|United States v. Leon
[ White ]
[ Blackmun ]
[ Brennan ]
[ Stevens ]
United States v. Leon
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE STEVENS, concurring in the judgment in No. 82963, post, p. 981, and dissenting in No. 82-1771.
It is appropriate to begin with the plain language of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Court assumes that the searches in these cases violated the Fourth Amendment, yet refuses to apply the exclusionary rule because the Court concludes that it was "reasonable" for the police to conduct them. In my opinion, an official search and seizure cannot be both "unreasonable" and "reasonable" at the same time. The doctrinal vice in the Court's holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures, and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable, [n1] [p961] and that there are only a few carefully delineated exceptions to that basic presumption. [n2] But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not "unreasonable" within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless "reasonable" within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable.
In No. 82-963, the Supreme Judicial Court of Massachusetts determined that a warrant which purported to authorize a search of respondent's home had been issued in violation of the Warrant Clause. In its haste to make new law, this Court does not tarry to consider this holding. Yet, as I will demonstrate, this holding is clearly wrong; I would reverse the judgment on that ground alone.
In No. 82-1771, there is also a substantial question whether the warrant complied with the Fourth Amendment. There was a strong dissent on the probable cause issue when Leon was before the Court of Appeals, and that dissent has been given added force by this Court's intervening decision in Illinois v. Gates, 462 U.S. 213 (1983), which constituted a significant development in the law. It is probable, though admittedly not certain, that the Court of Appeals would now conclude that the warrant in Leon satisfied the Fourth Amendment if it were given the opportunity to reconsider the issue in the light of Gates. Adherence to our normal [p962] practice following the announcement of a new rule would therefore postpone, and probably obviate, the need for the promulgation of the broad new rule the Court announces today. [n3]
It is, of course, disturbing that the Court chooses one case in which there was no violation of the Fourth Amendment, and another in which there is grave doubt on the question, in order to promulgate a "good faith" exception to the Fourth Amendment's exclusionary rule. The Court's explanation for its failure to decide the merits of the Fourth Amendment question in No. 82-963 is that it "is a fact-bound issue of little importance," Massachusetts v. Sheppard, post at 988, n. 5. In No. 82-1771, the Court acknowledges that the case could be remanded to the Court of Appeals for reconsideration in light of Gates, yet does not bother to explain why it fails to do so except to note that it is "within our power" to decide the broader question in the case. United States v. Leon, ante at 905. The Court seems determined to decide these cases on the broadest possible grounds; such determination is utterly at odds with the Court's traditional practice, as well as any principled notion of judicial restraint. Decisions made in this manner are unlikely to withstand the test of time.
Judges, more than most, should understand the value of adherence to settled procedures. By adopting a set of fair procedures, and then adhering to them, courts of law ensure that justice is administered with an even hand.
These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice.
Offutt v. United States, 348 U.S. 11, 14 (1954). Of course, this Court has a duty to face questions of constitutional law when necessary to the disposition of an actual case or controversy. Marbury v. Madison, 1 Cranch [p963] 137, 177 (1803). But when the Court goes beyond what is necessary to decide the case before it, it can only encourage the perception that it is pursuing its own notions of wise social policy, rather than adhering to its judicial role. I do not believe the Court should reach out to decide what is undoubtedly a profound question concerning the administration of criminal justice before assuring itself that this question is actually and of necessity presented by the concrete facts before the Court. Although it may appear that the Court's broad holding will serve the public interest in enforcing obedience to the rule of law, for my part, I remain firmly convinced that "the preservation of order in our communities will be best ensured by adherence to established and respected procedures." Groppi v. Leslie, 436 F.2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting), rev'd, 404 U.S. 496 (1972).
In No. 82-963, there is no contention that the police officers did not receive appropriate judicial authorization for their search of respondent's residence. A neutral and detached judicial officer had correctly determined that there was probable cause to conduct a search. Nevertheless, the Supreme Judicial Court suppressed the fruits of the search because the warrant did not particularly describe the place to be searched and the things to be seized.
