THE EXCLUSIONARY RULE - Scarsdale Public Schools · THE EXCLUSIONARY RULE Take another look at the Fourth Amendment, at the outset of Chapter 1. Note that while it sets out some rules

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CHAPTER 2

THE EXCLUSIONARY RULE

Take another look at the Fourth Amendment, at the outset of Chapter 1. Note that whileit sets out some rules (no "unreasonable searches and seizures"), it says nothing about remedies,i.e., what happens if the police do commit an unreasonable search.

Remedies are very important.When ajudge is considering what ride to adopt, the judge might be influenced (consciously

or unconsciously) by the consequence ofadopting that rule. In Gates, for example, the Courtmight have been concerned that the effect of adhering to the Spinelli 2-prong test would bethat more evidence would be excluded and more criminals would go free. The remedy mighthave created the rule.

When a lawyer is considering whether to claim that a search or arrest was "unreasonable,"the lawyer must consider exactly how such a claim might help the client. If the remedy foran unreasonable search or seizure is exclusion of the resulting evidence from the client's trial,hut this search or seizure did not result in the discovery of evidence to be used against thedefendant, it would be a waste of time and money to challenge the search or seizure. //,however, the remedy for an unreasonable search or seizure is dismissal of the action, thena challenge to the police action would be well worth it.

The main remedy considered by the cases in this chapter is the exclusionary rule —theexclusion of illegally seized evidence from acriminal trial. In considering whether this remedyis appropriate, keep in mind that the traditional purpose of any trial is to find the truth: didthe defendant commit the crime charged? Most rules ofevidence are designed to further thispuqiose. For example, the rule barring hearsay and the many exceptions to this rule areintended to allow reliable evidence in and keep unreliable evidence out. There are a handfulof evidence rules that keep reliable evidence out, for some important collateral purpose.Examples include the doctor-patient privilege and the lawyer-client privilege. Where shouldillegally-seized evidence fit into this?

Judge Cardozo rejected the exclusionary rule, characterizing it in the following terms:The criminal is to go free because the constable has blundered. . . .The pettiest peace

officer would have it in his power, through overzeal or indiscretion, to confer immunityupon an offender for crimes most flagitious. Aroom is searched against the law, and abody of a murdered man is found. Ifthe place of discovery may not be proved, the othercircumstances may be insufficient to connect the defendant with the crime. The privacyof the home has been infringed, and the murderer goes free.*

" People v. Defore. 242 N.Y. 13 (1926).

iMMhcw BenuVf & Co.. Inc.l 35lPub.021)

36 D CRIMINAL PROCEDURE

Is the issue this clear, or did Cardozo miss something?

Problem 2

CH. 2

To: My law clerkFrom: Molly Ballew, Esq.

I just met with several new clients of mine (Allen Ablinsky, Bill Biggs, and Cathy Cobb),who were recently involved in an incident with the Seattle Police. I just got a copy of thefollowing police report:

Police Report

Yesterday morning, I received information that Cathy Cobb was selling heroin at herhome at 123 Rain Street, Apartment 456, in Seattle. I wrote an affidavit, which readsas follows:

Affidavit In Support of Search Warrant

I, Norman North, hereby swear as follows:

I am a police officer employed by the Seattle Police Department. Today, at about10:00 a.m., I received a phone call from a confidential informant who has furnishedme with information in the past. This informant said that he had purchased heroin fromCathy Cobb, and that Cobb lives at an apartment building at 123 Rain Street, Seattle,in Apartment 456.

Based on said information, Affiant has probable cause to believe that illegal narcoticsmay be found at Apartment 456 at 123 Rain Street. Seattle, and hereby prays for asearchwarrant to search said premises for illegal narcotics.

I declare under penalty ofperjury that the above statements are true and correct.Date: September 9. 1998

/s/_

Affiant: Norman North

I took the affidavit to Judge King, and asked him to issue asearch warrant for those premises.Two other judges are available to issue warrants, but they sometimes turn down our requests,while Judge King usually grants them. Judge King read the affidavit and said, "I guess thisis OK. You know this informant better than Ido." He then signed the following search warrant:

Search Warrant

To: Any police officer, deputy sheriff, or other peace officer in the City ofSeattle, Stateof Washington:

Probable cause having been shown by the affidavit of Norman North to believe thatillegal narcotics may be found atApartment 456 of123 Rain Street. Seattle. Washington.

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CH. 2THE EXCLUSIONARY RULE • 37

You are hereby commanded to search the premises at Apartment 456 of 123 RainStreet, Seattle, Washington, for illegal narcotics, and to seize any of said property foundand retain it in your custody subject to further order of this Court.

Date: September 9. 1998

A/_

Solomon King, Judge, Municipal Court

I then went to that address with 2other officers to execute the warrant. As 1was walkingtoward the building, I saw a man standing in front of it. He looked at me funny and startedto walk away. I thought he might be involved in the dnig sales with Cobb, so I grabbed himand told him he was under arrest for selling drugs. I searched his pockets. I found no drugs,but 1did find his driver's license, which identified him as Allen Ablinsky. I recognized thename from a bulletin I had received that morning to look out for an armed robber by thatname. Several victims had identified Ablinsky from a mug photo. I also found in his pocketan airline ticket for aplane leaving for Brazil that afternoon. I told him that I was arrestinghim for armed robbery, and he said, "Damn. Ifyou hadn't nailed me, I'da been outta here."

Another officer took Ablinsky to the station, and I went into the building. I knocked onthe door at Apartment 456, and awoman opened it. She said she was Cathy Cobb. I showedher the search warrant and entered. Aman was there, who identified himself as Bob Biggs.I searched him and released him. I then searched the premises and found a plastic bag ofheroin in a dresser drawer. I arrested Cobb and took her into custody.

Norman North, S.P.D.

Biggs tells me that North left one fact out of his report: when the officer saw Biggs at thehouse, the officer searched Biggs's pockets, found some drugs, took them, punched Biggs inthe stomach, and told him. never to say a word about this. Cobb tells me that there was noheroin in the dresser drawer before North looked in it; she thinks North planted the herointhere. Ablinsky was arrested and charged with armed robbery, Biggs was neither arrested norcharged, and Cobb was arrested and charged with possession of heroin. Please read theattached cases and tell me what I might be able to do for these people.

MAPP v. OHIO

United States Supreme Court367 U.S. 643 (1961)

Mr. Justice Clark delivered the opinion of the Court.Appellant stands convicted ofknowingly having had in her possession and under her control

certain lewd and lascivious books, pictures, and photographs in violation of §2905.34 of Ohio'sKevised Code. The Supreme Court of Ohio found that her conviction was valid though "basedprimarily upon the introduction in evidence of lewd and lascivious books and picturesunlawfully seized during an unlawful search of defendant's home."IMictlK* llcr.tr A Co.. Inc.)

IPub.021)

38 • CRIMINAL PROCEDURE CH. 2

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in thatcity pursuant to information that "a person was hiding out in the home, who was wanted forquestioning in connection with arecent bombing, and that there was alarge amount ofpolicyparaphernalia being hidden in the home." Miss Mapp and her daughter by aformer marriagelived on the top floor of the two-family dwelling. Upon their arrival at that house, the officersknocked on the door and demanded entrance, but appellant, after telephoning her attorney,refused to admit them without a search warrant. They advised their headquarters of thesituation and undertook a surveillance of the house. The officers again sought entrance somethreehours later, when four or more additional officers arrived on the scene. When Miss Mappdid not come tothe door immediately, at least one of the several doors to the house was forciblyopened and the policemen gained admittance.

Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry,and continuing in their defiance of the law, would permit him neither to see Miss Mapp norto enter the house. It appears that Miss Mapp was halfway down the stairs from the upperfloor to the front door when the officers, in this highhanded manner, broke into the hall. Shedemanded to see the search warrant. A paper, claimed to be a warrant, was held up by oneof the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued inwhich the officers recovered the piece of paper, and as a result of which they handcuffedappellant because she had been "belligerent" in resisting their official rescue ofthe "warrant"from her person. Running roughshod over appellant, apoliceman "grabbed" her, "twisted herhand," and she "yelled and pleaded with him" because "it was hurting."

Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officerssearched a dresser, a chest of drawers, a closet and some suitcases. They also looked into aphoto album and through personal papers belonging to the appellant. The search spread tothe rest of the second floor including the child's bedroom, the living room, the kitchen anda dinette. The basement of the building and a trunk found therein were also searched. Theobscene materials for possession ofwhich she was ultimately convicted were discovered inthe course of that widespread search.

At the trial, no search warrant was produced by the prosecution, nor was the failure toproduce one explained or accounted for. At best, "There is, in the record, considerable doubtas to whether there ever was any warrant for the search of defendant's home." 170 Ohio St.at 430. The Ohio Supreme Court believed a"reasonable argument" could be made that theconviction should be reversed "because the 'methods' employed to obtain the evidence weresuch as to offend a sense of justice," but the court found determinative the fact that theevidence had not been taken "from defendant's person bythe use ofbrutal oroffensive physicalforce against defendant."

The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolfv. Colorado (1949) 338 U.S. 25, 33, in which this Court did indeed hold "that in a prosecutionin a State court for a State crime, the Fourteenth Amendment does not forbid the admissionof evidence obtained by an unreasonable search and seizure." On this appeal, it is urged onceagain that we review that holding.(Matthew Bender & Co., Inc.) IPub.021)

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CH. 2 THE EXCLUSIONARY RULE • 39

Seventy-five years ago, in Boyd v. United States (1886) 116 U.S. 616, 630, considering theFourth and Fifth Amendments as running "almost into each other" on the facts before it, thisCourt held that the doctrines of those Amendments "apply to all invasions on the part of thegovernment and its employees of the sanctity of a man's home and the privacies of life. Itis not the breaking ofhis doors, and the rummaging ofhis drawers, that constitutes the essenceof the offence; but it is the invasion of his indefeasible right of personal security, personalliberty and private property. Breaking into a house and opening boxes and drawers arecircumstances of aggravation; but any forcible and compulsory extortion of a man's owntestimony or of his private papers to be used as evidence to convict him of crime or to forfeithis goods, is within the condemnation of those Amendments."

Less than 30 years after Boyd, this Court, in Weeks v. United States (1914) 232 U.S. 383,391-392, dealing with the use of the evidence unconstitutionally seized, the Court concluded:

If letters and private documents can thus be seized and held and used in evidenceagainst a citizen accused ofan offense, the protection ofthe Fourth Amendment declaringhis right to be secure against such searches and seizures is of no value, and, so far asthose thus placed are concerned, might as well be stricken from the Constitution. Theefforts of the courts and their officials to bring the guilty to punishment, praiseworthyas they are, are not to be aided by the sacrifice of those great principles established byyears of endeavor and suffering which have resulted in their embodiment in thefundamental law of the land.

Finally, the Court in that case clearly stated that use of the seized evidence involved "adenial of the constitutional rights of the accused." Thus, in the year 1914, in the Weeks case,this Court "forthe first time" held that "ina federal prosecution the Fourth Amendment barredthe use of evidence secured through an illegal search and seizure." Wolf v. Colorado, supra,338 U.S. 28. This Court has ever since required of federal law officers a strict adherence tothat command which this Court has held to be a clear, specific, and constitutionally required— even ifjudicially implied — deterrent safeguard without insistence upon which the FourthAmendment would have been reduced to "a form of words." Holmes J., Silverthornc LumberCo. v. United States (1920) 251 U.S. 385, 392. It meant, quite simply, that "conviction by meansof unlawful seizures and enforced confessions should find no sanction in the judgments ofthe courts" (Weeks v. United States, supra, 232 U.S. at page 392), and that such evidenceshall not be used at all.' Silverthornc Lumber Co. v. United States, supra, 251 U.S. at page392. . . .

II

In 1949, 35 years after Weeks was announced, this Court, in Wolf v. Colorado again forthe first time, discussed the effect of the Fourth Amendment upon the States through theoperation of the Due Process Clause of the Fourteenth Amendment. It said:

We have no hesitation in saying that were a State affirmatively to sanction such policeincursion into privacy itwould run counter to theguaranty of the Fourteenth Amendment.

Nevertheless, after declaring that the "security of one's privacy against arbitrary intrusionby the police" is "implicit in the concept of ordered liberty and as such enforceable against(Matthew Bender & Co.. In.) IPub.021)

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40 D CRIMINAL PROCEDURE CH. 2 i I

the States through the Due Process Clause," and announcing that it "stoutly adhered" to theWeeks decision, the Court decided that theWeeks exclusionary rule would not then beimposedupon the States as "an essential ingredient ofthe right." The Court's reasons for not consideringessential to theright to privacy, as acurb imposed upon the States by the Due Process Clause,that which decades before had been posited as part and parcel of the Fourth Amendment'slimitations upon federal encroachment of individual privacy, were bottomed on factualconsiderations.

