Amicus Curiae Brief — Gustafson v. Florida

Subject Index

Page

Interests of amicus curiae ........... 0. ccc e cece ee eees aaa.

Argument eee ee reeteecce pil tates site inlet aeky eanbakh ae nla 4

I

When a motorist is arrested for a traffic offense that is

serious enough to require his being taken into custody,

the officer should be permitted to conduct a full field-

search for weapons for his own protection .......... +

II

The exclusionary rule should be modified to require

application of a balancing test to determine whether

evidence obtained in violation of the Fourth Amend-

ment should be suppressed or admitted ............ 8

GOR aise eh See FR EEE i LR 15

Table of Authorities Cited

Cases Pages

Adams v. Williams, 407 U.S. 143 (1972) ................ 4

Bivens v. Six Unknown Agents, 408 U.S. 388 ............ 3,8

Brinegar v. United States, 338 U.S. 160 (1949) .......... 12, 14

Chapman v. California, 386 U.S. 18 (1972) .............. 9

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ......... 15

Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) . 14

Mapp v. Ohio, 367 U.S. 643 (1961) .................. 11, 15, 16

Milton v. Wainwright, 4070U.S. 371 (1972) .............. 9

Morel v. Superior Court, 10 Cal.App.3d 913, 89 Cal Rptr.

Ms cask bedichebeiahds + ake Siabibehanas 4 sthmpethin dibs @ &<-0'4 a 5,6

People v. Cahan, 44 Cal.2d 448, 282 P.2d 913 ............ 12

People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179 (1970) .. 6

Tasie or Avrsorirrs Crrep

Pages

People v. Curley, 12 Cal.App.3d 732,90. Cal-Rptr. 783

CUT) aviv nn sks tien vg vino dba nd Uns bhaeee seeceeeuaeee 14

People-v: Defore; 213 App.Div: 643, 211-N.Y.S. 134 (1925) 18

People v. Graves, 263 Cal.App.2d_ 719, 70 Cal Rptr. 509

COI iss a voc cnse cp cnbavinketk he tas acenkntses cea 5,6

People v. Peterson, 9 Cal. App.3d 627, 88 Cal Rptr. 597

CI os FE Ree een cc ce ot cvcctpecccgestene 6

People v. Rhodes, 23 Cal App.3d 257, 100 Cal Rptr. 487

CMNRS «rh SOROS Sie Eo Saeeccevctassveetacseres 5,6

People v. Sirhan, 7 Cal.3d 710, 102 Cal Rptr. 385 (1972).. M4

People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.

Ryle. T29 (1970) oo cee ect e cece cece ec eeees 4

People v. Superior Court (Simon), 7 Cal.3d 186, 101 Cal.

Roth GOT CRUE)’ oe. ese eee re cic geseusgecses 2, 4,5,7

People v. Weitzer, 269 Cal. App.2d 274, 75. Cal. Rptr. 318

RECUR) 2 rivccck.nadccndcncscedsctusgecesktescessnne Me ac ie

Schneckloth v. Bustamonte, 41 U.S.L.W. 4726 (1973) .... 8

Sibron v. New York, 392 U.S. 40 (1968) ..............-. 6

State v. Bisaccia, 58 N.J. 586, 279 A.2d 675 (1971) ...... 10

State v. Campbell, 250 A.2d 1 (N.J. 1967) ............-- 7

Terry v. Ohio, 392 U.S. 1 (1968) ..........-..eeeeeeees 6,9

United States v. Canieso, 470 F.2d.1224 (2nd Cir. 1972).. 5

;

United States Constitution, Fourth Amendment ....3, 8, 9, 10,12

Texts

43 Barrett, Cal.L.Rev., Evidence Obtained by Illegal

Searches, pp. 565, 581 (1955) 2.2... 2.ceee eee eeee ew ens 14,15

53 Calif.L.Rev., The Bill of Rights as a Code of Criminal .

Procedure, pp. 929, 952 (1965) ........eeeeeecenneres , 3B

ill ae

Sey

In the Supreme

: BE es Se

Ocroner TERM, 1972

No. 71-1669

James E. Gustavson, Petitioner,

vs.