The particularity requirement of the Fourth Amendment has a manifest purpose -- to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search is carefully tailored to its justification, and does not resemble the wide-ranging general searches that the Framers intended to prohibit. [n4] In this [p964] case the warrant did not come close to authorizing a general search. [n5]
The affidavit supporting the application for the warrant correctly identified the things to be seized, and on its face the affidavit indicated that it had been presented to the judge who had issued the warrant. [n6] Both the police officers and the judge were fully aware of the contents of the affidavit, and therefore knew precisely what the officers were authorized to search for. Since the affidavit was available for after-the-fact review, the Massachusetts courts could readily ascertain the limits of the officers' authority under the warrant. In short, the judge who issued the warrant, the police officers who executed it, and the reviewing courts all were able easily to ascertain the precise scope of the authorization provided by the warrant.
All that our cases require is that a warrant contain a description sufficient to enable the officers who execute it to ascertain with reasonable effort where they are to search and what they are to seize. [n7] The test is whether the executing officers' discretion has been limited in a way that forbids a general search. [n8] Here there was no question that the [p965] executing officers' discretion had been limited -- they, as well as the reviewing courts, knew the precise limits of their authorization. There was simply no "occasion or opportunity for officers to rummage at large," Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978). [n9]
The only Fourth Amendment interest that is arguably implicated by the "defect" in the warrant is the citizen's interest in being able to ascertain the limits of the officers' authorization by examining the warrant. [n10] Respondent, however, was not home at the time the warrant was executed, and therefore had no occasion to see the warrant. The two persons who were present when the warrant was executed, respondent's mother and sister, did not read the warrant or ask to have it read.
[T]he general rule [is] that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.
Alderman v. United States, 394 U.S. 165, 174 (1969). Thus, respondent, who has standing to assert only his own Fourth Amendment interests, [n11] cannot complain that his interest in ascertaining the limits of the officers' authority under the search warrant was infringed. [n12] In short, our [p966] precedents construing the particularity requirement of the Warrant Clause unambiguously demonstrate that this warrant did not violate the Fourth Amendment.
Even if it be assumed that there was a technical violation of the particularity requirement in No. 82-963, it by no means follows that the "warrantless" search in that case was "unreasonable" within the meaning of the Fourth Amendment. For this search posed none of the dangers to which the Fourth Amendment is addressed. It was justified by a neutral magistrate's determination of probable cause, and created no risk of a general search. It was eminently "reasonable."
In No. 82-1771, however, the Government now admits -- at least for the tactical purpose of achieving what it regards as a greater benefit -- that the substance, as well as the letter, of the Fourth Amendment was violated. The Court therefore assumes that the warrant in that case was not supported by probable cause, but refuses to suppress the evidence obtained thereby because it considers the police conduct to satisfy a "newfangled" nonconstitutional standard of reasonableness. [n13] Yet if the Court's assumption is correct -- if there was no probable cause -- it must follow that it was "unreasonable" [p967] for the authorities to make unheralded entries into and searches of private dwellings and automobiles. The Court's conclusion that such searches undertaken without probable cause can nevertheless be "reasonable" is totally without support in our Fourth Amendment jurisprudence.
Just last Term, the Court explained what probable cause to issue a warrant means:
The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and the "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. at 238. Moreover, in evaluating the existence of probable cause, reviewing courts must give substantial deference to the magistrate's determination. [n14] In doubtful cases, the warrant [p968] should be sustained. [n15] The judgment as to whether there is probable cause must be made in a practical and nontechnical manner. [n16] The probable cause standard therefore gives law enforcement officers ample room to engage in any reasonable law enforcement activity. What is more, the standard has been familiar to the law enforcement profession for centuries. [n17] In an opinion written in 1949, and endorsed by the Court last Term in Gates, we explained:
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.
Brinegar v. United States, 338 U.S. 160, 176.