While they are not basically relevant to a decision that the exclusionary rule is an essentialingredient ofthe Fourth Amendment as the right it embodies is vouchsafed against the Statesby the Due Process Clause, we will consider the current validity of the factual grounds uponwhich Wolf was based.

The Court in Wolf first stated that "the contrariety of views of the States" on the adoptionof the exclusionary rule of Weeks was "particularly impressive;" and, in this connection thatit could not "brush aside the experience of States which deem the incidence of such conductby the police too slight to call for adeterrent remedy byoverriding the States' relevant rulesof evidence." While in 1949, prior to the Wolf cose, almost two-thirds of the States wereopposed to the use of the exclusionary rule, now, despite the Wolf case, more than half ofthose since passing upon it, by their own legislative orjudicial decision, have wholly or partlyadopted or adhered to the Weeks rule.

Significantly, among those now following the rule is California, which, according to its highestcourt, was "compelled to reach that conclusion because other remedies have completely failedto secure compliance with the constitutional provisions." People v. Cahan (1955) 44 Cal. 2d434, 445. In connection with this California case, we note that the second basis elaboratedin Wolf in support of its failure to enforce the exclusionary doctrine against the States wasthat "other means of protection" have been afforded "the right to privacy."7 338 U.S. at 30.The experience of California that such other remedies have been worthless and futile isbuttressed by the experience of other States.

Likewise, time has set its face against what Wolf called the "weighty testimony" of Peoplev. Defore (1926) 242 N.Y. 13. There Justice (then Judge) Cardozo, rejecting adoption of theWeeks exclusionary rule in New York, had said that "the Federal rule as it stands is eithertoo strict or too lax." However, the force of that reasoning has been largely vitiated by laterdecisions of this Court. These include the recent discarding of the "silver platter" doctrinewhich allowed federal judicial use of evidence seized in violation of the Constitution by stateagents, Elkins v. United States, supra; the relaxation of the formerly strict requirements astostanding tochallenge the use ofevidence thus seized, so that now theprocedure ofexclusion,"ultimately referable to constitutional safeguards," is available to anyone even "legitimately onthe premises'* unlawfully searched (Jones v. United States (I960) 362 U.S. 257, 266-267); andfinally, the formulation ofa method to prevent state use ofevidence unconstitutionally seizedby federal agents (Rea v. United States (1956) 350 U.S. 214).

It, therefore, plainly appears that the factual considerations supporting the failure of theWolf Court to include the Weeks exclusionary rule when it recognized the enforceability of

7 Less than half of the Stales have any criminal provisions relating directly to unreasonable searches and seizures.

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the right to privacy against the States in 1949, while not basically relevant to the constitutionalconsideration, could not, in any analysis, now be deemed controlling.

Ill

Today we once again examine Wolfs constitutional documentation of the right to privacyfree from unreasonable state intrusion, and, after its dozen years on our books, are led byit to close the only courtroom door remaining open to evidence secured by official lawlessnessin flagrant abuse of that basic right, reserved to all persons as a specific guarantee againstthat very same unlawful conduct. We hold that all evidence obtiiined by searches and seizuresin violation of the Constitution is, by that same authority, inadmissible in a state court.

IV

Since the Fourth Amendment's right of privacy has been declared enforceable against theStates through the Due Process Clause of the Fourteenth, it is enforceable against them bythe same sanction of exclusion as is used ag«ainst the Federal Government. Were it otherwise,then just as without the Weeks rule the assurance against unreasonable federal searches andseizures would be "a form of words," valueless and undeserving of mention in a perpetualcharter of inestimable human liberties, so too, without that rule the freedom from stateinvasions of privacy would be so ephemeral and so neatly severed from its conceptual nexuswith the freedom from all brutish means of coercing evidence as not to merit this Court'shigh regard as a freedom "implicit in the concept of ordered liberty." At the time that theCourt held in Wolf that the Amendment was applicable to the States through the Due Process(llause, the cases of this Court, as we have seen, had steadfastly held that as to federal officersthe Fourth Amendment included the exclusion of the evidence seized in violation of itsprovisions. Even Wolf "stoutly adhered" to that proposition. The right to privacy, whenconceded operatively enforceable against the States, was not susceptible of destruction byavulsion of the sanction upon which its protection and enjoyment had always been deemeddependent under the Boyd, Weeks and Silverthorne cases. Therefore, in extending thesubstantive protections of due process to all constitutionally unreasonable searches — stateor federal — it was logically and constitutionally necessary that the exclusion doctrine — anessential part of the right to privacy — be also insisted upon as an essential ingredient of theright newly recognized by the Wolf case. In short, the admission of the new constitutionalright by Wolfcould not consistently toleratedenial of its most important constitutional privilege,namely, the exclusion of the evidence which an accused had been forced to give by reasonof the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold itsprivilege and enjoyment. Only last year the Court itself recognized that the purpose of theexclusionary rule "is to deter — to compel respect for the constitutional guaranty in the onlyeffectively available way by removing the incentive to disregard it." Elkins v. United States,supra, 364 U.S. at page 217.

Indeed, we are aware of no restraint, similar to that rejected today, conditioning theenforcement of any other basic constitutional right. The right to privacy, no less importantihan any other right carefully and particularly reserved to the people, would stand in markedcontrast to all other rights declared as "basic to a free society." Wolf v. Colorado, supra, 338U.S. at 27.This Court has not hesitated to enforce as strictly against the States as it does againstIhe Federal Government the rights of free speech and of a free press, the rights to noticeiManhew Bender & Co.. In.-. I (Pub.021)

42 D CRIMINAL PROCEDURE CH. 2

and to a fair, public trial, including, as it does, the right not tobe convicted by useof a coercedconfession, however logically relevant it be, and without regard to its reliability. Rogers v.Richmond (1961) 365 U.S. 534. And nothingcould be morecertain than that when a coercedconfession is involved, "the relevant rules of evidence" are overridden without regard to "theincidence of such conduct by the police," slight or frequent. Why should not the same ruleapply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods,papers, effect, documents, etc.? We find that, as to the Federal Government, the Fourth andFifth Amendments and, as to the States, the freedom from unconscionable invasions of privacyand the freedom from convictions based upon coerced confessions do enjoy an "intimaterelation" in their perpetuation of "principles of humanity and civil liberty secured only afteryears of struggle." Bram v. United States (1897) 168 U.S. 532, 543-544. They express"supplementing phases of the same constitutional purpose — to maintain inviolate large areasof personal privacy." FeUlman v. United States (1944) 322 U.S. 487, 489-490. The philosophyof each Amendment and of each freedom is complementary to, although notdependent upon,that of the other in its sphere of influence — the very least that together they assure in eithersphere is that no man is to be convicted on unconstitutional evidence.

Moreover, our holding that the exclusionary rule is an essential part of both the Fourthand Fourteenth Amendments is not only the logical dictate of prior cases, but it also makesvery good sense. There is no war between the Constitution and common sense. Presently,a federal prosecutor may make no useof evidence illegally seized, buta State's attorney acrossthe street may, although he supposedly isoperating under the enforceable prohibitions of thesame Amendment. Thus the State, byadmitting evidence unlawfully seized, serves toencouragedisobedience to the Federal Constitution which it is bound to uphold. Moreover, as was saidin Elkins, "the very essence of a healthy federalism depends upon the avoidance of needlessconflict between state and federal courts."

There are those who say, as did Justice (then Judge) Cardozo, that underourconstitutionalexclusionary doctrine "the criminal is to go free because the constable has blundered." Peoplev. Defore, 242 N.Y. at 21. In some cases this will undoubtedly be the result. But, as was saidin Elkins, "there is another consideration — the imperative of judicial integrity." The criminalgoes free, if he must, but it is the law that sets him free. Nothing can destroy a governmentmore quickly than its failure to observe its own laws, or worse, its disregard of the charterof its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States(1928) 277 U.S. 438, 485:

Our government is the potent, die omnipresent teacher. For good or for ill, it teachesthe whole people by its example. If the government becomes a lawbreaker, it breedscontempt for law; it invites every man to become a law unto himself; it invites anarchy.

Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rulefetters law enforcement. Only last year this Court expressly considered that contention andfound that "pragmatic evidence of a sort" to the contrary was not wanting. Elkins v. UnitedStates, supra, 364 U.S. at 218. The Court noted that:

The federal courts themselves have operated under the exclusionary rule of Weeks foralmost half a century; yet it has not been suggested either that the Federal Bureau of

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Investigation h.as thereby been rendered ineffective, or that the administration of criminaljustice in the federal courts has thereby been disrupted. Moreover, the experience of thestates is impressive. The movement towards the rule of exclusion has been halting butseemingly inexorable.

The ignoble shortcut to conviction left open to the State tends to destroy the entire systemof constitutional restraints on which the liberties of the people rest. Having once recognizedthat the right to privacy embodied in the Fourth Amendment is enforceable against the States,and that the right to be secure against rude invasions of privacy by state officers is, therefore,constitutional in origin, we can no longer permit that right to remain an empty promise.Because it is enforceable in the same manner and to like effect as other basic rights securedby the Due Process Clause, we can no longer permit it to be revocable at the whim of anypolice officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.Our decision, founded on reason and truth, gives to the individual no more than that whichthe Constitution guarantees him, to the police officer no less th<in that to which honest lawenforcement is entitled, and, to the courts, that judicial integrity so necessary in the trueadministration of justice.

The judgment of the Supreme Court of Ohio is reversed and the cause remanded for furtherproceedings not inconsistent with this opinion.

Mr. Justice Harlan, whom Mr. Justice Frankfurter and Mr. Justice Whittaker join,dissenting.

In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicialrestraint which, with due regard for stare decisis, is one element that should enter into decidingwhether a past decision of this Court should be overruled. Apart from that, I also believe thatthe Wolf rule represents sounder Constitutional doctrine than the new rule which now replacesit. . . .

The preservation of a proper balance between state and federal responsibility in theadministration of criminal justice demands patience on the part of those who might like tosee things move faster among the states in this respect. Problems of criminal law enforcementvary widely from state of state. One state, in considering the totality of its legal picture, mayconclude that the need for embracing the Weeks rule is pressing because other remedies areunavailable or inadequate to secure compliance with the substantive constitutional principleinvolved. Another, though equally solicitous ofconstitutional rights, may choose to pursue onepurpose at a time, allowing all evidence relevant to guilt to be brought into a criminal trial,and dealing with constitutional infractions by other means. Still another may consider theexclusionary rule too rough-and-ready a remedy, in that it reaches only unconstitutionalintrusions which eventuate in criminal prosecution of the victims. Further, a state afterexperimenting with the Weeks rule for a time may, because of unsatisfactory experience withil, decide to revert to a non-exclusionary rule. And so on. From the standpoint ofconstitutionalpermissibility in pointing a state in one direction or another, I do not see at .all why "timehas set its face against" the considerations which led Mr. Justice Cardozo, then chief judgeof the New York Court of Appeals, to reject for New York in People o. Defore, 242 N.Y. 13,the Weeks exclusionary rule. For us the question remains, as it has always been, one of statepower, not one of passing judgment on the wisdom of one state course or another. In myiMjtthew Bender It Co.. Inc.) (Pub.(12l)


view this Court should continue to forbear from fettering thestates with an adamant rule whichmay embarrass them in coping with their own peculiar problems in criminal law enforcement.

Notes from Molly:

1. The Court seems to reason as follows: "For the Fourth Amendment to 'work,' there mustbe remedies which deter the police from committing unreasonable searches and seizures. Theremedy we deem compelled is exclusion of the resulting evidence from criminal trials, becauseother remedies (prosecuting police, suing police, etc.) don't work." Something bothers meabout this logic. Does the Court cite any evidence that excluding the evidence does work todeter the police?

2. The Court also relies on "the imperative ofjudicial integrity." What is this all about? Whena court orders exclusion of relevant evidence that would have convicted the defendant, andthis results in an acquittal or dismissal, is "judicial integrity" improved or diminished, in theeyes of the public? Should the eyes of the public matter?

3. The Court says that because it has held that coerced confessions must be excluded fromcriminal trials, so must illegally-seized physical evidence. Does this follow? Is there anydifference between the two types of evidence?

4. How can we use Mapp's exclusionary rule to help Ablinsky and Biggs?

PEOPLE v. MCMURTY

Criminal Court of City of New York, N. Y. County314 N.Y.S.2d 194 (1970)

Irvinc Youncer, Judce.

For several years now, lawyers concerned with the administration of criminal justice havebeen troubled by the problem of "dropsy" testimony. This case shows why.