SuasbenBecntnn Mentetdent

On Writ of Certiorari to the Supreme Court

of the State of Florida

No, 72-936

Unrrep States or Amenica, Petitioner,

ve.

Wu Rosineson, Jr., Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE PEOPLE OF THE STATE OF CALIFORNIA AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT IN NO.

71-1669 AND PETITIONER IN NO. 72-936

INTERESTS OF AMICUS CURIAE

The question presented in the instant cases relates

to the permissible scope of a search incident to a

2

lawful arrest of a traffic-law violator for an offense

which is serious enough to require a police officer to

take the arrestee into custody.’

We are vitally interested in the cases for several

reasons;

First, we seek a result which will permit’ a full

field search? for weapons to ensure the safety of

police officers in cases wherein a motorist has been

arrested for a traffic offense of sufficient seriousness

to require that he be taken into custody. We are

particularly concerned about this issue inasmuch as

our own Supreme Court has recently curtailed the

right of a police officer to conduct even a pat-search

in such circumstances unless he can articulate specific

facts to support a reasonable belief that the motorist

is armed. People v. Superior Court (Simon), 7 Cal.

3d 186, 206 n. 13, 101 Cal. Rptr. 837, 852 n. 13 (1972).

Second, these cases which ‘‘are set for oral argu-

ment in tandem”, also afford this Court an oppor-

tunity to re-examine and perhaps re-define the scope

the issue here presented relates exclusively to serious violati

the traffic laws where the full custody arrest of the offender is man-

of the Exclusionary Rule in both state and federal

cases. We do not urge that the Exclusionary Rule be

totally abandoned until some meaningful alternative

can be developed. Rather, we have accepted the in-

yitation of the Chief Justice to ‘‘consider at least

some narrowing of its thrust so as to eliminate the

anomalies it has produced.” Bivens v. Siz Unknown

Agents, 403 U.S. 388, 420-423 (Burger, C. J. dissent-

ing).

_ Specifically, we urge the Court to adopt a balancing

test in lieu of the per se rule of exclusion to deter-

mine whether evidence obtained in violation of the

Fourth Amendment should be admitted or suppressed.

The following factors are suggested as being relevant

in such a balancing process:

(1) The objective nature and scope of the intru-

sion. £.g., a technical trespass as opposed to a whole-

sale exploratory invasion.

(2) The subjective state of mind of the searching

officer. F.g., an honest mistake in judgment as op-

posed to a willful, deliberate, bad faith action.

(3) The public interest in conducting the search,

including, for example, the relative gravity of the

crime under investigation.

4

ARGUMENT

I

WHEN A MOTORIST IS ARRESTED FOR A TRAFFIC OFFENSE

THAT IS SERIOUS ENOUGH TO REQUIRE HIS BEING

‘TAKEN INTO OUSTODY, THE OFFICER SHOULD BE PER

MITTED TO OONDUCT A FULL FIELD-SEAROH POR

WEAPONS FOR HIS OWN PROTECTION.

The risks to the personal safety of police offices

inherent in traffic offense encounters is well docu-

mented and has been judicially recognized. Fy,

Adams v. Williams, 407 U.S. 143, 148 (1972),

“TE]ven a minor traffic citation ‘incident can oe

easionally erupt into violence.” People v. Superior

Court (Kiefer), 3 Cal.3d 807, 829, 91 Cal.Rptr. 728,

7143 (1970). The danger to the police officer is in

creased when a traffic law violator is to be taken

into custody and transported in a police vehicle. ““The

critical factor .. . is not the greater likelihood that a

person taken into custody is armed, but rather the

increased likelihood of danger to the officer #f in fact

the person is armed.” People v. Superior Court

(Simon), 7 Cal,3d 186, 214, 101. Cal.Rptr. 837, 857

(1972) (Wright, C.J., concurring).