Thus, if the majority's assumption is correct, that even after paying heavy deference to the magistrate's finding and resolving all doubt in its favor, there is no probable cause here, then by definition -- as a matter of constitutional law -- [p969] the officers' conduct was unreasonable. [n18] The Court's own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct. [n19]
The majority's contrary conclusion rests on the notion that it must be reasonable for a police officer to rely on a magistrate's finding. Until today, that has plainly not been the law; it has been well settled that, even when a magistrate issues a warrant, there is no guarantee that the ensuing search and seizure is constitutionally reasonable. Law enforcement officers have long been on notice that, despite the magistrate's decision, a warrant will be invalidated if the officers did not provide sufficient facts to enable the magistrate to evaluate the existence of probable cause responsibly and independently. [n20] Reviewing courts have always inquired into whether the magistrate acted properly in issuing the warrant -- not merely whether the officers acted properly in executing it. See Jones v. United States, 362 U.S. 257, 271-272 (1960). [n21] Indeed, just last Term, in Gates, after noting [p970] that
"the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for conclud[ing]' that probable cause existed,"
462 U.S. at 238-239 (quoting Jones, 362 U.S. at 271), the Court added:
Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.
462 U.S. at 239. [n22]
Thus, under our cases, it has never been "reasonable" for the police to rely on the mere fact that a warrant has issued; the police have always known that, if they fail to supply the magistrate with sufficient information, the warrant will be held invalid, and its fruits excluded. [n23]
The notion that a police officer's reliance on a magistrate's warrant is automatically appropriate is one the Framers of [p971] the Fourth Amendment would have vehemently rejected. The precise problem that the Amendment was intended to address was the unreasonable issuance of warrants. As we have often observed, the Amendment was actually motivated by the practice of issuing general warrants -- warrants which did not satisfy the particularity and probable cause requirements. [n24] The resentments which led to the Amendment were directed at the issuance of warrants unjustified by particularized evidence of wrongdoing. [n25] Those who sought to amend the Constitution to include a Bill of Rights repeatedly voiced the view that the evil which had to be addressed was the issuance of warrants on insufficient evidence. [n26] As Professor Taylor has written: [p972]
[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches. . . .
T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).
In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds, the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct "reasonable." The Court's view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia. [n27]
In Brinegar, Justice Jackson, after observing that
[i]ndications are not wanting that Fourth Amendment freedoms are tacitly marked as secondary rights, to be relegated to a deferred position,
338 U.S. at 180 (dissenting opinion), continued:
These, I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and [p973] seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
* * * *
Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.
Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman.
Id. at 180-181. Justice Jackson's reference to his experience at Nuremberg should remind us of the importance of considering the consequences of today's decision for "Everyman."
Its purpose is to deter -- to compel [p974] respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it.
Elkins v. United States, 364 U.S. 206, 217 (1960). [n29] If the police cannot use evidence obtained through warrants issued on less than probable cause, they have less incentive to seek those warrants, and magistrates have less incentive to issue them.
Today's decisions do grave damage to that deterrent function. Under the majority's new rule, even when the police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait. No longer must they hesitate and seek additional evidence in doubtful cases. Thus, what we [p975] said two Terms ago about a rule that would prevent exclusion except in cases in which the authorities violate well-settled law applies fully to the rule the Court adopts today:
If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would "encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach."
The Court is, of course, correct that the exclusionary rule cannot deter when the authorities have no reason to know that their conduct is unconstitutional. But when probable cause is lacking, then by definition a reasonable person under the circumstances would not believe there is a fair likelihood that a search will produce evidence of a crime. Under such circumstances, well-trained professionals must know that they are violating the Constitution. The Court's approach -- [p976] which, in effect, encourages the police to seek a warrant even if they know the existence of probable cause is doubtful -- can only lead to an increased number of constitutional violations.
Thus, the Court's creation of a double standard of reasonableness inevitably must erode the deterrence rationale that still supports the exclusionary rule. But we should not ignore the way it tarnishes the role of the judiciary in enforcing the Constitution. For the original rationale for the exclusionary rule retains its force as well as its relevance:
The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional [p977] rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . .
Terry v. Ohio, 392 U.S. 1, 13 (1968). [n32] As the Court correctly notes, [n33] we have refused to apply the exclusionary rule to collateral contexts in which its marginal efficacy is questionable; until today, however, every time the police have violated the applicable commands of the Fourth Amendment a court has been prepared to vindicate that Amendment by preventing the use of evidence so obtained in the prosecution's case in chief against those whose rights have been violated. [n34] Today, for the first time, this Court holds that, although the Constitution has been violated, no court should do anything about it at any time and in any proceeding. [n35] In my judgment, [p978] the Constitution requires more. Courts simply cannot escape their responsibility for redressing constitutional violations if they admit evidence obtained through unreasonable searches and seizures, since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial. If such evidence is admitted, then the courts become not merely the final and necessary link in an unconstitutional chain of events, but its actual motivating force.