The facts are simple. On July 23, 1970, Patrolman Charles Frisina arrested defendant JamesMcMurty on a charge of possession of marijuana. McMurty moved to suppress the marijuanafor use as evidence, and, indue course, a hearing was held. Frisina took thestand. In condensedbut substantially verbatim form, he testified as follows:

At 8:30 p.m. on July 23, 1970, I was on duty driving a patrol car. While stopped fora light at West 3rd Street and Broadway, I observed two men in a doorway of the buildingat 677 Broadway. One of these men — James McMurty, as I later learned — saw thepatrol car and stepped out of the doorway. From his right hand he let drop a small plasticcontainer. I got out of die patrol car and retrieved it. In my opinion, based upon a fairamount of experience, its contents were marijuana. I .approached McMurty, who had

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begun to walk away, and asked him if the container was his. He said no. I said that Ihad seen him drop it and placed him under arrest.

Then McMurty took the stand. In condensed but substantially verbatim form, he testifiedas follows:

On July 23, 1970, at 8:30 p.m., I was walking on Broadway near West 3rd Street whenI saw Patrolman Frisina coming toward me. I knew that I had acontainer of marijuanain my pocket. I also knew, after twelve years of involvement with drugs and four or fiveprior convictions, that illegal-search-and-seizure was my only defense. The last thing Iwould do is drop the marijuana to the ground. I simply left it in my pocket. Frisina toldme to get into a doorway. I obeyed, hoping that he would search me. He did just that,found the marijuana, and arrested me.

The prosecutor stands on Frisina's testimony. Since the marijuana had been abandoned,he argues, its seizure was lawful. Defense counsel stands on McMurty's testimony. The arrestoccurred when McMurty was ordered into the doorway, he argues, and since the officer thenhad no probable cause to arrest, the search which followed was unlawful.

Were this the first time apoliceman had testified that a defendant dropped apacket ofdrugs to the ground, the matter would be unremarkable.The extraordinary thing is that eachyear in our criminal courts policemen give such testimony in hundreds, perhaps thousands,of cases and that, in a nutshell, is the problem of "dropsy" testimony. It disturbs me now]and it disturbed me when I was at the Bar. Younger, The Perjuni Routine, The Nation Mav8, 1967, p. 596: ' y

. . . Policemen see themselves as fighting a two-front war —against criminals in the streetand against "liberal" rules of law in court. All's fair in this war, including the use of perjuryto subvert "liberal" rules of law that might free those who "ought" to be jailed. ... Itis apeculiarity of our legal system that the police have unique opportunities (and uniquetemptations) to give false testimony. When the Supreme Court lays down arule to governthe conduct of the police, the rule does not enforce itself. Some further proceeding .is almost always necessary to determine what actually happened. In Mapp v. Ohio, 367U.S. 643, for example, the Supreme Court laid down the rule that evidence obtained bythe police through an unreasonable search and seizure may not be used in astate criminalprosecution. But before applying the rule to any particular case, a hearing must be heldto establish the facts. Then thejudge decides whether those facts constitute an unreasonable search and seizure.... The difficulty arises when one stands back from the particularcase and looks at aseries of cases. It then becomes apparent that policemen are committingperjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutionsin New York City can be so viewed. Before Mapp, the policeman typically testified thathe stopped the defendant for little or no reason, searched him, and found narcotics onhis person. This had the ring of truth. It was an illegal search (not based upon "probablecause"), but the evidence was admissible because Mapp had not yet been decided. Sinceit made no difference, the policeman testified truthfully. After the decision in Mapp, itmade agreat deal of difference. For the first few months, New York policemen continuedto tell the truth about the circumstances of their searches, with the result that evidencewas suppressed. Then the police made the great discovery that if the defendant dropsthe narcotics on the ground, after which the policeman arrests him, the search is

(Matlnew BctKlcr & Co.. Inc.)IFiib.021)


reasonable and the evidence is admissible. Spend a few hours in the New York CityCriminal Court nowadays, and you will hear case after case in which a policeman testifiesthat the defendant dropped the narcotics on the ground, whereupon the policemanarrested him. Usually the very language of the testimony is identical from one case toanother. This is now known among defense lawyers and prosecutors as "dropsy" testimony.The judge has no reason to disbelieve it in any particular case, and of course the judgemust decide each case on its own evidence, without regard to the testimony inother cases.Surely, though, not in every case was the defendant unlucky enough to drop his narcoticsat the feet of a policeman. It follows that at least in some of these cases the police arelying.

So far as I know, there has been only one statistical study of "dropsy" complaints. Barlow,Patterns of Arrests for Misdemeanor Narcotics Possession: Manhattan Police Practices 1960-62,4 Criminal Law Bulletin 549 (1968). It confirms my impressions.

In the period after Mapp, the number of complaints alleging that the suspect droppedthe contraband increased for all groups of officers. The Narcotics Squad showed thesmallest percentage increase (45.3 percent), although the rise in the number of their"dropsies" (93, from 205 to 298) was the largest. The plainclothesmen recorded a 71.8percent rise in complaints based on this circumstance, an increase from 32 to 55; whilethe uniformed officers showed the highest percentage increase (79.6 percent), with thenumber of complaints alleging drops rising from 69 to 128.

Beyond any doubt, then, the problem exists. Its solution, I suppose, is prosecutors' work.The courts can only deplore. They are ill equipped to persuade the police to change theirpractices or alter their philosophy. In Judge Wright's words, Veney v. United States, [344 F.2d542, 543 (concurring opinion) (D.C. Cir. 1965)], "the time is ripe for some soul searching inthe prosecutor's office before it offers any more (dropsy testimony)."

Withal, judges must decide the cases that come before them. In this case, my reasoninghas taken four steps.

First. "Dropsy" testimony should be scrutinized with especial caution.I am aware that in Bush v. United States, [375 F.2d 602, 604 (D.C. Cir. 1967)], Judge (as

he then was) Burger wrote, with respect to narcotics policemen: "But it would be a dismalreflection on society to say that when the guardians of its security are called to testify in courtunder oath, their testimony must be viewed with suspicion." With all possible deference, Idisagree. When there are grounds for believing that "the guardians of its security" sometimesgive deliberately false testimony, it is no "dismal reflection on society" for judges toacknowledge what all can see. If courage is the secret of liberty, . . . the first task of freemen is to call things by their right name.

Second. Should the policeman's testimony seem inherently unreal, it will forthwith berejected. This is a consequence of the first consideration.

Here, the evidence given by neither witness strikes me as against the grain of humanexperience. If Frisina's testimony stood alone, I could believe it. If McMurty's testimony stoodalone, I could believe it.

Third. The slightest independent contradiction of the policeman's testimony or corroborationof the defendant's testimony will warrant suppression of the evidence. This too is a consequenceof the first consideration.

(Matthew Bender * Co.. Inc.) (Pub.()2ll

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CH. 2 THE EXCLUSIONARY RULE D 47

Here, there was no independent contradiction ofFrisina and no independent corroborationof McMurty. The testimony of each remains poised in the balance.

Fourth. Determine whether the burden of proof has been carried.Had the issue been open, I would hold that the People must prove beyond a reasonable

doubt that the seizure was lawful. But the issue is closed. The Court of Appeals declares theburden of proof to be the defendant's. People v. Baldwin, 25 N.Y.2d 66 (i969). Where thetestimony on one side balances the testimony on the other, as here, it is the People who prevail.Defendant's motion to suppress is therefore denied.

I come to this decision reluctantly. Our refusal to face up to the "dropsy" problem soilsthe rectitude ofthe administration ofjustice. One is tempted to deal with it now by suppressing"dropsy" evidence out of hand; yet I cannot. Reason and settled rules of law lead the otherway, and judges serve the integrity of the means, not the attractiveness of the end.

Somehow, policemen must be made to understand that their duty is no different.

Notes from Molly:

1. In light ofJudge Younger's and Professor Dershowitz's comments, do you have any secondthoughts about whether the exclusionary rule enhances "judicial integrity"?

2. It would seem that a police officer can easily avoid the effect of the exclusionary rulesimply by testifying — falsely — that he conducted a search or arrest in a certain manner,which happens to comply with the current rules governing searches and arrests. If the judgebelieves the officer — or pretends to — the judge will deny the motion to suppress theevidence. If this is a real possibility, isn't Mapp pretty much worthless — unless there is someway to prevent police officers from "testilying" or to prevent judges from "believing" them?

3. How easy is it for a judge to know who is telling the truth? Consider Farber & Sherry,Telling Stories Out of School: An Essay on Legal Narratives, 45 Stanford L. Rev. 807, 837,n.155 (1993)" , who state that "Human beings are actually extremely poor at determiningwhether a person is lying, even in face-to-face contexts" They explain:

The basic research finding is that "in every study reported, people have not been veryaccurate in judging when someone is lying," including professionals whose jobs requirethem to make credibility judgments, such as FBI agents, police officers, and judges. PaulEkman & Maureen O'Sullivan, Who Can Catch A Liar, 46 Am. Psychol. 913 (1991)(finding that only Secret Service agents performed better than chance in detecting lying);see also Gerald R. Miller & Judee K. Burgoon, Factors Affecting Assessments of WitnessCredibility, in The Psychology of the Courtroom 169, 184-86 (reporting that people arehighly confident of their ability to detect lies, but quite mistaken in this belief).

4. How about this idea for stopping police perjury? Whenever a motion to suppress turnson a credibility battle between a policeman and a defendant, the judge tells them: "I'd likeboth of you to take a polygraph (lie detector) test and give me the results. I'm not orderingit, but if one of you refuses to take it, I'll take that as evidence that you're lying." See DonaldA. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J. Crim. Law & Criminology 693(1996).

" © 1993 by ihe Board of Trustees of Ihe Lclnnd Stanford Jr. University.

(Matthew Bonder & Co.. Inc.) (Pub.021)

48 • CRIMINAL PROCEDURECH. 2

CITY OF PASCO v. TITUS

Washington Court of Appeals26 Wash. App. 412, 613 P.2d 181 (1980)

Roe, Judce.

We reverse the trial court because the judge dismissed the charge against the defendantsolely on the ground the defendant was illegally arrested. The defendant was charged withviolating a city ordinance requiring him to leave information at the scene of an accident.

We assume the arrest was illegal; hence, all evidence immediately obtained from thedefendant or as the result of the arrest should be suppressed. The City resisted defendant'smotion for dismissal because it allegedly had two independent witnesses who could supportthe City's charges. Such testimony proved sufficient to convict in the municipal court fromwhich an appeal was taken to the Superior Court. In dismissing the charge at apretrial hearingthe Superior Court relied on State ex rel. McDonald v. Whatcom County Dist. Court, 92 Wash!—Ci oo (iy#y^. . . .

In Ker v. Illinois, 119 U.S. 436 (1886), the defendant sought reversal of an embezzlementconviction claiming he was kidnapped in Lima, Peru, and brought into Illinois against his willand contrary to law. The court held the due process of law guaranty applies to the forms andmodes prescribed for trials, and mere irregularities in the manner in which the defendant maybe brought into custody of law are not grounds for holding he should not be tried for thecrime with which he is charged.

There are authorities of the highest respectability which hold that such forcibleabduction is no sufficient reason why the party should not answer when brought withinthe jurisdiction ofthe court which has the right to try him for such an offense, and presentsno valid objection to his trial in such court.

In Frisbie v. Collins, 342 U.S 519 (1952), the court stated:

This Court has never departed from the rule announced in Ker v. Illinois that the powerof acourt to try aperson for crime is not impaired by the fact that he had been broughtwithin the court's jurisdiction by reason of a "forcible abduction." No persuasive reasonsare now presented to justify overruling this line of cases. They rest on the sound basisthat due process of law is satisfied when one present in court is convicted ofcrime afterhaving been fairly apprized ofthe charges against him and after a fair trial in accordancewith constitutional procedural safeguards. There is nothing in the Constitution thatrequires a court to permit a guilty person rightfully convicted to escape justice becausehe was brought to trial against his will.

Although Ker and Frisbie were decided prior to the adoption of the exclusionary rule,2 yetcases subsequent thereto reinforce the prior holdings. In Wong Sun v. United States, 371 U.S.

2In United States v. Rosenberg, 195 F.2d 583 (2d Cir. 1952), affirmed. 346 U.S. 273 (1953) (the atom spy case)presumably the defendants had been kidnapped from Mexico and brought to trial in ihe United States. Despite that(Matthew Bender A Co. Inc.)

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471, (1963), the defendant was illegally arrested. Yet that was not a basis for dismissal, andhis unsigned confession, which was not the fruit of that arrest because it had become soattenuated as to dissipate the taint, was properly admitted at trial.