Therefore, we join with the United States and the

State of Florida in urging this Court to authorize

full-field searches for weapons in those cases involv-

ing lawful arrests for serious traffic offenses when

the motorist must be taken into custody.

Such a rule would not create too broad an excep-

tion to the general rule that searches be justified by

articulation of specific facts. Although statistics are

not available, it seems fair to assume that full custody

5

arrests for serious traffic offenses constitute only a

small fraction of the millions of routine traffic cita-

tion encounters. In this limited category of: cases,

it would not be an intolerable and unreasonable in-

trusion into the privacy of the vast majority of

peacable citizens who travel by automobile, to permit

a full-field search for weapons, not on specific facts,

but on the inherent fact that there is a significant

increase in the danger to the officer in such cases.

Ibid.’

Prior to the California Supreme Court decision

in Simon, supra, several California intermediate ap-

pellate courts had upheld the right of an officer to

search for weapons when a motorist was being taken

into custody for a serious traffic offense or upon an

outstanding traffic warrant for failure to respond to

a prior citation. See, People v. Graves, 263 Cal.App.

2d 719, 734-735, 70 Cal.Rptr. 509 (1968); People v.

Weitzer, 269 Cal.App.2d 274, 269-294, 75 Cal.Rptr.

In the above cases, the balance between the interest

of society: in protecting its police officers and the

interest of society in preventing intrusions into pri-

vacy was struck in favor of the protective ‘interest

in custodial traffic arrest cases. For example, the

court in Graves and Weiteer approved at least a pat

search, but left open the question of a more thorough

examination of the pockets if ambiguous feeling ob-

jects were disclosed. However, the Weitzer court did

observe that ‘‘a rule which requires identification of

a weapon to a certainty from a pat-search might fall

short of protecting the officer from subsequent. as-

sault.” People v. Weitzer, supra, 269 Cal.App.2d at

291, 75 Cal.Rptr. at 329.‘ :

In Morel and the Rhodes concurrence, the courts

answered the question left open in Wettzer and held

a full field search to be reasonable to ensure an

tofore been totally overlooked. State v. Campbell; 250

A2d.1, 5 (NJ. 1967). Without: hesitation, it: was ‘held

that a pat-search which disclosed an: ambiguous ob-

» aI et ie

it-did not conceal a weapon. Jd.

‘As previously noted, however, the California Su-

preme Court has revently disapproved the aforemen-

tioned line ~ of “intermediate appellate’ cases ’ and

curtailed the right to conduct protective searches in

traffic arrest cases. Instead; it has prohibited even a

pat-search unless the officer can articulate specific

facts to support a reasonaiile belief that the motorist

is armed. People v. Superior Court (Svmon),:7 Cal.3d

186, 206,’ 101’ Cal. Rptr. 837, 852 (1972).*

It is California’s position that the: majority of the

California Supreme Court has incorrectly weighted

the balance too heavily against the public interest in

ensuring the safety of its police officers. The instant

eases afford: California an opportunity to: persuade

the highest tribunal in the country to redraw that

balance in favor of police safety, and approve field

searches for weapons in custodial arrest cases. As

previously indicated, such a ruling would not be an

intolerable and unreasonable invasion of the: privacy

‘In his concurring opinion i Simon, Chiet Justice W: i

pentoenets Se on ano distinguished march when

>, as

oo a citation. 7 Cal.3d ut 212-214, 101 Cal Rptr. at 856-

paceberr Ae > aap tia capdeme ‘ moyen oe

a

to custodial arrests upon af warrant for

Fear toe prion citation, 7 Cal.9d 206 ef m 13. 101 Cal Rpts:

852 at n. 13,

Se

of the vast majority of peacable citizens who travd

by automobile, given the following factors: (1) the

limited nature of the intrusion—a field or pocket

search for weapons, not a strip search, (2) the limited

application of the field search—only to custodial ar-

rests for serious traffic offenses, (3) the increased

likelihood of danger to the officer inherent in such

custodial encounters and (4) the public interest in

protecting its police officers from such danger.

fat TT

THE EXCLUSIONARY RULE SHOULD BE MODIFIED TO RE

QUIRE APPLIOATION OF A BALANCING TEST TO DETER

MINE WHETHER EVIDENCE OBTAINED IN VIOLATION OF

THE FOURTH AMENDMENT SHOULD BE SUPPRESSED-OB

ADMITTED.