If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.
Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting). Nor should we so easily concede the existence of a constitutional violation for which there is no remedy. [n36] To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy. [n37] If the Court's new rule is to be followed, the Bill of Rights should be renamed. [p979]
It is, of course, true that the exclusionary rule exerts a high price -- the loss of probative evidence of guilt. But that price is one courts have often been required to pay to serve important social goals. [n38] That price is also one the Fourth Amendment requires us to pay, assuming as we must that the Framers intended that its strictures "shall not be violated." For in all such cases, as Justice Stewart has observed,
the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. [n39]
[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught.
We could, of course, facilitate the process of administering justice to those who violate the criminal laws by ignoring the commands of the Fourth Amendment -- indeed, by ignoring [p980] the entire Bill of Rights -- but it is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency. In a just society, those who govern, as well as those who are governed, must obey the law.
While I concur in the Court's judgment in No. 82-963, I would vacate the judgment in No. 82-1771 and remand the case to the Court of Appeals for reconsideration in the light of Gates. Accordingly, I respectfully dissent from the disposition in No. 82-1771.
1. See, e.g., Payton v. New York, 445 U.S. 573, 586 (1980); Chimel v. California, 395 U.S. 752, 762-763 (1969).
2. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971); Vale v. Louisiana, 399 U.S. 30 (1970).
3. In his petition for certiorari in Leon, the Solicitor General did not seek plenary review, but only that the petition "be disposed of as appropriate in light of the Court's decision in Illinois v. Gates," Pet. for Cert. in United States v. Leon, No. 82-1771, p. 10.
4. See Andresen v. Maryland, 427 U.S. 463, 480 (1976); Stanley v. Georgia, 394 U.S. 557, 569-572 (1969) (Stewart, J., concurring in result); Stanford v. Texas, 379 U.S. 476, 481-482, 485 (1965); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931); Marron v. United States, 275 U.S. 192, 195-196 (1927).
5. Indeed, the "defect" in the warrant was that it authorized -- albeit mistakenly -- a search for quite particular "things to be seized," controlled substances, rather than the evidence described in the affidavit supporting the warrant application. This "defect" posed no risk of a general search. On its face, the warrant correctly identified the place to be searched. Thus, the threshold invasion of privacy -- entry into respondent's home -- was properly and specifically authorized. Moreover, the four corners of the warrant plainly indicate that it was not intended to authorize a search for controlled substances. On the cover of the warrant the caption "Controlled Substances" had been crossed out, and an "addendum" to the warrant authorized a search for and seizure of a rifle and ammunition, indicating that the warrant was not limited to controlled substances.
6. The issuing judge attested to the affiant's signature on the affidavit.
7. See Steele v. United States, 267 U.S. 498, 503 (1925).
8. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979); Andresen v. Maryland, 427 U.S. at 480-482; Marcus v. Search Warrant, 367 U.S. 717, 732-733 (1961).
9. See also Coolidge v. New Hampshire, 403 U.S. at 467.
10. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. Chadwick, 433 U.S. 1, 9 (1977); Camara v. Municipal Court, 387 U.S. 523, 532 (1967).
11. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104-106 (1980); Rakas v. Illinois, 439 U.S. 128 (1978).
12. Even if respondent had standing to assert his right to be able to ascertain the officers' authority from the four corners of the warrant, it is doubtful that he could succeed. On its face, the warrant authorized a search of respondent's residence, "42 Deckard Street." Had respondent read the warrant, he would have had no reason to question the officers' right to enter the premises. Moreover, the face of the warrant indicated that the caption "Controlled Substances" had been stricken, and at the bottom of the warrant an addendum authorized the search for and seizure of a rifle and ammunition. The supporting affidavit, which the police had with them when they executed the warrant, and which was attested by the same judge who had issued the warrant, described in detail the items which the police were authorized to search for and to seize.