In United States v. Crews, 445 U.S. 463, 474, (1980), the defendant was illegally arrested,but the court stated:

Insofar as defendant challenges his own presence at trial, he cannot claim immunityfrom prosecution simply because his appearance in court was precipitated by an unlawfularrest. An illegal arrest, without more, has never been viewed as a bar to subsequentprosecution, nor as a defense to a valid conviction. The exclusionary principle of WongSun and Silverthome Lumber Co. v. United States, 251 U.S. 385 (1920) delimits whatproof the Government may offer against the accused at trial, closing the courtroom doorto evidence secured by official lawlessness.

Washington law is in harmony with the federal cases regarding the effect of illegal arrest.In State v. Ryan, 48 Wash. 2d 304 (1956), the court stated:

Where, for any reason, an arrest is invalid, but the defendant enters a plea of not guiltyand is in court on the day of trial, the court has jurisdiction of his person. Where thecourt has jurisdiction of the person of a defendant, it is not a ground for quashing ordismissing a criminal prosecution that he was not lawfully arrested.

We therefore hold that the fact of illegal arrest does not ipso facto justify a dismissal ofthe charge.

Since the trial court reliedon State ex rel. McDonald v. Whatcom County Dist. Court, supra,recourse to the precise language of that case is appropriate. There, the court dismissed thecharge following an illegal arrest for driving under the influence of intoxicating liquor, sinceit was conceded that the officer's testimony would be essential to prove the case. However,that was not the issue. Bather, the court stated:

The sole issue in this case is whether a law enforcement officer who has investigatedan accident at the scene thereof may thereafter arrest the driver or one of the driversinvolved at a place away from the accident scene.

The court held that under the then existing statute, the officer could not arrest. Since itwas conceded in that case that bis testimony was essential for conviction but was suppressedbecause of his illegal arrest, the correct result was to dismiss the case. But those facts arenot applicable here.

We do not seek to enlarge the holding of Whatcom County. No authority has been citedto this court which requires dismissal of a charge merely because of an illegal arrest. We holdII does not.

In this case the trial court should not have dismissed the case but should have ruled thatthe municipality could not exploit the illegal arrest to gain evidence to prove the charge.

The order of dismissal in this case is reversed, and the cause is remanded for trial.

iKiiiin. ihe court in a criminal case was not divested of jurisdiction to try Ihe defendants. Ultimately, the defendantswcic executed. Had there been any question of jurisdiction, it is doubtful that such an irrevocable result would haveoccurred.

.«.!...(. - (lender & Cu.. Inc.) (Pub.021)


Notes from Molly:1. Is Titus consistent with the policies underlying the exclusionary rule, as expressed in Mapp?If we are truly concerned with deterring the police from illegally arresting people, and with"judicial integrity," wouldn't dismissal of the charges against Titus help to further thesepurposes?2. How does this case affect our ability to help Ablinsky?

UNITED STATES v. LEON

United States Supreme Court468 U.S. 897 (1984)

Justice White delivered the opinion of the Court.This case presents the question whether the Fourth Amendment exclusionary rule should

be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtainedby officers acting in reasonable reliance on asearch warrant issued by a detached and neutralmagistrate but ultimately found to be unsupported by probable cause. To resolve this question,we must consider once again the tension between the sometimes competing goals of, on theone hand, deterring official misconduct and removing inducements to unreasonable invasionsof privacy and, on the other, establishing procedures under which criminal defendants are"acquitted or convicted on the basis ofall the evidence which exposes the truth." Aldermanv. United States, 394 U.S. 165 (1969). I.

In August 1981, a confidential informant of unproven reliability informed an officer of theBurbank Police Department that two persons known to him as "Armando" and "Patsy" wereselling large quantities ofcocaine and methaqualone from their residence at 620 Price Drivein Burbank, Cal. The informant also indicated that he had witnessed a sale of methaqualoneby "Patsy" at the residence approximately five months earlier and had observed at that timea shoebox containing a large amount of cash that belonged to "Patsy." He further declaredthat "Armando" and "Patsy" generally kept only small quantities of drugs at their residenceand stored the remainder at another location in Burbank.

On the basis of this information, the Burbank police initiated an extensive investigationfocusing first on the Price Drive residence and later on two other residences as well. Carsparked at the Price Drive residence were determined to belong to respondents ArmandoSanchez, who had previously been arrested for possession of marihuana, and Patsy Stewart,who had no criminal record. During the course of the investigation, officers observed anautomobile belonging to respondent Ricardo Del Castillo, who had previously been arrestedfor possession of 50 pounds of marihuana, arrive at the Price Drive residence. The driver ofthat car entered the house, exited shortly thereafter carrying a small paper sack, and droveaway. Acheck ofDel Castillo's probation records led the officers to respondent Alberto Leon,whose telephone number Del Castillo had listed as his employer's. Leon had been arrestedin 1980 on drug charges, and a companion had informed the police at that time that Leonwas heavily involved in the importation of drugs into this country. Before the current(Mjtthew Bender A Co.. Inc.) (Pub.021)

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investigation began, the Burbank officers had learned that an informant had told a Glendalepolice officer that Leon stored a large quantity of methaqualone at his residence in Glendale.During the course of this investigation, the Burbank officers learned that Leon was living at716 South Sunset Canyon in Burbank.

Subsequently, the officers observed several persons, at least one of whom had prior druginvolvement, arriving at the Price Drive residence and leaving with small packages; observeda variety of other material activity at the two residences as well as at a condominium at 7902Via Magdalena; and witnessed a variety of relevant activity involving respondents' automobiles.The officers also observed respondents Sanchez and Stewart board separate flights for Miami.The pair later returned to Los Angeles together, consented to a search of their luggage thatrevealed only a small amount of marihuana, and left the airport. Based on these and otherobservations summarized in the affidavit, Officer Cyril Rombach of the Burbank PoliceDepartment, an experienced and well-trained narcotics investigator, prepared an applicationfor a warrant to search 620 Price Drive, 716 South Sunset Canyon, 7902 Via Magdalena, andautomobiles registered to each of the respondents for an extensive list of items believed tobe related to respondents' drug-trafficking activities. Officer Rombach's extensive applicationwas reviewed by several Deputy District Attorneys.

Afacially valid search warrant was issued in September 1981 by a state superior court judge.The ensuing searches produced large quantities of drugs at the Via Magdalena and SunsetCanyon addresses and a small quantity at the Price Drive residence. Other evidence wasdiscovered at each of the residences and in Stewart's and Del Castillo's automobiles.

Respondents were indicted by a grand jury in the District Court for the Central District ofCalifornia and charged with conspiracy to possess and distribute cocaine and a variety ofsubstantive counts.

The respondents then filed motions to suppress the evidence seized pursuant to the warrant.. . . The District Court held an evidentiary hearing and, while recognizing that the case wasa close one, granted the motions to suppress in part. It concluded that the affidavit wasinsufficient to establish probable cause,2 but did not suppress all of the evidence as to all ofthe respondents because none of the respondents had standing to challenge all of the searches.... In response to a request from the Government, the court made clear that Officer Rombachhad acted in good faith, but it rejected the Government's suggestion that the FourthAmendment exclusionary rule should not apply where evidence is seized in reasonable, good-faith reliance on a search warrant.4 . . .

2 "I just cannot find this warrant sufficient for a showing of probable cause. There is no question of the reliabilityand credibility of the informant as not being established. Some details given tended to corroborate, maybe, the reliabilityof the informant's information about the previous transaciion, but if it is not a stale transaction, it comes awfullyclose to it; and all the other material I think is as consistent with innocence as it is with guilt. So I just do not thinkthis affidavit can withstand the test. I find, then, that there is no probable cause in this case for the issuance of thesearch warrant."

4 "On Ihe issue of good faith, obviously that is not the law of the Circuit, and I am not going to apply that law.I will say certainly in my view, there is not any question about good faith. Officer Rombach went to a Superior Courtjudge and got a warrant; obviously laid a meticulous trail. Had surveillcd for a long period of time, and I believehis testimony — and I think he said he consulted with three Deputy District Attorneys before proceeding himself,and I certainly have no doubt about the fact that that is true."

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52 • CRIMINAL PROCEDURECH. 2

II

Language in opinions of this Court and of individual Justices has sometimes implied thatthe exclusionaiy rule is a necessary corollaiy of the Fourth Amendment, Mapp v. Ohio, 367U.S. 643, (1961), or that the rule is required by the conjunction of the Fourth and FifthAmendments. Mapp v. Ohio, supra, 367 U.S., at 661-662 (Black, J., concurring). Theseimplications need not detain us long. The Fifth Amendment theory has not withstood criticalanalysis or the test of time, and the Fourth Amendment "has never been interpreted toproscribe the introduction of illegally seized evidence in all proceedings or against all persons."Stone v. Powell, 428 U.S. 465, 486 (1976).

The Fourth Amendment contains no provision expressly precluding the use of evidenceobtained in violation of its commands, and an examination of its origin and purposes makesclear that the use of fruits of a past unlawful search or seizure "works no new FourthAmendment wrong." United States v. Calandra, 414 U.S. 338, 354 (1974). The wrongcondemned by the Amendment is "fully accomplished" by the unlawful search orseizure itself,ibid., and the exclusionary rule is neither intended nor able to "cure the invasion of thedefendant's rights which he has already suffered." Stone v. Powell, supra, 428 U.S., at 540(White, J., dissenting). The rule thus operates as "a judicially created remedy designed tosafeguard Fourth Amendment rights generally through its deterrent effect, rather than apersonal constitutional right of the person aggrieved." United States v. Calandra, supra 414U.S. at 348.

Whether the exclusionary sanction is appropriately imposed in a particular case, our decisionsmake clear, is "an issue separate from the question whether the Fourth Amendment rightsof the party seeking to invoke the rule were violated by police conduct." Illinois v. Gates, 462U.S. 213 (1983). Only the former question is currently before us, and it must be resolved byweighing the costs and benefits of preventing the use in the prosecution's case-in-chief ofinherently trustworthy tangible evidence obtained in reliance on a search warrant issued bya detached and neutral magistrate that ultimately is found to be defective. The substantialsocial costs exacted by the exclusionary rule for the vindication of Fourth Amendment rightshave long been a source of concern. "Our cases have consistently recognized that unbendingapplication of the exclusionary sanction to enforce ideals of governmental rectitude wouldimpede unacceptably the truth-finding functions of judge and jury." United States v. Payner,447 U.S. 727, 734 (1980). An objectionable collateral consequence of this interference withthe criminal justice system's truth-finding function is that some guilty defendants may go freeor receive reduced sentences as a result of favorable plea bargains.6 Particularly when law

6Researchers have only recently begun to study extensively the effects of the exclusionary rule on the dispositionof felony arrests. One study suggests that the rule results in the nonprosccution or nonconviction of between 0.6%and 2.35% of individuals arrested for felonies. Davies, "A Hard Look at What We Know (and Still Need to Learn)About the 'Costs' of the Exclusionary Rule: The NIJ Study and Other Studies of 'Lost' Arrests," 1983 A.B.F. Res.J. 611, 621, The estimates arc higher for particular crimes the prosecution of which depends heavily on physicalevidence. Thus, the cumulative loss due to nonproseculion or nonconviction of individuals arrested on felony drugcharges is probably in the range of2.8% to 7.1%. Id. ai 680. Davies' analysis ofCalifornia data suggests that screeningby police and prosecutors results in the release because of illegal searches or seizures of as many as 1.4% ofall rclonyarrestees, id. at 650, that 0.9% of felony arrestees are released because of illegal searches or seizures at the preliminary(Mature- Bender ACo.. Inc.) (ftib.0211

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CH 2 THE EXCLUSIONARY RULE D 53

enforcement officers have acted in objective good faith or their transgressions have been minor,the magnitude of the benefit conferred on such guilty defendants offends basic concepts of"the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, maywell "generate disrespect for the law and the administration of justice." Accordingly, "as withany remedial device, the application of the rule has been restricted to those areas where itsremedial objectives are thought most efficaciously served." United States v. Calandra suvra414 U.S. at 348. ' r '

B

Close attention to those remedial objectives has characterized our recent decisionsconcerning the scope of the Fourth Amendment exclusionary rule.

In Stone v. Powell, supra, the Court emphasized the costs of the exclusionary rule, expressedits view that limiting the circumstances under which Fourth Amendment claims could be raisedin federal habeas corpus proceedings would not reduce the rule's deterrent effect, and heldthat a state prisoner who has been afforded a full and fair opportunity to litigate a FourthAmendment claim may not obtain federal habeas relief on the ground that unlawfully obtainedevidence had been introduced at his trial. Proposed extensions of the exclusionary rule toproceedings other than the criminal trial itself have been evaluated and rejected under thesame analytic approach. In United States v. Calandra, supra, for example, we declined to allowgrand jury witnesses to refuse to answer questions based on evidence obtained from an unlawfulsearch or seizure since "any incremental deterrent effect which might be achieved by extendingthe rule to grand jury proceedings is uncertain at best." Id., 414 U.S. at 348. Similarly, in UnitedSlates v. Janis, supra, we permitted the use in federal civil proceedings of evidence illegallyseized by state officials since the likelihood of deterring police misconduct through such anextension of the exclusionary rule was insufficient to outweigh its substantial social costs. Inso doing, we declared that, "if the exclusionary rule does not result in appreciable deterrence,then, clearly, its use in the instant situation is unwarranted." Id., 428 U.S. at 454.