The case against the Exclusionary Rule has been

forcefully stated and developed at length in Bwens

v. Six Unknown Agents, supra (Burger, C. J. con-

curring) and Schneckloth v. Bustamonte, 41 U.S.L.W.

4726, 4735-4743 (1973) (Powell, J. coneurring). No

purpose would be served by repeating here the many

cited arguments and authorities supporting total or

partial abandonment of the rule. Rather, we accept

the obligation imposed upon those who would criticize

existing institutions to present practical, reasonable

alternatives thereto. The instant cases, one state and

one federal, set to be argued in tandem, offer this

Court a timely vehicle to consider proposed modifica-

tions of the Exclusionary Rule,

9

This Court applies a balancing test (governmental

interest in searching v. nature and scope of the in-

trusion) in determining the threshold question of

whether evidence has been obtained by means which

violate the Fourth Amendment. Terry v. Ohto, 392

U.S. 1, 20 (1968). We urge that the Court adopt a

similar balancing approach, in lieu of the present per

se Tule of exclusion, to determine the question of

whether evidence so obtained should be admitted or

suppressed.

With certain limited exceptions, per se rules have

not been favored by this Court. (H.g., Chapman v.

California, 386 U.S. 18 (1972); Milton v. Wain-

wright, 407 U.S. 371 (1972).) A per se rule of exclu-

sion in search and seizure cases is, we submit,

peculiarly inappropriate. As has been repeatedly

observed, claims of unlawful search and seizure are

distinct from many other constitutional claims, in

that the evidence seized has ordinarily not been ren-

dered unreliable by the means of its seizure. Thus,

the claim bears absolutely no relation to the defend-

ant’s innocence. What must be sought, therefore, is

a reconciliation between the contrasting public inter-

ests at stake. Chief Justice Weintraub of the New

Jersey Supreme Court has aptly summarized these

competing interests: \

‘The first right of the individual is to be pro-

tected from attack. That is why we have govern-

ment, as the preamble to the Federal Constitution

plainly says. ... The Bill of Rights was not

intended to deny that primary mission. This is

not to belittle the inestimable rights thus con-

10

secrated, but.rather to say that those rights may

not be read to defeat the very reason for govern.

ment itself. ., a

‘We amuntibe: snindful: thes! the contest-de nik

between the State and the individual. The contest

is wholly between competing rights of the i li

vidual—the right to be protected from crimi

attack and the several rights in the . me

When the truth is suppressed and the chntall

is set free, the pain of suppression is felt, not by

the inanimate State or by some penitent. police

man, but by the offender’s next victims for whose

protection we hold office. In that direct way,

Mapp denies the innocent the protection dus

them.” State v. Bisaccia, 58 N.J. 586, 590, any

A.24 675, 677 (1971).

We urge that a balancing test to determine whether

exclusion is warranted better serves these competing

interests, than does a per se rule which in effect im

poses capital punishment upon evidence obtained by

even the most inadvertent technical violation of the

Fourth Amendment. We suggest that the following

factors are appropriate to be weighed in such a

balancing approach :

(1) The objective nature and scope of the intru-

sion.

(2) ‘The subjective state of mind of the searching

officer.

(3) The public interest in conducting the search,

particularly with regard to the gravity of. the crime

under investigation.

