# Amicus Curiae Brief — Adams v. Williams > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0036%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 407 U.S. 143 ## Text s2 | --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. 2 es | 7a 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. 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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 | { hee, e . : - b&b "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. _. 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