As cases considering the use of unlawfully obtained evidence in criminal trials themselvesmake clear, it does not follow from the emphasis on the exclusionary rule's deterrent valuethat "anything which deters illegal searches is thereby commanded by the Fourth Amendment."Alderman v. United States, 394 U.S. at 174. In determining whether persons aggrieved solelyby the introduction of damaging evidence unlawfully obtained from their co-conspirators orco-defendants could seek suppression, for example, we found that the additional benefits ofsuch an extension of the exclusionaiy rule would not outweigh its costs. Standing to invokehearing orafter trial, id. at 653. and (hat roughly 0.05% of all felony arrestees benefit from reversals on appeal becauseof illegal searches. Id. at 654. The exclusionary rule also has been found to affect the plea-bargaining process. S.Schlcsingcr, Exclusionary Injustice: The Problem of Illegally Obtained Evidence 63 (1977). But see Davies supraat 668-669.

Many of these researchers have concluded that the impact of Ihe exclusionary rule is insubstantial, but ihe smallpercentages with which they deal mask a large absolute number of felons who are released because the cases againstihcm were based in part on illegal searches or seizures. "Any rule of evidence thai denies the jury access to clearlyprobative and reliable evidence must bear a heavy burden ofjustification, and must be carefully limited to thecircumstances in which it will pay its way by deterring official lawlessness." Illinois v. Gates (White. J., concurringin Ihe judgment). Because we find thai the rule can have no substantial detcrrenl cffcci in the sorts ofsituations underconsideration in this case, we conclude that it cannot pay its way in those siluations.iM*>ta*i«tk.ta IPBUBll


the rule has thus been limited to cases in which the prosecution seeks to use the fruits ofan illegal search or seizure against the victim of police misconduct. Rakas v. Illinois 439 US128 (1978).

Even defendants with standing to challenge the introduction in their criminal trials ofunlawfully obtained evidence cannot prevent every conceivable use of such evidence. Evidenceobtained in violation of the Fourth Amendment and inadmissible in the prosecution's case-in-chief may be used to impeach a defendant's direct testimony. Walder v. United States, 347U.S. 62 (1954). A similar assessment of the "incremental furthering" of the ends of theexclusionaiy rule led us to conclude in United States v. Havens, 446 U.S. 620, 627 (1980),that evidence inadmissible in the prosecution's case-in-chief or otherwise as substantiveevidence of guilt may be used to impeach statements made by a defendant in response to"proper cross-examination reasonably suggested by the defendant's direct examination."

When considering the use of evidence obtained in violation of the Fourth Amendment inthe prosecution's case-in-chief, moreover, we have declined to adopt aperse or but for rulethat would render inadmissible any evidence that came to light through a chain of causationthat began with an illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975). We also have heldthat a witness' testimony may be admitted even when his identity was discovered in anunconstitutional search. United States v. Ceccolini, 435 U.S. 268 (1978). The perceptionunderlying these decisions —that the connection between police misconduct and evidenceof crime may be sufficiently attenuated to permit the use of that evidence at trial —is aproductof considerations relating to the exclusionary rule and the constitutional principles it is designedto protect. Dunaway v. New York, 442 U.S. 200, 217-218 (1979). ... In short, the "dissipationof the taint" concept that the Court has applied in deciding whether exclusion is appropriatein a particular case "attempts to mark the point at which the detrimental consequences ofillegal police action become so attenuated that the deterrent effect of the exclusionary ruleno longer justifies its cost." Brown v. Illinois, supra, 422 U.S. at 609 (Powell, J., concurringin part). Not surprisingly in view of this purpose, an assessment of the flagrancy of the policemisconduct constitutes an important step in the calculus.

The same attention to the purposes underlying the exclusionary rule also has characterizeddecisions not involving the scope of the rule itself. We have not required suppression of thefruits of a search incident to an arrest made in good-faith reliance on a substantive criminalstatute that subsequently is declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31(1979). Similarly, although the Court has been unwilling to conclude that new FourthAmendment principles are always to have only prospective effect, United States v. Johnson,457 U.S. 537, 560, no Fourth Amendment decision marking a "clear break with the past" hasbeen applied retroactively. See United States v. Peltier, 422 U.S. 531 (1975). The proprietyof retroactive application of a newly announced Fourth Amendment principle, moreover, hasbeen .assessed largely in terms of the contribution retroactivity might make to the deterrenceof police misconduct.

As yet, we have not recognized any form ofgood-faith exception to the Fourth Amendmentexclusionary rule. ... But the balancing approach that has evolved during the years ofexperience with the rule provides strong support for the modification currently urged uponus. As we discuss below, our evaluation of the costs and benefits of suppressing reliable physicalevidence seized by officers reasonably relying on a warrant issued by a detached and neutral(Matthew Bender A Co.. Inc.)

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magistrate leads to the conclusion that such evidence should be admissible in the prosecution'scase-in-chief.

Ill

Because a search warrant "provides the detached scrutiny of a neutral magistrate, whichis a more reliable safeguard against improper searches than the hurried judgment of a lawenforcement officer engaged in the often competitive enteqirise of ferreting out crime," UnitedStates v. Chadwick, 433 U.S. 1, 9 (1971), we have expressed a strong preference for warrantsand declared that "in adoubtful or marginal case asearch under awarrant may be sustainablewhere without one it would fail." United States v. Ventresca, 380 U.S. 102, 106.

Deference to the magistrate, however, is not boundless. It is clear, first, that the deferenceaccorded to amagistrate's finding ofprobable cause does not preclude inquiry into the knowingor reckless falsity ofthe affidavit on which that determination was based. Franks v. Delaware,438 U.S. 154 (1978). Second, the courts must also insist that the magistrate purport to "performhis 'neutral and detached' function and not serve merely as a rubber stamp for the police."Aguilar v. Texas, supra, 378 U.S., at 111. See Illinois v. Gates, supra, 462 U.S. at 239. Amagistrate failing to "manifest that neutrality and detachment demanded of a judicial officerwhen presented with a warrant application" and who acts instead as "an adjunct lawenforcement officer" cannot provide valid authorization for an otherwise unconstitutionalsearch. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327 (1979).

Third, reviewing courts will not defer to awarrant based on an affidavit that does not "providethe magistrate with asubstantial basis for determining the existence ofprobable cause." Illinoisv. Gates, supra, 462 U.S. at 239. "Sufficient information must be presented to the magistrateto allow that official to determine probable cause; his action cannot be a mere ratification ofthe bare conclusions of others." Ibid.13 Even if the warrant application was supported by morethan a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstandingthe deference that magistrates deserve, the warrant was invalid because the magistrate'sprobable-cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, 462 U.S. at 238-239, or because the form of the warrant wasimproper in some respect.

Only in the first of these three situations, however, has the Court set forth a rationale forsuppressing evidence obtained pursuant to a search warrant; in the other areas, it has simplyexcluded such evidence without considering whether Fourth Amendment interests will beadvanced. To the extent that proponents of exclusion rely on its behavioral effects on judgesand magistrates in these areas, their reliance is misplaced. First, the exclusionary rule isdesigned to deter police misconduct rather than to punish the errors of judges and magistrates.Second, there exists no evidence suggesting that judges and magistrates are inclined to ignoreor subvert the Fourth Amendment or that lawlessness among these actors requires applicationof the extreme sanction of exclusion.14

13 ... We emphasize that nothing in this opinion is intended to suggest a lowering of the probable-cause standard.On ihe conirary, we deal here only with the remedy to be applied to a concededly unconstitutional search.

14 Although there are assertions thai some magistrates become rubber stamps for the police and others may beunable effectively to screen police conduct, sec. e.g., 2 W. LaFave, Search and Seizure § 4.1 (1978), we arc notconvinced thai this is a problem of major proportions. See Israel, Criminal Procedure, the Burger Court, and theU-gacy of ihe Warren Court, 75 Mich. L. Rev. 1319, 1414. n. 396 (1977).

iMjuhew Bender A Co.. Inc.)(Pub.021)


Third, and most important, we discern no basis, and are offered none, for believing thatexclusion of evidence seized pursuant to a warrant will have a significant deterrent effect onthe issuing judge or magistrate. . . . Many of the factors that indicate that the exclusionaryrule cannot provide an effective "special" or "general" deterrent for individual offending lawenforcement officers . . . apply as well to judges or magistrates. And, to the extent that therule is thought to operate as a "systemic" deterrent on a wider audience, ... it clearly canhave no such effect on individuals empowered to issue search warrants. Judges and magistratesare not adjuncts to the law enforcement team; as neutral judicial officers, they have no stakein the outcome of particular criminal prosecutions. The threat of exclusion thus cannot beexpected significantly to deter them. Imposition of the exclusionary sanction is not necessaiymeaningfully to inform judicial officers of their errors, and we cannot conclude that admittingevidence obtained pursuant to a warrant while at the same time declaring that the warrantwas somehow defective will in any way reduce judicial officers' professional incentives tocomply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to thegranting of all colorable warrant requests.18

B

If exclusion ofevidence obtained pursuant to a subsequently invalidated warrant is to haveany deterrent effect, therefore, it must alter the behavior ofindividual law enforcement officersor the policies of their departments. One could argue that applying the exclusionaiy rule incases where the police failed to demonstrate probable cause in the warrant application detersfuture inadequate presentations or "magistrate shopping" and thus promotes the ends of theFourth Amendment. Suppressing evidence obtained pursuant to a technically defective warrantsupported by probable cause also might encourage officers to scrutinize more closely the formof the warrant and to point out suspected judicial errors. We find such arguments speculativeand conclude that suppression ofevidence obtained pursuant to a warrant should be orderedonly on a case-by-case basis and only in those unusual cases in which exclusion will furtherthe purposes of the exclusionary rule.19

We have frequently questioned whether the exclusionary rule can have any deterrent effectwhen the offending officers acted in the objectively reasonable belief that their conduct didnot violate the Fourth Amendment. "No empirical researcher, proponent or opponent of therule, has yet been able to establish with any assurance whether the rule has a deterrent effect."United States v. Janis, 428 U.S. at 452, n. 22. But even assuming that the rule effectively deterssome police misconduct and provides incentives for the law enforcement profession as awholeto conduct itself in accord with the Fourth Amendment, it cannot be expected, and should

18 Limiting the application ofthe exclusionary sanction may well increase the care wiih which magistrates scrutinizewarrant applications. We doubt that magistrates are more desirous of avoiding the exclusion of evidence obtainedpursuant to warrants they have issued than of avoiding invasions of privacy.

Federal magistrates, moreover, are subject to ihe direct supervision of district courts. They may be removed for"incompetency, misconduct, neglect ofduly, or physical or mental disability." 28 U.S.C. § 63l(i). Ifa magistrateserves merely as a "rubber stamp" for Ihe police orisunable toexercise mature judgment, closer supervision orremovalprovides a more effcciivc remedy than the exclusionary rule.

19 Our discussion of the deterrent effect ofexcluding evidence obtained in reasonable reliance on a subsequentlyinvalidated warrant assumes, of course, that the officers properly executed the warrant and searched only those placesand for those objects that it was reasonable to believe were covered by the warrant.(Matthew Bender A Co.. Inc.) (Pub(12|1

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not be applied, to deter objectively reasonable law enforcement activity. As we observed inUnited States v. Peltier, 422 U.S. at 539:

The deterrent purpose of the exclusionary rule necessarily assumes that the police haveengaged in willful, or at the veiy least negligent, conduct which has deprived the defendantofsome right. By refusing to admit evidence gained as a result of such conduct, the courtshope to instill in those particular investigating officers, or in their future counterparts,a greater degree of care toward the rights of an accused. Where the official conduct waspursued in complete good faith, however, the deterrence rationale loses much of its force.If the purpose ofthe exclusionary rule is to deter unlawful police conduct, then evidenceobtained from asearch should besuppressed only ifit can be said that the law enforcementofficer had knowledge, or may properly be charged with knowledge, that the search wasunconstitutional under the Fourth Amendment.20

In short, where the officer's conduct is objectively reasonable, excluding the evidence willnot further the ends of the exclusionaiy rule in any appreciable way; for it is painfully apparentthat the officer is acting as a reasonable officer would and should act under the circumstances.Excluding the evidence can in no way affect his future conduct unless it is to make him lesswilling to do his duty.