13. I borrow the adjective from Justice Clark, who so characterized the warrants authorized by the Court in Camara v. Municipal Court, 387 U.S. 523 (1967), but not authorized by the Constitution itself. In an opinion joined by Justice Harlan and Justice Stewart, he wrote:
Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. Maryland [359 U.S. 360 (1959)] and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people.
But this is not all. It prostitutes the command of the Fourth Amendment that "no Warrants shall issue, but upon probable cause" and sets up in the health and safety codes area inspection a newfangled "warrant" system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop.
See v. City of Seattle, 387 U.S. 541, 547 (1967) (dissenting in both Camara and See).
The kind of doctrinal difficulties in the two lines of cases engendered by the Court's creation of a newfangled warrant, compare Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), with Donovan v. Dewey, 452 U.S. 594 (1981), can be expected to grow out of the Court's creation of a new double standard of reasonableness today. Ironically, as I have previously suggested, the failure to consider both Clauses of the Amendment infects both lines of decision. See Michigan v. Clifford, 464 U.S. 287, 301-303 (1984) (STEVENS, J., concurring in judgment); Dewey, 452 U.S. at 606-608 (STEVENS, J., concurring); Michigan v. Tyler, 436 U.S. 499, 513 (1978) (STEVENS, J., concurring in part and concurring in judgment); Barlow's, 436 U.S. at 325-339 (STEVENS J., dissenting).
14. See Massachusetts v. Upton, 466 U.S. 727, 732-733 (1984) (per curiam); Illinois v. Gates, 462 U.S. at 236; United States v. Harris, 403 U.S. 573, 577-583 (1971) (plurality opinion); Spinelli v. United States, 393 U.S. 410, 419 (1969); Aguilar v. Texas, 378 U.S. 108, 111 (1964); Jones v. United States, 362 U.S. 257, 271 (1960).
15. See Illinois v. Gates, 462 U.S. at 237, n. 10; United States v. Ventresca, 380 U.S. 102, 109 (1965).
16. See Massachusetts v. Upton, 466 U.S. at 732 (per curiam); Illinois v. Gates, 462 U.S. at 231; United States v. Ventresca, 380 U.S. at 108.
17. See, e.g., 2 M. Hale, Pleas of the Crown 150 (1st Am. ed. 1847).
[I]f nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable cause requirement is not satisfied. In the absence of some other showing of reasonableness, the ensuing search violates the Fourth Amendment.
Zurcher v. Stanford Daily, 436 U.S. 547, 583 (1978) (STEVENS, J., dissenting).
19. As the majority recognizes, United States v. Leon, ante at 915, n. 13, an officer's good faith cannot make otherwise "unreasonable" conduct reasonable. See Terry v. Ohio, 392 U.S. 1, 22 (1968); Beck v. Ohio, 379 U.S. 89, 97 (1964); Henry v. United States, 361 U.S. 98, 102 (1959). The majority's failure to appreciate the significance of that recognition is inexplicable.
20. See Franks v. Delaware, 438 U.S. 154, 165, 169-170 (1978), Whiteley v. Warden, 401 U.S. 560, 564 (1971); Spinelli v. United States, 393 U.S. at 415-416; United States v. Ventresca, 380 U.S. at 108-109; Aguilar v. Texas, 378 U.S. at 113-115; Nathanson v. United States, 290 U.S. 41 (1933); Byars v. United States, 273 U.S. 28 (1927).
21. In making this point in Franks v. Delaware, 438 U.S. 154 (1978), JUSTICE BLACKMUN wrote for the Court:
We see no principled basis for distinguishing between the question of the sufficiency of an affidavit, which is also subject to a post-search examination, and the question of its integrity.
Id. at 171. Yet today the Court justifies its holding in part by distinguishing veracity claims, United States v. Leon, ante at 922-923, thereby distinguishing what we previously held could not be distinguished on a principled basis. Just why it should be less reasonable for an innocent officer to rely on a warrant obtained by another officer's fraud than for him to rely on a warrant that is not supported by probable cause is entirely unclear to me.
