United States v. Peltier, 422 U.S. 531 (1975)

MR. JUSTICE DOUGLAS, dissenting.

I agree with my Brother BRENNAN that Almeida-Sanchez v. United States, 413 U.S. 266 (1973), reaffirmed traditional Fourth Amendment principles, and that the purposes of the exclusionary rule compel exclusion of the unconstitutionally seized evidence in this case. I adhere to my view that a constitutional rule made retroactive in one case must be applied retroactively in all. See my dissent in Daniel v. Louisiana, 420 U.S. 31, 33 (1975), and cases cited. It is largely a matter of chance that we held the Border Patrol to the command of the Fourth Amendment in Almeida-Sanchez, rather than in the case of this defendant. Equal justice does not permit a defendant’s fate to depend upon such a fortuity. The judgment below should be affirmed.

1. This requirement has been variously stated. See, e.g., Desist v. United States, 394 U.S. 244, 248 (1969) ("a clear break with the past"); Milton v. Wainwright, 407 U.S. 371, 381 n. 2 (1972) (STEWART, J., dissenting) ("a sharp break in the web of the law"); Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971) ("the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . .").

2. Nor is there anything in the legislative history of § 1357(a) which suggests that Congress intended to authorize the Border Patrol to stop any car in motion within 100 miles of a border. See H.R.Rep. No. 186, 79th Cong., 1st Sess., 2 (1945); S.Rep. No. 632, 79th Cong., 1st Sess., 2 (1945). See also United States v. Almeida-Sanchez, 452 F.2d 459, 465 (CA9 1971) (Browning, J., dissenting):

The more reasonable interpretation of a statute of this sort is not that it defines a constitutional standard of reasonableness for searches by the government agents to whom it applies, but rather that it delegates authority to be exercised by those agents in accordance with constitutional limitations. . . . The statute authorizes the officers to conduct such searches -- and a search within the statute’s terms is not illegal as beyond the officer’s statutory authority. But a search within the literal language of the [statute] is nonetheless barred if it violates the Fourth Amendment. See, e.g., Boyd v. United States, 116 U.S. 616 . . . (1886).

3. In Cervantes, the court said:

The government . . . appears to accept appellant’s proposition that the reasonableness of a search made of an automobile on the highway and its driver depends upon a showing of probable cause. . . . That this is the proper test of the reasonableness of such a search, see Carroll v. United States, supra, 267 U.S. at pages 155-156. . . .

263 F.2d at 803, and n. 4. Despite this general language, Cervantes was later summarily distinguished as applying only to searches for contraband, and not to searches for aliens. Fumagalli v. United States, 429 F.2d at 1013. No attempt was ever made to explain how a search for aliens could be distinguished under Carroll from a search for contraband. See United States v. Almeida-Sanchez, 452 F.2d at 464 (Browning, J., dissenting).

4. Title 19 U.S.C. § 482 provides in pertinent part:

Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, . . . or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law. . . .

In order to avoid conflict between this statute and the Fourth Amendment, the statutory language has been restricted by the courts to "border searches."

United States v. Weil, 432 F.2d 1320, 1323 (CA9 1970).

5. Most cases where the Court has ordained prospective application of a new rule of criminal procedure have involved decisions which explicitly overruled a previous decision of this Court. See Linkletter v. Walker, 381 U.S. 618 (1965), involving the retroactivity of Mapp v. Ohio, 367 U.S. 643 (1961), which had overruled Wolf v. Colorado, 338 U.S. 25 (1949); Williams v. United States, 401 U.S. 646 (1971), involving the retroactivity of Chimel v. California, 395 U.S. 752 (1969), which overruled United States v. Rabinowitz, 339 U.S. 56 (1950), and Harris v. United States, 331 U.S. 145 (1947); Fuller v. Alaska, 393 U.S. 80 (1968) (per curiam), involving the retroactivity of Lee v. Florida, 392 U.S. 378 (1968),which overruled Schwartz v. Texas, 344 U.S. 199 (1952); Desist v. United States, 394 U.S. 244 (1969), involving the retroactivity of Katz v. United States, 389 U.S. 347 (1967), which specifically rejected Goldman v. United States, 316 U.S. 129 (1942), and Olmstead v. United States, 277 U.S. 438 (1928); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966), involving the retroactivity of Griffin v. California, 380 U.S. 609 (1965), which overruled Twining v. New Jersey, 211 U.S. 78 (1908); Daniel v. Louisiana, 420 U.S. 31 (1975), involving the retroactivity of Taylor v. Louisiana, 419 U.S. 522 (1975), which specifically disapproved Hoyt v. Florida, 368 U.S. 57 (1961).

In other instances, the practice recently disapproved had, at least arguably, been sanctioned previously by this Court. See Johnson v. New Jersey, 384 U.S. 719, 731 (1966); Gosa v. Mayden, 413 U.S. 665, 673 (1973) (opinion of BLACKMUN, J.); Adams v. Illinois, 405 U.S. 278 (1972).

