaboics Discovered Purenant , | “a

19

sanctioning the use of a Terry frisk.to uncover non-lethal

‘contraband, this Court would be virtually insuring that’.

Terry will be: neither confined to: *‘protective” situations,

nor strictly tied to the circumstances which rendered its

‘initiation permissible. Thus, the imposition of an excln-,

Sionary rule upon non-lethal contraband seized as the fruits

of a Terry frisk w ould be w holly in accordance with the

; -rationale underlying Mapp \v. Ohio, 367 U.S. 643 (1961),

" sinee it is the only practical device to insure meaningful

~ judicial: protection of the sphere of priva acy which is. ‘the

7 \

core of the Fourth ‘Amendment. ¥

3

4a

__f.@ Terry Frisk Ti

Concern for the safety of plies officers engaged in the

investigation , of serious crimes. motivated this. Court in.

‘Terry to recognize a narrow “defensiv e” exception to the

“3 probable cause rule. In effect, Ter: Yy recognized that the

societal interest in’ protecting the lives of police officers

outweighed _ the « counterv ailing’ values protected: by the .

Fourth Amendment in certain limited circumstances.’ Hav- |

ing: recognized that. an‘ ov erriding societal intefest in ac-

‘ Tt may be perme that the non-lethal contend which fornied.

the basis ‘of | Williams’ narcotics conviction was not the fruit of a

Terry frisk, since it was seized pursuant to a search incident to.

Williams’ arrest for possession of a weapon uncov ered by a.Terry

frisk.

However, ‘despite the erection of a technical justification for the’

search of Williams culminating in the’ discovery of non- -lethal

_eontraband, if’ is conceded that probable cause: never existed to

initiate a confrontation with Williams. Thus, absent the Terry -

frisk, no basis for: conducting a search, of Williams existed. Accord-

ingly, to deny that the narcotics inv olved herein are - fruits - a

T erry frisk confounds reality:

ii! Amicus believes that if such a dilution of. the Fourth ye

ment is to occur, it’should be pursuant to constitutional amend-

ment, rather than judicial construction. Terry v. Ohio, 329 US. 1,

39 (1968) {(Dougias, J. dissenting).

\

‘. \

¢

ee

20

quiring -certaini information (whether a suspect is armed —

with a deadly weapon) tompels'a dilution of the Fourth

- Amendment’s guaranty of personal inviolability, this Court

must decide the permissible uses to which Society may put

the information which it has obtained pursuant to pro-—

‘cedures which coneededly fall below the nornis prescribed

by the Fourth Amendment. .Amicus believes that use of: the

coerced information should be confined to the overriding —

‘purpose which justified. its acquisition—the safeguarding

of a. police officer's life. Once that purpose has: been

<achiev ed, no further use of the information should: be oe

mitted. - a, | _

In the closely connected area of _the Fitth Amendment,

when our society has. found it necessary to coerce’ indi- »

viduals to divulge information pursuant to procedures -

__ which fall below the norms prescribed in the Fifth Amend-

nient, we have refrained from utilizing the information “as

the basis ofa criminal prosecution against the individuals

concerned. Thus, public officials may, upon pain of ‘dis- .

missal, ‘Be compelled to divulge information for\which so-

ciety alleges an overriding need. However, information so

divulged may not be utilized as the basis of stibsequent —

_ eriminal prosecutions against tem. See, e.g., Garrity V.

New Jersey, 385 U.S. 493 (1967). . Society, thus, satisfies

its limited need for certain information without. sacrificing

.or unduly weakening the constitutional protections which.

~ safeguard us all., Similarly, in the Fourth Amendment

‘area, when society ‘finds it hecessary to compel the’ dis-

closure -of infermation pursuart to procedures which do

‘not satisfy the Fourth .Amendment, it must. not be per-

mitted to utilize such» “tainted”. information, except to

® Boyd vy. “United States, 16. US: cia 633 (1886).

21

satisfy the need’ which initially justified . the compulsory

- disclosure. In the context of.a Terry frisk, the socjetal

_ need which authorized a search on- less than probable cause

is satisfied by the protection afforded to the inv estigating

_ officer. Once that protection has been afforded, no further

inroads ‘upon the Fourth Amendment should be tolerated. .

Of course, the imposition of an exclusionary rule’ upon

deadly’ weapons. seized as the basis ofa Terry frisk would

not be designed primarily ‘to deter police misconduct, since

the very purpose of the T erry rule is to permit police offi-

: cers to unearth deadly. weapons capable of inflicting harm

upon them. It w “ould, however, advance the second, critical

purpose served by the exclusionary rule—“the imperative

of judicial integrity. ” Elkins v. United States, 364 U.S. 206,

229 (1960) ; Mapp v. Ohio, supra. To'the extent we permit

_our courts to receive and'to act upon information gathered

- under procedures which are corrosive of constitutional

_ guarantees, we sanction disrespect for and év asion of our

- most basic laws, As Mr. Justice Clark noted in Mapp:

Nothing can destroy a gov ernment more quickly than

its failure to observe its own laws, or worse, its dis-.

regard of the charter of its own existence. 367 U. S.

~ at 659 ; cf. Shelley v. Kraemer, ‘334 US. 1 (1948).

2

“Thus, if this Court deems it necessary to sous to

permit. Terry searches on less than probable cause, the

_ proper eonduct of'such a search may continue to be recog-

nized as a defense to an action under. Title 42 U°S.C. §1983

without doing unnecessary. violence to the underlying pros

tection which the Fourth Amendment prov ides against gov-

_ernmental intrusions upon the inviolability of. the person.

in the absence of probable cause.

promenne

CONCLUSION

- Criminal cases posing Fourth Amendment ‘issues are

merely the visible tip of an iceberg of police-citizen con-.

‘frontations. -While the immediate* issue before the Court

in this appeal is: the liberty of one alleged criminal, .the

effect of the Court’s Fourth. Amendment decisions are felt

with astonishing - immediacy by the residents of urban -

‘America. Indeed, the tone of life in large segments of

metropolitan America is ‘significantly affected by the ex-

terit to which this Court places effective ltmits upon the.

_ initiation of forcible police-citizen encounters. To millions |

of law-abiding Americans, the very real distinction between

_. living im a police-state and living in a free society depends

in large part upon the extent to which this Court évolves.

.meaningful Fourth Amendment controls’ upon police be-

havior. The narrow: exception recognized in Terry, out of. .

concern for. the safety of our police, must not be per-

mitted to ev olve into a conv enient device for’ by “passing

the a ourth Amendment.

. oe | Respectfully submitted,

Burt NEvBoRNE

New: York Civil Liberties Union

84 Fifth Avenue

; New ‘York, New York 10011

Metvix L. Wour

_JorL M. Gora .

156 Fifth Avenue

New a New York 10010

March 1972.

‘American Civil Liberties oe