22. Judicial review of magisterial determinations is all the more necessary since the magistrate acts without benefit of adversarial presentation; his determination partakes of the unreliability inherent in any ex parte proceeding. See Franks v. Delaware, 438 U.S. at 169.
23. The majority seems to be captivated by a vision of courts invalidating perfectly reasonable police conduct because of "technical" violations of the Fourth Amendment. In my view, there is no such thing as a "technical" violation of the Fourth Amendment. No search or seizure can be unconstitutional unless it is "unreasonable." By definition, a Fourth Amendment violation cannot be reasonable. My analysis of No. 82-963 illustrates this point.
24. See, e.g., Steagald v. United States, 451 U.S. 204, 220 (1981); Payton v. New York, 445 U.S. at 583-584; Lo-Ji Sales, Inc. v. New York, 442 U.S. at 325; Marshall v. Barlow's, Inc., 436 U.S. at 327-328 (STEVENS, J., dissenting); United States v. Chadwick, 433 U.S. at 7-8; Chimel v. California, 395 U.S. at 760-762; Stanford v. Texas, 379 U.S. at 480-485; Marcus v. Search Warrant, 367 U.S. at 727-729; Henry v. United States, 361 U.S. at 100-101; Frank v. Maryland, 359 U.S. 360, 363-365 (1959); United States v. Rabinowitz, 339 U.S. 56, 69-70 (1950) (Frankfurter, J., dissenting); Marron v. United States, 275 U.S. at 195-196; Weeks v. United States, 232 U.S. 383, 390-391 (1914); Boyd v. United States, 116 U.S. 616, 624-630 (1886).
25. See J. Landynski, Search and Seizure and the Supreme Court 19-47 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 53-98 (1937); R. Rutland, The Birth of the Bill of Rights 11 (rev. ed.1983); Marke, The Writs of Assistance Case and the Fourth Amendment, in Essays in Legal History in Honor of Felix Frankfurter 351 (M. Forkosch ed.1966).
26. See 1 The Bill of Rights: A Documentary History 473, 488-489, 508 (B. Schwartz ed.1971); 2 id. at 658, 665, 730, 733-734, 805-806, 815, 841-842, 913, 968. In fact, the original version of the Fourth Amendment contained only one clause providing that the right to be protected against unreasonable searches and seizures "shall not be violated by warrants issuing. . . ." The change to its present form broadened the coverage of the Amendment, but did not qualify the unequivocal prohibition against the issuance of warrants without probable cause. See 2 id. at 1112; N. Lasson, supra, n. 25, at 101-103.
It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.
United States v. Rabinowitz, 339 U.S. at 69 (Frankfurter, J., dissenting).
28. For at least two reasons, the exclusionary rule is a better remedy than a civil action against an offending officer. Unlike the fear of personal liability, it should not create excessive deterrence; moreover, it avoids the obvious unfairness of subjecting the dedicated officer to the risk of monetary liability for a misstep while endeavoring to enforce the law. Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work. What THE CHIEF JUSTICE wrote, some two decades ago, remains true today:
It is the proud claim of a democratic society that the people are masters and all officials of the state are servants of the people. That being so, the ancient rule of respondeat superior furnishes us with a simple, direct and reasonable basis for refusing to admit evidence secured in violation of constitutional or statutory provisions. Since the policeman is society's servant, his acts in the execution of his duty are attributable to the master or employer. Society as a whole is thus responsible, and society is "penalized" by refusing it the benefit of evidence secured by the illegal action. This satisfies me more than the other explanations because it seems to me that society -- in a country like ours -- is involved in and is responsible for what is done in its name and by its agents. Unlike the Germans of the 1930's and early '40's, we cannot say "it is all The Leader's doing. I am not responsible." In a representative democracy, we are responsible, whether we like it or not. And so each of us is involved and each is in this sense responsible when a police officer breaks rules of law established for our common protection.
Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1, 14 (1964) (emphasis in original) (footnote omitted).
29. See Stone v. Powell, 428 U.S. 465, 484 (1976); United States v. Janis, 428 U.S. 433, 443, n. 12 (1976); United States v. Calandra, 414 U.S. 338, 347-348 (1974); Terry v. Ohio, 392 U.S. at 29; Tehan v. United States ex rel. Shott, 382 U.S. 406, 413 (1966); Mapp v. Ohio, 367 U.S. 643, 656 (1961).