Finally, in another group of cases, the rule applied prospectively was merely a prophylactic one, designed by this Court to protect underlying rights already announced and applicable retroactively. See Halliday v. United States, 394 U.S. 831 (1969) (per curiam); Stovall v. Denno, 388 U.S. 293 (1967); Michigan v. Payne, 412 U.S. 47 (1973).

6. Of course, we have always given the benefit of a criminal procedure decision to the defendant in whose case the principle was announced. See Stovall v. Denno, supra at 301.

7. I continue to believe that Mr. Justice Harlan and Mr. Justice Fortas were in error in Desist itself, because Katz v. United States, supra, did overrule clear past precedent of this Court. But I think that the prophecy of horrors by the dissenters in Desist has, with the Court’s opinion today, come true.

8. See also Michigan v. Tucker, 417 U.S. 433, 453 n. 26 (1974):

Under the framework of the analysis established in Linkletter, supra, and in subsequent cases, it would seem indispensable to understand the basis for a constitutional holding of the Court in order to later determine whether that holding should be retroactive.

9. The exclusionary rule in federal cases has roots that antedate even Weeks. Twenty-eight years before that decision, in Boyd v. United States, 116 U.S. 616 (1886), the Court held that the admission into evidence of papers acquired by the Government in violation of the Fourth Amendment was unconstitutional. Id. at 638.

10. I emphasize that this is a federal criminal case, and that the exclusionary rule issue comes to us on direct review. Thus, neither Mapp v. Ohio, 367 U.S. 643 (1961), applying the Fourth Amendment exclusionary rule to the States, nor Kaufman v. United States, 394 U.S. 217 (1969), permitting Fourth Amendment exclusionary rule issues to be raised for the first time in collateral proceedings, is here involved. While abandonment of both Mapp and Kaufman has at times been advocated, no Justice has intimated that Weeks should also be overruled, at least in the absence of suitable and efficacious substitute remedies. See, on Mapp, Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (Harlan, J., concurring); id. at 492 (BURGER, C.J., dissenting in part and concurring in part); id. at 493 (Black, J., concurring and dissenting); id. at 510 (statement of BLACKMUN, J.); on Kaufman, see Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973) (POWELL, J., joined by BURGER, C.J., and REHNQUIST, J., concurring); see also, id. at 249 (BLACKMUN, J., concurring). But see, on Weeks, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 420-421 (1971) (BURGER, C.J., dissenting); Schneckloth, supra, at 267-268, n. 25 (POWELL, J., concurring).

11. Wolf v. Colorado, 338 U.S. 25, 28 (1949), summarized Weeks as follows:

In Weeks v. United States, supra, this Court held that, in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.

(Emphasis added.) Elkins v. United States, 364 U.S. 206, 212-213 (1960), again confirmed the Weeks rule,

[e]vidence which had been seized by federal officers in violation of the Fourth Amendment [can]not be used in a federal criminal prosecution

(emphasis added), and expanded it to cover

evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment,

id. at 223 (emphasis added); see also id. at 222. Similarly, Ker v. California, 374 U.S. 23, 30 (1963), stated that the exclusionary rule

forbids the Federal Government to convict a man of crime by using testimony or papers obtained from him by unreasonable searches and seizures as defined in the Fourth Amendment

(emphasis supplied); see also id. at 34. Thus, the test whether evidence should be suppressed in federal court has always been solely whether the Fourth Amendment prohibition against "unreasonable" searches and seizures was violated, nothing more and nothing less. See also, e.g., Alderman v. United States, 394 U.S. 165, 176 (1969); United States v. Calandra, 414 U.S. 338, 347 (1974).

12. To be sure, the very vagueness of the intimated reformulation as articulated today leaves unclear exactly what showing demonstrates that a law enforcement officer "may properly be charged with knowledge, that the search was unconstitutional." In this case, for example, could the Border Patrol, a national organization, have been charged with knowledge of the unconstitutionality of an Almeida-Sanchez type search if the courts of appeals were in clear conflict on whether probable cause was required?

13. It is gratifying that the Court at least verbally restores to exclusionary rule analysis this consideration, which, for me, is the core value served by the exclusionary rule. See Harris v. New York, 401 U.S. 222, 231-232 (1971) (BRENNAN, J., dissenting); United States v. Calandra, supra at 355 (BRENNAN, J., dissenting). But the Court’s treatment of this factor is wholly unsatisfactory. See id. at 359-360 (BRENNAN, J., dissenting). I need discuss the question no further, however, since the Court merges the "imperative of judicial integrity" into its deterrence rationale, ante at 538, and then ignores the imperative when it applies its new theory to the facts of this case, seePart II of the Court’s opinion. Rather, I show in the text that, on the Court’s own deterrence rationale alone, today’s suggested reformulation would be a disaster.