This is particularly tme, we believe, when an officer acting with objective good faith hasobtained a search warrant from a judge or magistrate and acted within its scope. In most suchcases, there is no police illegality and thus nothing to deter. It is the magistrate's responsibilityto determine whether the officer's allegations establish probable cause and, if so, to issue awarrant comporting in form with the requirements ofthe Fourth Amendment. In the ordinarycase, an officer cannot be expected to question the magistrate's probable-cause determinationor his judgment that the form of the warrant is technically sufficient. "Once the warrant issues,there is literally nothing more the policeman can do in seeking to comply with the law." Id.,428 U.S. at 498 (Burger, C.J., concurring). Penalizing the officer for the magistrate's error,rather than his own, cannot logically contribute to the deterrence of Fourth Amendmentviolations.22

20 We emphasize lhat the standard ofreasonableness we adopt is an objective one. Many objections to a good-faithexception assume that ihe exception will turn on the subjective good faith of individual officers. "Grounding themodification in objective reasonableness, however, retains Ihe value of the exclusionary rule as an incentive for thelaw enforccmcnl profession as a whole to conduct themselves in accord with Ihe Fourth Amendment." Illinois v. Gales,462 U.S. at 261, n.15 (White. J„ concurring). The objective standard we adopt, moreover, requires officers to havea reasonable knowledge of what Ihe law prohibits. As Professor Jcrold Israel has observed:

The key to the exclusionary rule's effectiveness as a deterrent lies, I believe, in the impetus it has provided topolice training programs lhat make officers aware of ihe limits imposed by the fourth amendment and emphasizethe need lo operate within those limits. An objective good-faith exception is not likely to result in the eliminationof such programs, which arc now viewed as an important aspect of police professionalism. Neither is it likely loalter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderlinecases is unlikely to encourage police instructors to pay less attention lo fourth amendment limitations. Finally, itshould not encourage officers to pay less attention to what they are taught, as the requirement lhat the officer actin "good faith" is inconsistent with closing one's mind lo the possibility of illegality.22 To ihe extent that Justice Stevens' conclusions concerning the integrity of the courts rest on a foundation other

than his judgment, which we reject, concerning the effects of our decision on Ihe deterrence of police illegality, wefind his argument unpersuasivc. "Judicial integrity clearly docs not mean thai the courts must never admit evidenceobtained in violation of the Fourth Amendment." United Slates v. Jam's, 428 U.S. 433. 458, n. 35 (1976). "WhileIMllkH Bender A Co.. Inc.) (Pub (1211


We conclude that the marginal or nonexistent benefits produced by suppressing evidenceobtained in objectively reasonable reliance on a subsequently invalidated search warrant cannotjustify the substantial costs of exclusion. We do not suggest, however, that exclusion is alwaysinappropriate in cases where an officer has obtained a warrant and abided by its terms."Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness,"Illinois v. Gates, 462 U.S. at 267 (White, J., concurring), for "a warrant issued by a magistratenormally suffices to establish" that a law enforcement officer has "acted In good faith inconducting the search." United States v. Ross, 456 U.S. 798, 823, n. 32 (1982). Nevertheless,the officer's reliance on the magistrate's probable-cause determination and on the technicalsufficiency of the warrant he issues must be objectively reasonable23 and it is clear that insome circumstances theofficer24 will have no reasonable grounds for believing that the warrantwas properly issued.

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuinga warrant was misled by information in an affidavit that the affiant knew was false or wouldhave known was false except for his reckless disregard of the truth. Franks v. Delaware, 438U.S. 154 (1978). Theexception we recognize today will also not apply in cases where the issuingmagistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc.v. New York, 442 U.S. 319 (1979);* in such circumstances, no reasonably well-trained officershould rely on the warrant. Nor would an officer manifest objective good faith in relying ona warrant based on an affidavit "so lacking in indicia of probable cause as to render officialbelief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S. at 610-611 (Powell,J., concurring in part); see Illinois v. Gates, supra, 462 U.S. at 263-264 (White, J., concurringin judgment). Finally, depending on the circumstances of the particular case, a warrant may

couris, of course, must ever be concerned with preserving the integrity of thejudicial process, this concern has limitedforce as a justification for the exclusion of highly probative evidence." Stone v. Powell, 428 U.S. at 485. Our casesestablish thai the question whether Ihe use of illegally obtained evidence in judicial proceedings represents judicialparticipation in a Fourth Amendment violation and offends the integrity of the courts "is essentially the same as iheinquiry into whether exclusion would serve a deterrent purpose. The analysis showing that exclusion in ihis case hasno demonstrated deterrent effect and is unlikely to have any significant such effect shows, by ihe same reasoning,lhat the admission of the evidence is unlikely lo encourage violations of the Fourth Amendment." UnitedStales v.Janis. supra, 428 U.S. at 459, n. 35.

Absentunusual circumstances, when a Fourth Amendment violationhas occurred becauseIhe police have reasonablyrelied on a warrant issued by a detached and neutral magistrate but ultimately found to be defective, "the integrityof the courts is not implicated." Illinois v. Gales, 462 U.S. at 259, n. 14, (White, J., concurring).

23Our good-faith inquiry is confined to Ihe objectively ascertainable question whether a reasonably well-trainedofficer would have known that ihe search was illegal despile the magistrate's authorization. In making thisdetermination, all of the circumstances — including whether the warrant application had previously been rejectedby a different magistrate — may be considered.

24References to "officer" throughout this opinion should not be read too narrowly. It is necessary to consider theobjective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers whooriginally obtained it or who provided information material lo ihe probable-cause determination. Nothing in our opinionsuggests, for example, that an officer could obtain a warrant on the basis of a "bare bones" affidavit and then relyon colleagues who arc ignorant of the circumstances under which the warrant was obtained to conduct the search.See Whiieley v. Warden. 401 U.S. 560 (1971).

" [In Lo-Ji, ihe magistrate joined the police search team lhat searched defendant's bookstore for obscene booksand films. — Ed.)

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l)e so facially deficient —i.e., in failing to particularize the place to be searched or the thingsto be seized that the executing officers cannot reasonably presume it to be valid.

In so limiting the suppression remedy, we leave untouched the probable cause standardand the various requirements for a valid warrant. Other objections to the modification of theFourth Amendment exclusionary rule we consider to be insubstantial. The good-faith exceptionfor searches conducted pursuant to warrants is not intended to signal our unwillingness strictlyto enforce the requirements of the Fourth Amendment, and we do not believe that it willhave this effect. As we have already suggested, the good-faith excepdon, turning as it doeson objective reasonableness, should not be difficult to apply in practice. When officers haveacted pursuant to a warrant, the prosecution should ordinarily be able to establish objectivegood faith without a substantial expenditure of judicial time.

Nor are we persuaded that application of a good-faith exception to searches conductedpursuant to warrants will preclude review of the constitutionality of the search or seizure, denyneeded guidance from the courts, or freeze Fourth Amendment law in its present state.25There is no need for courts to adopt the inflexible practice of always deciding whether theofficers' conduct manifested objective good faith before turning to the question whether theFourth Amendment has been violated. Defendants seeking suppression of the fniits ofallegedlyunconstitutional searches or seizures undoubtedly raise live controversies which Article IIIempowers federal courts to adjudicate. . . .

If the resolution of a particular Fourth Amendment question is necessary to guide futureaction by law enforcement officers and magistrates, nothing will prevent reviewing courts fromdeciding that question before turning to the good-faith issue.26 Indeed, it frequently will bedifficult to determine whether the officers acted reasonably without resolving the FourthAmendment issue. Even if the Fourth Amendment question is not one of broad import,reviewing courts could decide in particular cases that magistrates under their supervision needlo be informed of their errors and so evaluate the officers' good faith only after finding aviolation. In other circumstances, those courts could reject suppression motions posing noimportant Fourth Amendment questions by turning immediately to a consideration of theofficers' good faith. We have no reason to believe that our Fourth Amendment jurisprudencewould suffer by allowing reviewing courts to exercise an informed discretion in making thisciioice.

IV

When the principles we have enunciated today are applied to the facts of this case, it isapparent that the judgment of the Court of Appeals cannot stand. . . .

In the absence ofan allegation that the magistrate abandoned his detached and neutral role,suppression is appropriate only if the officers were dishonest or reckless in preparing their

25 The argument lhat defendants will lose their incentive to litigate meritorious Fourth Amendment claims as aresuli ofthe good-faith exceplion we adopt today isunpersuasivc. Although the exception might discourage presentationof insubstantial suppression motions, the magnitude of Ihe benefit conferred on defendants by a successful motionmakes it unlikely lhat litigation of colorable claims will be substantially diminished.

26 li has been suggested, in fact, thai "the recognition of a 'pcnumbral zone,' within which an inadvertant mistakewould not call for exclusion, will make itless templing forjudges to bend fourth amendment standards to avoid releasing;i possibly dangerous criminal because ofa minor and unintentional miscalculation by the police." Schroeder, DcierringFourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1412, n. 14. at 1420-1421 (1981).iMjuhew Bender A Co.. Inc.)

(Pub 1121)


affidavit or could not have harbored an objectively reasonable belief in the existence ofprobablecause. Only respondent Leon has contended that no reasonably well-trained police officer couldhave believed that there existed probable cause to search his house; significantly, the otherrespondents advance no comparable argument. Officer Rombach's application for a warrantclearly was supported by much more than a "bare bones" affidavit. The affidavit related theresults of an extensive investigation and provided evidence sufficient to create disagreementamong thoughtful and competent judges as to the existence of probable cause. Under thesecircumstances, the officers' reliance on the magistrate's determination of probable cause wasobjectively reasonable, and application of the extreme sanction of exclusion is inappropriate.

Accordingly, the judgment of the Court of Appeals is reversed.

Justice Brennan, with whom Justice Marshall joins, dissenting.Ten years ago in United States v. Calandra, 414 U.S. 338 (1974), I expressed the fear that

the Court's decision "may signal that a majority of my colleagues have positioned themselvesto reopen the door to evidence secured by official lawlessness still further and abandonaltogether the exclusionary rule in search-and-seizure cases." Since then, in case after case,I have witnessed the Court's gradual but determined strangulation of the rule. ... It nowappears that the Court's victory over the Fourth Amendment is complete. That today's decisionrepresents the piece de resistance ofthe Court's past efforts cannot be doubted, for today theCourt sanctions the use in the prosecution's case-in-chief ofillegally obtained evidence againstthe individual whose rights have been violated —a result that had previously been thoughtto be foreclosed.

The Court since Calandra has gradually pressed the deterrence rationale for the rule backto center stage. The various arguments advanced by the Court in this campaign have onlystrengthened my conviction that the deterrence theory is both misguided and unworkable.First, the Court has frequently bewailed the "cost" of excluding reliable evidence. In largepart, this criticism rests upon a refusal to acknowledge the function of the Fourth Amendmentitself. If nothing else, the Amendment plainly operates to disable the government fromgathering information and securing evidence in certain ways. In practical terms, of course,this restriction of official power means that some incriminating evidence inevitably will goundetected if the government obeys these constitutional restraints. It is the loss of thatevidencethat is the "price" our society pays for enjoying the freedom and privacy safeguarded by theFourth Amendment. Thus, some criminals will go free not, in Justice (then Judge) Cardozo'smisleading epigram, "because the constable has blundered," People v. Defore, 242 N.Y. 13(1926), but rather because official compliance with Fourth Amendment requirements makesit more difficult to catch criminals. Understood in this way, the Amendment directlycontemplates that some reliable and incriminating evidence will be lost to the government;therefore, it is not theexclusionary rule, but the Amendment itself that has imposed this cost.8

8 Justice Stewart has explained this point in detail in a recent article:

"Much of the criticism leveled at Ihe exclusionary rule is misdirected; it is more properly direcied ai the Fourth(Matthew Bender A Co.. Inc.) (Pub02l)


whole, not merely to "the arresting officer." Consequently, the Phoenix officers' good faithdoes not diminish the deterrent value of invalidating their arrest of petitioner. Id., 131L. Ed. 2d at 51.

Justice Ginsberg also dissented:In this electronic age, particularly with respect to recordkeeping, court personnel and

police officers are not neatly compartmentalized actors. Instead, they serve together tocarry out the State's information-gathering objectives. Whether particular records aremaintained by the police or the courts should not be dispositive where asingle computerdatabase can answer all calls. Not only is it artificial to distinguish between court clerkand police clerk slips; in practice, it may be difficult to pinpoint whether one official,e.g., a court employee, or another, e.g., a police officer, caused the error to exist or topersist. Applying an exclusionary rule as the Arizona court did may well supply apowerfulincentive to the State to promote the prompt updating ofcomputer records. Id., 131 L.Ed. 2d at 56.