11

privacy of the individual from certain specific: con-

duct on the part of police officers. The conduct sought

to be controlled in Mapp was described as ‘“‘official

lawlessness in flagrant abuse” of the right to privacy,

“unconscionable invasions of privacy,”».and .‘‘utter

disregard of the enforceable Fourth, Amendment,”

Mapp v. Ohio, 367 U.S. 643, 655, 657, 658, (1961). The

conduct in Mapp was precisely that. Three police

officers arrived at Miss Mapp’s residence. pursuant. to

information that a person was hiding in the. home

who was wanted for questioning in connection with a

recent bombing. The officers knocked on the door and

demanded entrance, but Miss Mapp, after telephoning

her attorney, refused to admit them without a search

warrant, Three hours and four additional officers

later, the officers forcibly opened the door when Miss

Mapp did not respond immediately, Although Miss

Mapp’s attorney arrived, he was not permitted to see

or enter the house. When Miss Mapp demanded to see

a search warrant, a paper was held up by one of the

officers which she grabbed and placed into her bosom.

A struggle ensued in which the officers recovered the

paper, handcuffed Miss Mapp because she had been

belligerent, and twisted her hand, causing her to yell

and plead with the officers.

~ The prohibited action in Mapp falls into two cat-

egories: first, the subjective factor of the officer's

state of mind: deliberate, willful, and in bad faith;

second, the objective factor of the nature and scope

of the intrusion: flagrant, exploratory and substan-

12

tial. Thus, the activity to be deterred by the Exclu.

sionary Rule is that which deliberately or substantially

violates Fourth Amendment rights. To deter this

conduct the Exclusionary Rule should be applied only

in case of deliberate or substantial violation. .

It' is ¢ontrary to the reasons advanced for ‘the

Exclusionary Rule to apply it where the violation by

the police officer is both a limited intrusion and an

inadvertent, honest mistake in judgment. In order for

the deterrence theory to have any validity, the police

officer must be able to distinguish right from wrong.

He must be able to perceive that conduct which he is

to avoid. As was stated by Mr. Justice Traynor in de

lineating the Exclusionary Rule in People v. Cahan,

supra, 44 Cal.2d at 448, 282 P.2d at 913: “Police

officers and prosecuting officials are primarily inter

ested in convicting criminals. Given the exclusionary

rule and a choice between securing evidence by legal

rather than by illegal means, officers will be impelled

to obey the laws themselves since not to do. so will

jeopardize their objectives.” (Emphasis added.) This

will be true only where the police officer knows that

he has a choice, that is, only where he knows that his

proposed activity would be in violation of Fourth

Amendment rights.

Application of the Exclusionary Rule must be tem-

pered with the realization that a police officer is not

as well equipped as an appellate court justice to deal

with legal subtleties. See Brinegar v. United States,

388 U.S. 160, 175 (1949). The police officer does not

have the same education, training, or experience as

_ iil

18

that of an appellate court justice, nor is. the. police

officer in a position to devote as much time to making

a legal determination.

As Judge Friendly has suggested, ‘‘It does not

seem consistent with the objective of deterrence that

the maximum penalty of exclusion should be forced

for an error of judgment by a policeman, necessarily

formed on the spot and without a set of the United

States Reports in his hands, which is not apparent

years later to several Justices of the Supreme Court.”

Friendly, The Bill of Rights as a Code of Criminal

Procedure, 53 Calif. L. Rev. 929, 952 (1965).

“Application of the Exclusionary Rule ought also to

be adjusted according to the public interest in the

search which is at stake in any particular case. Prin-

cipally, we urge that one of the factors to be con-

sidered in the balance is the severity of the crime

involved. Justice Cardozo’s opinion in People v. De-

fore is often cited but there is significant language

in the opinion of Justice Finch in the Appellate

Division opinion:

‘To be unable to find a murderer guilty, al-

though competent evidence is before the court to

warrant a conviction, for the reason that someone

else is guilty of petty larceny in connection with

obtaining such evidence seems a handicap rather

than a help to the administration of justice.”