30. See also LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U.Pitt.L.Rev. 307, 358 (1982); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum.L.Rev. 1365, 1401-1403 (1983); Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am.Crim.L.Rev. 257, 395-397(1984).
31. The Court continued:
The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the things for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and, under color of his office, undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.
232 U.S. at 393-394.
32. See United States v. Peltier, 422 U.S. 531, 536 (1975); Lee v. Florida, 392 U.S. 378, 385-386 (1968); Berger v. New York, 388 U.S. 41, 50 (1967); Mapp v. Ohio, 367 U.S. at 647-650; Byars v. United States, 273 U.S. at 33-34.
33. United States v. Leon, ante at 908-913.
34. Indeed, we have concluded that judicial integrity is not compromised by the refusal to apply the exclusionary rule to collateral contexts precisely because the defendant is able to vindicate his rights in the primary context -- his trial and direct appeal therefrom. See Stone v. Powell, 428 U.S. at 485-486.
35. As the majority recognizes, United States v. Leon, ante at 922-923, and n. 23, in all cases in which its "good faith" exception to the exclusionary rule would operate, there will also be immunity from civil damages. See also United States v. Ross, 456 U.S. 798, 823, n. 32 (1982); Stadium Films, Inc. v. Baillargeon, 542 F.2d 577, 578 (CA1 1976); Madison v. Maner, 441 F.2d 537 (CA1 1971). See generally Pierson v. Ray, 386 U.S. 547 (1967). The Court amazingly suggests that, in some cases in which suppression would not be appropriate, courts should nevertheless adjudicate the merits of Fourth Amendment claims to provide guidance to police and magistrates, but not a remedy. United States v. Leon, ante at 925. Not only is the propriety of deciding constitutional questions in the absence of the strict necessity to do so open to serious question, see Bowen . United States, 422 U.S. 916, 920 (1975), but such a proceeding, in which a court would declare that the Constitution had been violated but that it was unwilling to do anything about it, seems almost a mockery:
[T]he assurance against unreasonable federal searches and seizures would be "a form of words," valueless and undeserving of mention in a perpetual charter of inestimable human liberties.
Mapp v. Ohio, 367 U.S. at 655. See also Segura v. United States, ante at 838-840 (STEVENS, J., dissenting).
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.
Marbury v. Madison, 1 Cranch 137, 163 (1803). See generally Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn.L.Rev. 251, 350-372 (1974).
37. See Stewart, 83 Colum.L.Rev. at 1383-1384 (footnotes omitted) ("In my opinion, however, the framers did not intend the Bill of Rights to be no more than unenforceable guiding principles -- no more than a code of ethics under an honor system. The proscriptions and guarantees in the amendments were intended to create legal rights and duties"). See also Ervin, The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment, 1983 S.Ct.Rev. 283. In fact, if the Constitution of the United States does not compel use of the exclusionary rule, Mapp v. Ohio, 367 U.S. 643 (1961), which the majority does not purport to question, could not have been decided as it was. See id. at 655 ("We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court").
38. The exclusion of probative evidence in order to serve some other policy is by no means unique to the Fourth Amendment. In his famous treatise on evidence, Dean Wigmore devoted an entire volume to such exclusionary rules, which are common in the law of evidence. See 8 J. Wigmore, Evidence (J. McNaughton rev.1961) (discussing, inter alia, marital privilege, attorney-client privilege, communications among jurors, state secrets privilege, physician-patient privilege, priest-penitent privilege).
39. Stewart, 83 Colum.L.Rev. at 1392 (footnote omitted). See also Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 322 ("Ah, but surely the guilty should not go free? However grave the question, it seemed improperly directed at the exclusionary rule. The hard answer is in the United States Constitution, as well as in state constitutions. They make it clear that the guilty would go free if the evidence necessary to convict could only have been obtained illegally, just as they would go free if such evidence were lacking because the police had observed the constitutional restraints upon them").
40. See also United States v. Di Re, 332 U.S. 581, 595 (1948).