7. Leo/i seems to hurt our ability to help Cobb. Did the Court leave any arguments at all forus?

UNITED STATES v. SAVOCA

United States Court of Appeals, 6th Circuit739 F.2d 220 (1984)

Contie, Circuit Judge.Thomas James Savoca appeals from his conviction by ajury on two counts of bank robbeiy.

We hold that the search warrant used to seize incriminating evidence from a motel roomoccupied by Savoca at the time of his arrest was invalid under this court's ruling in UnitedStates v. Hatcher, 473 F.2d 321 (6th Cir. 1973). We therefore reverse the defendant'sconviction and remand this case for a new trial.

On June 3, 1981, asingle assailant robbed the State Bank and Trust Company in Painesville,Ohio and escaped with almost $99,000. The assailant was armed and wore a mbber mask toconceal his identity. Thereafter, on October 27, 1981, two men robbed the Firestone Bankin Brunswick, Ohic of almost $69,000. These robbers were also armed and also wore rubbermasks. Finally, on January 13, 1982, three armed assailants robbed the Andover Bank inAustinburg. Ohio and escaped with almost $146,000. Like the two previous robberies, thesemen wore rubber masks to hide their identity.

The ensuing FBI investigation resulted in the issuance of federal arrest warrants whichcharged Savoca and an accomplice, James Carey, with the Andover Bank robbery. These

arrants were issued on April 19, 1982, or approximately three months after the robbery. Priorw

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to the issuance of the arrest warrants, FBI agents discovered that Savoca and his wife wereliving in Phoenix, Arizona. Armed with this information, FBI agents in Phoenix conducteda series ol "spot checks" of Savoca's residence to determine if the residence was occupiedand to identify any vehicles in the driveway. Theagents also staked out room 135 at the ArizonaRanch House Inn after one agent followed a vehicle from Savoca's residence to that address.The room was registered under the name of George Goodson, but one agent recognized thatname as an alias used by James Carey. At approximately 12:30 p.m. on April 20, 1982, severalagents saw a small white station wagon pull up in front of room 136. Two men exited thevehicle and proceeded immediately into room 135. At this point, the agents knew of theoutstanding arrest warrants for Savoca and Carey and thus the agents formulated an arrestplan. Shortly thereafter, Savoca and Carey exited room 135 and were placed under arrest. Therecord also indicates that Carey was shot when he attempted to re-enter the motel room.

Following the arrests, the agents secured a search warrant which authorized a search ofthe motel room for "weapons, disguises, U.S. currency, and ficticious identification." . . . The.supporting affidavit reads as follows:

Affiant learned from James Cornet!, F.B.I. Agent, that Federal Bureau of InvestigationAgents of the Phoenix, Arizona Office were at 5600 North Central, Arizona Ranch HouseInn, Room 135, conducting asurveillance on two known bank robbery suspects, identifiedas James Germis Carey, W/M 10-4-32, and Thomas James Savoca, W/M 2-10-52. Bothsubjects had outstanding Federal warrants, charging them with Bank Robbery, out ofAustinburg, Ohio. They both were seen in Room 135, April 19 and 20, 1982. Atapproximately 12:48 p.m., Subject Thomas J. Savoca exited Room 135 and was gettinginto the 1982 Buick, Ohio plates, BLU-212, when subject was taken into custody byFederal Bureau of Investigation Agents. The second subject, James Carey, started backinto Room 135 and was shot by Steve Chenoweth, F.B.I. Agent, who believed he wasgoing for a weapon. Both subjects were taken into custody by Federal Bureau ofInvestigation Agents at 5600 North Central. Both subjects, James G. Carey and ThomasJ. Savoca, are responsible for approximately 4 bank robberies in Northeastern Ohio andNorthwestern Pennsylvania. Information was that subject Carey wouldn't be taken alive.

The search ofthe motel room resulted in the seizure of, inter alia, several handguns, severalpieces of false identification, and several plastic masks. This evidence was introduced againstSavoca at trial. Savoca was later convicted by ajury on two counts ofbank robbery. 18 U.S.C.§ 2113(a) and (d). Defendant appeals.

III

Savoca also contends that the search warrant is invalid because the supporting affidavit didnot establish probable cause to believe that evidence of a crime would be found in the motelroom. We agree.

It is well .settled that an affidavit supporting a search warrant need not establish beyonda reasonable doubt that incriminating evidence will be found at the place to be searched. Illinoisi. Gates, 162 U.S. 213 (1983). Indeed, in its most recent pronouncement on the interpretationofaffidavits for search warrants, the Supremo Court held that "so long as the magistrate hadiMjulk"w He <tiler A CV. Inc.! I Pub 021)


a "substantial basis for concluding" that a search would uncover evidence of wrongdoing, theFourth Amendment requires no more." Gates, 462 U.S. at This does not mean thatreviewing courts should rubber stamp a magistrate's finding of probable cause. !t does,however, require the application ofa common sense standard with "doubtful or marginal cases"being "largely determined by the preference to be accorded to warrants." United States v.Ventresca, 380 U.S. 102, 109 (1965). In this context, the Supreme Court has emphasized thatour "after-the-fact scrutiny" of a magistrate's finding of probable cause should not take theform of de novo review. Gales, 462 U.S. at Instead, the magistrate's finding "should bepaid great deference by reviewing courts." Id. Such a rule reflects a desire to encourage useof the warrant process by law enforcement officers.

We must also bear in mind, however, that search warrants are directed against evidenceof crime and not persons. The fact that there is probable cause to arrest a person for a crimedoes not automatically give police probable cause to search his residence or otherarea inwhichhe lias been observed for evidence of that crime.

In United States v. Hatcher, this circuit recognized the aforementioned rule that theexistence of probable cause to arrest will not necessarily establish probable cause to search.In Hatcher, federal agents arrested James P. Craven pursuant to a valid arrest warrant at 1146Laidlaw Avenue in Cincinnati, Ohio. Following a briefsearch of the premises for other persons,the agents secured a search warrant which authorized a search of the house for "guns, moneyand narcotic drugs." The supporting affidavit stated that (I) the affiant had observed a "knownnarcotics trafficker" leaving the residence shortly before Craven's arrest, (2) the affiant hadjust arrested Craven pursuant to a bench warrant which had been issued following Craven'sindictment for several violations of federal narcotics laws, (3) the agents had discovered a.38caliber revolver on Craven's person and a.22 caliber pistol in the bedroom, and (4) thedefendant, "a known trafficker of narcotic drugs whom this agent has previously arrested onApril 30, 1971 for unlawful possession of drugs," was also on the premises at the time ofCraven's arrest. The ensuing search resulted in the seizure of a large quantity of narcoticswhich was later admitted into evidence against Hatcher. Hatcher was later convicted on twocounts of unlawful possession of a controlled substance. On appeal, this circuit reversed thedefendant's conviction and ruled that the information set forth in the affidavit failed to establishprobable cause to search the premises. The court first pointed out that the presence of twoloaded guns in the house did not form a basis for issuing the warrant because the affidavitcontained no suggestion that the occupants were violating any state or federal laws by keepingthe guns in the house. The court then discounted the remaining information contained in theaffidavit as follows:

The mere fact that two persons known to have been engaged in trafficking in narcoticswere observed on the same premises cannot justify a search of the premises withoutsomething more. In this case there was nothing more except the presence of two loadedguns which, absent any allegation of unlawful possession, would form no basis for anysearch or the issuance of a search warrant.

We hold lhat the Hatcher decision controls the outcome of this case. The affidavit, whenread in a common sense and realistic fashion, indicated that (I) FBI agents in Phoenix hadjust arrested Thomas Savoca and James Carey pursuant to federal arrest warrants for a bankrobbery which took place in Austinburg, Ohio at an unspecified prior date, (2) the two suspectsiM.ii1. - Ik-nder & Co. 11!. t IPi.b.lCh

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had been seen in Room 135 on two prior occasions, and (3) the two suspects were allegedlyresponsible for several other bank robberies in northeast Ohio and northwest Pennsylvania.The affidavit thus established only that two persons known to have been involved in severalbank robberies were observed on the same premises. The Government's contention that theaffidavit created probable cause to search the motel 'oom is premised upon the inference that"known bank robbers" tend to conceal fruits and instrumentalities ofcrime in places whicharc both accessible and private.

Although one could reasonably infer from the affidavit that one or both of the suspects wereslaying in Room 135, the fact remains that the bank robberies occurred over 2,000 miles fromihe motel room. More importantly, the affidavit did not specify the amount of time whichhad passed between the bank robberies and the is.su: nee of the warrant. As such, the magistratecould not know from reading the affidavit whether the bank robberies had occurred severalmonths ago or several years ago.

We conclude that this affidavit establishes no more than a"bare suspicion" that incriminatingevidence would be found in the motel room, and lhat the defendant's motion to suppress shouldhave been granted. Accordingly, the judgment of the district court is reversed and the caseIs remanded for a new trial.

UNITED STATES v. SAVOCA

United State" Court of Appeals, 6th Circuit761 F.2d 292 (1985)'

( !ontie, Circuit Judge.

We have granted the government's petition for rehearing in this case. Our previous opinion,uported at 739 F.2d 220 (6th Cir. 1984), reversed the conviction of Thomas Savoca becauseevidence introduced against him was obtained by means of a search warrant not supportedb) probable cause. The government's petition for rehearing raises three issues. The first isivl letherthis evidence should be suppressed in light ofUnited States v. Leon, U.S (1984).Wt; conclude that this case falls within the good faith exception to the exclusionaiy rule . . .Mlnblished in Leon. Insofar as our prior opinion ruled that the district court erred in notliipprcssing the evidence and ordered the reversal ofSavoca's conviction, it is vacated by thisOpinion. . . .

II

h-on held that suppressing evidence is not the inevitable consequence ofan illegal searchmid sel forth the circumstances in which the fruits of an illegal search may be admitted into•MtlciKc. Since the exclusionaiy rule is not constitutionally required, . . . courts may limitIK scope in order to restrict the rule "to those areas where its remedial objectives are thought

' Cm. denied. 474 U.S. 852 (1985)


most efficaciously served." United States o. Calandra, 414 U.S. 338 (1974). A balancing testis employed to weigh the "costs and benefits" of the rule as it operates in a particular categoryof cases. See Leon, 104 S. Ct. at 3412.

The Court in Leon found ibis balancing to reveal that "the marginal or nonexistent benefitsproduced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs ofexclusion." The Courttook pains to "emphasize" that the "standard of reasonableness we adopt is an objective one."Subjective beliefs are not to be considered. Rather, the "good-faith inquiry is confined to theobjectively ascertainable question whether a reasonably well-trained officer would have knownthat the search was illegal despite the magistrate's authorization."

In analyzing the good faith exception, the Court identified three paradigmatic situations inwhich a search pursuant to a warrant may be held to be illegal. First, if a warrant is basedon a knowing or reckless falsehood contained in the supporting affidavit, the warrant is invalid.In this situation, there is necessarily police misconduct which can and ought lo be deterredand "suppression remains an appropriate remedy." Second, a warrant issued by a magistratewho acts as a mere "rubber stamp for the police" or as an "adjunct law enforcement officer,"and who thus fails to "manifest that neutrality and detachment demanded of a judicial officer,"will be declared invalid. In such a case, "no reasonably well-trained officer should rely on thewarrant" ami the good faith exception "will not apply." Third, if the information containedin the affidavit simply does not add up to probable cause, even after according the properdeference to the magistrate's determination, the warrant will be held invalid. Where a warrantis held to be invalid due to a simple error in the determination of probable cause, the evidenceshould be suppressed only if the supporting affidavit was "so lacking in indicia of probablecause as to render official belief in its existence entirely unreasonable." Similarly, a warrantmay have a technical deficiency so that, even though probable cause exists to conduct a search,the particular search authorized by the warrant is illegal because, for example, the place tobe searched or the objects to be seized are not particularly described. Suppression is anappropriate response to such a defect only when the warrant is "so facially deficient that theexecuting officers cannot reasonably presume it to be valid."

Ill

hi our prior opinion, we found a defect of the third type, involving a simple miscalculationin the probable cause equation. There is neither a proper allegation that the officers lied orrecklessly misstated the truth in the warrant application,. . . nor any indication that the issuingjudge abandoned his judicial role. The question we must address, . . . therefore, is whetherthe affidavit was "so lacking in indicia of probable cause as to render official belief in itsexistence entirely unreasonable," or, stated differently, whether a "reasonably well-trainedofficer would have known that the search was illegal despite the magistrate's authorization."

As noted above, the defect in the affidavit was that it only tenuously connected the placeto be searched with two persons for whom arrest warrants were outstanding. It failed todescribe the relationship of the persons to the premises8 and it did not state how recently

8 The affidavit did not stale, for example, whether the location lo be searched was a pcrmancnl residence, a transientlodging, or a third parly's residence which the two named persons were merely visiting. Rather, the affidavit merelystated thai both suspects "were seen" in the motel room on two occasions.