14. Angelet v. Fay, 381 U.S. 654 (1965), declined to decide whether Mapp v. Ohio, 367 U.S. 643 (1961), would bar federal agents from testifying in a state court concerning illegally obtained evidence, because Mapp was held in Linkletter v. Walker, 381 U.S. 68 (1965), to be nonretroactive. Somewhat similarly, Michigan v. Tucker, 417 U.S. 433 (1974), refused to decide whether Miranda v. Arizona, 384 U.S. 436 (1966), applies to exclude the testimony of a witness discovered as a result of a statement given after incomplete Miranda warnings, because the interrogation in Tucker occurred before Miranda.See also Michigan v. Payne, 412 U.S. at 49-50, n. 3. Thus, there is clear precedent for avoiding decision of a constitutional issue raised by police behavior when, in any event, the evidence was admissible in the particular case at bar.

15. Critics of the exclusionary rule emphasize that, in actual operation, law enforcement officials are rarely reprimanded, discharged, or otherwise disciplined when evidence is excluded at trial for search and seizure violations. While this fact, to the extent it is true, may limit the efficacy of the exclusionary rule, it does not, for the reasons stated in the text, prove it useless. Suggestions are emerging for tailoring the exclusionary rule to the adoption and enforcement of regulations and training procedures concerning searches and seizures by law enforcement agencies. Amsterdam 409 et seq.; Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027, 1050 et seq. (1974). Today’s approach, rather than advancing this goal, would diminish the incentive for law enforcement agencies to train and supervise subordinate officers. See id. at 1044. At any rate, to the extent law enforcement agencies do visit upon individual employees consequences for conducting searches and seizures which are later held illegal, the agencies can be expected to take account of the degree of departure from existing norms as elucidated in court decisions. Thus, there is no need for the courts to adjust the exclusionary rule in order to assure fairness to individual officials or to promote decisiveness.

16. See also Amsterdam 431:

The common focus on the concept of "deterrence" in the debate over the exclusionary rule can be quite misleading. It suggests that the police have a God-given inclination to commit unconstitutional searches and seizures unless they are "deterred" from that behavior. Once this assumption is indulged, it is easy enough to criticize the rule excluding unconstitutionally obtained evidence on the ground that it "does not apply any direct sanction to the individual officer whose illegal conduct results in the exclusion," and so cannot "deter" him. But no one, to my knowledge, has ever urged that the exclusionary rule is supportable on this principle of "deterrence." It is not supposed to "deter" in the fashion of the law of larceny, for example, by threatening punishment to him who steals a television set -- a theory of deterrence, by the way, whose lack of empirical justification makes the exclusionary rule look as solid by comparison as the law of gravity.

17. See also Oaks 711:

"The act is branded as reprehensible by authorized organs of society," Andenaes states, "and this official branding of the conduct may influence attitudes quite apart from the fear of sanctions." The existence and imposition of a sanction reinforces the rule and underlines the importance of observing it. The principle is directly applicable to the exclusionary rule. The salient defect in the rule of Wolf v. Colorado was the difficulty of persuading anyone that the guarantees of the fourth amendment were seriously intended and important when there was no sanction whatever for their violation. As a visible expression of social disapproval for the violation of these guarantees, the exclusionary rule makes the guarantee of the fourth amendment credible. Its example teaches the importance attached to observing them.

18. I assume that the Court’s statement that "the purpose of the exclusionary rule is to deter unlawful police conduct," ante at 542, does not imply that deterrence can work only at the level of the individual officers on the scene, nor suggest that, under its approach, only the knowledge, real or constructive, of the official conducting the search is relevant. Fourth Amendment violations become more, not less, reprehensible when they are the product of Government policy, rather than an individual policeman’s errors of judgment. See Alderman v. United States, 394 U.S. at 203 (Fortas, J., concurring in part and dissenting in part).

[T]he Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under legislative or judicial sanction. This protection is equally extended to the action of the Government and officers of the law acting under it. . . .

Weeks v. United States, 232 U.S. 383, 394 (1914). (Emphasis supplied.) Obviously, any rule intended to prevent Fourth Amendment violations must operate not only upon individual law enforcement officers but also upon those who set policy for them and approve their actions. Otherwise, for example, evidence derived from any search under a warrant could be admissible, because the searching policeman, having had a warrant approved by the designated judicial officer, had every reason to believe the warrant valid. Certainly the Court can intend no such result, and would have lower courts inquire into the frame of mind, actual and constructive, of all officials whose actions were relevant to the search.

19. See supra at 545, and n. 2.

20. In addition, adding "one more factfinding operation, and an especially difficult one to administer, to those already required of [the] lower judiciary" could add a factor of discretion to the operation of the exclusionary rule impossible for the appellate courts effectively to control. Kaplan, supra,n. 15, at 1045.

21. Indeed, Congress in recent years has declined to take steps somewhat similar to those now proposed. See Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681, 694-696 (1974).

22. For example, the modification of the exclusionary rule most discussed recently has been that in the ALI Model Code of Pre-Arraignment Procedure § 290.2(2) (Prop.Off.Draft No. 1, 1972). See Bivens, 403 U.S. at 424 (Appendix to opinion of BURGER, C.J., dissenting); Canon, supra,n. 21, at 694-696. While the ALI proposal raises many of the same questions I have outlined above, it differs substantially from the Court’s proposed approach, since it tales into account many factors besides "(c) the extent to which the violation was willful."