People v. Defore, supra, 213 App.Div. 648, 662,

211 N.Y.S. 134, 142 (1925).

A distinguished member of this Court was similarly

14

. judicial exceptions . ... should depen

eranhetrmndes antligsteteestaenclil

assume, for example, that a child is

and the officers throw a roadblock about the

neighborhood and search every outgoing car, it -

would be a drastic and undiscriminating use‘ef

the, deetah. ihe :aMonne weigh boronic teei

However, I should candidly strive hard to sust

such an action, executed fairly and in good fa

because it might be reasonable to subject trav

ers to that indignity if it was the only “way't

~ gave a threatened life and detect a vicious crimé

But I should not strain to sustain such a roa

block and universal search to salvage a few bot-

tles of bourbon and catch a bootlegger. Brinegar

v. United States, supra, 338 U.S. 160, 183 Jack-

son, J. dissenting).

Also see, People v. Sirhan, 7 Cal.3d 710, 739, 102 Cal,

Rptr. 385, 404 (1972); Dorman v. United States, 435

F.2d 385, 392 (D.C. Cir. 1970); People v. Curley, 2

Cal. App.3d 732, 747, 90 Cal. Rptr: 783, 794 (1970).:

The ethical quandary posed by the application of the

Exclusionary Rule without regard to the nature of

the crime involved is a significant one. “‘However

much we may be revolted by the methods used by the

police to obtain the evidence we cannot rationally

say that the defendant whose crime may be at least

equally revolting should have a personal right to go

free as a result.” The Exclusionary Rule assumes

“that the policeman’s action always involves a greater

social evil than the defendant.” Barrett, Exclusion of

nes

15

signee mare aime aagmtnateys ——

§65, 581 (1955)... 7s iy

ta ie es cle eins ‘aan VOLO aa

bie in 4E'din ‘Gfferies’ ‘Against ths’ peiead. “We Wear

freely admit that the offense in this case would ‘not’be

a factor requiring the relaxation of the Exclusionary

Rule. Nevertheless, as has been discussed: earlier ‘in

Argument I, there is in fact a compelling public in-

terest for the search herein: ensuring the protection

of police officers from a high risk of physical assault,

which, like a serious crime of violence, calls: into

_ hey SRR le ae: ee ese ttn

Justice Jackson and Professor Barrett... «>

CONCLUSION

It has never been adequately explained why a case

like Mapp, which involved extremely flagrant deliber-

ate police misconduct used for the prosecution of the

most trivial offense necessarily requires the suppres-

sion- of evidence seized with probable cause in good

faith reliance upon a statutorily authorized warrant

used for the prosecution of murder as in Coolidge v.

New Hampshire, 403 U.S. 443 (1971). Without that

explanation, the rule should never have been ex-

tended to its present breadth.

We do not ask now for the overruling of Mapp;

we ask that the Exclusionary Rule be limited to those

eases like Mapp which caused the rule to be promul-

gated. The Exclusionary Rule has assumed a scope

16

far beyond the justifications offered when it was im

posed upon the States. There is no valid rationale

for its automatic extension to all classes of cases

regardlesss of the nature of the police conduct and

the gravity of the crime. As a minimum measure, the

reach: of the rule should be reduced to conform with

the reasons offered for the rule in. Mapp.

The People of the State of California as amicus

curiae, respectfully urge the affirmance of the judg

ment below in No. 71-1669, the reversal of the

judgment below in No. 72-936, the adoption of the

suggested modifications of the rule in Mapp v. Ohio,

Dated, June 26, 1973.

EVvELLE J. YOUNGER,

Attorney General of the State of California,

Epwarp A. Hinz, Jr,

Chief Assistant Attorney General—Criminal Division,

Wu E. James,

Assistant Attorney General—A ppeals Section,

Rosekrt R. GRANUCCI,

Deputy Attorney General,

SanProrD SVETOOV,

Deputy Attorney General,

Attorneys for Amicus Curtae

People of the State of California.