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me bank robberies had occurred. On these facts, our Hatcher decision is controlling on thequestion of probable cause. Whether a reasonably well-trained officer could believe that thisaffidavit stated probable cause for the search thus depends in part on whether such an officerwould beaware ofHatcher and related decisions and the principle for which those cases stand.We conclude that a reasonably well-trained officer would be aware of the principle whichHatcher exemplifies; we also conclude, however, that such an officer could conclude thatHatcher and related decisions are distinguishable and that the warrant was not, therefore,Invalid.

The legal principle recognized in Hatcher is that the "existence ofprobable cause to arrestwill not necessarily establish probable cause to search." We regard this legal principle as well

.established. In Chimelv. California, 395 U.S. 752 (1969), the Supreme Court held that a searchIncident to an arrest must be limited to those areas within the immediate control of the personItrrested. All reasonably well-trained officers must be acquainted with this principle. Implicit,ll not explicit, in Chimel is the rule that "it cannot follow simply from the existence ofprobablemuse to believe a suspect guilty, that there is also probable cause to search his residence."Sue United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). Stated differently, "a suspect'sincrc presence or arrest at a residence is too insignificant a connection with that residencelo establish that relationship" necessary to a finding of probable cause. See United States v.Floir.s, 679 F.2d 173, 175 (9th Cir. 1982). "The critical element in a reasonable search is notthai the owner of the property is suspected of crime but that there is reasonable cause tobeliever lhat the specific 'things' to be searched for and seized are located on the propertylo which entry is sought." Zurcher o. Stanford Daily, 436 U.S. 547, 556 (1978). Numerousruses, in addition to Hatcher, have applied this principle and found affidavits wanting. See,e.g.. United States v. I^ckett, 674 F.2d 843, 845-47 (11th Cir. 1982); United States v. Green,(..II I".2d 222, 225-26 (5th Cir. 1981); United States v. Charest, 602 F.2d 1015, 1017-18 (1sttin. 1979); United States v. Gramlich, 551 F.2d 1359, 1361-62 (5th Cir. 1977); United Statesi liailcy, 458 F.2d 408, 409-13 (9th Cir. 1972).

The existence ofthis well-established rule does not, however, preclude a finding ofobjectivetyimd faith in this case. Legal principles do not operate in a vacuum but instead only withirlcrcnce to particular facts; a reasonably well-trained officer could conclude on the particularfacts presented here that the affidavit stated enough information to create probable cause andIn remove this case from the operation of precedents such as Hatcher.

II is important to bear in mind that "there are so many variables in the probable-causeequation that one determination will seldom be a useful 'precedent' for another." See Gates,•102 U.S. at 238, n.ll. Thus, with only a little effort one may locate cases upholding searchesin which the supporting affidavit's connection of the person suspected of a crime with theevidence sought and the place to be searched is skeletal. There is little to distinguish these

»1iim's from Hatcher and the other cases which have ruled such it search illegal. See, e.g., UnitedStales v. Rambis, 686 F.2d 620, 623-24 (7th Cir. 1982); Flores, 679 F.2d at 175-76; UnitedSinus v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977); United States v. Samson, 533 F.2dT.'l. 723 (1st Cir. 1976); United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976); Lucarz,l in I-'.2d at 1055.

The difference between these two lines of cases can be explained by the rule that whetherii Millicirn! nexus has been shown to a particular location turns in part on the type of crime

». » (lrnl.-i A Co.. Inc.) (Pub.()2l)


being investigated, the nature of the things to be seized, the extent of an opportunity to concealthe evidence elsewhere and the normal inferences that may be drawn as to likely hiding places.Although we continue to believe that these inferences are not available to support probablecause in this case — because the motel room was not connected to Savoca other than hishaving been "seen" there, because the affidavit did not state when the robberies occurred andbecause the robberies occurred over halfway across the country — we conclude that areasonably well-trained officer could have reached the opposite conclusion.9 The factualgradations in this type of case are often difficult to discern even after a studied examinationofthe various judicial opinions. Thus, although a reasonably well-trained officer must recognizethe general rule which controls the probable cause determination in this case, we cannotconclude under the particular facts of this case that the affidavit was "so lacking in indiciaof probable cause as to render official belief in its existence entirely unreasonable," .see Leon,104 S. Ct. at 3422, or that "a reasonably well-trained officer would have known that the searchwas illegal despite the magistrate's authorization," see id. at fn. 23. . . .

In conclusion, we adhere to the view expressed in our prior opinion that probable causedid not support the search of the motel room, but we now conclude that, in light of 1a>oii,suppression is not warranted. In light of this holding and our conclusion that Savoca's otherclaims of error are without merit, the conviction of Thomas Savoca is affirmed.

Nathanial R. Jones, Circuit Judce, dissenting.I agree with the majority that this case involves an incorrect probable cause determination.

Idisagree, however, with the majority's characterization ofUnited States v. teon. I also disagreethat Leon's good faith exception may be applied to cure the defect here because the warrantwas based on an affidavit so lacking in indicia of probable cause as to render official beliefin its existence entirely unreasonable.

In applying their reading of Leon, the majority finds that a well-trained officer mightreasonably have relied on the warrant in this case; therefore, good faith cures the miscalculationof the probable cause determination and exclusion is inappropriate. The majority relies uponthe statement in Illinois v. Gates that one probable cause determination "will seldom be auseful 'precedent' for another." The majority concludes that because there is some ambiguitylegally as to the nexus required to establish probable cause to search a suspect's residence,a reasonably well-trained officer could have believed that the warrant was issued properly inthis case. There are two problems with this reasoning. First, taken to its limit, this analysisimplies that there are no general probable cause principles that well-trained officers shouldknow. Second, the majority assumes that police officers have the responsibility to distinguishproperly among fine gradations of legal precedent in particular factual settings.

Supreme Court authority establishes that a well-trained officer should know generalprinciples of Fourth Amendment law. See, e.g., Leon, at n. 20; United States v. Peltier, 422

9 Thai is, a reasonably well-trained officer could have concluded lhat one could inter from the type of evidencesought (especially the money) lhat it would be retained wilhin the close control ofSavoca for a reasonably long periodof time. Similarly, from the type of crime alleged and from the scries of crimes that were asserted in the affidavit,one might infer in a proper case that Savoca and Carey intended to continue robbing banks and would thus havethe instrumentalities of such crimes within their control.

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U.S. 531 (1975) (officers should be charged with knowledge that certain searches areunconstitutional). The majority cites Gales to support the proposition that precedent is nothelpful in determining subsequent probable cause. The Court in Gales abandoned the "two-pronged test" for probable cause established by Aguilar v. Texas, 378 U.S. 108 (1964), andSpinelli v. United States, 393 U.S. 410 (1969). The passage of G'rtie.s- upon which the majorityrelics stated that the Court would not apply Gates to reconsider the specific probable causedetermination in Spinelli. Gates at n. II. Put in context, this passage conveys that specificprobable cause determinations may not be helpful in subsequent eases; the Court does notintend to undermine the precedential value of general principles. More recently, the Courtin Leon noted that the objective standard "requires officers to have a reasonable knowledgeof what the law prohibits." Consequently, inquiry in this case should focus on whether thelegal principle that establishes that there was not probable cause to support the warrant inibis case was sufficiently clear that a reasonable well-trained officer would apply the generalprinciple and know that probable cause was absent. If the principle is clear, then an officer'sapparent belief in the validity of a warrant that violates that principle is unreasonable. Thisremains true even if a court subsequently refines the general principle to address complexfactual distinctions.

The governing principle in the present case is that a suspect's mere presence or arrest ata location, without any additional connection to the location that would form an independentreason for a search, will not constitute probable cause lo support a warrant to search thatlocation for evidence of a suspected crime. See V.urchcr v. Stanford Daily, 436 U.S. 547 (1978);United States v. Lockett, 674 F.2d 843 (1 Ith Cir. 1982); United States v. Green, 634 F.2d 222(5th Cir. 1981); United States v. Charest, 602 F.2d 1015 (1st Cir. 1979); United States v.Gramlich, 551 F.2d 1359 (5th Cir. 1977); United Stales v. Bailey, 458 F.2d 408 (9th Cir. 1972);United States v. Hatcher, 473 F.2d 321 (6th Cir. 1973).

The majority notes that these decisions support this well-known rule. We initially held lhatHatcher was dispositive. The majority also notes, however, that warrants have been upheldin several instances where the information connecting evidence to the location to besearchedwas skeletal. A reasonably well-trained officer, the majority finds, might have considered thewarrant in this case valid under these precedents. None of the decisions that the majority citescreates ambiguity; all are in accord with the general principle that the mere presence of anaccused at a location is not sufficient to form probable cause for a search warrant of that place.The cases all involved information directly linking evidence sought to the location to besearched.

The first case involving reliable information directly linking evidence of the alleged crimelo the location to be searched was United Stales v. Maestas, 546 F.2d i 177 (5th Cir. 1977),which involved a suspect who was charged with passing bad checks. The facts that supportedihe search warrant for the suspect's home included information that a Chicago print shop hadmailed counterfeit checks and materials to her residence. There was a reasonable inferencelhat the materials were kept at the residence.

The majority cited United Stales o. Floras, 679 F.2d 173 (9th Cir. 1983), which involveda suspect charged with possession of firearms by a convicted felon. The suspect's roommatehad been arrested at their apartment. A workman had called police; to inform them that hehad seen a number of firearms in a storeroom in the apartment complex. The superintendentiMnhew Bender A Co, Inc.) (Puhifili


said he had allowed the suspect and the roommate lo use that storeroom. The court foundprobable cause to support a search warrant of the storeroom independent of the fact that thesuspect's roommate had been arrested in the apartment two weeks earlier on a charge ofpossession of firearms.

A third case that the majority found ambiguous was United States v. Rambis, 686 F.2d 620(7th Cir. 1982). An informant told agents that several suspects were going to blow up awarehouse. During surveillance, the agents watched the suspects purchase what invoicesrevealed to be gun powder and detonativc devices, trailed them to a house, and finally arrestedseveral suspects at the warehouse. The surveillance lasted forty-eight hours. There wasreasonable cause to infer that some items not found with the suspects who were at the sceneof the crime might be located at the house. The court stated that the surveillance agents hadkept a close watch on the suspects and had seen nothing to indicate that the men stored thematerials elsewhere. These inferences were independent of the fact that an additional suspectwas arrested at the house.

The majority also relied upon United States v. Samson, 533 F.2d 721 (1st Cir. 1976). Aconvicted felon was suspected of receiving firearms in interstate commerce. The court notedthat an informant bad reason to believe that, after the suspect exhibited the guns for sale,he was returning with them to his apartment. The search warrant was obtained shortlythereafter, and the First Circuit upheld the warrant, stating that these circumstances supporteda reasonable inference that the guns were located in the apartment. Finally, the majority foundambiguous United States v. Spearman, 532 F.2d 132 (9th Cir. 1976). A suspect was chargedwith possessing stolen mail after the mail and some heroin were found concealed in the bumperof the suspect's automobile. The Ninth Circuit upheld (he search, noting that there wereextensive observations of the suspect, and that there were circumstances that supported theindependent inference that the automobile contained the illegal goods.

A review of the cases which the majority cites confirms that the general principle requiringa nexus between the evidence sought and the place to be searched, in addition to the merepresence of a suspect, is sufficiently clear that a reasonably well-trained police officer shouldhave known that the mere presence of Savoca at the hotel room could not constitute probablecause for a search warrant of the hotel room. First, there was no informant involved who could

connect the stolen goods to the room.Second, there was no close time frame that would supportan inference that the stolen goods were hidden in the hotel room. Third, the robbery occurreda number of months before Savoca and his alleged accomplice went to the hotel and over2000 miles from the place where they were arrested. Fourth, the agents only watched thetwo men enter the room once, without continuing the surveillance to observe whether therewas a possibility that they were hiding stolen goods there. Therefore, therewas no independentbasis of probable cause to search the hotel room other than the fact that the two suspectshad entered the room. Because there was no independent basis of probable cause to searchthe hotel room, and because this requirement is a clear principle that reasonably well-trainedofficers would know, the warrant was so lackingin indicia of probable cause as to render officialbelief in its existence unreasonable. This is the third exception to Leon; therefore, the goodfaith exception does not apply. The evidence should have been suppressed. On this ground,I dissent.

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Documents

THE EXCLUSIONARY RULE - Scarsdale Public Schools · THE EXCLUSIONARY RULE Take another look at the Fourth Amendment, at the outset of Chapter 1. Note that while it sets out some rules